JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BROWN & ANOR -v- CHURCHILL [2006] WASCA 17
CORAM: STEYTLER P
MCLURE JA
PULLIN JA
HEARD: 12 OCTOBER 2005
DELIVERED : 6 FEBRUARY 2006
FILE NO/S: FUL 107 of 2004
BETWEEN: PHILLIP JAMES BROWN
First Appellant
ANTHONY JOHN WHITE
Second AppellantAND
DAVID LESLIE CHURCHILL
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :YEATS DCJ
Citation :CHURCHILL -v- BROWN & ANOR [2004] WADC 161
File No :CIV 1594 of 2002
Catchwords:
Torts - Damages - Three accidents - Which accident caused which loss - No new point of principle
Evidence - Documents tendered - Trial Judge later ruling that the exhibits and crossexamination on them should be disregarded - Trial Judge did not advise the parties of her intention to so rule
Appeal - Improper rejection of evidence - Circumstances in which a retrial should be ordered
Legislation:
Nil
Result:
Appeal allowed in part
Category: A
Representation:
Counsel:
First Appellant : Mr W S Martin QC
Second Appellant : Mr W S Martin QC
Respondent: Mr D M Bruns
Solicitors:
First Appellant : K N Allan
Second Appellant : K N Allan
Respondent: Separovic & Associates
Case(s) referred to in judgment(s):
Balenzuela v De Gail (1959) 101 CLR 226
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) ATR 81‑043
Brasser v Graham [1985]) WAR 180
Crease v Barrett [1835‑42] All ER 30
Dairy Farmers Co‑operative Milk Co Ltd v Acquilina (1963) 109 CLR 458
Fox v Percy (2003) 214 CLR 118
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
Holford v Melbourne Tramway and Omnibus Co Ltd (1909) VLR 497
McLellan v Bowyer (1961) 106 CLR 95
Nominal Defendant v Clements (1960) 104 CLR 476
Nominal Defendant v Hook (1962) 113 CLR 641
Pantorno v The Queen (1989) 166 CLR 466
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
Stead v State Government Insurance Commission (1986) 161 CLR 141
The Waterways Authority v Fitzgibbon & Ors [2005] HCA 57
Tran v Claydon (2003) 40 MVR 506
Weiss v The Queen [2005] HCA 81
Western Australia v Watson [1990] WAR 248
Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485
Case(s) also cited:
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Devries v Australian National Railways Commission (1993) 177 CLR 472
Garrett v Nicholson (1999) 21 WAR 226
Mann v Carnell (1999) 201 CLR 1
Murrell v Healy [2001] 4 All ER 345
Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533
Pirkess v Crittenden (1965) 114 CLR 164
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Spedley Securities Pty Ltd (in liq) v Bank of New Zealand (1991) 26 NSWLR 711
Struthers v Harris [1983] WAR 123
STEYTLER P: I…
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- AGLC
- Brown v Churchill [2006] WASCA 17
- Case
- [2006] WASCA 17
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the trial judge's approach to the assessment of damages was correct, particularly in relation to the rate of 5 per cent for contingencies, the onus of proof in relation to past treatment expenses, and the need for medical opinion to substantiate the respondent's claim for gratuitous services. The court also needed to assess whether the trial judge's decision to disregard certain exhibits and cross-examinations on them was proper, and whether these errors led to a miscarriage of justice.
The court found that the trial judge's rate of 5 per cent for contingencies was not in error and was consistent with previous cases. The criticism of the appellants' approach to past treatment expenses did not constitute a reversal of the onus of proof. Additionally, there was no need for medical opinion to verify the entitlement to gratuitous services. However, the court did find that the trial judge erred in disregarding certain exhibits and cross-examinations on them, but this error did not lead to a miscarriage of justice. Consequently, the award of damages was reduced by $1344.
The court dismissed all grounds of appeal except for the one concerning the improper rejection of evidence, which did not result in a miscarriage of justice. The appeal was partially successful, leading to a reduction in the award of damages.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Her Honour adopted the rate of 5 per cent for contingencies and it is contended that this is an exceptionally low rate given the respondent's history. In my opinion, the 5 per cent figure was not in error. For normal contingencies of life it was said in Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485 at 496 that 5 per cent "could not be said … [to be] inappropriate". The range in Black v Motor Vehicle Insurance Trust [1986] WAR 32 at 34 was said to be in the range of 2 to 6 per cent, and this was referred to in approval in Bowen v Tutte (1990) ATR 81‑043. This ground of appeal should be dismissed. I agree with McLure JA in relation to this ground. This ground contends that her Honour placed some form of onus upon the appellants in relation to past treatment expenses. Her Honour, at [48] of her reasons, criticised the appellants' approach to this issue and said the defendant "justified its position on the basis that the respondent must prove in the case of each medical treatment that it was exclusively treatment for injuries arising from the motor vehicle accident and are not for injuries arising from the work accident." The appellants contended that this revealed a reversal of the onus. I do not think this is so. Her Honour criticised the appellants for their approach but acknowledged that the "approach has validity". By this her Honour meant that the appellants were legally entitled to take that approach. In any event, the respondent gave evidence verifying all of the past treatment expenses as being expenses relating to the accident. This ground of appeal should be dismissed. The complaint is that evidence was adduced by the respondent about his need for gratuitous services and that this was not substantiated by any medical opinion. In my opinion there was no need for medical opinion to verify an entitlement to gratuitous services. This ground of appeal should be dismissed. Although the appellant succeeded in demonstrating by ground 1 that the learned trial Judge erred in her ruling that Exhibits 3 and 4 were not admissible, and in her decision to exclude from consideration cross‑examination on those documents, these errors have not caused any miscarriage of justice. The appellant succeeds on ground 3(e) but has failed on all other grounds of appeal. The award of damages should be reduced by $1344.