Bradley v Jones

[2004] HCATrans 62

[2004] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S183 of 2003

B e t w e e n -

EMMA WARD BRADLEY

Applicant

and

EDWARD JOHN JONES

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MARCH 2004, AT 9.45 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR P.S. JONES, for the applicant.  (instructed by Colin Daley Quinn)

MR C.R.R. HOEBEN, SC:   May it please the Court, I appear for the respondent with my learned friend, MR J‑P.d’E. REDMOND.  (instructed by Lee & Lyons)

GUMMOW J:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  As your Honours will have seen from the application for special leave, a principal aspect of the case is based on the way in which the matter was dealt with by the Court of Appeal and in relation to the question of the interests of justice in the particular case.  The application concerns three aspects.  Firstly, the Court of Appeal’s alteration of the degree of contributory negligence; secondly, damages; and, thirdly, an issue as to costs, which has been resolved, and I will come to that later.

May I deal first with the question of liability.  The Court of Appeal raised the applicant’s contributory negligence level from 25 per cent to 50 per cent.  We make, essentially, two complaints about that.  The first is that there was no basis for doing so, and, secondly, in the course of doing so, the Court of Appeal made errors abut whether the trial judge had or had not taken relevant matters into account.

Your Honours, may I just say something about the basic facts, because to say that relates to both the aspects to which I have just referred.  They were of a simple kind.  The applicant was crossing the Princes Highway at Rockdale in the afternoon.  May I indicate the references as I go.  At page 2 of the application book, in the trial judge’s reasons, the first new paragraph, your Honours will see the time of day and the way in which the accident occurred, as it were.  Now, although it was the highway, it was at that point a suburban shopping centre.  Your Honours will see that at page 7, again, the first new paragraph on the page:

She was crossing the carriageway in my judgement in a shopping centre in the vicinity of an intersection where pedestrians could be expected to cross –

Your Honours will also see a photograph of the area in volume 1 of the supplementary book at page 19.  The bottom photograph is one taken on behalf of the respondent and it shows the shopping area, it shows cars parked in the left lane, and where there is a hotel.  Where the applicant was crossing the road was, in effect, in front of the parked cars.  There are three lanes; one of them is where the parked cars were and there were two other lanes.  It was an area where, as the judge said, pedestrians could be expected to cross – that is page 7, again, the first new paragraph.  The traffic was light at the time – that is page 7 in the paragraph to which I referred – “The relevant traffic was very light”.  Indeed, the only two vehicles that were approaching immediately were the two; one in one lane, followed by another car, together with the one that struck her.

Your Honours, it was a mistake for her to attempt to do so, to cross the road, because there were the two vehicles coming towards her.  The respondent was intoxicated.  He was driving in the lane closest to the centre and the judge found that absent ‑ ‑ ‑

GUMMOW J:   Your client was not in the best shape either.

MR JACKSON:   Your Honour, that is a matter to which I will come in just a moment, if I may.

CALLINAN J:   How far was this from a marked pedestrian crossing?

MR JACKSON:   Some distance, your Honour, can I show you.  In the supplementary application book, the page immediately before page 19, if one folds out the diagram, the medical centre is marked at the top.  You will see the highway coming in from the right.  You will see the point where she crossed or attempted to cross is a little to the right‑hand side, as the document goes, from the intersection with Frederick Street.  To get to a pedestrian crossing from there, she had to go – if your Honours would perhaps follow this – from Frederick Street across, around the circle, if she were to get to the other side of the road.  The crossing, in effect, six or perhaps seven streets going right around the circle.  So that is where the pedestrian crossings were, your Honour.

CALLINAN J:   Would it have been 100 yards?

MR JACKSON:   Probably more, your Honour.  It is a fairly large intersection.

CALLINAN J:   Is there a scale?  I suppose it has been reduced in size.

MR JACKSON:   Yes.  Your Honours, it was a time when the traffic was said to be very light.  It was not uncommon for people to cross at that point, as, indeed, people tend to do in shopping centres.  The judge found that, absent the intoxication, the accident would not have occurred.  Your Honours will see that in two passages.  At page 4, at about line 45, he said:

the only fair inference from the experience is that Mr Jones’ driving talents were so dulled and distorted by the alcohol which he had consumed that he was only vaguely aware of his surroundings as he drove north ‑ ‑ ‑

CALLINAN J:   The accident would not have occurred if she had not tried to cross in front of cars.

MR JACKSON:   Your Honour, that is so, but the contributory negligence issue does not arise unless that had happened.  Inevitably, contributory negligence cases are ones where there is negligence on one side which is a cause.  Contributory negligence is also relevantly ‑ ‑ ‑

CALLINAN J:   I know. It was just your statement, Mr Jackson, or your repetition of what his Honour said, that it would not have occurred if the driver had not been intoxicated.  It would not have occurred if she had not tried to cross the road there and then.

MR JACKSON:   Of course, your Honour, but the question is not one of causation in that sense, but it is really one of the degrees.  In that regard, what we would say is that the contributory negligence that the judge found ‑ it appears at the top of page 6 – his Honour said, in effect, what your Honour has said, but he said particularly that the very fact she was hurrying tended to suggest that she had made an observation to her right and been guilty of an error of judgment that it was safe to cross the road if she hurried.

Your Honours, what emerges from that, in our submission, is that there was an error of judgment by a person crossing a road in a shopping centre in light traffic, had been run down by a driver who could have avoided her, but did not, because he was ‑ ‑ ‑

CALLINAN J:   I do not see how it follows that it was a mere error of judgment.  She was under an obligation to keep a lookout.  What is the basis for his Honour saying that?  Because she had her head down?

MR JACKSON:   No, your Honour, what he is saying is that he accepted that she looked – you will see that on the fifth line on page 6 – but that she was wrong in her estimation of where the vehicles were.

CALLINAN J:   I have to say, Mr Jackson, this judgment seems to me to have been written with a clear predisposition towards the plaintiff.

MR JACKSON:   I would say in relation to that, with respect, your Honour, that it is clear from the judgment that in relation to the plaintiff, having seen the evidence concerning her, the judge ended up with a disposition towards her.  It does not, in our submission, mean that he had a predisposition towards her.  He formed a favourable view of her.  She had had adverse circumstances.

CALLINAN J:   A predisposition, it appeared to me, came through in relation to damages as well.

MR JACKSON:   Your Honour, I will have to endeavour to deal with that, but could I say, the position was, in our submission, if one looked at the circumstances – whatever they might have been – that brought her to cross the road, in circumstances where there was a finding of the degree of drunkenness of the respondent and his lack of ability to control the vehicle, 25/75 was a very appropriate apportionment.

The respondent sought, successfully, in effect, to obtain a greater contribution by relying on the fact that she had had some Rohypnol tablets earlier in the day.  What the evidence demonstrated was, at page 6, commencing at about line 5, she was “somnolent”, then “aggressive”, at the medical centre.  But the view the judge took was that it was “speculative” that the somnolence a short time before was the reason why she attempted to cross the road when she did.  That is page 6, about line 45.

What the Court of Appeal said in relation to that is at page 66, paragraph 102.  Your Honours will see that at paragraph 102, it is said, at about line 35, that the judge failed to refer to the evidence of her state immediately prior to the accident and her history.  If your Honours go back to page 6, in the passage which goes from the first new paragraph through to page 7, about line 7, what your Honours will see is that the judge did refer to the evidence concerning what she had done on that day and her state immediately prior to the accident  Your Honours will see that he there refers to the evidence of what took place at that time.  He also referred to, at the bottom of page 6, about line 36, the records from the place where she had been an inmate.  Your Honours will see also that he discussed her history in considerable detail in the other parts of his reasons for judgment.

The approach taken by the Court of Appeal, ultimately, in paragraph 105, about line 40 and following, is to say that:

[she] elected to cross the road in an area that was not marked for pedestrian crossings, she attempted to cross a major arterial road either by running or hurrying, she continued to cross the road even though another vehicle had to brake and swerve to avoid a collision and [she] should have seen the approaching vehicles.

Your Honours, could we say, in relation to the first thing, “an area that was not marked for pedestrian crossings”; certainly, that was true, but the judge had found that it was an area in a shopping centre where pedestrians could be expected to cross even though there was no marked crossing.  I have taken your Honours to that reference already.

The Court of Appeal said it was a “major arterial road”.  Certainly, that is true, but it was here running through a shopping centre, with traffic, as the judge found, being uncharacteristically light.  Finally, your Honours, at paragraph 108 in the Court of Appeal, at page 69, line 4, one sees the court’s final reasons, where it is said:

The Respondent had been warned by Nurse McLeod and the ambulance officer . . . The Trial Judge failed to advert to this relevant evidence. 

Well, your Honours, the trial judge did refer to it.  He set it out at page 6, lines 20 to 32, in great detail.  He said the observation that was made was “prophetic”.

GUMMOW J:   What paragraph was that, Mr Jackson, in the trial judge?

MR JACKSON:   In the trial judge, page 6.  Your Honours will see the first new paragraph on the page.  You will see the discussion – it goes right through that, so the whole of that is referred to.  The judge said at about line 32 that it was a prophetic utterance by the ambulance driver.  What we would say is that surely the judge, having heard the oral evidence, was entitled to interpret it in that way, as being a prophetic utterance.  But what was said about it by the Court of Appeal, at line 10 on page 69, that:

The Trial Judge failed to advert to this relevant evidence.  This led him into error.

Well, your Honours, with respect, that just cannot be right about the judge not adverting to the evidence.  He referred to it in considerable detail.  In our submission, with respect, the approach taken by the Court of Appeal in relation to contributory negligence really gives lip service to the principle that apportionments should not readily be set aside.

May I turn then to the question of damages.  The Court of Appeal made very significant reductions in the damages awarded to the applicant.  Your Honours, it is possible in the time available to deal with one only and I will refer to our written submissions in relation to the others.  The one with which I wish to deal particularly is the question of the extent of the need for care.  At page 19, line 27, going through to page 20, the end of the first paragraph on that page, the trial judge found that the damages should be assessed on the basis that there was a need for services for: 

six hours per day care, seven days per week –

That determination of six hours a day, seven days a week, was cut in half by the Court of Appeal.  The trial judge’s finding of the six hours had been based specifically on the evidence of Dr Buckley, a rehabilitation specialist, Dr Lorentz, a neurologist, and Ms MacMaster, who was an occupational therapist.  It was also based on the evidence of Mr Sengos and Mr Frost, persons who had lived with her after the injury and, in Mr Sengos’ case, before the injury as well.  Mr Sengos had looked after her to a considerable extent.

Your Honours will see the judge’s reasons indicating that it was based on that evidence at page 9, commencing at line 42, where he discusses Mr Sengos.  That is a passage which goes through to page 10, about line 11.  At page 15, about line 10 on the page, your Honours will see a reference to Mr Sengos and Mr Frost.  At page 16, line 1, in a passage which goes through to page 19, about line 28, he discusses all of the evidence and, in particular, the reference at page 19, line 28: 

The evidence of the plaintiff’s two male companions over the years since the accident is the touchstone that advises the court of the extent of her needs.

The medical evidence, both oral and in writing, supported a finding of six hours and directly supported it.  Your Honours will see that if I could go to Dr Buckley’s report in the first supplementary book at page 27.  Your Honours will see, in particular, at about line 41, where he expressed his view, “attendant carer/supervisor who attends for six hours per day”, and his oral evidence to the same effect at page 53 in the same book.

GUMMOW J:   If we took this on, it would lead to a remitter to the District Court to re‑assess damages, would it?  This aspect of the matter?

MR JACKSON:   Well, your Honour, there would be two possibilities.  One possibility would be the appeal on damages would succeed and the judgment of the primary judge would be restored.  The other possibility, I suppose, is that what your Honour posited to me could happen.  Your Honours, I see that it is almost time.  I was going to ask the Court if I might have three additional minutes in view of the number of issues.  Thank you, your Honours.

I was going to refer to Dr Buckley’s oral evidence at page 53 in the supplementary application book, where your Honours will see the answer, commencing at about line 39, which goes to the end of the page, demonstrating her condition if by herself.  Dr Lorentz’s report is in the same book, at page 206.  May I refer your Honours to item 8, which is about a third of the way down the page:

She does need a carer, or companion, at least six hours per day.

And at page 209, in his oral evidence at about line 44.  There is a volume, your Honours, which is in a folder, and behind tab 1 there is an extract from Ms MacMaster’s evidence.  At about line 11, she was asked about “four to six hours”:

four to six hours is probably not adequate to cover her needs, because she is unsafe for longer periods and it may be 12 to 24 hours.

Your Honours, that evidence was specifically accepted by the primary judge.  The approach taken by the Court of Appeal appears relevantly at page 92, paragraph 170.  At paragraph 171, there is a reference to the fact that:

The 6 hour per day care regime was supported by three medical experts –

That is referred to also at paragraph 172, for example, of Dr Lorentz.  There is a reference in paragraph 174 to the judge’s particular reliance on Messrs Sengos and Frost.  There is a reference at paragraph 176 to the fact that:

the experts retained by the [other side] considered that a much lower degree of care would be required.

Your Honours will see the recitation of the trial judge’s view at paragraph 177, and then at page 96 it is said:

there were a number of relevant matters which would go to the proper assessment of he Plaintiff’s needs which were not adverted to.

Then two particularly are mentioned:

[her] actual level of cognitive functioning and [the fact] that she was coping before the trial with a much lower level of care –

Your Honours, there were simply two periods, prior to trial, when she lived by herself for short periods.  At the trial, she was living with Mr Frost, but split up with him during the trial.

If one looks at what the trial judge did, one sees he did take all those matters into account.  Page 19, lines 28 to 47, your Honours will see that he considered that she was unable to live by herself.  Your Honours will see at page 18, line 7, he discusses the situation of how she actually managed when she had no one living with her.  At page 15, lines 1 to 19, he had actually seen her give evidence, and your Honours will note, at the top of page 16, he said:

I have heard quite diverse views by either side of the record on that issue, but the starting point of any assessment has to be an appreciation of the effect of the evidence of Mr Sengos and Mr Frost – 

Your Honours, I am not certain if I have exceeded my extra time or not. 

GUMMOW J:   Just go on, Mr Jackson.

MR JACKSON:   Thank you, your Honour.  Could I just say, the Court of Appeal then dealt with the consequences at page 108, paragraph 212, and simply cut it in half.  In our submission, there is just no proper basis on which the Court of Appeal could do that.  It simply falls outside the ability of the court properly to review the decision below.

Your Honours, we would ask that if the Court were minded to grant special leave on the damages issue, that the leave extend to the other aspects of damages to which we have referred.  In support of that proposition, may I mention, briefly, some matters in support.  First of all, in relation to the question of an allowance for a vacation each year, the Court of Appeal set aside the finding of the judge, which had been based principally on the evidence of Dr Buckley, but, when doing so, brought about another admitted error, and that is that there were two weeks a year when no allowance for care was made.  Your Honours will see the error admitted at page 153, about line 29.

GUMMOW J:   Yes.

MR JACKSON:   The second aspect we wish to argue is the question of vicissitudes.  We refer to that at page 146, paragraphs 72 to 75, where a very substantial discount was made of 50 per cent.  The third thing is, your Honours, at page 146, paragraph 76, we deal with a number of other matters and there is another admitted error in relation to the calculation of the Griffiths v Kerkemeyer damages.  We refer to that at page 145, paragraphs 65 to 66, and that was conceded at page 157, line 22.  Could I say that it is confessed and avoided, in a sense, because it is then said, at line 16:

Commercial hourly rates, had they been applied, were more favourable to the applicant than was a percentage of average weekly earnings.

That is, with respect, a little misleading.  What was found was simply an undifferentiated global sum of $75,000, which your Honours will see referred to at page 107, paragraph 211.

Your Honours, we raised an issue of costs.  That has been resolved and there is an agreed variation to be made to the Court of Appeal’s judgment.

GUMMOW J:   Thank you.

HEYDON J:   Does Mr Hoeben agree to change the damages in view of the other admitted errors, whatever happens, or not?

MR JACKSON:   Your Honour, I assume that is the case.

MR HOEBEN:   We have conceded it in our submissions.

HEYDON J:   Yes, I know you concede it, but you will make sure that the money changes hands to the right extent?

MR HOEBEN:   Absolutely, your Honour. 

GUMMOW J:   Thank you, Mr Jackson.  Yes, Mr Hoeben.

MR HOEBEN:   Thank you, your Honours.  Your Honours, in relation to contributory negligence ‑ ‑ ‑

GUMMOW J:   What do you say first about application book page 69, when read with application book page 6?  Line 10 on page 69, “The Trial Juge failed to advert”.  What do you say to that?

MR HOEBEN:   Your Honour, if I could deal with that – my learned friend keeps making reference or uses the term “the trial judge failed to advert” and then takes the Court to the trial judge’s résumé of the evidence.  What the Court of Appeal was dealing with, with great respect, was that the trial judge failed to advert to that material when considering contributory negligence.  What the trial judge did was review the evidence, but, when he came to dealing with contributory negligence, all he dealt with was a speculative assessment by himself. 

If your Honours could go to page 6.  It is the very point Justice Callinan made.  Page 6 of the application book, about four lines down, this is what his Honour does in relation to contributory negligence and this is the extent of his consideration of contributory negligence, insofar as elements of culpability and causation are.  He says:

there were two vehicles proceeding from her right, which if they did not slow down could collide with her.

Then this is absolute speculation, with respect, your Honours:

It is impossible to infer from the evidence that the plaintiff did not look before she embarked upon her hurried crossing of the road.  The very fact that she was hurrying in the manner described by Mr Tsipiras would tend to suggest that she had made an observation to her right and been guilty of an error or judgement that it was safe to cross the road if she hurried.

With respect, your Honours, there is not a shred of evidence to indicate she did look.  The judge seeks to draw an inference from the fact that she was hurrying across the road that, therefore, she did look and, therefore, having looked, she failed to appreciate what was happening.  There was no evidence about that, your Honours.  The only evidence was that she was hurrying out from behind these cars, across the road. 

What he expressly rejected is the matter at the bottom of page 6, starting at about line 35, and that is the fact that the plaintiff was intoxicated with a substance.  With great respect, your Honours, there are no credit issues there.  The evidence to that effect was overwhelming.  There was Nurse McLeod, who was so concerned about her somnolent state she called the ambulance officers.  There is the evidence of the ambulance officers that that they had to arouse her using the more aggressive form of arousal.  When she was aroused, the ambulance officers said, “What have you taken?” She said, “Four Rohys”.  “What did you wash them down with?”  “No alcohol” she says, then she starts to swear and curse and behave rather poorly and storms out of the place.

Perhaps the most persuasive evidence about the fact that she was intoxicated by a substance comes from the evidence of the only eyewitness.  Could I ask your Honours to go the second volume of the application book, at page 399.  Perhaps it is difficult to imagine a more stark example, your Honours, of somebody intoxicated.  This is the statement given by Mr Tsipiras within days of the accident.  Starting at about line 11 on that page ‑ ‑ ‑

HEYDON J:   It is very hard, our numbers are illegible.  Are you working off a transcript?

MR HOEBEN:   I am sorry, your Honours, it is the first full paragraph on that page.

GUMMOW J:   What is the transcript page?

MR HOEBEN:   Page 399, your Honours.

GUMMOW J:   Thank you.

MR HOEBEN:   Starting at about line 12:

The car that I was following braked heavily, as I saw smoke coming from the front tyres –

your Honours, that has to be the loudest screech of brakes one could imagine, given that very dramatic description –

The driver swerved to the left to avoid the lady as the driver had already passed the parked cars.  At this stage I slowed down as I was closing in on the car in front of me.  The lady did not react to the car in the middle lane ‑ ‑ ‑

GUMMOW J:   What page are reading from, Mr Hoeben?

MR HOEBEN:   I am sorry, your Honour, page 399 of the second supplementary application book.

GUMMOW J:   Go to the bottom of the page.  What number at the bottom of the page?  That is more legible.

MR HOEBEN:   I am sorry, your Honour, it is not the transcript, it is the supplementary application book, volume 2.

GUMMOW J:   Yes, we have that.

HEYDON J:   The pagination is illegible.  We need to have some ‑ ‑ ‑

GUMMOW J:   We just need to get the numbers at the bottom.

MR HOEBEN:   There is no ‑ ‑ ‑

GUMMOW J:   There is none.

MR HOEBEN:   No, your Honours, it is not transcript, it is a statement.  It is two pages before transcript page 491, if that helps.

GUMMOW J:   Thank you.

MR HOEBEN:   I do apologise, your Honours.

GUMMOW J:   It is the solicitors’ omission, not yours. 

MR HOEBEN:   Two pages before 491, which has “McLEOD” down the bottom.

GUMMOW J:   Yes, I have it.

MR HOEBEN:   So, your Honours, the car he was following braked heavily.  He saw smoke coming from the front tyres.  The driver then swerved to the left to avoid her:

The lady did not react to the car in the middle lane, but continued to cross the highway in the same manner.

Your Honours, all the evidence is the same way.  Finally – I will not take you to the passage, but Dr Dauncey talked about the effects of Rohypnol, the fact that if you are going to take a therapeutic dose, it is half a tablet or a whole tablet before you go to bed.  This lady told the ambulance people she took four, and this is the middle of the day. 

It was simply not open to his Honour to reject that evidence in the way in which he did, which he does at the bottom of page 6, on an entirely speculative basis.  He drew an inference from that evidence which was not open to him.  The Court of Appeal said it was not open to him.  That is the precise sort of error, with great respect, your Honours, that the Court of Appeal has to correct – drawing inferences from undisputed facts, a classic Fox v Percy type situation.

The way his Honour dealt with that was that he goes to the gaol records, she might have suffered from insomnia, leaving the medical centre – last sighting:

Having studied the entirety of the evidence presented by the defendant on this issue, I am firmly of the view that it is speculative that the somnolent state that the plaintiff was in whilst in the medical centre, caused as it may well have been by an adverse reaction to Rohypnol ‑ ‑ ‑

GUMMOW J:   We have taken all that on board, Mr Hoeben.

MR HOEBEN:   Indeed.

GUMMOW J:   What do you say about the damages point, with reference to application book page 96?

MR HOEBEN:   Thank you, your Honour.  In relation to damages, can I say this and deal with it in reverse order.  My learned friend asked the Court, if the damages assessment shows error, that, therefore, the whole of the damages should go back.  With respect, that is a very careful elision of the way in which this matter was dealt with.  His Honour certainly dealt with the question of care in some detail, but all the other headings of damage were dealt with by the adoption of an accountant’s report.  And not only that, the six or seven days of evidence which was called in the respondent’s case was dealt with in the most cursory fashion at page 20 of the application book.  If your Honours could go to about line 10 on page 20:

I record that in arriving at the above finding I am accepting as sound the opinions of Doctors Buckley and Lorentz and Ms MacMaster, and I decline to accept the views of experts retained by the defendant to the extent that they conflict with the above views.

Well, that rejected a whole raft of medical evidence, including lay observations of the plaintiff and matters of that kind.  It was simply dealt with in that fashion.

HEYDON J:   Any reason given?

MR HOEBEN:   That was it.

HEYDON J:   The answer is “No”. 

MR HOEBEN:   No, and, your Honours, we challenge that treatment of the experts, medical, and the lay observations on behalf of the respondent in the Court of Appeal.  If I am coming via somewhat reverse way, your Honours, to the issue that you have put to me, the reason why the Court of Appeal dealt with it in that way was to say, well, it was open to his Honour to disregard and not engage in the conflict between the experts because he placed so much weight on the observations of the two gentlemen who had lived with the plaintiff.  That was a permissible way, said the Court of Appeal, of approaching this matter.

Now, that creates a problem for my learned friend, because when he takes your Honours to Ms MacMaster and Dr Buckley and to Dr Lorentz, he is ignoring the fact that the trial judge never involved himself in the engagement and the dispute between those experts.  What he is really driven to is to follow the approach which the trial judge did and that is to say, “I accept as accurate and honest the assessments made by the two gentlemen who lived with the plaintiff”, but the one thing the trial judge never referred to when he reviewed the evidence of those gentlemen was the actual care which they provided.  There was ample evidence to that effect and that is the error that the Court of Appeal got onto.

They said, “Yes, we cannot interfere with his Honour’s acceptance of these witnesses as witnesses of truth, that is what they do, that is the prerogative of the trial judge.  But now that we take them as being an honest and truthful and accurate review, what did they really say?”  That is the error, you see.  His Honour was selective.  The material his Honour reviewed in his evidence certainly established some need for care, and that was found against us.  What his Honour never adverted to was the actual care provided.

Can I draw your Honours’ attention to two matters.  Firstly, in fact the plaintiff was on her own with visits two or three times a week by Mr Sengos for an extended period, October 1999 to August 2000, and she coped.  Secondly, your Honours, Mr Sengos lived with her for three years until they broke up in October 1999.  This is not in dispute.

CALLINAN J:   How could the judge possibly reject all opinions from experts on the other side?

MR HOEBEN:   To be honest, it is extraordinary, but, in any event, we did not get much joy from the Court of Appeal on that issue.

CALLINAN J:   It is the sort of judgment we used to see from the Magistrates Courts about 30 years ago.

MR HOEBEN:   Indeed, your Honour, and, really, that is why perhaps the Court of Appeal, having rejected our primary attack, said that, in any event, when you look at what these lay people said, his Honour was wrong, because he disregarded a crucial piece of evidence.  The crucial piece of evidence is this.  I will merely read out the pages and tell your Honours the effect.  It is at pages 106, 108, 110, 118, 119 and 142 of the supplementary application book.  This is all the evidence of Mr Sengos, who lived with her for three years.  The effect of that evidence is this, your Honours.  On the first page ‑ ‑ ‑

GUMMOW J:   Well, we do not need to go through that.

MR HOEBEN:   It is two hours a day, that is what he was giving.

GUMMOW J:   You had some dialogue with Justice Heydon as to agreed errors.  Can we just be specific about them, with reference to the paragraphs in your submissions, so that the solicitors are quite clear?

MR HOEBEN:   Your Honours, we undertake to pay the additional $9,500, which we conceded by taking the two weeks off the vacation.  There should have been an appropriate adjustment for the future care.  So we agree to pay that.

In relation to the wrong statement of principle – and it was a wrong statement of principle – in relation to section 72(6) of the Motor Accidents Act, nothing turned on that, because this was the issue.  The accountants had worked out so many hours a day and they had come to a figure of $82,000‑odd – I cannot remember the rest of it.  What the defendant said was when you look at the analysis of the care being provided, even the two hours a day by Mr Sengos, it included a lot of things he was doing for himself.  He would cook meals for both of them.  He would do the housework on occasions when she had not gone right up to the edge of the walls.  There should be some small amount taken off that figure to take into account the work which would have had to be done in any event.  That is a specific ‑ ‑ ‑

GUMMOW J:   You say “a small amount”? 

MR HOEBEN:   It is, your Honour.  So the difference was $75,000, not $82,500.  Now, if your Honours said, “You should pay the whole $82,500”, we are not going to have the matter sent back for rehearing on that.

Can I deal with the last matter.  My friend dealt with vicissitudes and said the vicissitudes were increased.  Your Honours, that was on a question of economic loss.  The trial judge found that the plaintiff, who had not worked for 12 years in legitimate employment, who had serious addictions, who had no training except for what she had done as a typist, while incarcerated, and in childcare, who had tried unsuccessfully for eight months before the accident to obtain a job, was going to start immediately, had the accident not occurred, in a job – not only any job, but a job where she would be earning something like the average weekly earnings of females in Australia, which included the earnings of professional people, and would have earned that money with a discount of 30 per cent. 

That is, in other words, a 70 per cent chance of achieving this and working through until 65, and the Court of Appeal said that is ludicrous.  There is no question of credit there, your Honours.  It was a simple inference to be drawn from her history and her unfortunate circumstances and they said, “No, she has a 50 per cent chance of working in a relatively menial job”.  With great respect, your Honours, that is exactly the sort of thing an intermediate court of appeal should be doing.

CALLINAN J:   It is one of the problems.  You find one or two really serious errors in a judgment, and it must bring into question the whole of the judgment on occasions.  It infects the whole thing.

MR HOEBEN:   Indeed, and what can a court of appeal do, with respect, your Honour?  When you get a mistake like that, you have to get in and fix the whole thing.  But when you then get a judgment which says, “I incorporate the accountant’s report”, and so all the contested issues such as house modifications – $75,000 for the creation of two rooms when, even on the plaintiff’s case, you are talking ‑ ‑ ‑

CALLINAN J:   The trial judge said, after he did some arithmetic, the figures looked “alarmingly high”, that was his own expression.  Anyway, that is not really what the presiding judge asked ‑ ‑ ‑

MR HOEBEN:   No, your Honours, I just wanted to deal with that vicissitudes point.  These other damages issues were patently wrong, and, if anything goes back, it should only be care.  With great respect, the crucial issue was care.  The Court of Appeal did what it has been told to do, it accepted the credit findings, but it said, “That is not the effect of the evidence”.  What his Honour did not refer to was the two hours of care which Mr Sengos was giving and the Court of Appeal said, “Well, we think perhaps an extra hour”.  No doubt they were thinking some of the expert opinion would do.

To give your Honours an idea of the problem here, there is some evidence from Dr Buckley, where he was cross‑examined about what would happen with this six hours of care and he was basically reduced to saying, “There would be monitoring, there would facilitating”, the verbiage of social work in the broadest kind of way.  He could not say what the six hours per day were going to be spent on.

GUMMOW J:   I think Justice Heydon wanted to take something more specific up with you, Mr Hoeben.

MR HOEBEN:   I am sorry.  Yes, certainly, your Honour.

HEYDON J:   Justice Gummow’s question, does it boil down to three concessions you make?  One is page 153, line 34, you agree the damages should go up by 19,000 as there indicated?

MR HOEBEN:   Your Honour, it should go up by 19,000, reduced by half for contributory negligence, if we are successful.

HEYDON J:   Very well.  So you concede 9,500?

MR HOEBEN:   We do.

HEYDON J:   Secondly, you, I think, in effect said you were prepared to go quietly, at page 157, and concede $82,500 instead of $75,000?

MR HOEBEN:   Yes, your Honour, we will do that.

HEYDON J:   Thirdly, you concede – or are we repeating ourselves?  Page 158, line 30, is that a repetition of the first point?

MR HOEBEN:   That is the same thing, your Honour.

HEYDON J:   I see.

MR HOEBEN:   Sorry, your Honour, no, that is ‑ ‑ ‑

HEYDON J:   That is another one, is it?

MR HOEBEN:   No, that is the employment one.  That is a big issue.  We do not concede that at all.

HEYDON J:   But it says:

the respondent agrees that the judgment in favour of the applicant needs to be increased by $9,500 ‑ ‑ ‑

MR HOEBEN:   I am sorry, that is the same point.

HEYDON J:   It is the same point.  All right.  So you make those two concessions?

MR HOEBEN:   I do.

HEYDON J:   And there will not be any fuss when Mr Jackson’s solicitors ask for that order? 

GUMMOW J:   There will not, after we impose a condition, if we get that far.

MR HOEBEN:   No.  Your Honours, that is really the crux of it.  This Court is to correct error.  With great respect, no error has been shown.  What the Court of Appeal did was exactly what the Court has said it should do in Fox v Percy.  It did not pay mere lip service to the credit findings in relation to Messrs Sengos and Frost, but what it did do was make a much closer analysis of the evidence of those gentlemen and give effect to it, and that resulted in a three hour per day care regime, not the six, your Honours.

GUMMOW J:   Thank you.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I deal very briefly with the question of contributory negligence.  This was an aspect on which the burden of proof lay on the other side.  If one goes back to page 5 of the application book, what your Honours will see is that the discussion by the judge of contributory negligence does not commence on page 6, it commences on page 5, about line 28.  Your Honours will see the discussion by the judge there, then leading into what he said at the top of page 6.  One of the questions which he had to decide was the question urged on him by the other side, whether the Rohypnol had any relevant effect at the time.  What your Honours will see is that he says:

It is impossible to infer from the evidence that [she] did not look before she embarked upon her hurried crossing of the road.  The very fact that she was hurrying in the manner described by Mr Tsipiras would tend to suggest that she had made an observation to her right and been guilty of an error of judgement ‑ ‑ ‑

CALLINAN J:   Mr Jackson, I just do not think that was available, on any view.  That is the problem.  You may well be right about the error of the Court of Appeal in saying certain matters were not adverted to when they were, but that holding there, it seemed to me, made intervention by the Court of Appeal inevitable.

MR JACKSON:   Your Honour, it is not a case where the primary judge was excusing the conduct of her.  It was a case where negligence ‑ ‑ ‑

CALLINAN J:   It was a critical finding which affected his holding with respect to apportionment.

MR JACKSON:   Yes, but, your Honour, the apportionment was done in circumstances where there were two parties involved.  One sees that in dealing with that question, the judge formed the view that the conduct of the respondent was of a very serious kind.  In arriving at that view, he was entitled to weigh the relative causal potency, if one uses that expression, and that is where one has the simple crossing of the road, on the one hand, but someone driving a car inexorably forward.  Your Honours, I do not think I can advance it beyond that.

On the question of damages, it was not just a case of accepting the evidence of Messrs Sengos and Frost.  Your Honours, it was also the evidence of Dr Lorentz, where he said six hours.  The judge specifically accepted that.

CALLINAN J:   I like the way the doctor put it, though.  He said, “I propose”, not “as needed”.  Hardly the approach of an independent expert. 

MR JACKSON:   Your Honour, that is in a context where one had, for example, matters such as the graphic description that was given – that is at page 53 of the first supplementary application book and the passage I took your Honours to earlier – of what would happen if she did not have a companion.  She would survive for a while, but she would go downhill.

Your Honours, I have mentioned the question of costs before.  It was not entirely clear to me if the Court was proposing that it might perhaps vary the order of the Court of Appeal.  If so, then ‑ ‑ ‑

GUMMOW J:   No, we were simply proposing the imposition of a condition, that this arrangement be made between the parties in particular terms.

MR JACKSON:   Yes.  All I was going to say in relation to costs was that the parties have agreed that the order of the Court of Appeal of 16 September 2003 be varied to include an additional order, which is as follows.  Order 4: 

the appellant is to pay the respondent’s costs up to 26 October 2001 on a party/party basis.

I am speaking of the order of the Court of Appeal.

HEYDON J:   Let me get that date, Mr Jackson.  That was the order of 16 September 2003?

MR JACKSON:   Yes, the order of 16 September 2003, which is page 127 of the application book.

GUMMOW J:   Just a moment.  How should it read?

MR JACKSON:   Could I give your Honours a copy of it?  Perhaps a copy of it will do. 

GUMMOW J:   Yes.

MR JACKSON:   Your Honours, what is in the letter is agreed to by a letter of 8 March 2004.

GUMMOW J:   That is so, is it, Mr Hoeben?

MR HOEBEN:   Yes, indeed, your Honour.

GUMMOW J:   Just give us a minute.  Looking at the text at page 127, how is that changed?

HEYDON J:   Just to insert order 4. 

GUMMOW J:   The parties consent to a variation of the order of the New South Wales Court of Appeal entered 10 October 2003, which appears at page 127 of the application book.  The agreed variation is the addition of an order 4: 

The appellant is to pay the respondent’s costs up to 26 October 2001 on a party/party basis. 

The required special leave to appeal to this Court is granted to the extent necessary for this Court to make that order.

As to the remaining matters, we say the following.  The New South Wales Court of Appeal, in our view, applied established principles and did so consistently with the decision of this Court in Fox v Percy (2003) 77 ALJR 989. Further, no occasion arises for the intervention of this Court with respect to remaining issues as to assessment of damages. We use the phrase “remaining issues” to reflect what I now say. Upon the respondent, by its counsel, undertaking to this Court to make the two adjustments in the assessment of damages to allow for agreed errors accepted in the course of oral submissions to this Court this morning, special leave will be refused.

The reference to “accepted in the course of oral argument” is to your last exchange with Justice Heydon.  Do you have instructions to give that undertaking? 

MR HOEBEN:   Indeed, your Honour.  I give that undertaking. 

GUMMOW J:   Very well.  It follows then that subject to what has been said respecting the addition of order 4 and upon the respondent, by its counsel, having given to this Court the undertaking as indicated, special leave is refused with costs.  Call application No 2. 

AT 10.38 AM THE MATTER WAS CONCLUDED