The Supreme Court of Queensland (Court of Appeal) refused leave to appeal an award for damages below the Magistrates Courts jurisdictional limit where the primary judge made adverse findings as to the credibility and reliability of the primary witness.
The issue
- Whether leave to appeal should be granted on the basis of alleged material unfairness, incorrect factual findings and errors of law.
The background
The plaintiff initiated proceedings in the Brisbane District Court in early 2023 for personal injuries allegedly sustained in a motor vehicle accident. Liability for the accident was admitted by the CTP insurer. The only issue for determination at trial was the nature and extent of the injuries suffered by the plaintiff and the quantum of damages.
Whilst the CTP insurer admitted that the plaintiff had suffered some injuries in the accident, it alleged that she had fully recovered from those injuries, that she was suffering from no impairment or disability, and alternatively, that she had misrepresented or exaggerated the nature of her symptomology.
At trial, the CTP insurer introduced surveillance material which had not been previously disclosed pursuant to an order relieving it from its disclosure obligations. The surveillance depicted the plaintiff engaging in activities which were inconsistent with her alleged level of injury. The CTP insurer’s orthopaedic expert found that the evidence depicted a person with no measurable impairment or disability.
The assessment of the claim largely depended on the plaintiff’s credibility and reliability. Although the primary judge generally found the plaintiff to be a truthful witness, components of her account could not be accepted as it was inconsistent with objective evidence. The primary judge found that the plaintiff’s recollection had been 'subsequently altered by unconscious bias or by wishful thinking or by overmuch discussion of it with others'. Damages of $34,858.27 were awarded at trial. There was no allowance made for future economic loss.
The decision at trial
As the original judgment was for less than the jurisdictional limit of the Magistrates Court, the plaintiff required leave of the Court of Appeal to appeal from the primary judge’s decision.
The plaintiff sought leave to appeal on several grounds, including that there had been material unfairness in the conduct of the trial based on the rule in Browne v Dunn1. That common law rule of procedural fairness requires a party to put any contradictory version of events or credibility challenge to an opposing witness during cross-examination. Most notably, the plaintiff submitted that there had been unfairness occasioned by the fact that the CTP insurer had not put the surveillance material to her orthopaedic expert for the purposes of cross-examination, and also failed to cross-examine her in relation to the resolution of her injuries.
The Court of Appeal confirmed that the plaintiff carried the onus of proof in the case. The Court of Appeal found that this included putting the video evidence to her own orthopaedic expert in evidence. The plaintiff’s failure to ask her own orthopaedic expert about the surveillance was unexplained at trial. An adjournment was not requested to allow the plaintiff’s orthopaedic expert to address the video evidence. The plaintiff was therefore bound by the forensic decisions made at trial and it was held by the Court of Appeal that it was not for the CTP insurer to remedy her failure to take another course.
The Court of Appeal found that there was no merit in the plaintiff’s submission that there was material unfairness because of the CTP insurer’s failure to cross-examine her as to the resolution of her symptoms or her evidence as to physical capacity. The plaintiff’s evidence as to the nature and extent of her alleged injuries and resultant disability were directly challenged on the face of the CTP insurer’s pleadings. The Court of Appeal found that the plaintiff could not possibly have been in any doubt that the truth of her case concerning physical capacity and non-resolution of injuries was in issue.
Ultimately, the Court of Appeal found that the plaintiff had not established a case worthy of the grant of leave. The plaintiff’s application for leave to appeal was dismissed with costs.
Implications for you
The Court of Appeal’s decision ultimately centred around evidentiary and forensic decisions made at trial at first instance. It is for a plaintiff to prove their case. Surveillance evidence remains a legitimate form of objective investigation for insurers that can undermine a plaintiff’s case in circumstances where it is inconsistent with their subjective reporting.
Bullock v Wraight [2026] QCA 176
1 (1893) 6 R 67.
