Brown v Churchill

Case [2006] WASCA 17

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 Appellant

AND

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

  1. STEYTLER P:  I…

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AGLC
Brown v Churchill [2006] WASCA 17
Case
[2006] WASCA 17
Decision Date

CaseChat Overview and Summary

In the case of Brown v Churchill, the appellants, represented by counsel, appealed a decision regarding damages awarded to the respondent, Churchill. The dispute involved the assessment of damages following three accidents and determining which accident caused which loss. The appeal was heard by the Court of Appeal, which examined various legal issues related to the assessment of damages and the handling of evidence during the trial.

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.