Todorovic v Moussa

Todorovic v Moussa - [2001] NSWCA 419 - NSWCA 2001 case summary — Zoe

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1 POWELL JA: I agree with Beazley JA. 2 BEAZLEY JA: This is an appeal from a decision of Delaney DCJ in which his Honour entered a verdict for the defendants/respondents in respect of the appellant's claim for damages for an injury he sustained on 16 August 1994 on the second respondent's building site. 3 The trial judge's determination in favour of the respondents was based solely on his assessment of the credibility of the appellant and the first respondent. He rejected the appellant as a witness of truth, and accepted the first respondent's evidence that the appellant did not fall as the appellant alleged. Each party had a corroborative witness. The trial judge rejected the appellant's witness and accepted the evidence of the respondents' witness. 4 The appellant accepted that to succeed on the appeal he must displace the findings of the trial judge in accordance with the well established principles in Abalos v Australian Postal Commission (1990) 171 CLR 167, Devries v Australian National Railways Commission (1993) 177 CLR 472 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306, (1999) 160 ALR 588: (the Abalos issue). The appellant submitted however, that notwithstanding the credit findings against him and his witness the trial judge erred in his judgment a number of significant respects. 5 On the Abalos issue, the appellant contended that his Honour's findings against him were inconsistent with incontrovertible evidence to the contrary and that the first respondent's evidence was glaringly improbable and his Honour's acceptance of it was contradictory to other findings made by his Honour. The appellant further alleged that his Honour failed to take into account certain relevant evidence, made findings not supported by the evidence and failed to give adequate reasons for rejecting the appellant's witness Mr Fefelov and for accepting the respondent's evidence. It was also alleged that his Honour altered his reasons after delivery of judgment in a way which was impermissible. Finally, it was submitted that his Honour failed to consider the appellant's claim based upon breach of statutory regulations contained in the Construction Safety Act 1912 (NSW). 6 The appellant was a gyprocker and had contracted with the second respondent to undertake work on the second respondent's building site at West Pennant Hills. The first respondent was the principal of the second respondent. The building work being undertaken was the construction of three 2 storey houses. The appellant had employees working on the site for him. 7 At about 4pm on 16 August 1994, the appellant attended the site to pick up one of his workers, Andrew Fefelov, in order to give him a lift home. He said he had driven himself to the site and that the first respondent was present when he arrived. He said Mr Fefelov was working on the first floor and he climbed up a wooden ladder to see him. The ladder was standing protruding above the first floor level, which at that stage comprised a timber frame. It seems clear from the appellant's evidence that Mr Fefelov was the only one of his workers on site at the time. Mr Fefelov said his co-worker had left about an hour earlier. 8 The appellant said that when he went to go back down the ladder, he placed his right foot on one rung and moved his left foot to the next rung when the ladder slipped and he fell onto his back to the concrete floor below. He said he was about three metres above the floor when the ladder slipped. 9 The appellant said the first respondent came up from the basement after he fell. He said he was shocked and shaking, had pain and dizziness. He was taken to hospital by ambulance. 10 Mr Fefelov's version was relevantly to the same effect. 11 The first respondent's version was starkly different. He said the appellant was driven to the site (which he described as three separate houses) by a person whom he first identified as Mr Fefelov, but then equivocated, saying "very hair same, face the same, but I can tell him a little bit fatter. I can't swear is that him or his brother. I don't know". However, on two further occasions in evidence in chief, he identified Mr Fefelov as the person with the appellant. In cross-examination he again asserted without equivocation that Mr Fefelov had driven the appellant to the site. 12 The first respondent said the appellant and the driver went into the site. He said the appellant had two workers on site at the time. The first respondent then described what happened in these terms: "He moved it between the frame - the timber - jammed in and move it to the next room underneath the ceiling. The step ladder 22 foot which is nearly six and a half metres. Its too long. So what he did, 45 degrees.

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Credit Finding in Respect of the Appellant 21 His Honour's adverse credit finding in respect of the appellant was based substantially on demeanour. To the extent it was not, it was based on his Honour's consideration of other evidence relating to the appellant's income, which had increased exponentially in the years after the accident, and also on two sets of photographs, taken from a video recorded in April 1999. One set of photographs showed the appellant lifting a piece of plasterboard with the assistance of another person. In one of those photographs the appellant's right arm was at a full upwards stretch. In the other set of photographs he was bending over. The video itself was not in evidence. 22 The trial judge found that the photographs "showed [the appellant] undertaking tasks which he had just before the tender of [the photographs] denied that he could do". 23 A review of the transcript reveals that his Honour's categorical comment is not an accurate reflection of the evidence. Prior to being shown the photographs, the appellant's evidence was that he could not work above his head. He explained this as not being able to gyprock ceilings. There was no evidence to the contrary. He agreed that he sometimes unloaded plasterboard with the help of another person. That is what one of the photographs depicted. He also agreed there was other lifting work regularly involved in the work which he undertook. He said, however, he could not do heavy physical work. He said "… I can't stretch my body and I have pain". As I have said, one photograph showed him lifting a piece of plasterboard with one arm at a full upwards stretch. That could be said to be in conflict with his evidence. However, there was only one photograph to that effect and it was possible and most likely that the appellant's evidence, properly understood was that if he stretched his arm he had pain. He was not cross-examined as to whether he felt pain on the occasion depicted in the photograph. 24 The appellant also agreed in cross examination that he had done heavy lifting work since the accident but "not recently". The video from which the photographs were taken had been taken 12 months previously. Even if the two photographs could be described as depicting the appellant undertaking heavy work, a matter about which there was no finding, given the qualification which the appellant gave on this topic, it cannot be said that his evidence amounted to a denial of what appeared in the photographs. In saying that, I do not seek to reduce the forensic importance of the evidence. The respondents were fully entitled to seek whatever advantage they could from it. However, I consider that his Honour's finding went beyond the evidence. To that extent his credibility finding is undermined. 25 Subsequent to the accident, the appellant had rearranged his work practices. He ran his business through a corporate structure and took on a more substantial management role, relying on others to undertake the heavy manual work, saying that he was restricted in the work he could do. His business appears to have been very successful. 26 His Honour did not make any direct findings in relation to his work capacity, except to the extent that he comprehensively rejected the appellant as a witness of truth. However, the mere fact that an injured person has been financially successful after an accident does not, of itself, mean the appellant did not suffer injury or that there was no interference with his earning capacity. The extent to which any such interference may have resulted in economic loss is another matter. In this case, the appellant appears to have discovered significant managerial and entrepreneurial skills post accident. Had the plaintiff been successful in his claim, it would have been incumbent upon the trial judge to have assessed the economic loss, if any, flowing from the accident in accordance with principle. For the purposes of the issue presently under consideration, however, I do not consider that the appellant's post accident financial position particularly assists in determining whether his Honour's credit assessment was flawed.

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… Danckwerts LJ [said] at 116… : 'The general principle must be that this court must accept as the authentic record of the judge's judgment that which has been approved by him after consideration of the draft produced by the shorthand writer. It is not only a question of possible mistakes by shorthand writers, who do their best extremely well, but are sometimes unable to hear exactly the words used by the judge in the course of his judgment. There are other cases which arise through the judge not saying clearly what he meant, or indeed sometimes by a slip saying something which he cannot possibly have meant. After all, an ex tempore judgment is not always easy to deliver perfectly in all respects on the spur of the moment; there must be corrections which need to be made so as to give the real meaning of the judge, and he is perfectly entitled, so it seems to me, not only to correct mistakes, but to alter words which do not express his intended meaning at the time when he uttered them.'" 45 Owen J concluded at 95 that if changes to a judgment were matters "such as could lead to an appearance of altered substance" as opposed to matters of form, that was sufficient, in the context of a criminal trial, to render a conviction unsafe and unsatisfactory. 46 Lam v Beesley involved the reasons for judgment given by a magistrate in a summary criminal trial. In a civil action, I would consider that the appropriate test in determining whether an alteration to a judgment is permissible is whether the change is one of substance in fact and not the higher test stated by Owen J in the case of a criminal trial. 47 In Bar-Mordecai v Rotman & Ors [2000] NSWCA 123, the Court considered the matter in relation to an ex tempore judgment, stating at para 193: "It is always possible, indeed proper, for a judge to revise ex tempore reasons. So long as the substance of the ex tempore reasons is not altered, nor the orders which they sustain, there is no bar to revision, even if it is extensive." 48 Again, I am of the opinion that the same rule applies to the case of a reserved judgment. 49 To determine whether his Honour's insertion of the 'finding' that he did not accept Mr Fefelov as an accurate witness transgresses the permissible limits of alterations to a judgment, it is necessary to determine whether the addition was one of form or of substance. Reference should first be made, however, to the statutory framework in which a judgment may be given. Part 2A, r 7 of the District Court Rules 1973 (NSW) provides: "(1) Where in any proceedings a Judge reserves his judgment or his decision on any question of fact or law, he may -

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(iii) in chambers in accordance with rule 6 …" 50 In Palmer v Clarke at 165, Kirby P pointed out the need for strict compliance with the statutory framework. The 'slip rule' aside, there is nothing in the District Court Act 1973 (NSW) or Rules, and in particular nothing in r 7 which permits the revision of judgments by a judge of an inferior court, although it is a well used convention. It was not suggested in this case that the slip rule applied. Although there is no direct authority on point and no express power in the Act or Rules conferring the right to revise judgments, it would be strange if there was such a rule in relation to ex tempore judgments and none in respect of reserved judgements given orally, where the same infelicities of expression and the like may easily occur. Accordingly, I am of the view that there is a power to revise a judge's reasons for decision, within the parameters I have discussed, implied within the statutory provisions which govern the delivery of judgments in the District Court. As to the existence of implied powers of statutorily governed tribunals: see DPP v Shirvanian (1998) 44 NSWLR 129. 51 How then should the addition of his Honour's finding on Mr Fefelov's credit be categorised. On one view, the addition could be seen as a mere formality - something overlooked by the trial judge when giving his oral reasons. The finding did not change his Honour's ultimate finding. Rather, it was wholly consistent with it and therefore, it could be argued, could not have come as a surprise. 52 There are arguments which tend to the opposite conclusion. In the first place, it was a critical finding. The rejection of Mr Fefelov as a witness of truth was an essential underpinning of his Honour's finding against the appellant. Secondly, had that finding not been made, the appellant could have rightfully complained that his Honour had failed to adequately consider relevant evidence in the case, namely, that of his corroborative witness. Those two matters alone, in my view, point persuasively to the additional statement in the judgment being one of substance and therefore impermissible. 53 Where a judgment has had impermissible alterations made to it, the proper approach is to treat the judgment as if the additions had not been made: see Palmer v Clarke at 170. Accordingly, the judgment should be considered as if that finding was not contained in it. The consequence is that his Honour's reference to Mr Fefelov's evidence went no further than saying he gave evidence which corroborated the appellant's evidence. I have already indicated what flows from that. His Honour failed to give it adequate consideration in its essential parts and/or failed to give adequate reasons for decision. 54 If I am wrong in my conclusion that the credit finding relating to Mr Fefelov was one of substance, and it should be viewed as a matter of form and thus remain as part of the judgment, I am of the opinion that his Honour's judgment would still not satisfy the requirement to give adequate reasons for decision. As Kirby P pointed out in Palmer v Clarke at 170: "… bald findings on credit, where there remain substantial factual issues to be dealt with, may not constitute an adequate compliance with the judge's common law duty to provide the parties, and the appellate court, with the basis of his decision." 55 In this case it is impossible to discern why his Honour rejected Mr Fefelov, although one might speculate that it was to make his judgment consistent, given his finding in relation to the appellant's credit. However, it is not part of the judicial function to speculate. At the appellate stage it is to determine whether there has been appealable error. For the reasons stated, his Honour's bald finding of credit involved such error.

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Credit Finding of the First Respondent 56 That leaves the final matter with which I wish to deal. His Honour accepted the first respondent's version of the accident. He did so notwithstanding that he described the first respondent's behaviour in the witness box as "somewhat bizarre". He ascribed this however to a "cultural reaction to what he considered was an overall lack of candour by [the appellant] in relation to the facts and circumstances of this case". I have difficulty with this finding. That of course is not sufficient to displace it. As the High Court (Brennan, Gaudron, McHugh JJ) stated in Devries at 479: "More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'." 57 I do not think that the evidence of the telephone number can be considered to be an incontrovertible fact. The ambulance report probably is. But in any event when both those pieces of evidence are considered along with the other evidence in the case, including the first respondent's evidence that the appellant took a 22 ft ladder and placed it at a 45 degree angle underneath a finished ceiling and that the appellant appeared "perfectly well" after the fall, I consider that the first respondent's account of events was "glaringly improbable". 58 There were other matters raised in argument which concerned his Honour's credit findings, including interpreting difficulties. I do not find it necessary to consider those matters. I have found that his Honour erred in a number of respects in his judgment. The nature of the errors is such that a new trial is required. For that reason also it is not necessary to consider the ground of appeal that his Honour failed to consider the claim made under the Construction Safety Act. 59 At the conclusion of the hearing, senior counsel for the respondents made an application that, if the Court was minded to allow the appeal and order a new trial, then the appropriate order for costs was that the costs of the appeal should abide the outcome of the new trial. The basis for that application was that since the appellant had failed at first instance and might fail again it was proper that the costs of this appeal should depend upon the outcome of the new hearing. The decision of the High Court on a leave application in Fuller v The Council of Wagga Wagga S247/1999 (14 September 2001) was said to support the making of such an order. The appellant opposed the making of such an order. 60 Both parties have filed supplementary submissions. As the respondents recognised in their submissions, Fuller involved quite different circumstances from the present. Having considered both sets of submissions, I do not see that this case falls into the same category of case as Fuller or that Fuller establishes a principle which should be applied here. In those circumstances, I consider that costs should follow the event.

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(v) Respondent to pay the appellant's costs of the appeal, but is to have a certificate under the Suitors' Fund Act 1951 (NSW) if so qualified. 61 SPERLING J: I have had the advantage of reading in draft the judgment of Beazley JA and a note by Powell JA agreeing with her. I also agree with the orders proposed by Beazley JA. Substantially, I agree with her reasons, but with some qualifications. 62 First, as to the addition to the judgment of the finding "I do not accept Mr Fefelov as an accurate witness", his Honour may have already decided when he delivered the judgment that he rejected Mr Fefelov as a credible witness, and the failure to include that finding may have been a slip. I would not assume it was an afterthought. I agree, however, with Beazley JA's opinion that there was a failure to give adequate reasons for the finding. 63 Secondly, I would not regard the first respondent's version of events as glaringly improbable. The first respondent gave evidence of the plaintiff placing a long ladder against a wall at the unusually oblique angle of 45 degrees, placing himself on the ladder, then jumping or tumbling under it, and pulling the ladder down onto himself. There was other detail in the first respondent's account of the incident to indicate that the accident was contrived. What the first respondent described was glaringly improbable as an accident, but the point of his evidence was that it was a contrived performance by the appellant, the pretence of an accident on which to base a fraudulent claim for damages. 64 There were then, however, considerations which tended to render implausible that an accident was contrived by the appellant in the way described by the first respondent. There was already a ladder in place, being the ladder from which the plaintiff says he fell, which was not tied in position and which the plaintiff could easily have used to feign an accident in much the same way. There was accordingly no apparent need for the appellant to obtain a second ladder and to set it up as he allegedly did. Secondly, it was unlikely that the appellant would have set up a patently non-industrial situation in order to create the pretence of a genuine accident. Yet, according to the first respondent's account of the episode, the appellant placed a 22 foot extension ladder in a position where it could have served no genuine purpose. Thirdly, according to the first respondent, the appellant went through the motions of a contrived accident in front of the first respondent without any reason to suppose that the first respondent would support the appellant's claim that the accident was genuine. 65 I think these considerations fell short of rendering the first respondent's account glaringly improbable, but there was a serious lack of critical evaluation by the trial judge of the first respondent's account of events, particularly when it amounted to a conspiracy to defraud on the part of the appellant and Mr Fefelov. To accept the first respondent's account of events virtually without reasons was an error of law in these circumstances. ********

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