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Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 (22 February 2001)

Last Updated: 23 February 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25

FILE NUMBER(S):

40427/99

HEARING DATE(S): 2 February 2001

JUDGMENT DATE: 22/02/2001

PARTIES:

Terrence Mervyn Daw (Appellant)

Toyworld (NSW) Pty Ltd (Respondent)

JUDGMENT OF: Priestley JA Sheller JA Heydon JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2502/98

LOWER COURT JUDICIAL OFFICER: Mahoney DCJ

COUNSEL:

G B Hall QC/A J Lidden (Appellant)

M J Neil QC/G J Bellew (Respondent)

SOLICITORS:

Brydens (Appellant)

Bruce & Stewart (Respondent)

CATCHWORDS:

Evidence - Credibility of plaintiff in personal injury claim - Whether new trial should be ordered - Whether trial judge erred - Whether substantial wrong or miscarriage occasioned by errors of trial judge - Documents of unknown origin - Lack of objection to tender of evidence - Unproven doctor's history as part of expert evidence - Supreme Court Rules Pt 51 r 25 - Evidence Act 1995 (NSW), ss 55(1), 56(2) and 60. ND

LEGISLATION CITED:

Evidence Act 1995

DECISION:

Appeal dismissed; the appellant is to pay the responent's costs of the appeal

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40427/99

DC 2502/98

PRIESTLEY JA

SHELLER JA

HEYDON JA

22 February 2001

DAW v TOYWORLD (NSW) PTY LIMITED

The appellant, who was the plaintiff at first instance, was employed by the respondent company and on 27 March 1990 he was injured whilst in that employ. The appellant claimed damages from the respondent for that injury, alleging at trial that the injury resulted from a carton falling onto him. The trial judge did not accept the appellant's evidence, instead finding that the accident on that day was caused by his lifting of a carton. The plaintiff's evidence in relation to back injuries and treatment prior to the accident was also disbelieved by the trial judge. A document was admitted into evidence (Exhibit 13) which stated that the appellant had experienced previous back problems and had undergone traction. Exhibit 13 was treated by the trial judge as the notes of a Dr Thurai on the appellant's medical history. The appellant's claim for damages failed at trial, as the respondent was found not to have breached its duty of care to him and hence not to be liable for his injury. This is an appeal seeking an order for a new trial.

Held by Heydon JA (Priestley and Sheller JJA concurring), dismissing the appeal:

1. The Court of Appeal only has power to order a new trial when a "substantial wrong or miscarriage has been...occasioned by" the errors of the trial judge. Supreme Court Rules (NSW) Pt 51 r 25.

2. The trial judge did not commit the errors complained of by the plaintiff, save in one respect.

(a) Exhibit 13 was not objected to at trial by the appellant when this course and others were available in relation to challenging this Exhibit as a document of unknown origin. Evidence Act 1995 (NSW) and National Australia Bank Ltd v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309, referred to.

(b) The appellant did not show that the trial judge relied on Exhibit 13 to disbelieve the plaintiff. Other evidence existed which might in the trial judge's mind diminish the veracity of the plaintiff's version of his medical history.

(c) The trial judge did not err by saying that he was minded to accept Exhibit 13 as relating to the plaintiff when the plaintiff had not been cross-examined on it. The trial judge did not say that he was so minded and even if the judge had said this, it would not have been an error because queries or comments during address are not conclusive. The appellant was asked by counsel for the defendant if he had any prior back injury and about his previous doctors. The cross-examiner is only required to put to witnesses the case on which the cross-examiner proposes to rely. Browne v Dunn (1893) 6R 67, referred to.

(d) It was not shown that the trial judge indicated during the plaintiff's address that he might consider Exhibit 13 as relating to the plaintiff. Even if this had been shown, it would have been fair rather than unfair.

(e) The trial judge erred in holding that the plaintiff's wife had given false evidence in relation the plaintiff's previous back condition. No reasons were given and no evidence supported that conclusion.

3. Despite the error in relation to the credibility of the plaintiff's wife, no "substantial wrong or miscarriage" occurred as a result. Even if the trial judge had made the other errors complained of by the appellant, no substantial wrong or miscarriage would have occurred. This is because the errors alleged by the appellant did not relate to the central parts of the trial judge's reasoning in relation to liability, which is where the appellant failed at trial. The trial judge's reasoning was convincing and could be supported by evidence other than Exhibit 13 and the related material.

ORDERS:

1. Appeal dismissed.

2. Appellant to pay respondent's costs of the appeal.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40427/99

DC 2502/98

PRIESTLEY JA

SHELLER JA

HEYDON JA

22 February 2001

DAW v TOYWORLD (NSW) PTY LIMITED

JUDGMENT

1 PRIESTLEY JA: I agree with Heydon JA

2 SHELLER JA: I agree with Heydon JA.

3 HEYDON JA:

Background

This is an appeal from orders of Mahoney DCJ made on 17 May 1999 after a trial on 11 and 12 May 1999 entering a verdict and judgment for the defendant and ordering the plaintiff to pay the defendant's costs.

4 The plaintiff alleged that on 27 March 1990 he was injured at the premises of the defendant, his employer, when he reached above his head to remove a carton from a pallet in the following way: he pulled it towards him, the pallet tilted, the carton fell, he took its full weight, he tried to turn and drop it, and he went straight to his knees. He could not move for some time thereafter. The trial judge disbelieved the plaintiff's evidence and there was no corroboration for it. The trial judge found that whatever injury was caused to the plaintiff's back on 27 March, it was sustained when he was lifting a carton, and the defendant was not in breach of duty.

5 The principal order sought by the plaintiff in the Notice of Appeal is an order for a new trial. This Court has no power to order a new trial unless "some substantial wrong or miscarriage has been ... occasioned" by the errors complained of: Supreme Court Rules Part 51 rule 25. Thus it is necessary to consider not only whether the complaints of the plaintiff in the Notice of Appeal are valid in their terms, but also whether there has been a substantial wrong or miscarriage.

The Trial Judge's Reasoning

6 The trial judge's reasoning may be summarised as follows.

7 The Ambulance Report prepared when the plaintiff was taken to hospital on 27 March 1990 contained the following history:

"Stated by patient he was bending down lifting a box when he felt his back give way with pain `inabling' [sic] patient to move. Patient stated he had same type of injury 3-4 years ago. Nil other obvious injuries. Nil loss of consciousness."

This version is quite inconsistent with the version which the plaintiff gave in evidence. The plaintiff first denied saying this to the ambulance officer, and then said he could not recall what he had told the ambulance officer (Red 20H-Q).

8 On 17 April 1990 the plaintiff signed a form in relation to his claim for workers compensation. Under the heading "What Happened" he wrote:

"Loading a truck bent down to pick up carton lifted to waist high had pain in the back, dropped the carton and fell to a crunched position and could not move ... ."

This version too was quite different from the version given in evidence, but similar to that recorded on the Ambulance Report. The plaintiff said this version was incorrect, but could not explain why he wrote it (Red 21E-M).

9 On some day before 11 April 1990, the plaintiff's general practitioner, Dr T Kanapathi Pillai, referred the plaintiff to Dr MM Giblin, an orthopaedic surgeon. On 27 May 1992 Dr Giblin said in a letter to the plaintiff's solicitors that he saw the plaintiff on 11 April 1990. The letter continued:

"He was a 44 year old truck driver with a three week history of acute low back pain following loading a carton onto a truck ..." (Red 22G-M).

10 In an undated letter to Dr M Johnson, another orthopaedic surgeon, Dr Pillai said:

"Mr Daw sustained a low back injury in March '90 when he lifted a heavy crate at work."

In another undated letter to Dr J Beer, another orthopaedic surgeon, Dr Pillai said:

"Mr Daw sustained a low back injury in March this year when he lifted a heavy loaded crate" (Red 21T-22F).

Since Dr Pillai referred the plaintiff to Dr Giblin before 11 April 1990, it is probable that the plaintiff made the statements to Dr Pillai which she in turn related to the orthopaedic surgeons before 11 April 1990.

11 The trial judge noted that the plaintiff had failed to call evidence from the St Joseph's Hospital, Lakemba, as to what he said or did on arrival there on 27 March 1990, and did not explain this failure. He inferred that any such evidence would not have strengthened the plaintiff's case (Red 22N-W).

12 The trial judge also said that no evidence had been introduced from "Doctor Kanapathi, who must have been an early - if not the earliest - general practitioner consulted by the plaintiff." He drew a similar inference about that evidence. There was some confusion in the evidence in that on occasion Dr Kanapathi Pillai was referred to as "Dr Kanapathi". Thus Dr Giblin's report of 27 May 1992 referred to Dr T Kanapathi Pillai as "Doctor Kanapathi". Similarly, Dr Matheson's reports record the plaintiff as seeing "his local GP whose name he said was Dr Katypathi, although I am not sure if this is the correct spelling" (Blue 119N-P; see also 122N). The fact is that the trial judge was correct in saying that no testimonial evidence had been introduced from "Dr Kanapathi [Pillai]". His conclusion that if it had been, it would not have strengthened the plaintiff's case is supported by the fact that, as has been seen, Dr Pillai's reports do not support the plaintiff's evidence and indeed tend against it.

13 A video film made of the plaintiff's activities on 19 October 1996 revealed him carrying out vigorous movements which were inconsistent with his complaints to doctors and to the court about pain and restrictions on his capacity to perform physical activities. The filmed movements included digging fence post holes with a crowbar, carrying fence posts, carrying boards, erecting the posts, attaching the boards and stamping the ground at the base of the posts; in all these movements he freely bent, stooped, walked, ducked, crouched, knelt and twisted (Red 26J-27G). The trial judge also said (Red 28C-S):

"His explanation for his ability to perform as demonstrated on the video film was that the building of the corral was a matter of necessity because the horses had broken down other fencing and were at risk of straying out onto the highway. He explained that he had been able to work as displayed on the film because he had taken three analgesic tablets before embarking upon that activity.

I find his explanation for how he managed to perform in the way demonstrated on the video was an answer of convenience. In fact, it is not entirely certain that he was prepared to admit that he had very much present recollection of the day at all until he had been shown the film. I do not accept his explanation, especially bearing in mind the way in which he answered questions whilst the cross-examiner was, literally building the trap, preparatory to displaying the video film. During those answers, the plaintiff demonstrated an awareness that he was being set up to be attacked some way and the more the trap was being prepared the more guarded he became. He demonstrated an acute awareness that something was being prepared to his disadvantage in the questions."

14 On 20 October 1996 the plaintiff was filmed mowing grass on a gradient of 15 degrees, picking up objects and removing them from the path of the mower, moving the mower around bushes and trees, and controlling the mower one-handed (Red 27H-S).

15 The trial judge said (Red 28U-X):

"The plaintiff's wife has given evidence about his health and fitness both before and after 27 March 1990. It accords with the evidence-in-chief of the plaintiff. The evidence-in-chief of the plaintiff is inconsistent with a contemporaneous record of the physiotherapist about his back complaints prior to 27 March 1990."

The plaintiff said that he had been to a physiotherapist, Mr Atkinson, at Rockdale about back trouble before 1990, attributing it to trampoline lifting (Black 11W-Y and 53W-X). His wife confirmed this (Black 64B-P). He told Dr Bodel this on 15 May 1990 (Blue 82T-V and 85R-S). He told Dr Grech this on 8 February 1991 (Blue 24R-S). He told Dr Revai this on 24 November 1994 (Blue 73H-J). The "contemporaneous record" was made by Mr Atkinson when the plaintiff visited him after 27 March 1990 (Black 11W-Y at 35V-36P). Mr Atkinson made a note to the effect that three years ago the plaintiff had pinched a nerve and had traction (Blue 158). This was not revealed to these doctors. Nor was it revealed in chief: rather the plaintiff said he had a very bad pulled back muscle in 1987 (Black 11V).

16 The trial judge said (Red 28X-29K):

"His reported history to doctors, by whom he was examined for medico-legal purposes in this case, is wrong insofar as his state of health before 27 March 1990 is concerned. He must have known what he told them was wrong. I reject his explanation under cross-examination of what he had said to one such doctor and what sort of questions had evinced that answer.

I am satisfied that both the plaintiff and his wife were, at all relevant times, well aware of his level of health and fitness prior to 27 March 1990. I do not accept their evidence in Court on that matter."

The reference to the plaintiff's "reported history to doctors" is a reference to the following evidence. He told Dr Ellis that before 27 March 1990 "he was a healthy active man" (Blue 46U) "with no previous history of back trouble" (Blue 49Q). He told Dr Eggins he had no medical problems before the accident (Blue 94S). He told Dr Matheson he had no prior medical history save for a tonsillectomy (Blue 119T and 122S). The reference to the explanation to one of the doctors appears to be a reference to the following evidence (Black 53P-T):

"Q. I suggest to you that you again saw Dr Matheson at Edgecliff on 15 November 1996. He again asked you on that occasion about your medical history and you told him on that occasion that apart from a tonsillectomy you had had no previous illnesses?

A. Yeah I think I can recall it because he may have asked me if I had any operations and I said the only was tonsils out and apart from that I've never had another operation, no.

Q. I suggest that what in fact you told him was that you had had no previous illnesses?

A. Well I can't say on that, I don't know."

17 The trial judge said he did not accept the evidence of the plaintiff and his wife:

"that he is as much of an invalid since 27 March 1990 as they each claim. It would be far too much of a coincidence to accept that the only 2 days on which the investigator was able to expose clear film of the plaintiff's activities were each as rare an occurrence as the plaintiff and his wife would have the Court believe, especially in view of his conceded level of involvement in voluntary charitable activities in the Woolgoolga-Coffs Harbour area. It is probably the case that he does have a continuing level of symptoms affecting him, but his handling of the truth on that aspect of the case has seriously damaged his credibility generally. He has not demonstrated to my satisfaction that any such level of continuing symptomatology is, in any way, related, by way of causation or of exacerbation, with the episode with which this case is concerned" (Red 29N-Y).

18 The trial judge made certain general comments on the plaintiff's credibility. He said (Red 25S-Y):

"The plaintiff was thoroughly and efficiently cross-examined for a significant period of time. This cross-examination was effective in demonstrating that the plaintiff is clever in his use of language despite having left school at 13 years of age, and careful in how he answers questions. In fact, Doctor Dalton (Exhibit 6A-B) paid tribute to the surprisingly high verbal skills which he demonstrated, despite his modest academic attainments."

He said (Red 30D-G):

"In short, it must be said that the plaintiff emerged from the witness box as a witness whose credit was very much in issue, despite the submission to the contrary by his learned counsel in final address. He failed the credibility test of cross-examination."

19 The trial judge concluded as follows (Red 30J-31G):

"Having found the plaintiff to be an unreliable factual and medical historian, I then turn to consider whether or not the plaintiff sustained the injury in the way in which he claims, in his pleading, and in Court, to have done so. His case on liability stands or falls on his evidence.

I find that the plaintiff has failed to establish, on the balance of probabilities, that the accident occurred in the way in which he claims that it did. It may be the case that his version of events to the ambulance officer, proved by the defendant with Exhibit 10, and whatever he might have said at the Hospital, suggested in cross-examination but not proved, may have been accompanied by a high level of pain which he was then suffering. But, I am satisfied that, when he came to fill out the Compensation Claim Form (Exhibit 11), what he stated in it was what had occurred on the day in question. Submissions to the effect that he was not required by the form to supply any details relevant to common law liability are, in my view, a complete red herring. In Exhibit 11 he said that he ` ... lifted to waist high had pain in the back, dropped the carton and fell ...'. I am satisfied that, whatever damage was occasioned to his back on 27 March 1990, was sustained when he was lifting a carton as detailed to the ambulance officer and recorded on Exhibit 10 and, as reiterated to the workers compensation insurer of the defendant on the Compensation Claim Form (Exhibit 11)."

20 Putting aside occasional obscurities and minor slips in this reasoning, and without prejudice to the criticisms advanced by the plaintiff which will be considered in detail below, the conclusions of the trial judge prima facie appear sound. His conclusions on credibility, though courteously expressed, were seriously adverse to the plaintiff's honesty as well as his reliability. They were in part based on the advantage of having observed the plaintiff as he testified. Indeed, those conclusions can be supported by much evidence to which the trial judge did not refer. For example, there is another near-contemporary account of the accident which substantially differs from that which the plaintiff gave at the trial, namely the account given to Dr Bodel on 15 May 1990 six weeks after the accident, which corresponds with that given in Exhibit 10 and Exhibit 11 (Blue 82N). This is to be compared with the account given to Dr Bodel after the plaintiff had instructed solicitors, who referred him to Dr Bodel for examination on 24 November 1994 (Blue 84P-S). This account gave a third version of the incident. Though this corresponds more with the evidence he gave than with Exhibit 10 and Exhibit 11, it does differ from it. As conveyed to Dr Grech on 8 February 1991, it was (Blue 25M-N):

"He stated that while unloading the pallets off the truck the back of the pallet was missing and when it tilted towards him he threw away the carton he was carrying and twisted backwards suddenly to get out of the way of the tilting pallet and as he turned around he developed severe back pain across the base of the lumbosacral spine."

Grounds 1-9 and 12: General

21 Before going to the detail of these grounds, it is necessary to understand their background. They relate to a document which was admitted in evidence by consent and was marked Exhibit 13. It came to be tendered in the following circumstances. Exhibit 4C was a report of Dr Eggins dated 29 January 1996. It was tendered by the defendant and admitted without objection by the plaintiff (Black 74J). Dr Eggins was an assistant in a partnership which described itself as "consulting in occupational medicine and rehabilitation". The plaintiff saw Dr Eggins on 15 May 1991 and on 10 February 1992 at the request of an insurer. Dr Eggins supplied reports on each of those days (Blue 94-106) setting out symptoms which the plaintiff said he had experienced from 27 March 1990, but not before. On 16 January 1996, the defendant's then solicitors sent Dr Eggins a letter. The opening part of his reply on 29 January 1996 was as follows (Blue 107N-Z):

"Thank you for your letter of 16/1/96 and the attached photocopies of Mr Daw's clinical records when in the care of Dr Thurai. These relate to consultations between 27/6/84 and 2/11/90.

As you point out, Mr Daw is documented as consulting Dr Thurai on 8/1/86, who records that he was then complaining of pain in the left buttock and down the lateral side of the thigh and calf. This entry also refers to muscle spasms and records that Mr Daw's then range of forward flexion from the erect position was to 50% of normal, which presumably means that he was able to get his fingertips to his knees but no further. This entry also contains a warning to Dr Thurai that he was not to reveal this information either to his, Mr Daw's place of work or to an insurance company.

In this entry, Mr Daw not only says that the symptoms had been present for more than two years, but that his treating physiotherapist had told him that he has two disc lesions. He describes intermittent pain since 1984.

You ask me to comment on this entry.

There is no doubt that Mr Daw concealed this history when I examined him on 15/5/91. He then asserted that his current symptoms began on 27/3/90 immediately after he wrenched his back when he jumped to avoid a collapsing pallet stacked high with cartons.

In fact, the symptoms described by Mr Daw on 15/5/91 and reiterated on 10/2/92 match those described in Dr Thurai's record of the consultation on 8/1/86. In other words, the symptoms he proffers as arising from the work-related accident on 27/3/90 are now known to have been present since 1984."

Neither Dr Eggins nor any of the other makers of medical reports tendered by either side was required to attend for cross-examination.

22 The trial judge made the following observations about the second and third paragraphs of the passage just quoted (Red 23U-24K):

"During the course of final addresses, when the matter was raised with counsel as to what significance ought to be attached to this passage, learned counsel for the plaintiff submitted that the effect of the plaintiff's evidence had been that he had never been examined by Doctor Thurai. My recollection of the evidence did not admit of an unreserved acceptance of this submission and this was indicated to learned counsel. Shortly afterward, an adjournment was taken during which the respective counsel reached an accommodation which is to the following effect: first, Exhibit 13 was tendered; secondly, the announcement was made about the previously mentioned possibility of Exhibit 13 being the notes of Doctor Thurai; thirdly, there is an absence, in the defendant's possession, of any further documentation more clearly identifying the provenance of Exhibit 13 (such as is recorded above under the heading of `Matters Not in Issue')."

Exhibit 13 (Blue 159) is headed "Terence DAW". Against the date 8 January 1986 it stated:

"Back problems for 2 years. Seen physio, who told him he had two disc lesions. Intermittent pain since, treated successfully. Now has [left] sciatic pain - buttock > thigh > lat. calf."

Certain further details were set out. The page concluded with the following words in the last three lines:

"N.B. DO NOT DIVULGE INFORMATION TO WORK OR INSURANCE CO. WITHOUT PATIENT'S SPECIFIC PERMISSION."

23 The trial judge then made the following remarks about Exhibit 13 (Red 24L-Z):

"Doing as best I can in the matter, I am satisfied on the balance of probabilities that Exhibit 13 is one page of the patient history of Doctor Thurai, that the patient `Terence Daw' is the same as the plaintiff in the present case, even though the first name is misspelt, and that the associated documentation which otherwise might be able to establish the provenance of Exhibit 13 has innocently gone astray.

Referring back to the extract from Exhibit 4C, and in particular to Doctor Eggins' comment: `... also contains a warning to Doctor Thorai that he was not to reveal this information ...", it is as reasonable to conclude that the `warning' was wholly the product of Doctor Thorai's volition as it was a record [of] the plaintiff's instructions to Doctor Thorai. I have not in any way relied upon the three line notation in capital printing at the foot of Exhibit 13 in forming any views about the credibility of the plaintiff."

24 The transcript of the trial does not contain transcriptions of most of the addresses of counsel. However, it does contain certain transcriptions of particular points raised by the trial judge and the debates these interventions engendered. At Black 80H-83T the following is recorded:

"HIS HONOUR: I must say from my point of view, although it's true the rule in Browne v Dunn is a rule of fairness and requires that the appropriate questions be put before evidence to the contrary be called, nevertheless at the time the report of 29 January - that's exhibit 4C from Dr Eggins was tendered, there was no objection raised that it was inadmissible or that fairness required it not to be tendered.

LIDDEN: I take the view your Honour that it goes towards weight rather than admissibility per se.

HIS HONOUR: You'll have to live with that I think. I just indicate this to you, it seems to me that not to be able to be brushed aside in the way you're inviting me to do it.

COUNSEL FURTHER ADDRESSED

HIS HONOUR: You'd appreciate Mr Lidden that there's two ways of being a judge. One is the old fashioned way, sitting up like a sphinx and watching everything that goes past and saying nothing and then bringing in a judgment. The other way is to trail the fact finding coat tails to see whether or not the mind is on the right course or the wrong course. And what I've been doing is providing you with the opportunity of knowing what's going on in my mind and what has been going on in my mind as the evidence is being listened to and digested. That's why I said that I'll leave it entirely up to you and how you deal with the situation.

LIDDEN: I realise that.

HIS HONOUR: Previously when I mentioned Dr [Beer] you sought leave to re-open and I gave you leave to re-open. You're charged with the conduct of the plaintiff's case and I'll leave it to you to conduct it the way you see fit.

LIDDEN: Yes your Honour.

HIS HONOUR: It's just on 11.30 now, you might like to think about what I've said at this stage of proceedings and we'll come back at quarter to 12.

SHORT ADJOURNMENT

HIS HONOUR: Yes Mr Lidden?

LIDDEN: Your Honour can I pass for the moment from the report of Dr Eggins and the material that he had and come back to it later, things are happening behind the scenes which may enable some sort of agreed course.

HIS HONOUR: Yes.

LIDDEN: To other medical material in the case.

COUNSEL FURTHER ADDRESSED

HIS HONOUR: I'll tell you why it's significant in my view. I've got to look at this from all angles all the way round the full circle, without in any way detracting from the submissions that you are urging upon me, namely `Well why didn't Mr Bellew cross-examine him with this proposition and the other proposition and so forth. I would have imagined that before the hearing started you would [have] agreed upon what doctors, if any, were required for cross-examination. And that therefore the defendant would have known that Dr Eggins was not required for cross-examination and that therefore his report would go in and that therefore the Court would know about Dr Thurai and there is ample authority for the proposition that although the rule in Browne v Dunn is a rule of fairness and that contrary propositions have to be put in an eyeball to eyeball fashion. I'm thinking in terms of what Justice Mahoney said in Gazarle v GIO. Nevertheless Mr Justice Samuels, some years earlier had said - and I think it's in Ellis v Wallsend Hospital that it is not necessary to go through chapter and verse and put the whole litany of matters, as long as it's made clear that the general thrust of the plaintiff's case on a particular matter is being challenged, that is adequate.

If I were to adopt your proposition and say well the plaintiff were not cross-examined on it so therefore I ignore what Dr Eggins put in his report, then enshrined in a judgment of the District Court, and albeit only of the District Court, there is a clear implication that Dr Eggins cooks up false histories and puts them into his medico legal reports so he can get more work from the insurance companies.

So being fair all round, that's why I said to you `look if' - and I didn't actually use these words - but upon the assumption that you had agreed on the fact that Dr Eggins was not required for cross-examination, Mr Bellew was not required to put this as an eyeball confrontation to your client because he knew it was going in any way and the general thrust of his evidence, length of his cross-examination had been made clear.

So that's why I said to you it's a decision for you to make. You said you would leave it as a matter of weight and I said `you'll have to live with that decision'. There are alternative avenues open to you. You are exploring one of them at the moment.

LIDDEN: Yes.

HIS HONOUR: What I'll do is I'll - unless Mr Bellew is going to ask me to do something else?

BELLEW: No certainly not your Honour, I thought you were addressing both of us which is what I --

HIS HONOUR: What I'll do, is I'll adjourn now. I'll reverse the usual way of deciding these things, namely I'll start looking at the question of damages until such time as you send a message to me, I'll come back on the bench and you can then announce whether or not you have reached some accommodation about Dr Eggins' report or whether or not you're going to take some other course, and if so, what Mr Lidden.

The fact that I'm going to start working on the quantum aspect of the matter, should not be taken as an indication that come what may I have decided the plaintiff is going to win. At this stage of proceedings, I have not decided one way or the other.

BELLEW: Your Honour I should hand up the schedule to which I referred earlier this morning, with the figures that I gave to your Honour I neglected to do it at the conclusion of my address.

HIS HONOUR: Thank you. This is what I was hoping you passed it to me to save me writing it out, but anyway I've got it now, thank you.

SHORT ADJOURNMENT

HIS HONOUR: What's the matter to be announced gentlemen?

LIDDEN: Your Honour we think the best way to approach it is this way, that my friend tenders a document - and I won't object to it - I'll consent to him re-opening his case, as being the document which was provided to Dr Eggins.

HIS HONOUR: This is the report from Dr Thurai?

LIDDEN: No your Honour, your Honour will see what it is when it goes up.

HIS HONOUR: I've left the exhibits list up in chambers. Exhibit?

BELLEW: 13 your Honour.

LIDDEN: And that your Honour takes these matters of announcement into account. I think I'm right in setting them out but that page is thought to come from some notes of a Dr Thurai, but nothing else is available and that the defendant has no access to any other material such as middle name or date of birth or address or matters of that nature.

HIS HONOUR: No access to any other material about Dr Thurai or about the patient?

LIDDEN: So as to identify the patient as being the plaintiff, such as date of birth, middle name, address and matters of that nature.

HIS HONOUR: Yes?

BELLEW: Your Honour the only thing that I would add to that is that I am not in a position to establish the source of that document. I suspect that it has been produced long ago in other proceedings not in this Court but beyond that and notwithstanding a number of attempts, I am unable to be any more precise.

HIS HONOUR: Where does that leave me? Is it conceded that there is or ever has been such a person as Dr Thurai?

LIDDEN: Your Honour knows the plaintiff's evidence that he does not --

HIS HONOUR: I've heard what the plaintiff said.

LIDDEN: Yes. Well in light of my friend's concession I think probably that we don't even know that it comes from Dr Thurai.

HIS HONOUR: Well is there a fair summary of the consensus? First, that there's no objection to the tender of this document which will now become Exhibit 13 in the case?

Secondly, that Exhibit 13 might be the notes of Dr Thurai, is that the --

BELLEW: Yes your Honour that's fair.

HIS HONOUR: Thirdly, nothing else is available. Fourthly, the defendant has no access to any other identification of the patient referred to in Exhibit 13, such as date of birth or middle name?

LIDDEN: Correct.

HIS HONOUR: And fifthly, the defendant cannot prove the provenance of Exhibit 13?

BELLEW: Correct your Honour."

Addresses then concluded.

The Plaintiff's Written Submissions on Grounds 1-9 and 12

25 The submissions of the plaintiff in relation to grounds 1-9 and 12 are as follows (paras 4.1-4.6 and 5.1-5.2):

"4.1 Dr Thurai's Notes. The only evidence identifying this document is that contained in the report of Dr Eggins of 29th January 1996 (Blue 107N). The inference is that the Solicitors for the Defendant sent a letter enclosing a number of documents of which the document at Blue 159 formed part. However, no evidence was led to the effect at the Trial. There was no evidence before the Trial Judge that, in fact, a Dr Thurai existed, or that Dr Thurai had actually treated the plaintiff.

4.2 The document at Blue 159 refers to a `Terence' Daw, whereas the Plaintiff's correct name is `Terrence Mervyn Daw. It contains no identifying information such as an address, or date of birth.

4.3 No questions were addressed to the Plaintiff in relation to the document at Blue 159 in Cross Examination. Nor did Dr Eggins raise the contents of that, or any associated document, with the Plaintiff on the occasions that Dr Eggins examined the Plaintiff. Whilst the Plaintiff was Cross Examined in relation to the 1987 lifting incident [In Chief at Black 11W, in Cross Examination at Black 35W-36Z], his denial that there had been more than one prior injury to his back [Black 37C] was not challenged. The Plaintiff was not Cross-Examined in relation to the events on 8th January, 1996, and the `history' contained in the document at Blue 159 was never put to him in Cross-Examination.

4.4 When one adds the concessions by Counsel for the Defendant that he was not in a position to establish the source of the document, and that he `suspected' that it had been produced long ago in other proceedings not in this Court (which were not identified), and the absence of evidence proving the provenance of Exhibit 13 [Black 83E-S], and the fact that Counsel for the Defendant did not rely upon the document at Blue 159 in his closing address, it was simply not open to the Trial Judge to find [Red 24K-Q] that the document was a Page of the Patient History of Dr Thurai, relating to the Plaintiff, or even that associated documentation which might otherwise have been able to establish its provenance had innocently gone astray, as no evidence had been led in relation to the associated `documentation' if any.

4.5 It was not open to the Trial Judge to find that the Plaintiff's Evidence in Chief in relation to the incident in 1987, was inconsistent with the record of Mr Atkinson, and in any event when one takes into account the evidence given by the Plaintiff at Black 36, there was no relevant inconsistency between the evidence of the Plaintiff and that of Mr Atkinson.

4.6 Because the document at Blue 159 could not relevantly be relied upon as evidence against the Plaintiff, there was no material which entitled the Trial Judge [to] find that the Plaintiff's history, as given to doctors for Medico Legal purposes, was wrong in so far as it referred to his state of health of 27th March, 1990, and that the Plaintiff must have known that what he told them was wrong. There was no evidence which would entitle the Trial Judge to find that the Plaintiff `must have known what he told the doctors was wrong' in relation to his pre-accident health, and the Cross-Examination of the Plaintiff at Black 36 would not entitle the Trial Judge to make the findings set out at Red 28 V-X.

5.1 The Defendant's Medical Reports, so far as they are based upon the unproved Clinical Notes on which the Plaintiff had not been Cross-Examined (ie the `Notes' of Dr Thurai) could carry no weight.

5.2 The traditional view is that the history contained in a Medical Report must be proved, and if it is not, the basis for the opinion of the Medical Expert is destroyed. No evidence was adduced to establish that the document at Blue 159 formed a Business Record within the meaning of the Evidence Act. Accordingly, to the extent that the opinions of Dr Eggins were based upon his acceptance of the document at Blue 159, they were impeached and the Trial Judge should have so found. Dr Eggins relied in that report when reporting on 12th August, 1996. The same objection applies to the report of Dr Seamus Dalton. See also Dr James Bodell, although he considered the record dated 18th January, 1986 referred to a relatively minor back problem only."

The Plaintiff's Oral Submissions on Grounds 1-9 and 12

26 The plaintiff's oral argument proceeded upon the following lines. He submitted that the trial judge apparently became concerned that evidence had been withheld from the court. This fact became apparent in final addresses (Black 79P-Y), when, some time before the debate quoted from Black 80H-83T above, the trial judge apparently queried why Dr J Beer had not been called. Dr Beer was an orthopaedic surgeon, and Dr Pillai had written a letter - undated, but probably before 11 April 1990, referring the plaintiff to him (Blue 7-8). The plaintiff explained the non-calling of Dr Beer by tendering a letter from Dr Beer stating that he had no knowledge of the plaintiff (Blue 68).

27 The plaintiff then submitted to this Court that the next manifestation of the trial judge's suspicion about the withholding of evidence related to Dr Thurai.

28 The plaintiff submitted that Dr Thurai's notes (Exhibit 13) had numerous weaknesses. The document was hearsay, but no hearsay exception in the Evidence Act permitting its reception applied. The defendant's counsel conceded that the source and provenance of the document could not be established. The defendant's counsel could do no more than state, without establishing, that the document had been produced in other proceedings. The defendant's counsel had not tried to tender the document, or put it to the plaintiff in cross-examination, or address on it. There was no evidence that the plaintiff had seen Dr Thurai. There was no evidence that Dr Thurai had ever existed. The document came in on a very limited basis, namely that the parties had "agreed that the judge could not do any more with that evidence than say it might be a report of Dr Thurai" (transcript page 15 lines 38-40). In short, the plaintiff submitted that the document could not be relied on, and yet it was the only material which could validly have supported the trial judge's conclusions on the plaintiff's credibility.

29 One key difficulty lying in the plaintiff's objection on appeal to any reliance being placed on Dr Thurai's notes was that they were not objected to. The plaintiff sought to meet this difficulty in the following way. He said that Mr A J Lidden, who was counsel for the plaintiff at the trial and who was led by Mr G B Hall QC on the appeal, had a difficult forensic crisis to deal with. Mr Hall argued before this Court that Mr Lidden had submitted at the trial that the effect of the plaintiff's evidence was that the plaintiff had never consulted Dr Thurai (Red 23W: a submission which is not in fact easy to support from the plaintiff's evidence). Mr Hall submitted (transcript pages 14 lines 20-22 and 26-35, 15 lines 55-57 and 16 lines 15-24):

"Mr Lidden could see the judge was absolutely pre-occupied with this document. Mr Lidden was absolutely convinced it could not be probative. ...

You have had a range of judgments from Mahoney DCJ. I'm not criticising him personally but he's a forceful sort of judge and he tends to get bees in his bonnet and push on and Mr Lidden was trying to reassure him. If he didn't show it to him the situation would be worse than if he did. So in the best of all worlds he said well look have a look at it but I'm telling you it cannot be evidence and that's the position Mr Lidden always maintained. ...

Mr Lidden's trying to deal with a fairly headstrong judge. He's making his position very clear. ...

It could not be evidence but with a judge looking very suspicious that Mr Lidden's side was not telling him what he needed to know, rather than just take a sort of dog in the manger objection about admissibility which would have merely heightened the judge's suspicion, he let's him see it but makes his point and it would be unfair to the plaintiff, I submit, bearing in mind the stage of the trial at which it was admitted, the circumstances it was admitted."

30 The plaintiff then argued that the structure of the judgment showed the same concern of the trial judge about the withholding of evidence as had been shown in the course of the argument at the trial. First, the trial judge noted the absence of evidence from the hospital and from Dr Pillai (Red 22N-W). Then the trial judge dealt with Dr Thurai (Red 23-24). Then he examined the credibility of the plaintiff, and to some extent that of his wife, at Red 25-30G. He submitted that Dr Thurai's notes must have been instrumental in causing the trial judge to reject the plaintiff's evidence about his pre-accident state of health. In short, the plaintiff's counsel said, "there can be occasions where a judge runs off the rails and this is such a case" (transcript page 21 lines 19-20).

General Aspects of the Plaintiff's Submissions on Grounds 1-9 and 12

31 Before going to the particular grounds of appeal, it is convenient to make a few general points about the plaintiff's submissions in relation to these grounds.

(a) Did the trial judge rely on Exhibit 13?

32 The plaintiff could not point to any passage in the trial judge's reasons for judgment expressly relying on the Thurai material as a reason for disbelieving the plaintiff. Rather he submitted that the trial judge's reliance on it to discredit the plaintiff could be inferred from two matters:

(a) the trial judge specifically said that he did not rely on the warning at the foot of Exhibit 13; it followed from his silence about the balance that he did rely on it;

(b) the overall course of the argument as it moved from Dr Beer to Dr Thurai and the structure of the judgment suggested that Dr Thurai's notes must have been relied on, because the only other material which could have justified the trial judge's rejection of the plaintiff's evidence about his pre-accident health was Mr Atkinson's record at Blue 158, and that was not in truth inconsistent with the plaintiff's evidence.

33 I do not think these inferences can be drawn.

34 First, given that the trial judge had apparently strong reasons for rejecting various aspects of the plaintiff's evidence, and given that if Dr Thurai's notes had been taken into account they would have constituted a striking reason for disbelieving the plaintiff's evidence of good pre-accident health, the trial judge's failure to refer to Dr Thurai's notes after Red 24 is a sign that he did not take them into account.

35 Secondly, the trial judge's express statement that he did not rely on the warning at the foot of Exhibit 13 is flimsy support for an inference that he relied on the balance. He dealt with the subject of Dr Thurai in a separate section headed "An Enigma", and, having discussed it, never referred expressly to it again.

36 Thirdly, it is not correct to say that the plaintiff's evidence about his back injury in 1987 is not inconsistent with Mr Atkinson's record. The plaintiff's submission on this topic is dealing with the following passage (Red 28W-29G):

"The evidence-in-chief of the plaintiff is inconsistent with a contemporaneous record of the physiotherapist about his back complaints prior to 27 March 1990. His reported history to doctors, by whom he was examined for medico-legal purposes in this case, is wrong insofar as his state of health before 27 March 1990 is concerned. He must have known what he told them was wrong. I reject his explanation under cross-examination of what he had said to one such doctor and what sort of questions had evinced that answer."

The "physiotherapist" is Mr Atkinson. He was visited by the plaintiff in 1987 for treatment of what the plaintiff said in chief was "a very bad pulled back muscle" which resolved itself in no more than two weeks (Black 11W-Y). In 1990, after the 27 March 1990 accident, the plaintiff visited Mr Atkinson again. Mr Atkinson's note said that the plaintiff told him that three years ago he had pinched a nerve and had undergone traction (Blue 158). Undergoing traction for a pinched nerve is different from undergoing physiotherapy which healed a very bad pulled back muscle in no more than two weeks. The passage just quoted from the reasons for judgment does not refer to Dr Thurai. The untruthfulness of the answers to the medical practitioners related to the untruthful non-disclosure of the 1987 incident for which Mr Atkinson treated the plaintiff. The explanation offered at Black 36M-P about receiving traction does not remove the inconsistency. And the plaintiff's submission that there was "no evidence" about the wrong histories given by the plaintiff to the doctors is unsound: there was Mr Atkinson's note about a pinched nerve.

37 In any event, whether or not the trial judge's reasoning in relation to Mr Atkinson is satisfactory, he explicitly advanced it, and his failure to mention Dr Thurai at that point points against his having relied on Dr Thurai in his reasoning at that point. Even if the trial judge was wrong about Mr Atkinson, it does not follow that he must therefore have relied on Dr Thurai.

(b) Why did the plaintiff not object to Exhibit 13?

38 The plaintiff's explanation for the failure to object to Dr Thurai's notes is an attempt to deal with the fact that there were no doubt several ways of handling the trial judge's interest in Dr Thurai.

39 One would have been to object to the tender: there were many technical grounds for doing so. The difficulty lying in the path of objecting to Exhibit 13 was that by the time the addresses commenced, the contents of Exhibit 13 were already in evidence in several places in another form. First, they were in evidence in the form of Dr Eggins' accurate summary recorded in Exhibit 4C (Blue 107). Secondly, they were in evidence in Dr Dalton's accurate summary (Blue 125N-R). Thirdly, material parts of them were in evidence in one of Dr Bodel's reports (Blue 91N-R). None of these three items of evidence was objected to. The plaintiff conceded that all had been served as material to be tendered pursuant to the rules well before trial (transcript page 22 lines 44-56). This Court was not taken to any material indicating any attempt by the plaintiff to obtain access to Dr Thurai's notes before trial by Notice to Produce or letter or otherwise. The course of objecting to Exhibit 13 by itself would thus have been futile. If it had been adopted, it could only have been done usefully if the threat perceived from Dr Thurai's notes had been headed off by earlier objections.

40 Another way of dealing with the trial judge's interest in Dr Thurai would have been to clarify more precisely what the purpose of the tender was and to seek an order under s 136 of the Evidence Act 1995 limiting the use of the evidence to that purpose. (Section 136 provides that the court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party, or be misleading or confusing). The submissions of the plaintiff on appeal that Exhibit 13 was tendered only on the basis that it could prove no more than that it might constitute Dr Thurai's notes is not supported by the transcript. But even if a s 136 order limiting the use of the evidence to that extent had been sought, it ought to have been refused. That limitation would have made the evidence inadmissible because irrelevant (s 56(2)): if tendered only on that basis, Exhibit 13 would not have been capable of rationally affecting the assessment of the probability of the evidence of a fact in issue. Hence that method of dealing with the trial judge's interest in Dr Thurai would have been useless.

41 A third method of dealing with the trial judge's interest in Dr Thurai was to do what was done. The merit in doing what was done was that it may have caused the crisis which had suddenly arisen to subside. However, adopting that course had certain consequences. Once Exhibit 13 was in evidence, and once it was accepted that Exhibit 13 "might be the notes of Dr Thurai" (Black 83M), it was open to the trial judge to find that they were. Subject to issues of compliance with the rule in Browne v Dunn (1893) 6 R 67, it was open to the trial judge to use them for whatever probative worth they had. In the event he found that they were Dr Thurai's notes, but did not use them as part of the operative reasoning that led to his conclusions on the issues. Whatever the reasons were for adopting the course which was taken (and it is not intended to criticise the plaintiff or his counsel at trial for taking that course), once the course had been taken so as to seek to obtain its potential advantages, the plaintiff had to face up to and live with its potential disadvantages as well.

42 The various critical remarks quoted in paragraph [29] above which counsel for the plaintiff made in arguing the appeal are perhaps legitimate explanations for justifying the course which counsel took in relation to Exhibit 13 in the sense that they may give particularity and colour to possible perceptions which counsel at trial had. As indicated above, it is not intended to criticise the course which trial counsel took. However, so far as those critical remarks are advanced as objective criticisms of the trial judge, I would reject them. In part they state generalisations about the habitual conduct of the trial judge. Whether or not those generalisations could be justified, nothing in the materials before this Court casts any light on the behaviour of the trial judge in other cases and hence they contain no support for the observations about his conduct in other cases. So far as the observations relate to the trial judge's conduct in this case, they are to be rejected. The trial judge was not "absolutely preoccupied" with Dr Thurai. Dr Thurai's notes were not "bees in his bonnet". The trial judge did not run "off the rails". What the trial judge did in relation to Dr Thurai was not different from what he did at numerous other points in the trial. He noticed a problem which arose from a doubt, and he sought to clear up the problem by debate with counsel. Sometimes this process did not operate clearly, as is discussed in relation to Grounds 10-11. But the trial judge did not, in relation to Exhibit 13, cross over the legitimate boundaries of his office. He left the solution of the problem to counsel. Their solution left it open for him to reach the conclusions he did about Exhibit 13. Their solution also left it open not to rely on Exhibit 13, and he did not.

43 With that background, it is convenient to consider each ground separately.

Ground 1

44 Ground 1 states:

"The Trial Judge erred in placing any reliance at all on a set of clinical notes of unknown origin."

45 This submission has two flaws.

46 First, if the document was of unknown origin, it could have been objected to as unauthenticated and irrelevant. The Evidence Act 1995 does not permit documents to authenticate themselves save in limited circumstances: National Australia Bank Ltd v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309. The plaintiff's complaint is that there was no evidentiary basis for the trial judge's finding that it was, when read with Exhibit 4C, what it purported to be, namely a page of Dr Thurai's patient history of the plaintiff. If so, the document could have been rejected on objection. And if the complaint is that there was no evidence that there was a Dr Thurai or that there was no evidence that he had treated the plaintiff, or that "Terence Daw" was not the plaintiff, the document was not capable of rationally affecting the assessment of the probability of a fact in issue, and hence was irrelevant (Evidence Act s 55(1)) and inadmissible (s 56(2)). But since the document was not objected to by the plaintiff at the trial, it is not now open to the plaintiff to raise complaints about the defendant's failure to prove its origin by explicit means.

47 Secondly, Ground 1 assumes that the trial judge did place reliance on Exhibit 13. As was indicated above, the plaintiff did not demonstrate that he did.

Ground 2

48 This ground was:

"The Trial Judge erred in raising during address on behalf of the Plaintiff that he was minded to accept that the clinical notes were those of the Plaintiff in circumstances where the Plaintiff was not cross-examined to suggest that the notes were of him and no suggestion was made during address on behalf of the Defendant concerning them."

49 This appears to rest on a false premise. The trial judge did not say he was minded to accept that the clinical notes in Exhibit 13 were those of the plaintiff. All he said was: "Secondly, that exhibit 13 might be the notes of Dr Thurai" (Black 83N). He was not thereby indicating his own state of mind. He was merely summarising the consensus at which the parties had arrived. Indeed, the fourth point in the summary of the consensus explicitly reveals that the trial judge had not arrived at any state of mind about whether Exhibit 13 referred to the plaintiff: "Fourthly, the defendant has no access to any other identification of the patient referred to in Exhibit 13, such as date of birth or middle name?" (Black 83P-Q).

50 Even if the trial judge had said he was minded to accept that the clinical notes were those of the plaintiff, there is no error, but rather merit, in the judge raising a matter about which he had formed a preliminary view for the consideration of the parties and for any submission about it they wish to make. Questions or tentative statements in address are not equivalent to findings in reasons for judgment.

51 The suggestion in Ground 2 and para 4.3 of the plaintiff's written submissions that the contents of Exhibit 13 were never put to the plaintiff by the defendant in cross-examination is more relevant to Ground 1 than to Ground 2. It is true that the plaintiff was not specifically cross-examined on the document or the matters described in it. But counsel for the defendant did ask the plaintiff who his doctor was in 1986 (Black 35N-P). He asked the plaintiff whether it was possible that there had been more than one prior injury to his back (Black 37D). And he did put to the plaintiff the general proposition that he was not truthful with Drs Ellis, Eggins and Matheson about the history he gave them (Black 53U-V).

52 The plaintiff's argument that the defendant's counsel made no suggestion about Exhibit 13 during address cannot be evaluated, since this Court does not have the totality of counsel's addresses. If it is true that the defendant's counsel did not, he cannot be criticised for non-compliance with the rule in Browne v Dunn (1893) 6R 67, since that rule only requires that the case on which the cross-examiner proposes to rely is put to the witness. Further, even if the defendant's counsel did make any suggestion about Exhibit 13, he cannot be criticised, because the plaintiff's lawyers, and hence the plaintiff, must have been on notice of the matters appearing in the contents of Exhibit 13. They were accurately set out by Dr Eggins in Exhibit 4C (Blue 107-108) and by Dr Dalton (Blue 125M-Q). They were referred to Dr Bodel (Blue 91M-R). In addition, they were relied on by Dr Eggins in reaching his conclusion that the plaintiff had no permanent impairment (Blue 109R and 115M). The plaintiff conceded on appeal that these medical reports gave notice of the Dr Thurai problem when they were served well prior to trial (transcript page 22 lines 44-56). The medical reports were all admitted without objection. Since the plaintiff and his lawyers were on notice of Dr Thurai's material, they must have been on notice that any suggestion that there was only one episode of back trouble stemming from a pulled muscle in 1987 was potentially controversial. The rule in Browne v Dunn thus does not apply.

Ground 3

53 This ground states:

"The indication by the Trial Judge that he would or may find that the notes related to the Plaintiff, such indication being given during address on behalf of the Plaintiff amounted to a procedural unfairness."

54 No such indication was given in the transcript in the Black Book. If it were, it would have been fair, not unfair.

Ground 4

55 This ground states:

"The trial miscarried during addresses in circumstances where the case had to be re-opened in an attempt to clear up the Trial Judge's view as to the clinical notes."

56 This ground depends on identification of what the trial judge's "view as to the clinical notes" was. No view on Exhibit 13 is recorded. Queries about Exhibit 4C are recorded, but no view about it. Further, the submission does not explain how the trial miscarried through the tender of Exhibit 13 without objection, particularly in view of the fact that its contents were similar to those of three other medical reports (Blue 91N-R, 107-108 and 125M-Q) of which the plaintiff had notice before the trial and which had also been admitted without objection earlier.

Ground 5

57 This ground states:

"The Trial Judge, having been informed by Counsel for the Defendant that it could not be proven in any way that the clinical notes were those of the Plaintiff, erred in holding that they were."

58 Counsel for the defendant did not inform the trial judge that "it could not be proven in any way that the clinical notes were those of the Plaintiff". All he said was that he could not "establish the source" or "prove the provenance of Exhibit 13" (Black 83F and S-T). Even if counsel for the defendant had said what Ground 5 attributes to him, he could have been wrong. It is true that the plaintiff could have relied on what counsel for the defendant said as an admission justifying exclusion of Exhibit 13, but, far from doing that, the plaintiff consented to the tender. The contents of Exhibit 13 correspond to a considerable degree with Dr Eggins' summary in Exhibit 4C. There is no reason to suppose that Dr Eggins was not summarising it bona fide and with reasonable accuracy. Since Exhibit 4C was not objected to, it was open to the trial judge to use the statement of facts in it as evidence of the facts asserted at least so far as one fact represented is that the solicitors for the defendant in fact sent the plaintiff's clinical records. There were preconditions to the admissibility of Dr Eggins' representation. The preconditions depended on whether Dr Eggins was available (s 64(2)) or was not available (s 63 and Dictionary, Part 2, clause 4). The failure to require Dr Eggins to attend for cross-examination and the non-objection to Exhibit 4C amounted to a waiver of the rights which would otherwise flow from non-satisfaction of those preconditions to the admissibility of Dr Eggins' representation. There is no reason to suppose that either those solicitors, or anyone who supplied the clinical records to the solicitors, would have fabricated them. Similar reasoning applies in relation to Dr Dalton (Blue 125M-Q) and Dr Bodel (Blue 91N-R). Accordingly it does not seem erroneous for the trial judge to have concluded that Exhibit 13 was one page of Dr Thurai's clinical notes about the plaintiff. Even if it was erroneous, it was a harmless error, because the trial judge did not rely on it in his operative reasoning.

Ground 6

59 This ground states:

"The Trial Judge erred, despite being told by Counsel for the Defendant that the provenance of the clinical notes was unknown, in finding that they were those of the Plaintiff's general practitioner."

60 The statement by counsel for the defendant could have been used as an admission justifying non-reception of the evidence. But it was not so used. Once the document was admitted without objection, the fact that there was no direct evidence of provenance did not prevent an inference of authorship. The trial judge's conclusion does not appear erroneous, and even if it was, it was not relied on by him as part of his operative reasoning.

Ground 7

61 Ground 7 states:

"The Trial Judge erred in that despite being told by Counsel for the Defendant that the clinical notes had come to the Defendant's possession in some other case (there being no suggestion that the Plaintiff had been in any other case) in holding that the clinical notes were those of the Plaintiff."

62 Whatever the position might have been if Exhibit 13, together with the relevant parts of the reports of Dr Eggins, Dr Dalton and Dr Bodel, had been objected to, the trial judge was entitled to draw inferences from those materials once they had been admitted without objection. Again, the conclusion does not appear erroneous, and even if it was the trial judge did not employ it as part of his operative reasoning.

Ground 8

63 Ground 8 states:

"That procedural unfairness was visited upon the Plaintiff which unfairness resulted in the Plaintiff being forced to re-open his case and actually tender the clinical notes with announcements made by Counsel for the Defendant above."

64 The plaintiff was not forced to do anything. The trial judge made it plain that the conduct of his case was a matter for him and his counsel. The plaintiff had two adjournments to consider the position between the time when the trial judge raised a question about Exhibit 4C and the time when Exhibit 13 was received. The content of the clinical notes (Exhibit 13) added nothing to Exhibit 4C (or Blue 125M-Q) and not much to Blue 91N-R. The comments made by counsel for the defendant when the tender was received advanced the plaintiff's interests: they were not unfair to the plaintiff. In any event none of the Dr Thurai material was utilised by the trial judge in his operative reasoning.

Ground 9

65 Ground 9 states:

"That despite indications given to the Trial Judge by both Counsel for the Plaintiff and the Defendant that he should not place any reliance on the clinical notes, the Trial Judge nonetheless found that they were those of the Plaintiff and that this substantially affected the Plaintiff's credit."

66 There is no material suggesting that either counsel gave indications to the trial judge that he "should not place any reliance on the clinical notes". If any such indication had been given to the trial judge, the person communicating that indication should have objected to the clinical notes. Evidence should not be tendered or received if its only effect is to clutter the record with material on which the judge is not to rely.

67 The contention that the finding of the trial judge that Exhibit 13 comprised the plaintiff's clinical notes "substantially affected the Plaintiff's credit" is not made out. It is not indicated how the judge relied on that finding so as to draw conclusions adverse to the credit of the plaintiff.

Ground 12

68 Ground 12 states:

"The Trial Judge should have placed no weight on the contents of the Defendant's medical reports so far as they related to unproven clinical notes on which the Plaintiff had not been cross-examined."

69 First, in my opinion, given the pre-trial disclosure of the reports of Dr Eggins, Dr Dalton and Dr Bodel, the defendant sufficiently put to the plaintiff its case, which was that he had given misleading medical histories to certain doctors in failing to reveal to them any back trouble before 27 March 1990.

70 Secondly, while at common law the history taken by a doctor and repeated as the basis for that doctor's opinion evidence had to be admissibly proved if it was to be received as evidence of the facts stated (e.g. Ramsey v Watson [1961] HCA 65; (1961) 108 CLR 642 at 649), that rule has been reversed by s 60 of the Evidence Act. Section 60 provides:

"The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation."

The "previous representations" in medical reports are relevant for a purpose other than proof of the fact intended to be asserted by the representation. Hence the hearsay rule does not apply to the evidence of previous representations, and they are admissible. That at least is what the Court of Criminal Appeal held in R v Welsh (1996) 90 A Crim R 364. While the Court of Criminal Appeal is not bound by decisions of the Court of Appeal, the Court of Criminal Appeal "would naturally have great regard for a carefully considered decision of the Court of Appeal": R v Masters (1992) 26 NSWLR 450 at 472. The Court of Criminal Appeal will follow decisions of the Court of Appeal unless convinced they are plainly wrong: R v O'Halloran [2000] NSWCCA 528 at para 92. In my judgment the same applies where the Court of Appeal is confronted with a decision of the Court of Criminal Appeal in point. I do not consider that the decision of Hunt CJ at CL, Newman J and Bell AJ in R v Welsh was plainly wrong. It follows that it does not matter that it is not possible to point to some other hearsay exceptions such as those relating to business records to support the reception of histories and other factual material in clinical notes.

71 Thirdly, while an objection to Exhibit 13 or the corresponding parts of the reports of Dr Eggins, Dr Dalton and Dr Bodel, might, had it been made, have succeeded, it was not made.

72 Fourthly, whether individual parts of those Exhibits should have been given weight, and if so how much, was a matter for the trial judge. The proposition that he ought to have placed no weight on them is exaggerated and invalid.

73 Fifthly, the plaintiff has not shown that the statements of history of which it complains, all of which relate to Dr Thurai's supposed observations, were in fact relied upon by the trial judge.

74 Sixthly, the defendant contends that no submission was made at trial to the effect of that set out in para 5.2 of the plaintiff's submissions. If that is correct, and nothing in the transcript as recorded in the Black Book records such a submission, that is an independent reason why Ground 12 should be rejected. When the plaintiff failed to object to the tender of the offending parts of the medical reports, the defendant's case was proceeding and the plaintiff would have known well that the defendant had not cross-examined him on the offending parts. If the plaintiff, having failed to object to the offending parts in those circumstances, had submitted that no weight should be placed on the contents, the trial judge would have been entitled to query what the point of not objecting was. The plaintiff ought not to be permitted to change the stance he adopted at the trial on the hearing of this appeal.

Grounds 10-11

75 These grounds are as follows:

"10. The Trial Judge erred during cross-examination of an investigator by Counsel for the Plaintiff by informing Counsel that further cross-examination on the topic of the horse fence was unnecessary since the Plaintiff's evidence was the only evidence on that topic whereupon Counsel for the Plaintiff ceased that cross examination and thereafter finding adversely to the Plaintiff on that issue.

11. The remark above as to cross-examination of the investigator amounted to an indication that the Trial Judge proposed to accept the Plaintiff's evidence on that point whereas in fact the Trial Judge did not accept the Plaintiff's evidence on that point and used that rejection to determine both credit issues and ultimate issues in the case."

76 At the hearing of the appeal the parties were not in agreement about what the trial judge said. Pursuant to leave, after the hearing the parties listened to the relevant untranscribed part of the tape of proceedings, which had been produced on subpoena. They then arrived at substantial, though not complete, agreement. So far as there is disagreement, it does not affect the outcome.

77 The trial judge's intervention came during the cross-examination of Mark Hendrie. He was a private inquiry agent who gave evidence that he made two video films of the plaintiff, one on 19 October 1996 and one on 20 October 1996. The film taken on 19 October 1996 showed the plaintiff digging fence post holes, carrying fence posts and working on a fence.

78 Before Mr Hendrie was called, the state of the evidence in relation to what happened on 19 October 1996 was that the film had been shown (Black 44Q). The plaintiff had said in cross-examination he had done the work which the film showed him as doing "as an emergency job" because the horses which an existing fence had confined had knocked it down (Black 45J), and he had taken three Panadeine Forte tablets "before I started because I knew it had to be done and couldn't stop until we finished" (Black 45T-U). In re-examination he said he first noticed there was something wrong with the horse yard on the day he fixed it, when his daughter had told him the horses were loose (Black 59K-N).

79 At Black 71E-K the following is recorded in the cross-examination of the private inquiry agent:

"Q. On the 19th when you exposed film, before you set the camera in motion, did you notice any damage to the horse yard on the property?

A. I was actually at another part of the yard, watching from another part of the yard and I didn't really notice any damage. It wasn't until the vehicle was driven into the vicinity of where the activity was, where I filmed, that I actually noted there was people there. I actually then changed my position and then filmed the respective activity.

Q. You didn't do any damage to the horse yard yourself?

A. Why would I do damage to the horse yard?

Q. I'm just asking you?

A. No.

HIS HONOUR: The question you were asked, what's your answer?

A. No."

80 It is agreed that at that point Mr Lidden, for the plaintiff, began to ask another question. The plaintiff's version of what the tape records is:

"LIDDEN: Now to your knowledge.

HIS HONOUR: Can I just remind you Mr Lidden, that it is a matter for you Mr Lidden, but there wasn't a shot put across your client's bows on this one.

LIDDEN: Yes, alright."

81 The defendant's version is:

"LIDDEN: Nobody to your knowledge associated with you ...

HIS HONOUR: Can I just remind you Mr Lidden, it's a matter for you but there wasn't a shot put across your client's bows on this point.

LIDDEN: Yes, alright."

82 The evidence then continued as recorded at Black 71L with questions about the film made on 20 October 1996.

83 It was not suggested that there was anything sinister in the fact that the words appearing only on the tape had not been transcribed. Those responsible probably regarded it as the kind of insignificant exchange between bench and bar which is often not recorded in what is, primarily, after all, a transcript of evidence.

84 The plaintiff's submissions in relation to the material not appearing on the transcript were as follows (paragraphs 2.1-2.7):

"2.1.1 After the Trial Judge's intervention in relation to the Corral fencing, Mr Lidden asked no further questions on that topic.

2.1.2 The Trial Judge gave no indication that he intended to reject the Appellant's evidence, or that he regarded it was inadequate.

2.2 The Trial Judge made two findings in relation to the Corral fencing which were, on the whole of the evidence, inaccurate. At Red Appeal Book 26J he found `the first day's film showed the Plaintiff, accompanied by his daughter, who was an onlooker, erecting a bush Corral to contain horses from escaping onto the Public Highway. (The Appellant submits he was not `erecting' the Corral, he was repairing it after it had been broken down, most probably had the Cross-Examination of the Investigator Mr Hendrie not been stopped, by Mr Hendrie.)

2.3.1 At Red Appeal Book 28E, His Honour referred to the Appellant's explanation for his ability to perform as demonstrated on Video film `that the building of the Corral was a matter of necessity, because the horses had broken down other fencing, and were at risk of straying out onto the Highway'.

2.3.2 The Appellant had given evidence (Black Appeal Book 45J) `Well from what I can recall, it was the horses had knocked the fence down from around the dam, and it was an emergency job, it had to be done otherwise they'd get out onto the highway, and I've got nobody else to fall back on, so that's what was happening, we were repairing the fence around the dam'. The Plaintiff gave evidence of taking three Panadeine Forte before he started because he knew it had to be done and he couldn't stop until it was finished (Black 45T). As the Appellant was unaware of Mr Hendrie, it was not unreasonable for him to assume that the horses must have knocked the fence down. But in the light of the attack about to be mounted upon Mr Hendrie, the Trial Judge effectively misled Counsel for the Appellant as to the attitude he was going to adopt in relation to the Appellant's evidence, which, by that stage of the Trial, had been completed. By then, in retrospect, it would seem more probable than not that the Trial Judge had (at the lowest, prima facie) reached a view adverse to [the] Appellant in relation to the evidence the Appellant had given, yet his intervention led Counsel for the Appellant to believe that the Trial Judge had decided to accept the evidence of the Appellant.

2.4 The Trial Judge reviewed the relevant portion of film at Red Appeal Book 26J-27G. At Red Appeal Book 27T-W he found that the activities filmed were in marked contrast to what the Appellant had been telling Doctors, and to what the Appellant had said in Court about the extent to which he was capable of performing physical activities.

2.5 The Appellant submits that his evidence was not, when read in context, inconsistent with the film. Compare as to mowing the lawn and gardening (Black Appeal Book 28C and J), as to digging (Black Appeal Book 29H), as to picking up things (Black Appeal Book 29K), as to building corrals and fences (Black Appeal Book 43J) (all of the foregoing before the film was shown) and his Cross-Examination at Black Appeal Book 45W et seq to Black Appeal Book 47J after the film had been shown.

2.6 The Appellant submits that the exchange between Counsel and Judge, as now inserted into the Transcript, gave Counsel for the Appellant the impression that he need not Cross-Examine further on the topic of the horse fence, as the Judge took the view that the Appellant's evidence was the only relevant evidence on that topic, and, by implication, that he would accept the evidence given by the Plaintiff on that topic. Thereafter, Counsel for the Appellant did not further Cross-Examine the Inquiry Agent on that aspect of the case. The Trial Judge gave no indication that he was minded to reject the Plaintiff's evidence, as he did (at Red Appeal Book 28J). There is nothing in the evidence at Black Appeal Book 42J to Black 42W to support the findings made by the Trial Judge at Red Appeal Book 28L-28S.

2.7 The process of fact finding followed by the Trial Judge, commencing with his reliance on Exhibit 13, and based on unsupportable conclusions as to the Plaintiff's evidence in relation to the Video film, was unsatisfactory, and the Judgement in the Court below should be set aside, and a new Trial should be ordered."

85 The material at Red 28J and Red 28L-S, together with some prefatory material, is as follows (Red 28):

86 One submission of the defendant was that the trial judge had not stopped the plaintiff's cross-examination of the private inquiry agent in any respect other than on the question of whether there had been damage to the yard. The defendant also submitted that in any event once the private inquiry agent had denied causing damage to the yard, in answer to questions, rather than suggestions, from both the plaintiff's counsel and the trial judge, "there could be no further exploration of the point". It is convenient to indicate at this point that these two arguments lack validity. It was common ground that the plaintiff was trying to repair a fence, and it was common ground that there was damage to the fence, otherwise there would have been no point in him trying to repair it. The plaintiff's counsel was not cross-examining the private inquiry agent to establish that there was damage, but rather to establish that he had caused it. Further, in that enterprise the plaintiff's counsel was entitled to ask more than a question or two in cross-examination before "further exploration" was prevented.

87 The defendant put another submission, namely that the trial judge did not reject the plaintiff's evidence that the fencing had been broken and that there was an emergency because of the risk of the horses straying; rather he rejected the plaintiff's evidence that that circumstance caused him to display a greater capacity on the film than he in truth ordinarily possessed. That submission will be considered below.

88 The parties agreed on the actual words of the trial judge recorded on the tape. However, there is a preliminary difficulty in understanding precisely what the words used at the trial by the trial judge were intended to mean. In particular, it is not clear what issue the words "this one" refer to. The cross-examination was apparently directed to seeking a concession by the private inquiry agent that it was he who had knocked the fence down, or procured it to be knocked down, with a view to provoking the plaintiff into carrying out work he would not have otherwise carried out. Whether the inquiry agent had done that was not something of which the plaintiff would be likely to have had knowledge, and the plaintiff did not say in chief or in re-examination that he did have any knowledge on the point. All that the plaintiff said about the condition of the fence was that the horses had knocked the fence down. It was common ground between the parties that the fence had been knocked down. The effect of the trial judge's intervention was certainly to stop cross-examination of the inquiry agent to suggest that he had had it knocked down. However, no serious prejudice to the plaintiff's case flowed from that course. If the inquiry agent had knocked the fence down, it would have been a reprehensible act, not least because of the danger to traffic on nearby roads which escaping horses would have caused. But misconduct of the inquiry agent, whether the defendant had encouraged it or not, would not have nullified or remedied any damage to the credit of the plaintiff which had already been inflicted. A concession of misconduct by the inquiry agent would have been injurious to his credit, but he gave very little evidence to which his credit was significant, because it was, after the plaintiff's cross-examination was over, common ground that he had done the work which the 19 October 1996 film showed. The plaintiff submitted that the private inquiry agent could have been cross-examined about why the whole of the plaintiff's activities over the two hours they lasted were not filmed. However, the trial judge does not appear to have stopped this type of cross-examination, since the topic of "selective filming" was dealt with in relation to the film of 20 October 1996. And even if the trial judge's intervention did have the effect of stopping this type of cross-examination in relation to the film of 19 October 1996, the thirty-five minutes of film taken on that day gave a sufficient impression of the plaintiff to support the trial judge's conclusions about what he could do.

89 Any difference between the plaintiff's complaints about his post-accident condition and what could be inferred from his movements as recorded on the 19 October 1996 film was a matter for the plaintiff to explain. The acceptability of his explanation would turn on his credit. It would not turn on the credit of the private inquiry agent. And it would not turn on any belief by the defendant that it could only win the case by causing the private inquiry agent to knock down the fence.

90 The plaintiff at one point appeared to submit that the trial judge's intervention led Mr Lidden to believe that the trial judge had decided to accept the plaintiff's evidence as a whole. I do not think that any such inference could reasonably have been drawn from the intervention. Even if such an inference was drawn in fact, there is nothing more the plaintiff could have done about improving his position from a credibility point of view by that stage: he had left the box and his own case had closed. As already indicated, any damage which might have been inflicted on the credibility of the private inquiry agent or the credibility of the defendant's overall position by investigating whether the private inquiry agent damaged the fence would not have availed the plaintiff in a contention that he was creditworthy, because of the various reasons, not complained of in the Notice of Appeal, which the trial judge had for rejecting his creditworthiness. Further, to argue that the trial judge's remark was an acceptance of the plaintiff's evidence as a whole goes beyond grounds 10 and 11, which limit the extent to which the plaintiff's evidence was putatively accepted to "the topic of the horse fence" (see "that issue" in ground 10 and "that part" in ground 11).

91 The plaintiff submitted that the trial judge's conclusion that what was shown on the film was inconsistent with what the plaintiff said before it was shown was wrong. The evidence relied on for that submission does not support it. The trial judge's conclusion on this point is not only in part credit-based, but it is based on the evidence of what he saw with his own eyes when the film was shown. No application was made to show the film, Exhibit 1, to this Court. Accordingly, what the trial judge said about the film must be accepted, particularly since it was not attacked. The trial judge's perception that it gave a radically different impression of the plaintiff's capacities from what the plaintiff said they were is very difficult to criticise.

92 The plaintiff attacked the findings at Red 28J and Red 28L-S. It will be remembered that the finding at Red 28J was:

"I find his explanation for how he managed to perform in the way demonstrated on the video was an answer of convenience."

It will also be remembered that the finding at Red 28L-S was:

"In fact, it is not entirely certain that he was prepared to admit that he had very much present recollection of the day at all until he had been shown the film. I do not accept his explanation, especially bearing in mind the way in which he answered questions whilst the cross-examiner was, literally building the trap, preparatory to displaying the video film. During those answers, the plaintiff demonstrated an awareness that he was being set up to be attacked some way and the more the trap was being prepared the more guarded he became. He demonstrated an acute awareness that something was being prepared to his disadvantage in the questions."

The two sentences preceding Red 28J are (Red 28C-H):

The plaintiff attacked Red 28J and Red L-S separately, but they must be read together.

93 The plaintiff's submission that there is nothing in Black 42J-W to support the conclusions at Red 28L-S overlooks the fact that there was much other material at Black 28T-31W and 42J-43W which undercut the plaintiff's credibility in the manner described by the trial judge and in other respects in relation to the films of his fence work and his mowing. While saying he could do a little bit of lawn mowing and gardening, he denied bending while mowing (Black 28R-T), yet later he admitted that the 20 October 1996 film showed him bending to remove sticks (Black 51H-J). He said he had tried digging "when we had heavy rainfall" with the use of garden tools (Black 29H-J), but could not recall carrying fence posts (Black 29P). He said that digging combined with carrying garden tools caused his movements to become slower, but he usually knocked off before that stage (Black 30M-T). He volunteered that he had only ever once dug into the ground on his property, and that was to clear a drain; this appears to have been a reference to the occasion when there was heavy rain fall (Black 31S-W). This answer was contradicted by the later evidence about digging holes for the fence posts. Later, on being reminded of the drain-clearing incident, he said: "that's all I can remember" (Black 42L). It was put to him that he had found it necessary to build corrals and fences to keep the horses in his property, and he agreed (Black 43J). He did not agree that this involved digging holes in the ground, because star posts were used (Black 43N) - an inherently suspect answer, since even star post fences require some substantial holes in the ground for posts. He then agreed that this involved carrying items to be used as fence posts (Black 43N), but that they were only star posts (Black 43T). He then repeated that no holes were dug because star posts were used (Black 43V). The film of the fence erection was then shown, and cross-examined on, followed by the showing of the mowing film. This material affords reasonable support for the trial judge's criticisms of the way the plaintiff answered questions before the first film was shown. It also supports the trial judge's doubts about the plaintiff's preparedness to admit "very much present recollection of the day at all until he had been shown the film".

94 The trial judge's criticisms and doubts afforded a justification for his treatment of the plaintiff's explanation that he had been able to work as the film revealed because of taking three analgesic tablets as "an answer of convenience". It is true that before the film was shown the plaintiff had said that he could work longer after taking pain killers than he could if he did not take them (Black 31L-R). But the film showed him carrying out the activities described by the trial judge over two hours (1.34-3.31pm, 35 minutes being recorded: Red 26E). It was work which, before the film was shown, he several times denied doing or said he could not remember doing. What he did as described by the trial judge (Red 26J-27G) was radically different from what one would expect him to be capable of in view of the evidence he gave before the film was shown, even allowing for the effects of pain killers. In any event this part of the trial judge's reasoning related to primary facts and questions of credit in relation to which there appears to be no ground to interfere.

95 The difficulty which Grounds 10-11 raise stems not from the plaintiff's explanation so far as it turned on taking three analgesic tablets. Rather it stems from the plaintiff's evidence that he built the corral as a matter of necessity because the horses had broken the fencing. When the trial judge said: "I find his explanation for how he managed to perform in the way demonstrated on the video was an answer of convenience" (Red 28J), either he was not intending to refer to the evidence about the building of the corral being a matter of necessity, or he was. If he was not intending to refer to the evidence about the building of the corral as a matter of necessity, then Grounds 10 and 11 have no basis. However, the sentence referring to the building of the corral as a matter of necessity commences with the words "His explanation" which suggests that the explanation rejected as an answer of convenience may include that explanation. On the other hand, what was rejected was "an" answer of convenience", not two answers, and this creates an issue as to what the relevant answer was. If the trial judge was intending to say that in truth the broken fencing was not something causing the need to build the corral as a matter of necessity, and was thus rejecting as an answer of convenience the evidence about the building of the corral being a matter of necessity, there was unfairness in this course. But that unfairness does not stem primarily from the trial judge having stopped the plaintiff's cross-examination of the private inquiry agent, it stems from the absence of any evidence capable of suggesting that the plaintiff had any reason for building the corral other than a need to stop the horses straying. It may be, as the defendant submitted, that the trial judge was intending to say something else, namely that while he accepted the plaintiff's evidence that the fencing was broken, and while he accepted the plaintiff's evidence that that created an emergency, he did not accept the plaintiff's suggestion that these circumstances had given the plaintiff a capacity to work as demonstrated on the film which he did not ordinarily have. That part of his evidence was the "answer of convenience", or one of them. If that is what the passage in question means, then there was no unfairness in stopping the cross-examination of the inquiry agent. It seems likely that that is what the passage means, because the trial judge accepted the plaintiff's evidence that his work on the corral was "to contain horses from escaping onto the public highway" (Red 26J). That implies an acceptance of the plaintiff's evidence that the fencing was broken, that the horses were at risk of escaping, and that preventing them from doing so by repairing the fence was an emergency task. The work done by the expression "answer of convenience", if it applies to the evidence about the corral, was to reject the plaintiff's evidence as an explanation of why he could work beyond his normal capacity.

96 However, whichever construction of the passage at Red 28C-J is correct, and whatever the motivation for the trial judge's intervention recorded on the tape, no appellable error is revealed, because even if the cross-examination had continued, it could not have improved the plaintiff's credibility, whatever adverse impact it might have had on that of the inquiry agent.

97 There are aspects of the parties' submissions on Grounds 10-11 with which it is not necessary to deal in detail. Thus the plaintiff's distinction between "erecting" the corral and "repairing" it does not matter: what mattered is what capacity the plaintiff revealed. And the defendant's contention that many parts of the plaintiff's submissions purportedly in support of Grounds 10-11 went beyond them need not be dealt with: arguably they did not, but so far as they did, they have been rejected in any event.

Ground 13

98 Leave was given during the course of oral argument to add the following ground of appeal:

"13. The trial judge was in error when he held that the plaintiff's wife had given incorrect evidence as to the plaintiff's pre-accident health."

99 The trial judge said the following about the evidence of the plaintiff's wife on the plaintiff's pre-accident health (Red 28U-V and 29H-J):

"The plaintiff's wife has given evidence about his health and fitness both before and after 27 March 1990. It accords with the evidence-in-chief of the plaintiff. ...

I am satisfied that both the plaintiff and his wife were, at all relevant times, well aware of his level of health and fitness prior to 27 March 1990. I do not accept their evidence in court on that matter."

100 All that the plaintiff's wife said about his health before March 1990 in chief was (Black 60R-T):

"Q. In the months before [the March 1990 incident], say the year before that incident, did he ever complain to you of back pain?

A. I can't remember him - recall that ever complaining to me of back pain, no."

She gave further evidence as follows (Black 60U-61J):

"Q. What sort of man was he before this accident occurred, moods wise and personality wise Mrs Daw?

A. When I married Terry he was a very happy go lucky gentleman, had lots of friends, knew a lot of people. Did his work to the best of his ability. Made friends wherever he went, he was just that type of person.

Q. How did he get on with you in the early years up till the time this happened in 1990?

A. We got on very well together. I mean I loved the man, that's why I married him.

Q. His relationship with the children before this occurred?

A. His relationship with the children before the accident was one of very - he was very close to them, they were very close to him, he couldn't do enough for them. He was always there for them.

Q. After the accident we've heard that he had some treatment in Sydney and then toward the end of 1990 the family moved to Urunga and then there was a subsequent move to your present address in 1993?

A. That's correct.

Q. Following the accident did you notice any changes in his personality?

A. I noticed a lot of changes in my husband over the years, gradually declining."

This latter evidence points towards good health before March 1990.

101 In cross-examination the evidence of the plaintiff's wife on the subject of her husband's pre-accident health was as follows (Black 63X-64P):

"Q. You've indicated that as far as you can recall, your husband, prior to this incident in 1990, had made no complaint of back pain to you?

A. No.

Q. Were you aware that your husband had been treated by a physiotherapist for a back problems some years prior to this accident?

A. Yes.

Q. Are you able to recall over what period of time he was treated?

A. No I'm not, it was a long time ago.

Q. Are you able to recall him telling you anything about the treatment that he received on that occasion?

A. No.

Q. Do you remember him, at any stage, telling you that he was undergoing traction for his back?

A. No I don't.

Q. Do you remember him telling you on any occasion, that he was undergoing physiotherapy for his back some years prior to the accident?

A. He was seeing a doctor out at Rockdale, that's all I know.

Q. Does the name Atkinson ring a bell with you as far as that practitioner is concerned that he was seeing?

A. I think that might be his name, I can't remember.

Q. So you were aware that your husband was receiving treatment for a back problem some years prior to the accident?

A. Yes."

102 The plaintiff pointed out that the first question and answer quoted from the above cross-examination did not "fairly recapitulate" her evidence at Black 60S, which was limited to the year before March 1990, well after Mr Atkinson's treatment in 1987. The plaintiff also submitted that the evidence given in cross-examination about Mr Atkinson's treatment of her husband, which was correct as far as she could recall it, did not affect the credibility of her answer in chief or any other part of her evidence.

103 In my judgment the rejection of the evidence of the plaintiff's wife, for which no reasons were given, is incapable of being supported. Whatever advantage the trial judge had in relation to her evidence does not appear to have been used; his finding about her does not appear to be capable of being based on any particular evidence; and if it was based on evidence, that evidence would appear to be inconsistent with her internally consistent evidence quoted above. Compare Devries v Australian National Railways Commission (1993) 177 CLR 472 at 477.

104 Hence the criticism underlying ground 13 is made out. Whether that is sufficient to permit the appeal to be allowed is considered below.

Substantial Wrong or Miscarriage?

105 If the plaintiff succeeded on any of Grounds 1-9 or 12, no substantial wrong or miscarriage of justice would have been occasioned by the error complained of. That is because these grounds of appeal do not challenge in any way the central aspects of the reasoning which the trial judge adopted. The reasoning was forceful and convincing. Even if Exhibit 13 and the corresponding material elsewhere in the evidence was taken into account by the trial judge in some way not revealed in his reasons for judgment, there was ample material supporting the correctness of his conclusions quite independently of it. The plaintiff failed on liability. The fundamental question in the case so far as the issue of liability was concerned was whether the version of the accident of 27 March 1990 which the plaintiff gave in chief was correct. A critical problem for him was that he had made four near contemporary statements which were inconsistent with his evidence-in-chief. He made one to the ambulance officer on the same day as the accident, 27 March 1990. He made one to Dr Pillai before 11 April 1990. He made one in the workers compensation claim form on 11 April 1990. And he made one to Dr Bodel on 15 May 1990. The plaintiff never explained why the statement in the claim form in his own handwriting and signed by him came to take the form it did (Black 59H). That in turn negates the likelihood of the plaintiff giving the ambulance officer a wrong account while under the influence of pain. And it negates the likelihood of the ambulance officer, Dr Pillai and Dr Bodel being mistaken as to what the plaintiff said to them. Counsel for the plaintiff tried to explain away the ambulance officer's note by saying that it did not establish that the plaintiff was the source of the information about the accident which it recorded. That, if sound, was a ground for objecting to the evidence or a ground for a s 136 order, but no objection was taken and no s 136 order was asked for. In those circumstances the trial judge was entitled to infer that the source of the information was the plaintiff. In choosing between the contemporary versions which the plaintiff gave within six weeks of the accident, and other versions given years later culminating in his testimony nine years later, the trial judge was entitled to form and rely on the views on the plaintiff's credibility which he did form. In addition, the trial judge's impressions of the video tape evidence and the trial judge's findings about the plaintiff's testimonial reaction to its advent were powerful. The plaintiff's submissions on appeal in relation to Grounds 1-9 and 12 scarcely touch any of these central elements in the trial judge's reasoning. Part of the submissions on Ground 12 criticise the reasoning in relation to what the films showed, but unsuccessfully.

106 As to Grounds 10 and 11, even if they had been made out, the plaintiff's evidence in relation to the fence incident as a whole nevertheless showed that he had been untruthful in his evidence about his capacity to work, and his overall evidence on the subject displayed a sensitiveness about it which supported that conclusion. The four inconsistent statements made soon after the accident again constitute material supporting the trial judge's finding on how the accident happened and which are untouched by any error of the type complained of in Grounds 10 and 11. Hence any such error would not have amounted to a substantial wrong or miscarriage.

107 The plaintiff succeeded on Ground 13 (concerning the credibility of his wife), but that success does not justify a new trial. Her credibility was of marginal significance. So far as she supported his evidence about his pre-accident health, the only relevance of his evidence on that subject apart from credibility was to damages. On liability, the essential question was which of the various accounts of how the accident happened which the plaintiff propounded was correct. On that matter the wife's credibility had no bearing. While the error complained of in Ground 13 was unfair to the plaintiff's wife, that error, whether taken by itself or otherwise, did not cause any substantial wrong or miscarriage of justice to the plaintiff.

Orders

108 I favour the following orders:

1. Appeal dismissed.

2. The appellant is to pay the respondent's costs of the appeal.

LAST UPDATED: 22/02/2001

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