Bland v Taylor

[1997] HCATrans 10

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A9 of 1996

B e t w e e n -

KAREN BLAND

Applicant

and

MARK ANDREW TAYLOR

Respondent

Application for special leave to appeal

BRENNAN CJ

DAWSON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON MONDAY, 3 FEBRUARY 1997, AT 9.31 AM

Copyright in the High Court of Australia

MS E.F. NELSON, QC:   May it please the Court, I appear with my learned friend, MS N.L. SYMONS, for the applicant.  (instructed by Angela Bentley & Associates)

MR D.A. TRIM, QC:   May it please the Court, I appear with my learned friend, MR M.C. LIVESEY, for the respondent.  (instructed by Ward & Partners)

BRENNAN CJ:   Thank you.

MS NELSON:   The issue in this case relates to an award made by and subsequently overturned by the Full Court for damages for future economic loss.  It is our submission that the Full Court dealt with that in such an erroneous manner for two reasons that it invites the interference of this Court.

The Full Court proceeded on the basis that the trial judge had found that the applicant was totally unemployable.  That as a matter of fact is incorrect, and I will return to that.  But, proceeding on that basis, the Full Court then intervened and further reduced the award for future economic loss by 27 per cent, bringing the overall discount to 73 per cent.  The trial judge proceeded on the basis that the applicant who ‑ ‑ ‑

BRENNAN CJ:   Why do you say that it is a discount?  A discount is usually a term used in reference to vicissitude, is it not?

MS NELSON:   It is, indeed, your Honour.  I say that the Full Court proceeded on the basis that the trial judge, having arrived at a figure for total unemployability of 364,000, and then having reduced that figure for future economic loss by 45 per cent to 200,000, must, if the Full Court is correct in that he found the applicant to be totally unemployable, have discounted the amount for future economic loss by 45 per cent for general contingencies and the ordinary vicissitudes of life.  It is submitted that that approach was erroneous.

KIRBY J:   What is the usual discount for vicissitudes?  It is 25 per cent, is it not?  Is that the norm?

MS NELSON:   I suppose it varies, but that seems to be about the standard amount, although there certainly are some judgments of the Court of Appeal in New South Wales that suggest that 20 per cent is the appropriate starting point.  But it is my submission that the Full Court erred in saying that 45 per cent reduction is a starting point, before you bring into account any residual earning capacity and that, therefore, represents such a gross error in approach to the assessment of damages as to invite the interference of this Court.

I note that your Honour the Chief Justice has said that there may be a situation where errors in assessment of damages can be demonstrated to produce clear disparity between the aggregate sums awarded and the true measure of damages, and indicated that in that type of case it may be appropriate for the High Court to intervene, and I do urge that this is that type of case, for two reasons.

DAWSON J:   What principle is involved, Ms Nelson?  What would we be elucidating if we took this case on?

MS NELSON:   There would be two elucidating principles.  First of all, that to allow a benchmark of a 45 per cent reduction for general vicissitudes as a starting point for discounting future economic loss before one takes into account any other factors has to be blatantly wrong and should not be permitted ‑ ‑ ‑

DAWSON J:   It may be, but the Full Court employed no particular principle that we can point to in arriving at that result.  The principles on which damages are assessed are well known.  What would this Court be doing by taking this case on?

MS NELSON:   There are two reasons for that, may it please your Honour.  First of all, the judgment of the Full Court certainly is a very short judgment.  It takes quite a number of pages but a lot of those are devoted to reciting large passages of the original judgment.  It is really silent on the approach it takes to allowing the appeal in this respect; therefore, the approach that it took has to be inferred, and I accept that.  But I say there are only two bases on which the Full Court can have approached it and they both involve inappropriate principles:  either they have said that it is proper to start an assessment of damages for future economic loss by discounting the figure by 45 per cent, in the case of a young female, or they have so grossly misinterpreted what the trial judge found as to result in the miscarriage of justice.

KIRBY J:   There is a lot in the written submissions about the first element that you mention about the female, but there is not a single word in either the decision of the primary judge or the decision of the Full Court that suggests that that is a basis on which they acted.  You say that is just something we have to infer.

MS NELSON:   The fact that it is not overt does not mean that it is not there.  The trial judge in his very careful analysis accepted the plaintiff’s parents as credible witnesses and her two teachers and he then proceeded to look at her injuries.  She was grossly brain damaged; she had severe damage to her spinal column and, therefore, she was unable to do physical work, and he recited the work that she was able to do or had tried to do.  Then he came to a starting point of $400 net per week as being an appropriate starting point for what she would have earned, and although the respondent complains of that finding, that is a dead issue because the Full Court found that was an appropriate finding.

So that it is really the trial judge saying, “I find that she has some residual capacity to earn and, therefore, I propose to discount her damages for her prospects of marriage, the fact that she may not have remained in the work force, and the fact that she has some residual capacity to earn”, and he then ‑ ‑ ‑ 

BRENNAN CJ:   I do not see where that appears in the trial judge’s finding and particularly at page 14, line 6, because when it is a question of evaluating that residual capacity, the evaluation must sound in terms of what that residual capacity can fetch, and his Honour found that there was a nil capacity to earn actual funds.

MS NELSON:   That is certainly correct at that particular page and he gives reasons for it.

BRENNAN CJ:   And that is the point at which the Full Court departed from his Honour.

MS NELSON:   The Full Court departed from his Honour, and that is really the second part of my argument, and the principle there is that the trial judge based his findings upon very much what he observed in the witness box, and he gives a very graphic descriptive exchange between the applicant and her own counsel to demonstrate the level of her disinhibition and, therefore, her difficulty in retaining any sort of employment, but particularly employment involving dealing with people.  The Full Court have said, in effect, “Ignore the advantage that the trial judge has had of observing the plaintiff and her parents and her teachers but, in particular, the plaintiff, the brain‑damaged plaintiff.  Ignore that, notwithstanding that we, as an appellate court, have not had that advantage.  Nevertheless, we propose to interfere and we do so on the basis that a neurosurgeon and a psychologist have said that certain work is suitable for her.”

The principle there, I say with respect, is that the Full Court has departed from the guidelines set down by this Court for an appellate court so markedly, in particular in this type of case where an assessment of the girl herself was very important in the final decision.

The Full Court, if the decision is to stand, have really said in effect that the evidence of expert witnesses - expert in particular fields - is at an appeal able to override the observations of the demeanour and the personality gained by the trial judge at trial.  It is that second branch of my argument that I am now addressing, which is that this Court should restate those principles because there is clearly a gross departure in this case.

If I am wrong in that, then the Full Court has adopted the approach which I addressed first, which is that you start with 45 per cent and you then further discount for residual earning capacity.  The trial judge says in effect that she has some residual earning capacity.  He said that she was not able to do as much as Mr Trim, who was counsel at trial, argued.  It is plain from the tenor of his judgment that she had a notional residual earning capacity, but it is certainly true that at page 14 he found that:

Whilst she may be employable in the strict sense I am not persuaded that there is any real likelihood of her so doing, having regard to the real present difficulties -

which he then proceeded to outline.  She was unable to do any physical work and she had this organic brain damage which resulted in loss of concentration, short term memory deficit and a gross personality change.  So one might really have expected a cross‑appeal in that his award for future economic loss was insufficient, but there was not, and there is nothing I can say about that.  But for the Full Court to proceed as it did with such paucity of reasoning - and I do appreciate that that makes the task difficult - nevertheless, if one looks at what the Full Court actually did, it is clear that it could only have proceeded on two bases equally wrong, the first one being that for a young female brain‑damaged plaintiff there should be a reduction of 45 per cent in any event before you have any regard to residual ‑ ‑ ‑

DAWSON J:   You say young female; it does not make any difference whether it is female or male, the principle is the same.

MS NELSON:   Yes, I would certainly support that argument, your Honour.  I do not think there is any doubt that that is the position, but there is no real definitive judgment on that, although certainly his Honour Justice Kirby, when he was President of the Court of Appeal of New South Wales, has said that in one of the cases which is on my list of authorities.

KIRBY J:   But if there were the slightest whisper here; if there were the slightest hint that that was a basis on which the Full Court acted then I would agree that that would be a special leave matter, but the point that is being put to you is that there is no such hint.  It is true that the judgment is very short.  We are asked to draw inferences, and when we look at what you are urging on us it really does not seem to raise any question of general principle on which we could elucidate anything that has not been said many times before.

MS NELSON:   I do agree, with respect, there is an inadequacy of reasoning in the Full Court.  It is, perhaps, a somewhat patronising judgment.  The thrust of what the Full Court did appears at page 38 of the appeal book at line 9, the whole of that passage.  I agree that there is nothing said about her being female in particular, however, male or female it is a benchmark, at least in this State now, if this judgment stands, that a discount for the general vicissitudes of life is 45 per cent and not 20 or 25 per cent.

KIRBY J:   I do not think that could be, that surely could not be inferred from the decision of the Full Court.  That surely could not be inferred from the decision in this particular case.

MS NELSON:   I do not see how it could not be inferred, with respect, your Honour, because the Full Court says the trial judge should not have found that she was totally unemployable.  If she were totally unemployable she was entitled to $364,000 less some discount for the ordinary contingencies.  If that is what the trial judge did then he discounted it by 45 per cent.  So, by acquiescence, if you like, in a passive sense the Full Court is saying, “Yes, that is an appropriate discount.  Now we are going to reduce it by a further 27 per cent because in our view this girl has a potential residual earning capacity which the trial judge has not taken into account”.  I do not, with respect, see how else it could be interpreted.

DAWSON J:   Your client did not cross‑appeal, Ms Nelson?

MS NELSON:   No.  As I say, there is nothing I can do about that.  I was not counsel at the trial, and I was not counsel in the Full Court.  I think she could successfully have cross‑appealed.

DAWSON J:   But the point is, there is not much the Full Court could have done about the 45 per cent figure if there was no cross‑appeal.

MS NELSON:   Quite so.  I do not complain about that.  I cannot be heard to complain about that.  But the Full Court then went further and said that the trial judge needs to be ignored in so far as his ultimate assessment of damages depends upon his assessment of the plaintiff.  Now, they do not say as much, but what they do say is that - and this starts at page 36, line 31:

the learned trial judge gave too little weight to the residuary earning capacity which the respondent has.  She has made vigorous efforts to get work.

And that was true:

She has had some work, in particular washing dishes.

Now, what the Full Court ignore is that she was not able to continue on with that work.  She was not able to continue with her work as a drinks waitress in the community club because she could not remember the price of the drinks and, as the trial judge said, that was a friendly atmosphere.  The Full Court then outlines at length, in a summary form, the summary of evidence of Professor Simpson, who is a neurosurgeon, and Mr Wood, who is a psychologist, and then says that:

the learned trial judge gave too little weight to the evidence of the quality of her work there and too little weight to the evidence of Mr Woods in particular and to that of Professor Simpson.

In arriving at that finding, the Full Court totally ignores the trial judge’s assessment of the applicant and his description of her disinhibition, her personality change, her inappropriate language, her swearing, and so on and so forth, all of which he observed himself, and all of which he recites before he leads into his finding as to her employability.  He starts at page 13 of the appeal book, line 26:

The plaintiff presented at trial as an attractive, articulate somewhat disinhibited witness who gave her evidence whilst experiencing headaches and lower back pain.  She was in part prone to exaggeration or ex post facto rationalisation -

And then he goes into his finding as to her future employability.  So that, it is clear that in his reasoning it was very firmly based upon his assessment of the applicant and, in that respect, the second branch of my argument is that the Full Court has ignored, in effect, what the High Court has said is the role of an appellate court.  It has gone behind the trial judge’s back and said that he should have weighted his evidence in favour of the experts and, because

of that, they were entitled to interfere and reduce the award still further.  It will be dangerous if ultimately courts are simply to find, on the evidence of some expert, what the true position is, rather than relying upon their observations of the particular person who is making the claim.  May it please the Court.

BRENNAN CJ:   Thank you, Ms Nelson.  We need not trouble you, Mr Trim. 

The Full Court reduced the trial Judge’s assessment of damages for future economic loss because their Honours found that the applicant had a significant residual capacity for remunerative employment.  The trial Judge had found that she was virtually unemployable, although the finding seems to be referrable chiefly to the prospect of employment for the applicant at her then present age.   The trial Judge’s assessment of employability did not turn on his Honour’s evaluation of credibility, nor on some other advantage enjoyed by a trial judge.  The decision of the Full Court to disturb it turned simply on the weight which the Full Court attributed to particular facts.

Accordingly, although this Court might intervene if a Full Court were to adopt a practice of varying trial judges’ assessments of damages without justification, that does not appear from the reasons for judgment to be this case.  The reduction in damages seems great indeed, but the changed findings of facts support the judgment of the Full Court.  There is no ground for this Court’s intervention.  Accordingly, special leave will be refused.

MR TRIM:   If the Court pleases, I seek an order as to costs.

BRENNAN CJ:   You have nothing to say to that, Ms Nelson?

MS NELSON:   No, may it please the Court.

BRENNAN CJ:   Special leave will be refused with costs.

AT 9.53 AM THE MATTER WAS CONCLUDED