Shekhani v Ardino

LEGISLATION CITED: Workers Compensation Act 1987 (NSW)

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 CASES CITED: CSR Limited v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1 Devries v Australia National Railway Commission [1993] HCA 78; (1993) 177 CLR 472 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Johnson v Perez [1988] HCA 64; (1998) 166 CLR 351 Phillips v Bisley & Ors [1997] NSWCA 246

PARTIES: Jowhar Shekhani (Appellant) Rocco Michael Ardino (Respondent)

COUNSEL: S Norton SC; M Fraser (Appellant) D L Williams SC; P S Braham (Respondent)

SOLICITORS: L J Sharpe & Co Lawyers (Appellant) Yeldham Price O'Brien Lusk (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40064/09 DC 729/07

IPP JA BERGIN CJ in Eq HANDLEY AJA 9 November 2009 Jowhar Shekhani v Rocco Michael Ardino Judgment

The appellant's claim for damages 2 This appeal arises out of a claim for damages for professional negligence brought by the appellant against the respondent, a solicitor. According to the appellant he sustained injuries on Sunday, 15 March 1998, when he fell to the ground while cleaning a roof of a school in West Pymble in the course of his employment with Soliman Gilany and Brenda Gilany, trading as Gilany Services. 3 The appellant initiated proceedings for workers' compensation against the workers' compensation insurer of Gilany Services. In the course of his workers' compensation proceedings, the appellant was represented by five firms of solicitors. The respondent was the fourth solicitor retained. The appellant instructed the respondent as set out in para [2] above. 4 On 21 April 2004, the appellant settled the workers' compensation claim against the workers' compensation insurer. At that time, the appellant was represented by Mr Sharpe who was the principal of the fifth set of solicitors who had acted for the appellant in the workers' compensation proceedings. The settlement resulted in the appellant being paid a lump sum of $30,000, as well as costs and out of pocket expenses. 5 In subsequent proceedings brought by the appellant against the respondent in the District Court, the appellant alleged that the respondent had failed to advise him as to his common law rights against Gilany Services. The appellant asserted, that had the respondent advised him of his common law rights, he would have elected to pursue those rights rather than prosecute his claim for workers' compensation. The appellant contended that, in that event, he would have recovered far more than the amount at which he had settled his workers' compensation claim. He claimed that he had suffered damages based on the loss of the chance of successfully prosecuting his claim against Gilany Services for damages at common law. 6 The trial judge, Gibb DCJ, explained: "At the outset of the proceedings the [respondent] appeared to assert that there was no relevant breach of duty. The contest as it unfolded in the Court focused upon the existence or value of the cause of action said to have been lost. [The respondent's] contention may be put bluntly: there was no cause of action of value because the [appellant] did not sustain a work accident." 7 The respondent's contention that the appellant did not sustain a work accident involved denials by the respondent that: (a) On Sunday, 15 March 1998 Gilany Services employed the appellant; (b) The appellant was injured whilst employed by Gilany Services; and (c) The appellant fell from the roof of a school while cleaning it. 8 The respondent contended that the appellant fell from the roof of a friend's residence while repairing the television antenna on the roof at the friend's request. As Gibb DCJ observed, this part of the respondent's defence was based on an allegation that the appellant's claim was fraudulent. 9 The respondent also alleged, as Gibb DCJ stated, that: "[T]he injuries sustained in the fall were not such as to permit a common law finding yielding damages sufficient to better the position achieved by the [workers'] compensation settlement." 10 Gibb DCJ rejected the appellant's version and found his claim to be fraudulent. Additionally, her Honour held that the quantum of the appellant's damages arising out of the injuries he sustained did not exceed the compensation he recovered by way of the settlement of his workers' compensation claim. On both grounds, her Honour dismissed the appellant's claim. The issues on appeal 11 At trial, the appellant gave oral evidence. He called one other witness to give oral evidence in support of his version of the accident, namely, Mr Sulayman Hasan. The respondent called only one witness, Mr Gilany. Her Honour disbelieved the appellant and Mr Hasan and believed Mr Gilany. Certain documents were relevant to the credibility issues that arose, but the decision turned to a significant extent on her Honour's assessment of the credibility of the evidence given orally by the three witnesses who testified. Thus, the well known principles applicable to overturning credibility findings on appeal apply (see cases such as Devries v Australia National Railway Commission [1993] HCA 78; (1993) 177 CLR 472, Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 and CSR Limited v Delia Maddalena [2006] HCA 1; (2006) 224 ALR 1). According to these principles, an appellant will only be able to overturn credibility findings based on demeanour if the trial judge has failed to use or has palpably misused his or her advantage, or if the trial judge has made findings "inconsistent with incontrovertible or incontestable facts" or acted on "glaringly improbable evidence" or made findings "contrary to compelling inferences." 12 Ms Norton SC who, together with Ms Fraser, appeared for the appellant, challenged the primary judge's credibility findings by focusing, largely, on the evidence of Mr Gilany. Ms Norton pointed to what she submitted were errors in the fact finding process that led her Honour, incorrectly, to accept Mr Gilany's testimony. 13 It must be borne in mind, however, that this is not a case where the acceptance of the evidence of one witness depended on the rejection of the evidence of another. In coming to the conclusion that the appellant's claim was fraudulent, Gibb DCJ relied substantially on internal inconsistencies in the appellant's evidence, discrepancies in the versions given by the appellant and his witnesses, and the improbabilities inherent in his version. The point being that her Honour's rejection of the testimony of the appellant did not depend on her acceptance of Mr Gilany's evidence. 14 Thus, although the appellant's arguments on appeal were directed predominately to her Honour's findings regarding the credibility of Mr Gilany, those arguments did not answer her Honour's basic findings that the appellant, and his witness, Mr Hasan, were not to be believed and that their testimony was fraudulent. Her Honour's credibility findings formed an important and independent foundation for her Honour's finding that the appellant's claim was fraudulent. 15 It is therefore appropriate that her Honour's findings as to the credibility of the appellant and Mr Hasan be examined first. The appellant's case as to his employment, his fall and his state of consciousness 16 Mr Gilany (together with his wife) carried on business as a contractor. Early in 1998, he won a contract to clean the roofs and gutters of certain public schools. This meant that, at that time, he had jobs available for roof cleaners. 17 According to the appellant, at about the beginning of March 1998 Mr Gilany employed him to clean roofs and gutters at various schools. He was first sent to Bathurst and after two days he returned to Sydney. He then worked on the roofs and gutters of schools in the Sydney area. He testified that, by 15 March 1998, he had worked for Gilany Services at about 22 to 23 schools. 18 The last school at which the appellant so worked was in West Pymble. He said that, on Sunday, 15 March 1998, he was sweeping and cleaning the roof of the school. He had not been given any safety harness. It was raining "a little bit". As he worked, his hand slipped and he fell off the roof. 19 The evidence as to the time of the fall was contradictory. A note in the file of one of the appellant's former solicitors recorded the time of the accident as being 2:40 pm. The appellant's claim form dated 5 June 1998, submitted to WorkCover, recorded the time of the injury as being 2:40 pm on 14 March 1998. The notes of Liverpool Hospital, where the appellant was treated after the fall, recorded, however, that the time of the injury was 1600 hours on 15 March 1998. 20 According to the appellant, he was rendered unconscious by the fall. His next memory was being in a car driven by one Mr Yassim Barzani. According to the appellant, Mr Yassim Barzani took him to see Dr Habibe at a medical centre in Liverpool. Immediately when Dr Habibe saw the appellant, he said that the appellant should be taken to hospital. Mr Yassim Barzani then took the appellant to Liverpool Hospital where he was admitted as- a patient. The appellant lived near Liverpool and this may have been the reason why he was not taken to a hospital closer to the West Pymble area. No witness explained why the appellant was taken to a hospital so far from what he said was the scene of the accident. 21 The appellant first testified that when he arrived at Liverpool Hospital he could not talk, but later said that he spoke to nurses or doctors when he arrived at the hospital. He said that he told them that he had fallen off the roof of a school. 22 According to the appellant, his head struck concrete when he fell off the roof and became swollen. He said that people had told him afterwards that he was shaking on the ground and white foam was coming out of his mouth. 23 The appellant gave a history of the accident to his psychiatrist, Dr Pettit. According to that history, the appellant fell at 1:35 pm and lost consciousness until 6:00 pm. The appellant told Dr Pettit that observers had told him that he was left lying on the ground from 1:35 pm to 6:00 pm. The appellant told Dr Pettit that he spent at least two days in hospital, his first recollection after the accident being two days later, when he woke up in the morning and was surrounded by doctors and bandaged. The appellant told Dr Pettit on 28 February 2000 that he had a swollen area on the right parietal region of his skull, which he described as being "like eggs". 24 Other medical reports tendered in evidence also recorded histories that the appellant had given. The appellant told Dr Taylor that he had been rendered unconscious by the fall and had woken in hospital. He told Dr Rivett that the fall had rendered him unconscious "until the second day". On a separate occasion, he told Dr Rivett that he was "unconscious for at least 24 hours". He told Dr Rodriguez that he had lost consciousness and had woken up in hospital the following day and, on a separate occasion, told the doctor that he had lost consciousness as a result of the fall and was "in coma for approximately 24 hours". He told Dr Milder that he had suffered a loss of consciousness as a result of his fall. 25 In cross-examination, the appellant repeated that he became unconscious when he fell off the roof but regained consciousness in the car on the way to hospital. He said that when he regained consciousness he was "sort of, very dizzy". He said that this state lasted for about two days. He said that he was unable to speak properly when he got to the hospital. He agreed that he was not unconscious for a day and that it would not be truthful to say that he was unconscious for two days. 26 Mr Hasan testified that the appellant was unconscious after the fall and did not regain consciousness whilst Mr Hasan saw him that day. 27 The appellant tendered the statements of various witnesses, which were admitted into evidence. Other than Mr Hasan, these witnesses were not called to give oral evidence. One of the witnesses, Mr Dler Mustapha said that, after the appellant had fallen from the roof, he was unconscious and had foam around his mouth. Mr Nariman Mostopha said that the appellant was unconscious and water was coming from his mouth and ears. Mr Khaziran Barzani said that the appellant was foaming at the mouth and was unconscious. 28 The Liverpool Hospital notes, dated 15 March 1998, are, however, entirely inconsistent with the evidence of the appellant and his witnesses as to his state of consciousness. 29 The hospital notes of 15 March 1998 relating to the appellant are written in three different sets of handwriting. Page 1 records that there was no loss of consciousness. Another page, in different handwriting, also records no loss of consciousness. Yet another page records the appellant's score on the Glasgow Coma Scale. The assessment was made at 16.45 hrs on 15 March 1998 and attributed maximum alertness to the appellant. 30 One of the elements of the Glasgow Coma Scale is "Verbal Response". The appellant was assessed as "orientated" and given the score of five, that is, the maximum. The appellant also obtained the maximum score of six for the element, "Best Motor Response". The score of six indicates that the appellant obeyed commands. Overall, the appellant was given the maximum score of fifteen out of fifteen. 31 Significantly, the hospital notes of 15 March 1998, while recording other injuries the appellant sustained, made no mention of any head injury. I would add that no mention is made in the appellant's claim form, in the workers' compensation proceedings, of an injury to the head. 32 Gibb DCJ said in regard to this conflict in the evidence: "I prefer the contemporaneous medical records. I find that the [appellant] sustained no injury to his head at all and sustained no loss of consciousness." 33 Her Honour also said: "The remarkable resonance of the descriptions of the [appellant's] unconscious state and foaming at the mouth complete with absence of any injury to the [appellant's] head does not enhance the credit of either the [appellant] or his witnesses." 34 Her Honour was entitled to make these findings. Indeed, it would have been surprising had she come to any other conclusion. 35 Ms Norton submitted that the respondent's reliance on the Glasgow Coma Scale overlooks the fact that the appellant did not attend the hospital until some hours after the accident. She submitted that no inference could be drawn from the Glasgow Coma Scale because no medical evidence was called "as to possible recovery rates from consciousness to perfect Glasgow Coma Scores." 36 This submission, however, does not answer the fact that, according to the hospital notes of 15 March 1998, upon admission the appellant was fully conscious and alert, but the appellant's evidence under oath and the information he gave the doctors to whom I have referred, was fundamentally inconsistent with that state of consciousness. The assertions in the appellant's evidence and in the statements of the appellant's witnesses concerning the appellant's state of consciousness after the fall appear to be serious fabrications. The statements that he was unconscious for 24 hours, that he was left lying unconscious on the ground until 6:00 pm, and similar statements simply cannot stand with what was recorded in the hospital notes. 37 Her Honour said that the Liverpool Hospital records "show the evolution of what can only [be] described as a fabrication". Her Honour found that the appellant's story was "a conscious fabrication" and that the appellant's case involved "the conscious construction of a series of false statements by a number of people". Her Honour said that that was a conclusion not reached lightly and she applied the test in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. There is nothing to suggest that her Honour erred in these findings.

The appellant's case as to the removal of his work uniform and his trip to Liverpool Hospital 38 In cross-examination, the appellant was questioned about the fact that when he arrived at Liverpool Hospital he was not wearing a Gilany Services uniform (a fact which he admitted). 39 The appellant said that the people who took him from the scene of the accident (who on his version included Mr Yassim Barzani) drove him to Mr Gilany's office in Parramatta where they removed his work clothes and dressed him in the clothes that he had left there before going to work at the school in West Pymble. 40 The appellant was questioned as to whether he asked the "other people" in the car why they were changing his clothes. He replied, "I was unconscious. I didn't know". He testified that those people later told him that they had taken him from West Pymble to Parramatta to change his clothes, and had then taken him to Liverpool Hospital.

41 Mr Hasan did not support this version of events. He explained the fact that the appellant was admitted to hospital in street clothes by saying that when he fell off the roof the workers did not have work clothes. He said that all the workers ("everybody") were wearing their own clothes. 42 The appellant said nothing in his evidence in chief about being driven from Pymble to Parramatta. When he was asked where Mr Yassim Barzani had taken him in his car, he said only that he had been taken to see Dr Habibe in Liverpool and then to the hospital. He did not mention being taken to Mr Gilany's office in Parramatta. It was only in cross-examination, when questioned about his arrival at the hospital in his street clothes that he asserted that he had been taken to the Parramatta office where his work mates had changed his clothes. 43 The fact that, when the appellant was admitted to the hospital, he was not wearing his work clothes was a powerful factor that supported Mr Gilany's assertion that the appellant was not working on a job for him when he fell. The appellant sought to explain the absence of any work clothes on admission to hospital by his evidence that his work mates took him from West Pymble to Mr Gilany's premises in Parramatta so that they could change his clothes from his work uniform to his street clothes. But, ordinarily, he would have noticed that this was taking place and would have objected. He did not do so. He then sought to explain his failure to object by saying that he was unconscious at the time. The hospital notes relating to his state of consciousness give the lie to that explanation. 44 According to Mr DIer Mustapha's statement, one of his work mates rang Mr Gilany after the appellant had fallen and the work mate said that they should change the appellant's shirt and that if the hospital asked what had happened they should say that he had fallen off a roof fixing an antenna. Gibb DCJ did not accept this testimony, which is not surprising having regard to the fact that Mr DIer Mustapha did not give oral testimony. 45 Gibb DCJ relied on the appellant's unconvincing testimony concerning the change of clothes for finding that the appellant had given fraudulent evidence that he fell off the roof while working on a job for Gilany Services. In my view, her Honour was entirely justified in doing so.

Working on a Sunday 46 The appellant testified that he was injured on a Saturday. Nevertheless, his case was presented on the basis that the injury had occurred on 15 March 1998, a Sunday. Indeed, the hospital records establish that he was injured and admitted to hospital on Sunday 15 March 1998. 47 The appellant repeatedly asserted in his testimony that he never worked on a Sunday. 48 Further, in his evidence in chief, the appellant testified that he worked only six days a week and, in cross-examination, agreed that he was "quite sure" that he never worked on a Sunday. He agreed that he "always" worked Monday to Saturday. 49 Mr Gilany testified that the schools required his employees to work only from Monday to Friday each week and none of his employees was required to work over weekends. 50 The inference is readily available that the appellant testified that he never worked on a Sunday because he mistakenly thought that 15 March was a Saturday. On this basis, his evidence that he never worked on a Sunday was correct, but that evidence falsifies his testimony that he was working when, on 15 March 1998, he fell from a roof. 51 Gibb DCJ, in effect, reasoned as set out in the previous paragraph and her Honour's approach cannot be faulted.

Cleaning the roof or repairing the antenna 52 Page 1 of the hospital notes made on 15 March 1998 when the appellant was discharged recorded that the appellant, "fell off 2nd floor of his house while adjusting antennae". Page 3 recorded, "fell off roof house". The clinician who performed the trauma assessment at 4:45pm when the appellant was admitted recorded that the injury occurred at "home" and under the heading "Description of Incident" recorded, "fell off wet roof (adjusting antennae) onto pavement."

53 According to Mr Nariman Mostopha's statement, he telephoned Mr Gilany from the hospital to tell him that the appellant had fallen and Mr Gilany told him to tell the hospital that the appellant "didn't fall down from the job" but "fell from a house". I have previously referred to Mr DIer Mustapha's statement to the effect that the work mate who had called Mr Gilany said that if the hospital asked what had happened they should say that he had fallen off a roof fixing an antenna.

54 When challenged as to the description of the accident contained in the hospital records, the appellant testified: "I didn't say because I couldn't talk then. I told them to talk to DIer [Mustapha] and DIer is the one who said that." 55 Implicitly, Gibb DCJ did not accept that the appellant "couldn't talk then". Her Honour, also did not accept the testimony of those who made statements but did not give oral testimony. No fault can be found with these findings.

Mr Hasan 56 I have mentioned that the only witness called by the appellant to give oral evidence in support of his version of the accident was Mr Hasan. There were several variations between the evidence of the appellant, Mr Hasan and the appellant's witnesses whose testimony was adduced by written statements. The most significant variations involved Mr Hasan's witnessing of the fall and the appellant's trip to hospital after he had fallen. 57 Her Honour observed: "The [appellant] failed to mention that Mr Hasan was at the job site at all until the second day of evidence when Mr Hasan suddenly popped up as a witness in a list volunteered in cross-examination only on the second day. On the first day, the subject was addressed several times, with no mention of Mr Hasan. On one day the plaintiff offered several lists: 'Q. Who else was there? A. INTERPRETER: Yassim Barzani, Khaziran Barzani, Nariman Mostopha, DIer Mustapha and Solimon Sunjari'."' 58 Mr Hasan testified that he had been at Bathurst undergoing training with the appellant as well as being on the job with the appellant when he fell. But, "on day one" of the appellant's testimony, the appellant omitted Mr Hasan from his list of Bathurst workers who had been at the school on 15 March 1998 when the fall occurred. At that stage, according to the appellant, only "Yassim [Barzani], Solimon [Sunjari] and Nariman [Mostopha], were at both the school and at the site when he fell". Her Honour pointed out, that, in cross-examination on the second day, the appellant listed Mr Hasan as being present at the school in West Pymble and actually saw him fall. 59 Her Honour drew attention to the fact that, apart from Mr Hasan's "late entry" into the appellant's list of witnesses on the second day of the trial, Mr Hasan had not been listed by other witnesses as having been at the school when the appellant fell. 60 Her Honour concluded: "Once one enters the world of fiction, as I find occurs in respect of the varying descriptions of the accident offered in evidence, it is a little silly to draw anything much from different fictional lists. I do, however, find in the version that was to be advanced for the purposes of the workers' compensation proceedings, the list of people said to be present excluded Mr Hasan." 61 Her Honour observed that there was a contradiction between Mr Hasan and the appellant as to when he (Mr Hasan) first made himself available as a witness. 62 Her Honour said: "[a] simple measure of Mr Hasan's veracity lies in his evidence about safety harnesses". 63 Her Honour noted that before the luncheon adjournment, during the period that Mr Hasan was testifying in cross-examination, he "was firm about the absence of safety harnesses at Bathurst". Mr Hasan said that there were no safety harnesses used in Bathurst. After lunch, however, Mr Hasan became far more circumspect. When he was asked whether, at Bathurst, he saw any person wearing a safety harness, he replied: "Something like parachute". Mr Hasan said: "They call it parachute, but I don't know [if] they use it or not". Later, Mr Hasan said "I remember they make a picture, but I can't remember [if] they use it or not". 64 The appellant, himself, had identified, in a photograph, a group of workers at Bathurst Public School wearing safety harnesses. Mr Gilany, in turn, identified Mr Hasan in a photograph wearing safety equipment in Bathurst. (The appellant denied, however, that the photo was taken while he himself was working at Bathurst Public School.) 65 Her Honour regarded Mr Hasan's post-lunch evidence as "a rather belated attempt to save a point that had already been lost by the bold and false assertion that there was never any safety equipment". 66 Her Honour "found that Mr Hasan was a witness of no credit at all". Nothing was advanced in the course of argument that demonstrated that her Honour was in error in regard to this conclusion.

Other credibility issues concerning the appellant and his witnesses 67 There were other aspects of the evidence of the appellant and his witnesses that involved discrepancies and inconsistencies. These included: (a) The persons identified by the appellant and his witnesses as the persons who witnessed the accident and who had driven and accompanied the appellant to hospital; (b) Whether the West Pymble school job was a job on which the appellant had worked for two days (he having fallen on the second day) or whether, at the time of the accident, he was working on two schools each day; (c) The different estimates given of the distance the appellant fell from the roof; and

(d) The identity of the school from which he fell. 68 Gibb DCJ did not regard the issues I have identified in the previous paragraph as being of fundamental importance, but nothing her Honour said in regard to the discrepancies and inconsistencies she identified has been shown to be in error.

The finding that the appellant's claim was fraudulent 69 Her Honour said: "[The appellant's] demeanour was variable, and sometimes curious. His evidence was internally contradictory in some respects as well as being contradicted by contemporaneous records and his own witnesses."

And later concluded: "[The appellant's] story is a conscious fabrication that involves the conscious construction of a series of false statements by a number of people." 70 Ms Norton submitted that the judge erred in failing to assess, on a balance of probabilities, the appellant's prospects of success in obtaining "either a verdict in contested proceedings or an offer of settlement in a compromise of his claim against [Mr Gilany]." 71 In my opinion, however, this argument is fallacious. Once her Honour had found that the appellant's claim was fraudulent, she was bound to dismiss the appellant's action. Damages will not be ordered for the prospect of recovering damages in a fraudulent claim. To hold otherwise would be contrary to public policy. 72 Put another way, her Honour determined that, because the appellant's claim was fraudulent, he had no prospects of success. Where the trial judge assesses the prospects of success in the putative action as nil, no damages will be awarded: Phillips v Bisley & Ors [1997] NSWCA 246. As Brennan J said in Johnson v Perez [1988] HCA 64; (1998) 166 CLR 351 at ([2], 372), "If he would have failed in the original action, he has lost nothing." 73 As her Honour found that the appellant's claim was fraudulent, it followed, automatically, that the appellant's prospects of success in the ultimate action were to be taken to be nil.

The credibility of Mr Gilany and the settlement of the workers' compensation claim 74 I have explained that Gibb DCJ found, by reference to the evidence of the appellant and his witnesses, that the appellant's claim was fraudulent. In my opinion, that finding has not been shown to be wrong. Her Honour supported that finding by holding that Mr Gilany was a credible witness. But, as the other grounds on which her Honour relied in making the finding of fraud were independent of her Honour's view of the credibility of Mr Gilany, that finding must stand, irrespective of whether her Honour's views concerning Mr Gilany are held, on appeal, to be in error. 75 I shall, nevertheless, proceed to address the appellant's argument concerning her Honour's findings as to the credibility of Mr Gilany. 76 Ms Norton challenged Gibb DCJ's finding that Mr Gilany was a credible witness. There were two significant grounds on which she rested her challenge. The first concerned the settlement of the appellant's workers' compensation proceedings with the workers' compensation insurer of Gilany Services. I have mentioned that those proceedings were settled for $30,000 plus costs, and $7,628.00 for out of pocket expenses. 77 The main argument advanced on the appellant's behalf in relation to the workers' compensation proceedings was that his claim settled at a reasonable value and without any discount for the risk that he might not be believed in his assertion that he was injured while in the employ of Gilany Services. Ms Norton submitted, in effect, that the attitude of the workers' compensation insurer at the workers' compensation proceedings settlement was a good indication of what would have occurred at a common law trial had the appellant brought a common law claim. 78 This argument, however, loses sight of her Honour's finding that the appellant's claim was fraudulent. Once that finding is made (and upheld), the attitude of the workers' compensation insurer becomes irrelevant. I shall, nevertheless, proceed to deal with the argument. 79 The settlement of the workers' compensation claim occurred after an arbitration, held in accordance with the Workers Compensation Act 1987 (NSW), had commenced. The appellant was the first person to testify orally in that arbitration. He gave some oral evidence in chief and, either at the end of or during his cross-examination, the matter was adjourned and settled. The insurer did not commence its case. Mr Gilany's statement had, nevertheless, been tendered by the insurer and admitted by the arbitrator. 80 At the arbitration, the appellant relied on his medical expert who assessed the value of his claim at $52,900, while the medical expert retained by the insurer assessed the appellant's claim at $3,200. Mr Sharpe, the solicitor who appeared for the appellant in the workers' compensation proceedings, testified that he tried to obtain a higher amount in the course of the settlement negotiations but could not get more. 81 Mr Sharpe said that he did not believe that there was a real issue between the parties about whether or not the appellant had actually had his accident while working for Gilany Services. He testified that he did not give the appellant any advice concerning the employment issue and its bearing on the possible settlement of the workers compensation claim. 82 When asked whether he had advised the appellant that his case should be settled at something less than full value because of Mr Gilany's evidence, Mr Sharpe replied, "I did not". In cross-examination he said that he did not consider the chance that the appellant would lose on the employment issue as "a big risk". 83 The appellant, however, testified that, before the appellant's claim for workers' compensation was settled, Mr Sharpe told him that Mr Gilany was going to say that he, the appellant, was not working for him when the fall occurred. The following exchange took place: "Q. Did you discuss with your solicitor the risks and what might happen if Mr Gilany was believed and you were not believed on that question, and that there was a risk you might lose the case? A. INTERPRETER: Yes.

Q. Because of that, it was a good idea for you to accept an offer of $30,000 that the [insurer] made to you in the course of the running of the case. A. INTERPRETER- Yes." 84 Thus, the appellant's evidence was to the effect that he did indeed discuss with Mr Sharpe the risk of Mr Gilany being believed and the risk that he might lose the case. Her Honour accepted this part of the appellant's evidence (as she was entitled to do). She said that the appellant's version "matches more closely the contemporaneous records". The contemporaneous records in question were: (a) The appellant's application for determination of his claim under the Workers Compensation Act. In his application, the appellant claimed compensation of $52,900; (b) Mr Sharpe's file note which recorded a process of negotiation between the appellant starting high (at a figure of "65 incl") and the insurer starting low, with the parties eventually agreeing on a figure of $30,000; and

(c) An email from the arbitrator in which he stated: "This matter was a significant factual dispute. The dispute extended to questions of employment and whether or not the [appellant] had an accident at the time and place alleged." 85 The contemporaneous records support the appellant's evidence on this issue (and are inconsistent with Mr Sharpe's version) in that they demonstrate, firstly, that the question whether Gilany Services employed the appellant at the time of the fall was a real issue in the workers' compensation proceedings and, secondly, that the appellant claimed a substantially higher sum than the amount for which he settled his claim. 86 According to Mr Gilany, he asked the insurer's solicitor that he be allowed to give evidence as he wished to deny that he had employed the appellant when the appellant fell. According to Mr Gilany, the solicitor said to him, "[the appellant] is asking for peanuts, we give them, and go home". 87 Gibb DCJ accepted this evidence. She commented that Mr Gilany "would not have passed through the witness box in short order". Had Mr Gilany given evidence the hearing would have been significantly lengthened. The judge said: "I accept Mr Gilany's evidence, in somewhat rhetorical terms, to the effect that the insurer told him that the sums involved did not warrant the evidentiary dispute." 88 Her Honour was entitled to come to the view that the settlement figure reflected some allowance for the risk that a finding might be made that the appellant was not employed by Gilany Services at the time of the accident. I am not persuaded that her Honour erred in that respect. 89 Ms Norton submitted that the workers compensation proceedings were not settled for "peanuts". In my view, however, her Honour was entitled to take the view that economic considerations did effect the insurer's approach to settlement and for that reason the insurer agreed to settle the appellant's workers compensation claim without calling Mr Gilany to testify.

Mr Gilany's letters 90 Ms Norton submitted further that Mr Gilany had written a number of letters, the contents of which should have led her Honour to conclude that he was not a reliable witness. 91 Mr Gilany first wrote to the appellant's then solicitor in an undated letter (believed to have been written on about 16 April 1998) in which he stated that the appellant worked for Gilany Services "on 19th, 20th and 21st of February and on 3rd March". According to the letter, a friend of the appellant had informed Mr Gilany that the appellant had fallen off the friend's roof whilst fixing an antenna and was "now attempting to gain compensation from our company insurance". In later letters to solicitors retained on the appellant's behalf, Mr Gilany made additional allegations concerning the appellant. 92 In a letter dated 5 June 1999 to WorkCover, Mr Gilany said that the appellant was not an employee of Gilany Services, that the appellant had offered him "50% of his paid claim" if Mr Gilany claimed "an accident on my workers compensation", and that the appellant had stolen a work identification badge issued by Gilany Services, which Mr Gilany reported to the Green Valley Police Station (and thereafter, the appellant had returned the badge to Mr Gilany). Mr Gilany repeated these allegations to an insurance claims investigator on 10 August 1999. 93 Ms Norton submitted that the discrepancies between the first letter written by Mr Gilany and what was said in the subsequent letters and to the insurance investigator should have led Gibbs DCJ to find Mr Gilany to be an untrustworthy witness. 94 This argument was addressed to her Honour, at trial, but, nevertheless, she found Mr Gilany to be a truthful witness. This finding, essentially, was based on demeanour. I am not persuaded that, applying the principles laid down by the authorities that govern factual findings based on demeanour, it is open to this Court to overturn her Honour's finding that Mr Gilany was a credible witness.

The identification badge 95 Ms Norton also relied on Mr Gilany's evidence concerning the identification badge that he had said was stolen from his office by the appellant. 96 Again, Ms Norton submitted that her Honour should have accepted the appellant's version in connection with this badge and not that of Mr Gilany. The submissions, however, do not raise an error of the kind that would entitle this Court to set aside her Honour's findings.

Conclusion in regard to findings that the claim was fraudulent 97 For the reasons I have set out, 1 am not persuaded that her Honour erred in finding that, on the evidence of the appellant and his witnesses (when considered in the light of the hospital records), the appellant's claim was fraudulent. 98 Further, I am not persuaded that her Honour's findings in regard to the credibility of Mr Gilany were in error. I have expressed the view that, in any event, her Honour's finding that the appellant's claim was made fraudulently stands independently of her finding that Mr Gilany was a credible witness. 99 Accordingly, in my view, the appellant's arguments as to her Honour's findings concerning the credibility of the appellant must be rejected.

The assessment of damages 100 As was noted in paragraph 52 of the written submissions filed on the appellant's behalf: "The trial judge found that the injuries which would have been assessed at the notional trial date would have been fractures to the right wrist and elbow, surgery and surgical correction, and physiotherapy and some significant pain and suffering for a limited period, reducing over time, as well as some soft tissue injuries as identified by the treating orthopaedic surgeon, Dr Harris. The sole long term sequelae would have been to the right forearm." 101 Her Honour would have allowed only 18% of the most extreme case in regard to the injuries she found, but calculated non-economic loss on the basis of 20% that the respondent submitted. Her Honour made no allowance for economic loss and assessed damages for domestic assistance at $914. 102 In the appellant's written submissions reliance was placed on a report prepared by Mr Ian Bryden, a solicitor experienced in personal injury litigation. The problem with Mr Bryden's report, however, was that the opinions contained in it were based on injuries, some of which her Honour found had not been sustained by the appellant. Understandably, Ms Norton did not rely on Mr Bryden's evidence in the course of her oral submissions. 103 The main point that Ms Norton made concerned the evidence of a surgeon, Dr Taylor. Gibbs DCJ said: "I have placed little weight on Dr Taylor's report on 1 December 1998 (Exhibit B). He contemplated healed fractures in the thoracic spine. Radiology revealed none." 104 Ms Norton pointed out that a bone scan had revealed healed fractures in the thoracic spine at T4 and T8. In addition, her Honour accepted the evidence of Dr Harris, the treating doctor at the Liverpool Hospital, and Dr Harris found fractures at T4 and T8. Ms Norton submitted, on the basis of these two matters, that her Honour had erred in placing little weight on Dr Taylor's report. 105 Additionally, in Dr Taylor's report of 1 December 1998, he said that, on examination, the appellant "spoke with difficulty and seemed to be depressed". Ms Norton pointed out that her Honour had made no reference to the depression. 106 Ms Norton submitted that her Honour erred in calculating non-economic loss on the basis of 20% of a most extreme case. She submitted that her Honour should have calculated non-economic loss on the basis of 30% of a most extreme case. She submitted that the judge's decision to place little weight on Dr Taylor's report of 1 December 1998 meant, in effect, that she failed to take into account the injury that the appellant sustained to the thoracic spine at T4 and T8 and the depression noted by Dr Taylor. 107 The evidence, however, indicated that the injury to the thoracic spine was not serious and, by 1 December 1998, had healed. Further, no other medical expert mentioned depression and Dr Taylor's observation in this regard was, in substance, merely a passing comment. In my opinion, the matters on which Ms Norton relied do not justify any change in her Honour's assessment. 108 In the circumstances I would reject the appeal in relation to the assessment of damages. 109 In summary, therefore, I would dismiss the appeal with costs. 110 BERGIN CJ in Eq: I agree with Ipp JA. 111 HANDLEY AJA: I agree with Ipp JA. ********** - 1 -

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