Brien & Anor v Palmby

[2000] HCATrans 248

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S190 of 1999

B e t w e e n -

KENNETH CLAUDE BRIEN and SALLY ANN BRIEN t/as A-GRADE TYRE & BATTERY SERVICE (ARMIDALE)

Applicants

and

DAVID ERIC PALMBY

Respondent

Application for special leave to appeal

GLEESON CJ
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 JUNE 2000, AT 10.10. AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR G.B. EVANS, for the applicants.  (instructed by McMahons)

MR P. MENZIES, QC:   If the Court pleases, I appear with my learned friend, MR D.J.S. JENKINS, for the respondent.  (instructed by Watson McNamara & Watt)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, this application seeks to raise three points concerning the assessment of damages for personal injury.  Two are related.  They concern the approach to be taken to the assessment of such damages where the plaintiff suffered successive injuries.  The third is a particular point.  The respondent, who had borne his injuries after the first accident with fortitude, was instantly dismissed by his employers – not the applicants – when he said he was going to see a doctor, yet we were held liable for loss of earnings brought about by, as it was described in the Court of Appeal, this irrational act.  Your Honours, we would also say that even if the factors considered separately would not merit special leave, together they do.

Could I go to the first two matters.  The approach taken by the primary judge was to look at the plaintiff’s resulting condition from the two accidents, attribute a proportion of that to the first accident and a proportion to the second, and to assess the general damages on the basis of that proportion and then, in relation to the amount for pain, suffering and loss of amenities, to use the figure provided for as the maximum in the Motor Accidents Act as the starting point in circumstances where, although the Act applied to the second accident, it did not apply to the first one which is the one in which we were the defendants.

GAUDRON J:   That seems to be an error against the respondent and in your favour.

MR JACKSON:   That was an observation that was made by the Court of Appeal.  The point we would seek to make in response to that is that in circumstances where the approach taken to the assessment of damages was otherwise not, in our submission, one which would identify what the damages would otherwise have been, how does one know?  So, your Honours, what we would seek to say about that aspect of it is that, although the members of the Court of Appeal say that, the observation in that regard is something that is not supported, in our submission, by an appropriate base.

GLEESON CJ:   What were you asking the Court of Appeal to do?

MR JACKSON:   In terms of the ultimate result?

GLEESON CJ:   Yes.

MR JACKSON:   I see that our learned friend’s submissions say that we did not seek a new trial.  Could we say two things about that.  The first is that in relation to the assessment of damages, your Honours will see from the notice of appeal to that court that one of the forms of relief sought was a new assessment of damages by a trial judge or, alternatively, the Court of Appeal itself.  As I understand the position, we did not differ from that position in the course of the appeal in the Court of Appeal.

GAUDRON J:   The Court of Appeal says you did not seek a new trial.  Does not the President make reference to that?  One really has to see how the parties conducted the case.

MR JACKSON:   Your Honour, what was said was, “The parties shun a new trial”, shun, in one sense, that the parties were suggesting that the course for the Court of Appeal was that the Court of Appeal itself should do it, but in terms of saying “No, we don’t want a new trial”, in any event, in our submission, that did not occur.

GAUDRON J:   Do you have the transcript?  It does leave the matter in a very unsatisfactory position, does it not?

MR JACKSON:   Your Honour, I appreciate that.  All I am able to do in the matter was take some instructions about it.  What we would seek to say is that in either event the case was one where the appropriate course in relation to damages was that there be an assessment in relation to the successive injuries.

GAUDRON J:   I wonder if there is not a further complication, given the way in which the matter was dealt with at first instance.  I wonder if the truth is not, if there is a new trial, it should properly involve both defendants, and that defendant was not present in the Court of Appeal.

MR JACKSON:   And the case had been settled so far as the other defendant is concerned but, your Honour, that, with respect, is not the position because in the end there had to be an assessment of damages against each.  No alteration, so far as we are concerned, could affect the case against the other side – at least, it could not affect it now because that case has been settled.

GLEESON CJ:   What is the point of principle upon which you seek this Court’s decision?

MR JACKSON:   The point of principle is first of all in relation to the method of assessment of damages in the case of successive injuries.

GAUDRON J:   How do you say that should be done?  We know that is the problem.

MR JACKSON:   Your Honour, the point we would seek to make is that prima facie there should have been an assessment of what would have been the position absent the second accident and, secondly, an identification of what were the separate, on the one hand, and additional on the other, consequences of the second accident and what was an appropriate assessment in relation to those.

Your Honours, in saying that, we would submit that the appropriate ordinary approach is that referred to by the Victorian Court of Appeal in Perri v Department of School Education Victoria (1998) 1 VR 591 at pages 596 and 597. I do not think your Honours have been given copies of the case. May I do so immediately.

GAUDRON J:   What happened at the trial?  Was the trial judge invited to apply that principle at the trial?

MR JACKSON:   The trial judge was invited to make an assessment.  The way in which he finally went about it was, as your Honours will see at page 14 ‑ ‑ ‑

GAUDRON J:   What, if anything, did counsel submit at the trial?

MR JACKSON:   No submission was made in relation to a method of assessment that was taken by the primary judge.  Arguments were advanced on what the appropriate assessments were but the way the primary judge did it was his Honour’s own work.  What appears at page 14, lines 35 and following, is the way in which he ultimately went about it.  I was going to refer to what was said in the Victorian Court of Appeal.  At page 596 at the bottom of the page, where a judge had assessed a global sum of damages and then divided it up, the President said at line 32 that:

his Honour did lead himself into error in approaching the assessment of damages in the way in which he did.

That passage goes through to page 597, about line 28.

GAUDRON J:   The other matter you have to address, do you not, is what the President said?  It is not clear that the verdict would be any different.  In fact, on one view the verdict might be greater against your client if the matter were redetermined.

MR JACKSON:   Your Honour, I would have to accept that is a possibility but what we would seek to say about that is that that is really speculation in circumstances where there is not a separate identification of the various matters.  Could I give your Honours a reference to the second passage in that case.  It is at page 598, Justice Hedigan, commencing at about line 33 and going through to page 599, about line 16.

The point I was going to make in response to what your Honour Justice Gaudron said was that one does see that there were some quite distinct separate injuries.  One sees that at page -  at pages 8 and 9 there are set out the consequences of the accident.  Your Honours will see that at page 8 line 35.  That is the first accident.  Page 9 line 15, the discussion of the second accident.  Your Honours will also see, if I could just identify one thing, that at page 12 line 34 in the short paragraph commencing there, there is a reference to the fact that there is a “grave disability in his right wrist which happened only in the second accident”, and so on.

GLEESON CJ:   Mr Jackson, just before you depart completely from a point that was raised with you a few minutes ago, if you are appealing to a Court of Appeal and you say the trial judge used a wrong method in assessing damages, do you not have to establish to the Court of Appeal, at least to what might be called the level of a prima facie case, that the consequence of that was to produce an award of damages that was either too low or too high, depending upon which party is the appellant?  In other words, you have to show that the error is material.  Particularly in a context where the Court of Appeal is being asked to reassess the damages, it is not quite good enough, is it, to say, “Well, we just don’t know whether we could demonstrate that if there was a new trial the verdict would be higher or would be lower”?

MR JACKSON:   Your Honour, in the ordinary course of events that is so, but that works on the assumption that one is able to identify from, for example, the primary judge’s reasons or from the material before the court that the award in respect of the sum is one which is inappropriate.

GLEESON CJ:   But that is the point on which you lost in the Court of Appeal.  You ultimately lost because you could not persuade the judges of the Court of Appeal that you would have done any better if the proper method had been used.

MR JACKSON:   Your Honour, the observation is made in a sense in passing, with respect.  One sees that said in relation to the question of the award for general damages for pain, suffering and loss of amenities.

GLEESON CJ:   It is not merely an observation in passing if it is made in the context where the court believes that neither party wants a new trial.  It is central to the exercise of the court’s function, is it not?

MR JACKSON:   Could I just say, in our submission, if you have a situation where, because of the approach taken by the primary judge, one is not able to say exactly whether the appropriate award, particularly when what has been done is to divide up an amount, is necessarily higher or lower, it is not sufficient, in our submission, for the Court of Appeal to say, well, you cannot show ‑ ‑ ‑

GLEESON CJ:   I do not quite understand that.  You presumably had before the Court of Appeal all the evidence upon which you were entitled to rely in the assessment of damages, so part of the exercise in the Court of Appeal, especially in a context where the parties were shunning a new trial, was to demonstrate to the Court of Appeal by reference to the evidence that was led at first instance what the proper measure of damages was.

MR JACKSON:   If I could take your Honours to page 32 paragraph 11, your Honours will see that the President says:

In the end I share Meagher JA’s view that the figure is high but within range.

That, in our submission, is a reference back to the figure that is referred to, the $123,500 in paragraph 8.  His Honour then ‑ it is after that – so he is speaking about one aspect of the award.  The whole award is based really on the five‑sevenths approach.  So what we would seek to say about it is that his Honour was referring to one aspect of the award in saying that and Justice Meagher was referring to the same aspect, we would submit.  When you come to that, one just has a situation where, because the court did not go beyond the five‑sevenths approach, the result is that one cannot say that it is appropriate to say the whole award is one which is necessarily not shown to be wrong.  I do not think I can take the case beyond that.

GLEESON CJ:   Thank you, Mr Jackson.  We do not need to hear you, Mr Menzies.

The Court is of the view that having regard to the way the case appears to have been conducted in the Court of Appeal, and to the conclusion expressed by the President in the Court of Appeal that the particular error referred to in paragraph  8 of his reasons on the part of the trial judge appeared to have been an error in favour of the appellant in the Court of Appeal, the present is not a suitable vehicle to deal with the

question of principle the applicant seeks to raise.  The application for special leave to appeal is refused.

Can you refuse an order for costs?

MR JACKSON:   No, your Honour.

GLEESON CJ:   The applicant must pay the respondent’s costs of the application.

Call matter No 4, please.

AT 10.26 AM THE MATTER WAS CONCLUDED