Credit & reasons for decision for preferring expert evidence

Suncorp Metway Insurance Ltd v Kilner [2013] QCA 42

Fraser and Gotterson JJA concurred with Muir JA.

In issue was the adequacy of primary judge’s reasons for:

  • preferring the evidence of Dr Lotz as opposed to Dr De Leacy, together with preferring Dr Pentis to Dr McPhee;
  • the credit of the plaintiff/respondent.

The appeal was allowed.

In relation to the medical witnesses it turned on the failure to be provided with information about the plaintiff’s other medical conditions or information provided by the plaintiff who was inconsistent with known medical evidence or not which was not addressed by the expert. In relation to the plaintiff’s credit the following was concluded:

[59] The primary judge was entitled to take the view that the respondent’s credibility was not destroyed merely because he told Dr De Leacy he had no criminal history. However, that was a relatively minor matter which the primary judge was required to take into account, together with:

  •  the fact that the criminal history included dishonesty offences and others which tended to show a disregard of social norms;
  •  the weight evidence;
  •  the work history evidence;
  •  the  evidence  of  Dr  McPhee  and  Dr  Dillon  of  a  deliberate  exaggeration  of symptoms; and
  •  in particular, the evidence of false statements and omissions in the respondent’s dealings with medical practitioners.

[60]    A judge’s reasons for accepting or rejecting a witness’ credibility are often difficult to articulate. In some circumstances it may be sufficient for the judge to state that his conclusion is based on the witness’ demeanour.2 But where, as is the case here, there is a wealth of objective evidence which strongly supports the conclusion that the witness is unreliable and untruthful in many material aspects, it is incumbent on the judge to explain, with some care, how the objective indicators of untruthfulness and unreliability have been overcome. At the very least, the judge must be seen to have considered the matters supporting a favourable credit finding against the cumulative weight of the evidence casting doubt on the witness’ credibility. This the primary judge failed to do.

 

Brisbane Barrister – David Cormack

 

2.       Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at 417.

 

 

 

 

 

 

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