Ackland v Commonwealth of Australia

[2008] HCATrans 167

[2008] HCATrans 167

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S525 of 2007

B e t w e e n -

MICHAEL KENNETH ACKLAND

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 APRIL 2008, AT 10.33 AM

Copyright in the High Court of Australia

MR F.M. DOUGLAS, QC:   If it please the Court, I appear with my learned friend, MR W.D.H. WALSH, for applicant. (instructed by James Taylor & Co)

MR P.G. GARLING, SC:   May it please the Court, I appear with my learned friend, MR P.S. JONES, for the respondent. (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Douglas.

MR DOUGLAS:   May it please the Court, this is one of many matters arising out of the so‑called Voyager incident in which the Court of Appeal has held that conduct after the cause of action was complete and may constitute relevant conduct for the purpose of a defence of contributory negligence under the common law.  They did that, as we would understand it, based upon their assessment of the joint judgment of a majority of this Court in Austrust v Astley.  We say that in doing that they were wrong.  It was a case in which contributory negligence was not pleaded either under the common law or the statute.  It was the trial judge who really drew to the attention of the parties the fact that, because it happened in 1964, it was likely to be the common law and not the statute that prevailed.

Both parties addressed the jury on a question of contributory negligence, notwithstanding it had not been pleaded, but contributory negligence under the statute on an apportionment basis, and the trial judge summed up on that basis.  There was an agreement between counsel that issues of law in relation to the question of contributory negligence would be dealt with by the trial judge after the jury had delivered its verdict.

GLEESON CJ:   That was so the jury could get away for Easter.

MR DOUGLAS:   It seems so, your Honour; yes – which is a very sensible course.  It was a matter which had gone for about four weeks in the Court.

GLEESON CJ:   It does seem to have been sensible, but we are left now with a case of considerable procedural complexity, to put it generously.

MR DOUGLAS:   Not if in fact it does not constitute a defence under the – it is conceded, your Honour – it was conceded in the Court of Appeal that the statute could not apply.  So it is not an apportionment case under the statute.  Secondly, although mitigation was pleaded, the Commonwealth’s counsel did not seek to address the court on a question of mitigation, nor, should I say, for that matter, did they seek to undertake the onus during the trial that would be necessary to establish that in some way the subsequent behaviour of the plaintiff – namely excessive eating and drinking –

GLEESON CJ:   All the Court of Appeal has done is sent the matter back for a new trial, has it not?

MR DOUGLAS:   But what would be the point of that, your Honour?  If contributory negligence under the statute is not a defence, then we should have that issue determined here.  They did not seek to address the jury on mitigation and nor did they seek a direction from the trial judge on that issue, so why should they be allowed to have the four‑week trial again just for the purposes of doing that?  They have conceded in the Court of Appeal that apportionment under the statute is not available to them.

GLEESON CJ:   Is there not an unresolved issue of causation?

MR DOUGLAS:   No, your Honour – to the extent the jury has found that the plaintiff’s loss was caused by the instant in question and they have given him an undeducted verdict from which the only deduction is the amount in respect of contributory negligence.  So the jury has found that the plaintiff’s loss was caused by this.  To the extent that they have said that he contributed to that loss, that is a matter which can just be ignored, because if in fact contributory negligence is not a defence – that is, the only acts relied upon as constituting contributory negligence were the excessive eating and drinking.  There was no other matter relied upon.  If those acts are not capable of constituting contributory negligence, then the matter is one which is right for determining the issue which arises, which is, as a matter of law, can excessive eating and drinking constitute contributory negligence, that is, a common law defence of contributory negligence.

GLEESON CJ:   What is concerning me is that that issue that you identify arises against a procedural and factual background that is complex and closely related to the way in which people conducted themselves at trial.

MR DOUGLAS:   But your Honour, counsel make choices at trial.  Counsel knew before the jury was addressed and before the judge gave his summing‑up that contributory negligence could have been put in one of two ways, either consistently with the common law as a complete defence or consistently with McLean’s Case, where some observations have been made by Justice Handley and Justice Beazley that the apportionment statute apply.  It seems as though that statement was made, if I can put it that way, per incuriam unaware of the existence of section 8 of the Law Reform Act which applied, which made it clear that the reforms brought about by the Act did not apply to torts which occurred before the commencement of the Act.

Counsel consistently with Water Board v Moustakas must be taken to have known.  They had pleaded mitigation; they had not pleaded contributory negligence but were allowed to put it; but they could put contributory negligence in one of two ways, or two ways.  They chose, or they must be taken to have chosen, for their own forensic reasons, to have put it in only one way and that is under the statute.

GLEESON CJ:   Leave aside the legal rubrics applicable - from the point of view of the jury, was the matter left to them on the basis that they knew there was substantial criticism, if I can use that word, of the lifestyle of the plaintiff in terms of eating and drinking, and they were told they could deal with it under the rubric of contributory negligence?

MR DOUGLAS:   Yes, your Honour.

GLEESON CJ:   And they did so?

MR DOUGLAS:   Yes, your Honour.

GLEESON CJ:   From the point of view of a jury, they might have thought that made some sense.  If somebody had told them they could not deal with those lifestyle questions under the heading of contributory negligence, they might have wanted the opportunity to deal with them under some other rubric.

MR DOUGLAS:   But, your Honour, that effectively is giving the Commonwealth a second bite at the cherry because the Commonwealth could, if it had chosen to do so, put that either as a matter of mitigation or consistently with Justice Glass’ decision in Munce’s Case, could have put it as a matter of aggravation.  It is a matter for them how they put their case to the jury, your Honour.  This is a matter which took four weeks at trial.  If it goes on again it may take another four weeks.  No plaintiff should be subjected to that unless it is absolutely necessary, in our respectful submission, and in the interests of justice.

If the Commonwealth wanted to put that matter under the rubric of aggravation, mitigation or common law contributory negligence it was their duty to do so because it has the consequence that if we end up here we will have to go back for another four‑week trial if we do not get special leave.  In that four‑week trial this issue of law will arise.  Is contributory negligence available as a defence?  That jury presumably may be properly instructed as to all of the matters which the Commonwealth should have put down below or which it may wish to put now.

GLEESON CJ:   They will presumably be instructed consistently with the decision of the Court of Appeal.

MR DOUGLAS:   No, your Honour.  His Honour, the trial judge, raised with counsel the fact that he had been in a case where the issue which was involved was whether a pre‑65 accident could be affected by the statute.  Mr Coleman, who was then representing the Commonwealth, said that he had had to consider how to put the matter; that is whether, in terms of the complete case or as a matter of apportionment.

Counsel, Mr Jones, I think, and Mr Coleman both addressed, but they put the matter to the jury only as a matter of apportionment.  There was no ruling by the judge prior to the summing‑up or to counsel’s addresses to the effect that he was bound by McLean’s Case and would address consistently McLean’s Case.  If that had been the situation, I would agree.  That would be a different situation because then the case could only have been put on that basis, or maybe even in those circumstances it would have been possible to put it subject to the directions of law to be made by the trial judge.

But knowing of the choice and knowing of their plea of mitigation, they have made a deliberate forensic decision to only put it in terms of the statute.  They cannot be allowed to come back again and say we want to have a new trial so we can put the case as we would like to have put it in the first instance, because the way we have elected to put it has not suited our interests.  That is effectively what they are doing, your Honour.  For that purpose they are seeking to put this plaintiff and subject him to the rigours of another four‑week trial, which would be manifestly unfair.

GLEESON CJ:   I am looking for your draft - yes, page 96.  I am just looking at the orders that you seek.

MR DOUGLAS:   The orders we would seek is that the orders of the Court of Appeal for a new trial be set aside.

GLEESON CJ:   Yes.

MR DOUGLAS:   What we would seek is the judgment for full amount.  So the jury gave an undeducted verdict for $138,000‑odd and that was then reduced by 50 per cent.  So we would simply seek that the 50 per cent – that that just be ignored and that we receive the undeducted verdict.

GLEESON CJ:   But the division in the Court of Appeal was between two members of the Court who said the only way to fix this up is to go back and have a new trial, and one member of the Court who said leave things as they are.

MR DOUGLAS:   One member of the Court, Justice Santow, seems to have thought as a question of law that it was a complete defence.  Justice Ipp, from paragraph 137 on page 84, referred to the passage in Austrust v Astley:

That is because contributory negligence is concerned with the failure of the plaintiff to protect his or her person or property against damage and not with whether the failure contributed to the accident.”

GLEESON CJ:   You are not trying to support the reasoning of any of the members of the Court of Appeal.

MR DOUGLAS:   No, I could not, your Honour.  Firstly, Justice Santow was wrong insofar as he said that this type of conduct could constitute contributory negligence at common law.  Justice Ipp seems to have confused, with the greatest of respect to him, the difference between damage and damages.  If you look at the paragraphs from 138 through to 142 you will see that he divides up the damage.  So that he says effectively it is not a defence to that part of his damage which flows from the accident, but in some way you then divide out that which is caused by the eating and drinking, so contributory negligence is only a defence to that.  If that is the guidance which the trial judge is going to get, it is best that it come up here and get sorted out.

GLEESON CJ:   What paragraph is that?

MR DOUGLAS:   It is at paragraph – if you read from paragraph 139, having referred to what Lord Atkin said in Caswell v Powell Duffryn Associated Collieries, really following on from the passage from Austrust v Astley which I had referred to.  So he correctly refers to what Lord Atkin said:

“[I]f the plaintiff were negligent, but his negligence was not a cause operating to produce the damage, there would be no defence.  I find it impossible to divorce any theory of contributory negligence from the concept of causation …”

The appellant’s damages fell, broadly speaking, into two categories.  The first was post‑traumatic stress disorder and its effects.  The second was the appellant’s excessive food and alcohol consumption and the effects of that.  The contributory negligence alleged by the respondent related only to the second category.

It is arguable that, at common law, any contributory negligence on the part of the appellant would operate only to defeat that part of his damages claim that related to his drinking habits and binge eating.  That is because his contributory negligence did not produce any of the other damage he sustained (namely, that falling within the first category I have mentioned).  Whether this be correct or not, had contributory negligence been put to the jury in accordance with the common law, and had the jury found the appellant guilty of contributory negligence on that basis, the jury’s verdict could not have been that which was in fact brought down (namely, a verdict based on 50 per cent . . . Either the contributory negligence would completely defeat the appellant’s claim or only that part relating to his excessive food and alcohol consumption.  The verdict would have been arrived at in a very different way.

Your Honour, basic principles would tell us that that is wrong.  The matter has to be looked at globally.  It is either a defence or it is not.  That is the guidance which the trial judge will have in this case because that is effectively the decision of two judges of the Court of Appeal.  So we might be up here again and have to go back for a third trial.

HEYDON J:   Excessive drinking and eating could break the chain of causation or be a failure to mitigate the loss, but you say those things were not in issue.

MR DOUGLAS:   It was not put there.

HEYDON J:   And, therefore, they should not be put in issue a second time.

MR DOUGLAS:   Yes, that is right, your Honour.  It could be put in a number of different ways.  Justice Glass looks at it in Munce’s Case, but it could have been put as a matter of aggravation.  In that situation, if the defendant brings forward some evidence, then the plaintiff has an evidentiary onus to shift that a bit.  If it is put in terms of mitigation, the defendant has both a legal and evidentiary onus which the plaintiff then has to respond to, and it could be a matter of causation.  But it was not put in any of those ways, your Honour.  It was put as a matter of contributory negligence under the statute.  We say that that contributory negligence is not a defence to this tort, that is, contributory negligence under the statute is not a defence to a tort which occurred in 1964.

So we are going back for a trial.  They are going to be seeking to run, as we would understand it, either aggravation and/or mitigation and/or contributory negligence at common law, matters which they did not seek to pursue at the first trial, and it is contrary, in our respectful submission, to all of the principles set out in Water Board v Moustakas that they should be allowed to have that opportunity, and it would cause grave hardship to the plaintiff if that were to be the case.

What is more, what is said by Justice Ipp in those passages which I have referred to are, in our respectful submission, quite wrong.  It can be put as a matter of causation but the jury is not asked to isolate some part of the loss in that way.  What it really does, if we can put it that way, is to conflate the distinction between damage and damages which we say in our submissions in paragraph 30 – where we say that the applicant submitted to the Court of Appeal that contributory negligence under the common law did not extend to conduct in the decades after the cause of action accrued.

His Honour Justice Ipp held the submission to be without foundation based on Austrust v Astley.  With respect, his Honour’s holding conflates damage, the gist of the tort of negligence with consequential damage and losses.  The damage the gist of a tort of negligence is the interference with a relevant protected interest which in this case we say is the applicant’s interest in his mental integrity, and the damage, the gist of the action, was the interference with this interest.

So the question is whether the plaintiff’s conduct contributed to that damage, not whether his conduct was, if I could put it that way – I am sorry, the lights are on – contributed to the ultimate damages.  I think probably that is what I wish to say, if it please the Court.

GLEESON CJ:   Thank you, Mr Douglas.  Yes, Mr Garling.

MR GARLING:   Your Honours, in our respectful submission, leave to appeal ought not be granted.  The order of the Court of Appeal against which leave is sought, namely, an order that there be a retrial, is a discretionary order.  Initially it seems to have been put by the applicant that the court had no jurisdiction to make such an order.  It seems now to be conceded that the court had jurisdiction and the power but ought not to have made the order.

At page 87, paragraph 150 of the judgment of Justice Ipp, his Honour addresses that question.  He says:

The question arises, what orders should, in consequence, be made?  I recognise that it is generally undesirable to order a retrial on all issues, but I see no alternative in this case.  The problem is that there was no assessment of the amount of each category of damages awarded.  Should the appellant succeed in either of the arguments (relating to mitigation, or alternatively, the limited application of contributory negligence) which he would be entitled to advance, it would not be possible to determine what the effect of that success would have on the global sum of damages assessed.  Thus, not only must the issues of mitigation and contributory negligence be retried, but also the respective categories of damage claimed must be assessed.

Her Honour Justice McColl at paragraph 157 expressed her agreement in short form with that paragraph.  Your Honours, that was a discretion in the decision as to how the matter ought proceed.  This Court would not ordinarily grant special leave to deal with such an order where there is no obvious error on its face and no obvious error in discretion.

HEYDON J:   Why should the Commonwealth be allowed to run a failure to mitigate case when that was not relied on at the first trial?

MR GARLING:   May I put it this way, your Honour?  What was in issue at the first trial was clearly articulated on a factual basis in this way, namely, there was a psychiatric effect from the collision, and then there was the conduct of the appellant with respect to what has been described as excessive drinking.  That factual matter was explored in great depth.  Cross‑examination of the applicant at trial, evidence was adduced in the applicant’s case in‑chief at trial.  With respect to that issue he called the doctor to say it was in fact the obvious consequence of the first injury.  So, the factual issue, namely, did the applicant drink excessively; if so, for what reason, was debated extensively at trial and it was explored factually.

The question then came to be, how are those facts moulded and put to the jury as a matter of law?  The trial judge expressed himself to be bound by McLean’s Case.  McLean’s Case permitted those facts to be put as a question of contributory negligence.  In fact, the decision in effect encouraged that course.  The trial judge gave a direction to the jury with respect to the excessive drinking under the legal heading of contributory negligence.  That was the way the issue was fought at trial and addressed in front of the jury.

The verdict of the jury reflected that direction and that summing‑up by the trial judge.  The consequence is the jury’s verdict interpreted in that way is that it should approach the question of excessive drinking only under the rubric of contributory negligence; that is how they did it.

HEYDON J:   And under section 8.

MR GARLING:   Well, no, you see, your Honour, section 10, I think your Honour ‑ ‑ ‑

HEYDON J:   To put 10, yes.

MR GARLING:   ‑ ‑ ‑ has in mind, but it is not actually that at all because the only way section 10 arises is a second part.  The first question is, does the conduct constitute contributory negligence in the sense of did it contribute to the harm ultimately suffered?  That question, we submit, was put to the jury correctly.  The second question, and this is the only time when section 10 arises, is if you do find contributory negligence, in other words, assuming the first question is answered contrary to what the applicant puts and in favour of what the respondent puts, then you must proceed to determine a percentage or a fraction of that contributory negligence to the entire verdict.  So that is the only time section 10 arises, your Honour.  It is not ‑ ‑ ‑

HEYDON J:   Do you agree now that it does not arise at all?

MR GARLING:   Yes, your Honour, that concession was made in the Court of Appeal and that is, as I see it, absolutely correct.  But that was not the general perception at the time of all counsel and the trial judge at the trial.  Your Honours, that is exactly why this case ought go back for a retrial because otherwise the factual question of what contribution did the excessive drinking of the applicant, clearly found to exist by the jury, what contribution did that make to the overall assessment of damages?  Unless this goes back for a retrial that question never gets determined.

In fact, the path that my learned friend seeks is to say that factual issue can never be determined and the jury cannot take it into account as a matter of causation, for example, or as a matter of mitigation or as a matter of contributory negligence.  Your Honours, that is why we submit the discretionary decision at paragraph 150 that I have taken the Court to was the correct discretionary decision.

HEYDON J:   That assumes that the jury will be invited to return a special verdict, does it?  How much for this category of damages, how much for that category of damage?

MR GARLING:   It might, or alternatively, it might be invited to say the first question you must determine is whether all of the applicant’s medical history or behaviour and lifestyle post the collision was caused by the collision, or whether some of it was caused by the applicant’s own conduct.  That is a preceding question.  If you determine that one way then you might proceed to ask the question, has there been – does the conduct fall for consideration as a negative factor against damages, or does it fall for consideration in some other way, so the jury would be directed in an entirely different way.

Your Honours, what lies fundamentally at the heart of what is happened here, which is adopting what your Honour the Chief Justice said was an extraordinarily complex and mixed procedural background which seemed to have stumbled from misunderstanding to misunderstanding, is

that ultimately the factual issue of the applicant’s own conduct needs to be fairly considered by a jury hearing a retrial.  That is the short point, your Honours.  We submit the Court of Appeal’s decision to send it back for a retrial was a correct, in fact the correct, order to make, and accordingly the application ought be dismissed.

GLEESON CJ:   Yes, Mr Douglas.

MR DOUGLAS:   If it please the Court.  The summing‑up of the judge and the addresses to the jury are to be found in Justice Santow’s judgment at page 47 and following.  Mr Coleman summed up and said, as quoted at the foot of the page there at about line 50:

“If, after all of that, you come to award the plaintiff some damages – and again, it is up to you as to how much and how you do it – the Commonwealth says that you have to take into regard the plaintiff’s own conduct following the collision in what’s called contributory negligence, and particularly in relation to his drinking, members of the jury.

Then submissions were made in relation to that as a matter of contributory negligence.  Then Mr Melick addressed also in relation to contributory negligence, because that is the way it was put by the Commonwealth.  What he said is to be found in the middle of the page on page 48.  The directions which the trial judge gave to the jury are to be found on page 49, in which you will see that if a judge refers to the associated alcohol abuse and directs the jury about the onus of proving that the plaintiff was guilty of contributory negligence is on the defendant, and if they did find he was guilty of contributory negligence, they were asked to nominate, by way of a percentage or fraction, the extent to which they considered it just and equitable, and following.  The Commonwealth’s counsel must ‑ ‑ ‑

HEYDON J:   But they did not do that.

MR DOUGLAS:    Yes, they did take off a fraction, 50 per cent, your Honour.

HEYDON J:   I thought the judge did that.

MR DOUGLAS:   Well, they found the fraction though, did they not?

HEYDON J:   I see.

MR DOUGLAS:   They found the fraction, so they said it is 50 per cent and then the judge said, “It’s half”.

GLEESON CJ:   What about what appears on page 48, in paragraph 45 in the second and third sentences?

MR DOUGLAS:   It was put by Mr Melick, based on the 1965 Act, because that is the only basis on which it had been put by the Commonwealth, your Honour.  We were not defending a case which was not being brought against us.

GLEESON CJ:   What seems to have happened here is that by the time it got to the Court of Appeal both sides admitted that some errors had been made by the trial judge and the Court of Appeal identified some further errors and the question was what was going to be done about it.  The Court of Appeal said, “Neither party has had a fair trial; where should we go from here?”  Two of them said, “Start all over again”, and one of them said, “Leave the cards where they’ve fallen” – neither of which solution was congenial to your client.  But you now seem to wish to argue that in some way, because of what happened at trial, the Commonwealth – and I do not want to use this word technically in connection with the Voyager disaster – is estopped from putting a different legal label on what all along was a major factual issue, that is, the significance of your client’s drinking habits.

MR DOUGLAS:   Your Honour, that is not what we are seeking to do at all.  We are seeking to say that consistently with Water Board v Moustakas, the Commonwealth is bound by the forensic choices which it made at trial.  There is no confused background to this case.  The fact of the matter is, so far as the jury was concerned, that defence – if I can put it that way – of contributory negligence related to the alcohol was the only rubric within which those tacks were put before them.  Counsel for the Commonwealth consistently, with his obligation to the Court and his obligation to the parties, had the opportunity and the duty to puts its case in all of the ways in which it intended to rely upon them, including aggravation, mitigation and, if it wished to rely upon it, common law contributory negligence.

Its obligation to do that was so as to ensure, amongst other things, that there would not be a multiplicity of trials.  The Commonwealth and the judge allowed them the latitude of making the submissions to the jury for the express effect of ensuring that such determination which we obtained was a determination of law and not of fact so that we would have an appealable decision.  The Court of Appeal seems to have approached it mistakenly, as we can see it, on the basis that the parties were seeking a new trial.  They were not.  No one sought a new trial, although originally…..summons sought that.  We were seeking a ruling of law in relation to what the judge had said after the jury’s verdict had been brought in.  Now the Commonwealth wishes – having conceded that the defence they put to the jury was not a viable defence – they want to have a new trial

so that they can put the other defences they elected not to put.  That is how we put it, your Honour.

GLEESON CJ:   In the Court of Appeal in this matter it was common ground between the parties that there were some errors of law that had been made by the trial judge.  Additional errors of law were identified by all three members of the Court of Appeal.  The Court of Appeal divided on the question of the appropriate remedy.  The majority ordered that there should be a new trial generally, seeing that as the only way out of the difficulties that had arisen.

The decision of the Court of Appeal in that connection was a discretionary decision and the reasons for the decision were closely related to the very special circumstances of the case as to the manner in which the proceedings were conducted at first instance. 

The case does not raise an issue of law suitable to a grant of special leave and we are not persuaded that the interests of justice require it.  The application is dismissed with costs.

AT 11.07 AM THE MATTER WAS CONCLUDED