Brown v Churchill
[2006] WASCA 17
•6 FEBRUARY 2006
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 have read, in draft, the judgments of Pullin JA and McLure JA. I agree with Pullin JA. I also agree with McLure JA as regards ground 3(e) of the grounds of appeal and as regards the principles relating to the grant of a retrial where evidence has been improperly excluded. I would consequently allow the appeal, but only to the extent of setting aside the total award and reducing it by $1,344 to $428,890.
MCLURE JA: I have had the advantage of reading in draft form the reasons to be published by Pullin JA. I agree with his conclusions on the grounds of appeal generally for the reasons he gives. However, I wish to state my own reasons on the principles relating to the grant of a retrial where evidence has been improperly excluded and on ground 3(e).
The appellant contended that where evidence has been improperly excluded, an appeal court must order a retrial or alternatively, if the Court has a discretion, it can only decline to order a retrial if the excluded evidence could not have affected the result. In support of these propositions, the appellant relies on the High Court decisions of, inter alia, Balenzuela v De Gail (1959) 101 CLR 226, Nominal Defendant v Clements (1960) 104 CLR 476, Nominal Defendant v Hook (1962) 113 CLR 641, Dairy Farmers Co‑operative Milk Co Ltd v Acquilina (1963) 109 CLR 458 and Stead v State Government Insurance Commission (1986) 161 CLR 141. The balance of the authorities support the alternative proposition: see, in particular, Dairy Farmers at 463 and Stead at 145.
As noted by Pullin JA, O 63 r 12(2) of the Rulesof theSupreme Court1971 (WA) deals with the powers of an appellate court to order a new trial. The rule provides:
"A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence … unless in the opinion of the Court of Appeal some substantial wrong or miscarriage has been thereby occasioned in the trial … "
This Rule is in materially the same terms as Rule 48 of the English Rules of Court enacted by the Supreme Court of Judicature Act 1873 (UK). The pre and post Judicature Act history relating to the grant of a new trial was recently considered by the High Court in Weiss v The Queen [2005] HCA 81. Weiss, a unanimous judgment, was delivered on 15 December 2005 some two months after the hearing of this appeal. The Court in Weiss was considering the substantial miscarriage of justice proviso that is part of the criminal law in all Australian jurisdictions. In
Western Australia the proviso is now contained in s 14(2) and s 30(4) of the Criminal Appeals Act 2004 (WA) which materially provide that even if a ground of appeal might be decided in favour of an appellant the Supreme Court or Court of Appeal, as the case may be, may dismiss the appeal "if it considers that no substantial miscarriage of justice has occurred".
The High Court in Weiss described the history of civil and criminal provisions of this nature as follows. Crease v Barrett [1835‑42] All ER 30, a decision of the Court of Exchequer, is taken as establishing a rule that there was a new trial as of right where there had been any miscarriage which could not be said to be upon a wholly immaterial point ("the Exchequer rule"). Under the Exchequer rule, any departure from a trial according to law, regardless of the nature or importance of the departure, was a miscarriage of justice. On the civil side, the Exchequer rule was done away with by Rule 48 enacted under the Judicature Act (UK).
Wigmore (in A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 3rd ed (1940) Vol 1 at 368) identified two theories to support the Exchequer rule. The first was that a party had a legal right to observance of the rules of evidence. The second was that judicial consideration of the weight of all the evidence, as a motive for refusing a new trial, would be the usurpation of the jury's function. The High Court noted that these two rights (to a trial according to law and to the verdict of a jury) informed the subsequent interpretation of statutes intended to do away with the Exchequer rule. By way of examples, the High Court referred to decisions concerning the criminal proviso. However, the observations of members of the High Court in Balenzuela on the scope of the judicature rule in relation to civil jury trials are also influenced by these matters. In Balenzuela the (common law) Exchequer rule applied. Dixon CJ did not regard that rule as being absolute and he contrasted it with the judicature rule as follows (at 234 ‑ 235):
"… at common law it was necessary to grant a new trial unless the court felt some reasonable assurance that the error of law at the trial whether in a misdirection or wrongful admission or rejection of evidence or otherwise was of such a nature that it could not reasonably be supposed to have influenced the result or because, in any case, as a matter of law the same result must have ensued, while under the judicature rule the burden is the other way. The form in which the judicature rule is cast seems to indicate an intention that the court should not grant a new trial unless it reached a positive opinion, in other words unless it was persuaded that a substantial wrong or miscarriage had been occasioned by the error. This may form one distinction between the two rules. … Another distinction perhaps may be that a rather more substantial wrong or miscarriage has been required under the judicature rule than had been required at common law. But the existence of the distinction is doubtful. … But whether it be the rule at common law or under the judicature system a much more important restraint must be observed upon the discretion of the court to refuse a new trial. The court, where the determination of questions of fact is not entrusted to it, cannot substitute its judgment for that of the jury in purporting to decide whether a substantial wrong or miscarriage has occurred. Care must be taken lest in exercising an authority to decide whether an error of law occurring at the trial is likely to have influenced the result, what is really done is to examine the evidence as if the court were forming a conclusion of fact for itself. The basal distinction between the court's duty and the function of the jury cannot be confused in this way."
Dixon CJ concluded (at 236) that it was outside the province of an appeal court to enquire into the effect which the evidence if admitted would produce upon the Court if the Court were the tribunal of fact, and that it was outside the province of the Court to speculate on the effect it would have produced on the jury. Thus, the role of the jury as the finder of fact was an important consideration in the approach taken to the construction of the judicature rule as well as in the formulation and application of the common law rule.
Windeyer J in Balenzuela agreed with the Chief Justice that the common law principles and the judicature rule in relation to new trials were not so far apart as might appear. He continued:
"To deprive a jury of knowledge of a material fact which could influence them in arriving at their verdict must, in my view, ordinarily be a 'substantial wrong' within the meaning of the rule under the judicature system. That rule does not empower a court of appeal to usurp the function of the jury."
The High Court in Weiss looked at the question afresh. It made a number of points. First, when applying a statutory provision it is necessary to look at the language of the statute or rule rather than secondary sources or materials. Secondly, an appellate court's function is to decide the appeal and insofar as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (the jury at trial or some hypothetical jury) would or might do. Rather, the task is to decide whether "a substantial miscarriage of justice has actually occurred". Thirdly, the possibility that a jury might have used wrongfully received evidence (or, I interpolate, not used admissible but wrongfully excluded evidence), cannot be treated as conclusive of the question presented by the proviso. Fourthly, the task is an objective task not materially different from other appellate tasks and must be undertaken by the appellate court on the whole of the record of the trial including the verdict. The High Court said that in some cases it may be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict. But there is no single universally applicable criterion that can be formulated. These general considerations apply with greater, or at least equal, force to the approach to be taken to the construction of O 63 r 12(2), having regard to the court's role as fact finder and the nature and extent of an appellate court's role in hearing a civil appeal which is in the nature of rehearing (see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306).
The only error in this case was the wrongful rejection of admissible evidence. Its relevance was confined to the respondent's credit which, I accept, was an important issue at trial. This Court has had the benefit of considering the relevant schedules and the cross‑examination of the respondent conducted on them. In my view, it is possible in this case to apply the "would or should have no significance" criterion, which is a departure from the test applied in the earlier cases. However, the result in this case is the same regardless of which test applies. Having regard to the evidence as a whole, I am not positively satisfied that the evidence wrongly rejected by the trial Judge could, would or should have had any significance in determining the outcome of the trial. In particular, the legal and factual complexity of the causation issues in a case such as this where there are multiple accidents with overlapping, or potentially overlapping, disabilities is such as to justify the approach taken by the respondent's solicitors (with his authority) in the schedules. There was nothing in the content or use of the schedules that could reasonably be seen as materially affecting the respondent's credit. As I am not satisfied that a substantial wrong or miscarriage has occurred, a new trial cannot be granted.
There is a further matter on which I wish to comment. The trial Judge referred to what she described as the "rule in Tran's case", being a
reference to Tran v Claydon (2003) 40 MVR 506 at [51]. There is no rule in Tran's case. Whether or not an adverse inference can be drawn from schedules prepared for a pre‑trial conference is a question of fact in all cases. The question in Tran was whether the trial Judge erred in drawing an adverse inference on the facts of that case.
I turn now to ground 3(e) which relates to interest on past loss of earning capacity. The respondent contended that the past loss of earning capacity attributable to the motor vehicle accident should commence from July 2001. The trial Judge rejected this submission and concluded that it should commence from July 2003. In quantifying the loss, the trial Judge calculated the loss in the 19 week period from 1 July 2003 to 13 November 2003 (whilst the appellant was receiving workers' compensation payments) at $2,850 and from 13 November 2003 to 3 June 2004 (29 weeks) at $17,400, a total of $20,250. She then dealt with interest as follows:
"Interest on that amount is calculated $20,250 x 3 per cent x 2.9 years = $1,761.75".
The period of 2.9 years (and 3 per cent) is taken from the appellant's schedule of damages based on the claimed commencement date of 1 July 2001. The interest rate of 3 per cent is half the usual rate and is based on the approach in Brasser v Graham [1985] WAR 180 at 180 ‑ 181. However, if half the usual rate of interest is applied (because the loss has been incurred over time) there is no justification for doing other than applying it to the actual period of the loss, in this case 48 weeks not 2.9 years. The appellant approaches the calculation of the loss as follows: $2,850 x 3 per cent x 19 weeks = $31.25 plus ($2,850 + 31.25) x 6 per cent x 29 weeks = $96.41 plus $17,400 x 3 per cent x 29 weeks = $291.11. I accept that to be an accurate approach and I would award interest in the sum of $418. As the error is discrete and easily isolated from the remaining heads of damage, the appropriate course is to set aside the total award and reduce it by $1,344 to $428,890.
PULLIN JA: This is an appeal against a judgment of Judge Yeats awarding damages to the respondents against the appellants in the sum of $430,234. The damages were for personal injuries suffered in a motor vehicle accident on 8 March 1999. Liability was admitted by the appellants.
A significant issue at trial was whether the injuries for which damages were awarded were suffered in the motor vehicle accident or in
two earlier work accidents. The work accidents occurred when the respondent was employed by Fremantle Steel. The first was on 12 June 1998. On that day, according to the findings of her Honour, he fell off the back of a truck. As a result, he suffered injuries to his right knee and lower back. Then in December 1998 while still employed by Fremantle Steel, his right knee gave way while he was climbing a steel frame and he fell three metres, landing on his right knee and his back. In the first work accident, the injuries occurred on a Friday. He took no time off work. He returned to work on the following Monday. As her Honour found, the knee slowly grew worse over the next six months. He had surgery on the knee to repair cartilage. He had to take a month off work. The December 1998 work injury aggravated his knee injury and increased his low back pain.
He received weekly workers' compensation payments from his employer until November 2003 when the claim was settled. Her Honour accepted that the work accident caused a loss of earning capacity, although as her Honour said at [15] "[t]he continuation of [the] weekly [compensation] payments does not mean that the respondent's loss of earning capacity during that period is entirely attributable to the first accident".
The motor vehicle accident in the following March resulted in injuries to the respondent's neck and left shoulder. He claimed that he also aggravated his lower back. That was the subject of some dispute. He also hit his right knee in the accident causing some swelling.
The respondent was given a lift home from the accident site and he saw a general practitioner Dr De Galvez, who was not his usual doctor. This doctor diagnosed a soft tissue whiplash type injury to the neck. Later he was placed under the care of his own general practitioner, Dr Saverimutto. He saw that doctor on 6 April 1998, and her Honour found that from that time he complained of persisting pain in the interscapular region, pain in his left shoulder and headaches. Despite his pain the respondent returned to work after the motor vehicle accident. He was treated with painkillers and anti‑inflammatories, the same treatment he was continuing to receive for his knee injury. After the motor vehicle accident however, his use of painkillers increased. He became slower at his work and in April 1999 he was retrenched from Fremantle Steel but within two weeks was back in full time work with Ultrafloor as a transport controller and purchaser. His duties were lighter and he worked shorter hours but he was still limited in what he could do. He found that he could not drive the company vehicle because he could not turn his neck, nor could he change gears because of his left shoulder pain.
Mr Goonatillake, an orthopaedic surgeon, operated on his left shoulder on 21 December 1999. Her Honour said that it was to the respondent's credit that he arranged his shoulder surgery and recovery during the Christmas holiday break and returned to work with Ultrafloor in mid‑January. He recovered well from the shoulder surgery but he was only able to remain at work with Ultrafloor for two weeks because of his pain and instability in his right knee which had worsened, so he took leave without pay in order to have knee surgery. The respondent never returned to work at Ultrafloor. In March 2000 while recuperating from the knee surgery, Ultrafloor terminated his employment.
Her Honour noted that her task was to determine the extent to which the motor vehicle accident caused or contributed to the respondent's past and future loss of earning capacity and interfered with his enjoyment of life. The respondent claimed that he would have been fit to perform office duties as an assistant transport manager from about July 2001 had it not been for the injuries he sustained in the motor vehicle accident - particularly the severe headaches.
Her Honour found that the onset of the headaches was caused by the motor vehicle accident and the whiplash‑type injury suffered in it. The respondent had suffered some migraine headaches prior to the motor vehicle accident but the effect of the motor vehicle accident was to increase the severity and occurrence of these headaches. Her Honour found that the shoulder injury did not cause any loss of earning capacity after he returned to work following the surgery on the shoulder. Her Honour found however, that the left shoulder and neck pain and weakness in the left arm prevented him from driving a motor vehicle, impacted on his quality of life and created a need for gratuitous services.
As to the low back injury, her Honour noted the absence of supporting medical evidence in relation to his claim that he suffered low back injury in the motor vehicle accident. There was no doubt that the respondent had injured his back in the work accidents and an orthopaedic surgeon, Mr Soo Tee Lim, expressed an initial view that the low back pain was not aggravated by the motor vehicle accident but then qualified this to say that it did not "immediately" aggravate the low back pain. Mr Lim did not examine the respondent until 27 May 2003 and his opinion was based on reports that he had read. There was also evidence of some degenerative disc disease at the L4/5 level.
Her Honour stated that she had formed a very positive view of the respondent's credibility and that although there was little medical evidence to support the respondent's evidence about low back pain, her Honour found that there was "some aggravation" of his low back pain in the motor vehicle accident. Her Honour said it was not surprising that he did not complain of it in circumstances where he was complaining of more severe injuries to his neck and shoulder. The anti‑inflammatories and painkillers for his knee injury also masked the immediate low back pain according to her Honour. Her Honour accepted that the work accidents and degenerative disc disease, however, were the primary causes of his low back pain, and considered that the motor vehicle accident contributed to the injury.
Two relevant points of importance emerge from the findings of fact made by her Honour. The two points are, first, that both the work accidents and the motor vehicle accident caused the respondent to take time off work and therefore caused loss of earnings. The significance of this point will be dealt with later. The second point is that it is clear that the credibility of the respondent was relevant in determining some issues in the case. One of those has just been dealt with. That is, the fact that her Honour accepted that the car accident caused or contributed to some low back pain. Another is the issue about the extent to which the whiplash injury sustained in the motor vehicle accident caused debilitating headaches which in turn caused loss of earnings and loss of earning capacity. Her Honour did not accept everything that the respondent said. So, for example, although the respondent claimed that he would have recovered from the work accidents and been fit to perform office duties as an assistant transport manager or similar from about July 2001, her Honour did not accept the respondent's case in that regard. Instead she found that he would have been fit to return to work after the work accidents only in 2003. This reduced the amount of past loss of earnings which had been claimed from the appellant.
Ground 1
The first ground of appeal is that her Honour erred in law in ruling that two exhibits and cross‑examination concerning them were not admissible. The two exhibits were exhibit 3 - the respondent's schedule of damages filed in relation to the respondent's action against Fremantle Steel - and exhibit 4, which was the respondent's schedule of damages in the action appealed from. Both were dated 12 November 2003.
Before referring to the content of these schedules, the cross‑examination concerning them and the significance of them, reference should be made to O 5 r 1 of the District Court Rules 1996 (WA) because the two schedules were prepared in compliance with this rule. Order 5 r 1 reads:
"(1) No later than 14 days prior to a pre-trial conference the plaintiff shall file and serve a single schedule setting out calculations and/or particulars quantifying or justifying the following items of damages (if the same are claimed):
(i)Past loss of earning capacity.
(ii)Future loss of earning capacity.
(iii)Special damages.
(iv)Future medical expense and/or care.
(v)Past and future gratuitous services.
(vi)Special appliances or services.
(vii)Any other discrete item of damages.
(2)The schedule filed and served pursuant to sub‑rule (1) shall be consistent with the plaintiff's pleadings."
The schedules prepared in compliance with this provision were identical in most respects but there were some differences. I will refer first to exhibit 3 which was the schedule in the action against Fremantle Steel and in describing it mention the differences between that schedule and Exhibit 4 (the schedule in this action). Both exhibits 3 and 4 in item 1 revealed a claim for past travelling expenses in the sum of $1000. Both exhibits in item 2 claimed future travelling expenses of $1000. Item 3 in exhibit 3 was a claim for future medication expenses and it set out a list of four items of medication and the cost of that medication. The claim was made for the future medication over a 10 year period, producing a claim in exhibit 3 of $49,564. Exhibit 4 had a different list of medication, although one of the items (Neulactil) appeared in both schedules. The amount claimed for future medication expenses in exhibit 4 was $28,545. The amount of the claim for the expense of future general practitioner attendances was the same in both. Both schedules contained a claim for the same amount for future specialist attendance expenses. Exhibit 3 contained an item for future diskectomy surgery at a cost of $10,000. There was no such claim in Exhibit 4. Exhibit 4 claimed an amount for future steroid injections. Exhibit 3 had no such item. Both schedules claimed an amount of $3825 for past gratuitous services. Both contained a claim for future gratuitous services of $9617.75. Both exhibits contained a claim for past loss of income of $27,010, being an amount calculated after taking into account the workers compensation which the respondent had received from Fremantle Steel. Both schedules claimed for "future loss of income/earning capacity" at $373,515, being $642 per week to age 65. It is of significance, as will be explained later, that this latter claim was qualified by the words "less discount for any retained earning capacity and contingencies to be discussed". Both schedules contained the same amount for future loss of superannuation benefits.
Her Honour and this Court were told that these schedules were prepared to ensure that the parties, that is the respondent and Fremantle Steel in one action and the respondent and the appellants in the action the subject of this appeal, could discuss settlement at the pre‑trial conferences which took place on 12 or 13 November 2003. The action against Fremantle Steel settled. The action against the appellants did not.
When the case against the appellants went to trial, and the respondent was in the witness box and being cross‑examined, counsel for the appellants had in his possession both schedules. He began the relevant section of cross‑examination by putting it to the respondent that:
"You have had a past loss of earning capacity because of the motor vehicle accident and a full future loss of earning capacity."
The following cross‑examination then took place:
"ALLAN, MR: Could you look at paragraph 9, Past Loss of Earning Capacity?---Yes.
What does that say? Could you read it out to what that claim is?---What, you want me to read section 9?
Yes, I do?---I can't. It's all blurry.
Well, we will - because you haven't got glasses?---No, it's because I've got a headache and at the moment it's blurry to me.
I see. Have you got any trouble with your eyes?---No. When I suffer headaches my vision becomes blurry and at the moment that's just all blurry to me, I'm sorry.
Well, I will read it to you. It's under the heading Past Loss of Income/Earning Capacity:
'At the time of the accident the plaintiff was employed by Fremantle Steel and later at Ultrafloor and Precast Technologies ………. from 1 February 2000 to 12 November 2003 it was 146 weeks which equals $27,010.'
So you are claiming a past economic loss of $185 a week as a result of this accident, aren't you?---Yes.
You also claim some past superannuation benefits?---Yes.
And for future loss of earning capacity which is item ll?---Yes.
If you have a look at - can you see item 11 there?---I can see 11, but the - I can see the big ones, but underneath it I can't. It's ‑ ‑ ‑
Right:
'The loss is calculated at the rate of $642 net per week to age 65 equals 373,515 less discount for any retained earning capacity and contingencies to be discussed.'
That is what your claim is, basic claim, the $642 per week to age 65. That is what your claim is in this case, isn't it?---Yes.
Okay. Well, you just turn to the front of that document, will you? Can you read what the document the heading of the document is?---Where? Whereabouts?
Where it says David Leslie Churchill? Can you see that?---Yes.
Plaintiff, and?---Fremantle Steel Fabrication.
First defendant, and?---GIO.
General Ltd, third party. Right?---Yes.
So the claim you just told me you were making in this case is the same claim you made against your employer as a result of the June 1998 accident, isn't it?---On that, yes.
I tender that document, your Honour. I've got a copy your Honour may ‑ ‑ ‑
YEATS DCJ: The schedule of damages in District Court action 1652 of 2002 is received as exhibit 3.
EXHIBIT 3 Defendants
Schedule of damages in 1652/02
ALLAN, MR: If you have a look at this document, that's a schedule you prepared on 12 November 2003 in this action in which you claimed exactly the same figures. Perhaps you should add that for completeness, your Honour.
YEATS DCJ: Yes. I will call it exhibit 4. Exhibit 4 is the plaintiff's schedule of damages ‑ ‑ ‑
ALLAN, MR: 12 November 2003 is the date, your Honour.
YEATS DCJ: ‑ ‑ ‑ in this action, dated 12 November 2003.
EXHIBIT 4 Defendants DATE 12/11/03
Plaintiff's schedule of damages
…
ALLAN, MR: Could you turn to paragraph 7 there, thanks, to past gratuitous services? Are you able to read that?---I can read the top bit of the ‑ ‑ ‑
I'll read it to you:
'Since the material date the plaintiff's son John Churchill has assisted the plaintiff with general household duties, pool maintenance and driving the plaintiff to appointments. The plaintiff's son has received a carer's allowance from January 2002 to date of $85 per fortnight. The plaintiff claims the sum of $42,50 per week from January 2002 to 12 November 2003, 90 weeks, which equals $3825.'
You made the same claim - if the witness could see exhibit 4 please, your Honour.
You made the same claim in this action as well, did you not?---Yes.
If you look over the page, future gratuitous service, the plaintiff claims - this is in exhibit 3 - a similar amount for the future over a five‑year period which equals $9617.75 which is the same amount as you've claimed in exhibit 4 in this action. Correct?---Yes.
By the way, you now claim for past gratuitous services in the schedule that her Honour has - you say:
'From approximately January 2001 the plaintiff's' -
it says the plaintiff's John Churchill; 'son' is missing -
'has assisted the plaintiff with general household duties at an average rate of not less than 10 hours per week calculated at $15 per hour, $150 per week, from January 2001 to 3 June 2004, approximately 178 weeks, equals $27,760'
You claim the same rate for a 10 year period, $59,325 for the future. That's what you now claim? Yes.
Since this schedule was handed to her Honour in your counsel's opening this morning, you now say that your son doesn't do 10 hours per week. It's 18 hours per week?---Yes.
That's what your evidence was?---Yes.
So that's improved, hasn't it?---Yes.
Just before we go any further with cross‑examination, I now want to give you an opportunity to reconsider whether, the question that I previously asked you, you really are putting the case to her Honour that all of your problems and future economic loss - sorry - all of your future economic loss is caused by the motor vehicle accident rather than your serious knee injury?---No, it's all caused by the motor vehicle accident.
What credibility then can we take when you put up a claim on the same day saying it's all due to your knee accident as you put up a claim saying it's all due to your motor vehicle accident?---From what I gather, since that claim, the date on it's 2002, isn't it, on that paperwork?
Both of the schedules, 3 and 4, are dated 12 November 2003?---But you read out one before that was 2002 for the knee.
They're both dated on the same day. Do you want to have a look at them?---I can't really ‑ ‑ ‑
You will have to take my word for it if you can't read it. Exhibit 3 for the knee is dated 12 November 2003. Exhibit 4 for the motor vehicle accident is dated 12 November 2003, so on the same day you're claiming all of your problems are related to two different accidents. Why did you do that?---I didn't claim. I claimed ‑ ‑ ‑
This is a schedule prepared by your lawyers and with your approval?---Yes.
Why did you claim that each accident was the cause of your problems?---It's the leg accident that debilitated me up to a certain amount of time, but over the years the headaches have got worse.
This is November 03 when we're talking, just before a pre‑trial conference to discuss settlement of your claim in both actions you claimed exactly the same thing. Why did you?---I don't know.
It's because your present claim has got no credibility, has it?---Yes, the present claim has got credibility.
Just have a look at exhibit 3 - I will read it out to you - future medication. This is one of the few things where there is a slight difference. You say in exhibit 3 you take Cipramil which you don't claim in the motor vehicle accident, Digesic which you don't claim in the schedule in exhibit 4 for the motor vehicle accident, and you don't claim in the schedule put to her Honour today in respect of the motor vehicle accident. Neulactil, is it?‑‑‑Neulactil.
You claim that as a result of both accidents, and I think you said - what was that for again?---It knocks you out.
You claimed that as a result of both accidents, so you had to get knocked out because of your knee injury. Is that right?---No, I was having trouble sleeping at the first part of the knee injury.
Again this is the picture you've given us, 'Because I've got these terrible headaches I've got to get knocked out so I can go to sleep,' because of the headaches which relate to the accident, but you were claiming that you had to have a packet every two months as a result of your knee accident?---A lot of the medications cross over between the two accidents.
But you don't have headaches as a result of your knee accident?‑--No, but I have headaches because of the shoulder. I was having Neulactil because I couldn't sleep with the leg, but, the Neulactils were also helping out the headaches as well.
I see, so you claimed in fact a doubling up in each case. You claim one packet every two months in each schedule. You want a double dose. You take one packet every month, 'Right. that was for me,' and then sometime in the day you take another packet every month and that was for your shoulder. That's your claim you're making. It's absurd, isn't it? Unbelievable. I should say?---I can understand where you're coming from, but. like I said, the medications like Panadeine Forte was the same sort of medication I was getting for the shoulder as well as the knee.
In fairness to you, you didn't claim the Panadeine Forte schedule 3, but you did claim Xenical?---Xenical.
…
You settled your claim against the employer, didn't you?---Yes.
Because you had real problems about liability, proving your case. You had problems proving negligence?---I don't know what the reason was.
And in this case you've got a free run because liability is admitted?---I think when I went to the Magistrates Court the judge or the magistrate, there was a ruling there that the headaches were taking over more than what the leg injury was.
They were probably arguing the opposite to what I'm arguing now, but the fact of the matter is, instead of, as her Honour has pointed out, taking that case and having them heard together, you decided to settle that case because you had a weak case in regard to proving that you had a claim?---Like I said, when I went to Magistrates Court they turned around and on the case presented at the pre‑trial, from the symptoms that I had, that the headaches had more symptoms to them than what the knee injury did.
By the magistrate I take it you mean the registrar just so we're clear on ‑ ‑ ‑
…
I'm just trying to assist so we do know what we're talking about at the pretrial conference?---At the pretrial conference, yes. During that conference it came up that headaches were more predominant than what the leg injury was.
Okay. And in any event on the medication in the work accident, just bearing in mind what you said, in the schedule exhibit 3 you claimed future medication in the sum of $49,564, that's what the schedule said?---Yes.
But in the work accident schedule exhibit 4 you only claimed 28,545. From what you've just said about the headaches being worse you would've thought it was round the other way, wouldn't you?---I would've thought so, yes.
By the way those figures, take the $28,000, you haven't spent anywhere near that amount on medication, have you, that hasn't been paid for?---I honestly don't know because the medication is paid for by the motor vehicle people.
And the workers compensation?---The workers compensation people haven't paid for any of that medication for a while.
Well, I hope to correct you but they did pay for a lot of it, didn't they?---Up until ‑ ‑ ‑
Until your claim was settled?---Yes, and then after the claim was settled the motor vehicle was ‑ ‑ ‑
Has paid some?---Has paid.
But not a skerrick in the amount you're claiming?---I honestly don't know how much the medications come to.
Well, we will let you know later on. Just for completeness, your Honour, the only other difference in those schedules is exhibit 6 in that there is ‑ ‑ ‑
YEATS DCJ: In paragraph 6?
ALLAN, MR: In paragraph 6 there's a claim for a (indistinct) in exhibit 3 and steroid injections in exhibit 4.
YEATS DCJ: Yes.
ALLAN, MR: Having settled your work accident in which you claimed that all the same things were wrong with you - the same problems as regards to economic loss that you'd suffered as the motor vehicle accident - it's convenient, isn't it, for you now to blame the motor vehicle accident on your woes?---At the moment it's the motor vehicle accident that's stopped me from returning to work.
But nothing will change the history and the history is you went back to work for a year after the motor vehicle accident. You worked perfectly okay. You went back to work after your operation to your shoulder and you worked okay, and it was only after your knee injury when you had all this trouble that you haven't been back work and that's the real reason, isn't it, why you can't work?---No, it's not. I went back to work because that's what you do, you know. I wasn't going to have an accident and sit at home. I was taking medication and all that so I could go back to work.
…"
Thus, when this topic of cross‑examination closed, both schedules had become exhibits and there was no objection by counsel for the respondent.
During closing submissions, counsel for the appellant submitted to her Honour that the respondent had represented in exhibit 3 that he was totally incapacitated as a result of the knee injury received in the work accidents and in effect that the respondent should not therefore be awarded compensation for loss of past earnings and loss of future earning capacity.
Her Honour asked whether the schedules should have been tendered in evidence. It is not necessary to set out the whole of the debate that took place at that stage, save to mention that when counsel for the respondent was asked whether the schedules were "without prejudice" and whether they were "actually admissible", counsel said that he was uncertain about the point, considering that the answer lay within O 5.
A little later, counsel for the respondent said:
"I think I would now take a firmer stand and suggest that your Honour should not exclude that evidence. I can't submit that it comes within the wording of order 5 and, in any event, I don't want to artificially limit the debate."
It is then somewhat of a surprise to find, in her Honour's reasons for decision, her Honour's ruling that exhibits 3 and 4 were not admissible at trial because "[O] 5 r 6 of the District Court Rules made it clear that negotiations at a pre‑trial conference are to be without prejudice" and that "[I]t was improper for the schedules to be tendered. I will not consider them further or take any account of the cross‑examination based upon them." This decision is challenged by the appellant in ground 1.
In my opinion ground 1 must succeed. The schedules were not privileged. They contained particulars of the respondent's claim. They were not (to use the words of O 5 r 6), evidence of "anything said or any admission made in the course of" the pre‑trial conferences. In addition, and more importantly, the parties had in effect agreed that the two schedules were admissible, that they should be exhibits and there was no objection to cross‑examination on them. The case was therefore conducted on that basis. In those circumstances her Honour should not have ruled that the exhibits were inadmissible and their contents and cross‑examination excluded from consideration without foreshadowing her decision to do so and allowing the parties to make submissions to her. To depart from the position agreed between the parties without notice is a breach of the requirement of procedural fairness: Pantorno v The Queen (1989) 166 CLR 466 at 473; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 [77] ‑ [78]; Stead v State Government Insurance Commission (1986) 161 CLR 141.
Before leaving discussion about this ground, I comment briefly on the cross‑examination. Some of the questions asked could have been objected to, and if objected to the objections should have been upheld. So, for example, questions inviting the respondent to agree that the claim "lacked credibility" and asking him to agree that his claim was "absurd" merely invited impermissible comment, rather than testimony as to the facts. A question was asked seeking to elicit evidence about what happened at the pre‑trial conference. This was objectionable (as counsel for the appellants conceded during the appeal) Much of the cross‑examination and answers add nothing to the schedules themselves. I will refer later in these reasons to the parts of the cross‑examination which the appellants say are significant. Having upheld ground 1, it is then necessary to consider whether this error should result in an order for a retrial. That requires consideration to be given to the legal principles relating to the issue.
Order for a retrial. The law
The appellant urged this Court to order a retrial. Ordering a new trial is in all cases a most deplorable result and an appeal court should properly turn its attention to how, within powers conferred on it, such a deplorable result might properly be palliated. The Waterways Authority v Fitzgibbon & Ors [2005] HCA 57 at [36] per Kirby and Heydon JJ. Not every departure from the requirement of procedural fairness will entitle the aggrieved party to a new trial: Stead's case (supra) at 145.
An appellate court is obliged to conduct a real review of the trial; and the court is not excused from the task of weighing conflicting evidence and drawing their own inferences and conclusions. In doing so the court must bear in mind however, that it has neither seen nor heard the witnesses, and must make due allowance in this respect: Fox v Percy (2003) 214 CLR 118 at [21] ‑ [25]. Although this is an appeal by way of re‑hearing, that does not mean that the Court of Appeal is in exactly the same position as the trial Judge. Although the deciding of issues of fact by assessing credibility of witnesses should be minimised, it remains inescapable that in some cases issues will be decided by reference to credibility: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 at [91]. If in a case credibility is a critical factor, and if evidence wrongly excluded may bear upon the critical witness' credibility, then, according to Windeyer J in Nominal Defendant v Hook (1962) 113 CLR 641 at 661, a retrial "may generally be had".
Order 63 r 12 of the Rules of the Supreme Court, which has been repealed but which still applies to govern this appeal, contains subpar 2 which reads:
"A new trial shall not be granted on the ground of misdirection or on the improper admission or rejection of evidence … unless in the opinion of the Full Court some substantial wrong or miscarriage has been thereby occasioned in the trial …"
This qualifies the discretion conferred on the Court to order a retrial.
This is a provision which is relevantly in the same terms as the English O 39 r 3 (later replaced by O 39 r 6 in December 1876) before being incorporated later into the English O 59 r 11. Before the Judicature Acts the common law attitude to retrials in cases where evidence had been erroneously rejected was discussed in Crease v Barrett [1835‑42] All ER 30. In that case, two earlier cases were discussed which were said to:
"… shew that the Court have a power to refuse a new trial where evidence has been improperly rejected, if in their judgment the rejected evidence ought to have no effect, and there is enough to warrant the verdict against the party on whose behalf that evidence was offered, supposing it to have been admitted."
However, Baron Parke said at 933:
"But we cannot help thinking that the rule is there laid down much too generally; and it is obvious that if it were acted upon to that extent, the Court would in a degree assume the province of the jury …"
and then concluded:
"We cannot say … that, if [the excluded evidence] had been received, it would have had no effect with the jury … and therefore we think that there must be a new trial."
He also said, however, that:
"In some cases, no doubt, the Court may refuse a new trial when the witness has been improperly rejected, as where the fact which such evidence was to establish was proved by another witness, and not disputed, Edwards v Evans (3 East, 451), or where, assuming the rejected evidence to have been received, a verdict in favour of the party for whom it was offered would have been clearly and manifestly against the weight of evidence, and certainly set aside upon application to the court as an improper verdict."
In the latter passage, Baron Parke therefore noted the existence of a discretion in the court to refuse a new trial, and gave examples of circumstances where the improper rejection of evidence would not result in a new trial. In effect Baron Parke meant that in the examples he mentioned the rejection of evidence would cause no miscarriage of justice.
After O 36 r 3 came into existence in England following the Judicature Acts, there was some editorial comment about the effect of the new rule, suggesting that it worked a significant change. See The Supreme Court of Judicature Acts 1873 and 1875. Schedules of Rules and Forms and other Rules and Orders with Notes. Arthur Wilson. Stevens & Sons. 1875 ("Wilson"), where the following note appears:
"[Rule] 3 … introduce[d] material changes. Hitherto a misdirection by the judge in point of law, or the improper admission or rejection of evidence in any material matter, has been ground for a new trial as of right. Under the first part of Rule 3 this practice is changed. …"
The question is whether that is so. The subject of retrial in circumstances where evidence had been improperly excluded was discussed in Balenzuela v De Gail (1959) 101 CLR 226. This was a case from New South Wales when there was no provision like O 63 r 12 (or the provision which now exists in New South Wales, namely Supreme Court Rules Pt 51 r 23). Dixon CJ in Balenzuela's case considered the common law rule (expressed in Crease v Barrett) and the Judicature Act rule in some detail and said that the difference between the common law rule and the Judicature Act provision could easily be exaggerated by over‑estimating the operation of the Judicature provision in widening the discretion of the court and by under‑estimating the effect of the common law rule in allowing a discretion to the court (232 ‑ 233). Dixon CJ referred to Holford v Melbourne Tramway and Omnibus Co Ltd (1909) VLR 497 at 526 where Cussen J said:
"I think that the rule is very little different from the view which was taken by the Courts before the Judicature Act [and that] … it is an error to think that there never can be a wrong or miscarriage unless it can be shown the jury were in fact influenced in giving their verdict by a misdirection."
Dixon CJ in Balenzuela continued at 235:
"But whether it be the rule at common law or under the judicature system a much more important restraint must be observed upon the discretion of the court to refuse a new trial. The court, where the determination of questions of fact is not entrusted to it, cannot substitute its judgment for that of the jury in purporting to decide whether a substantial wrong or miscarriage has occurred. Care must be taken lest in exercising an authority to decide whether an error of law occurring at the trial is likely to have influenced the result, what is really done is to examine the evidence as if the court were forming a conclusion of the fact for itself. The basal distinction between the court's duty and the function of the jury cannot be confused in this way."
Further, at 236 his Honour said:
"But where the error is of law … it is not for the court to proceed to inquire into the facts of the case and form a conclusion as to what the jury would or should have done had the trial proceeded entirely in conformity with the law and without any … erroneous rejection of evidence."
Windeyer J at 244 made comments to similar effect. Kirby and Callinan JJ in a joint dissenting judgment in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 referred with approval to the remarks of Dixon CJ and Windeyer J in Balenzuela's case.
In New South Wales there is now a provision containing the Judicature Act rule. It is presently Pt 51 r 23 and it is referred to by Callinan J in the recent Waterways Authority case (supra). At the time of Gerlach's case (supra) the rule was then numbered Pt 51AA r 16(1).
Balenzuela's case was the subject of discussion in Dairy Farmers Co‑operative Milk Co Ltd v Acquilina (1963) 109 CLR 458. In a joint judgment of McTiernan J, Kitto, Menzies, Windeyer and Owen JJ, their Honours said:
"… there is nothing in the decision of this Court in Balenzuela v De Gail (1959) 101 CLR 226 that requires the granting of a new trial on the ground that evidence was wrongly rejected. It appears to us that this decision was misunderstood by the full Court in this case, as it was in the case of Mann v Dumergue (unreported 20 May 1963). Balenzuela v De Gail (1959) 101 CLR 226 does not warrant the statement of Herron ACJ that 'when relevant evidence is rejected on the authority of Balenzuela v De Gail (1959) 101 CLR 226 I cannot see how a new trial can be avoided' nor that of Macfarlan J that 'where relevant evidence has been wrongly rejected there must be a new trial of the action'. What is clear from every judgment in Balenzuela v De Gail (1959) 101 CLR 226 is that a new trial ought not to be ordered if the Court is satisfied that if the rejected evidence had been received it could not have affected the jury's verdict. In two cases since Balenzuela v De Gail (1959) 101 CLR 226 this Court, while considering evidence was wrongly rejected, refused to order a new trial: see McLellan v Bowyer (1961) 106 CLR 95 and Mann v Dumergue (unreported - HC 20th May 1963). The law laid down in Balenzuela v De Gail (1959) 101 CLR 226 is no different from that laid down in Crease v Barrett (1935) 1 CM & R 919 [149 ER 1353] decided more than one hundred years earlier."
The strength of these observations is slightly compromised by the fact that McLellan v Bowyer (1961) 106 CLR 95 was a case of wrongful admission, not wrongful rejection of evidence. (The importance of the distinction between wrongful admission and wrongful rejection of evidence in deciding whether a new appeal should be ordered was discussed in Nominal Defendant v Clements (1960) 104 CLR 476 and Nominal Defendant v Hook (1962) 113 CLR 641 and in Balenzuela's case at 243. In Hook's case, Windeyer J said:
"A new trial may generally be had as of right in a case in which admissible evidence is rejected, but not necessarily when inadmissible evidence is allowed to be given, if such evidence merely accords with what is otherwise amply and indisputably proved by admissible evidence.")
In Mann v Durmergue, which is unreported (delivered on 22 August 1963 not 20 May 1963), in a joint judgment of McTiernan, Taylor, Menzies, Windeyer and Owen JJ, it was said of evidence wrongly rejected that:
"… its rejection would require the setting aside of the verdict unless it could be said, adopting the language of Kitto J in Balenzuela v De Gail (supra) (at 237) that the jury, proceeding according to law and within the bounds of reason, could not have been led by the rejected evidence, if it had been before them, to find a verdict for the defendant."
Having reviewed those authorities, I can now deal with the question of whether the Judicature Act provision - our O 63 r 12 - changed the common law approach as stated in Crease v Barrett or simply restated it. In my opinion, taking into account the review of the authorities referred to above, and particularly what was said by Dixon CJ in Balenzuela's case and by the court in Acquilina's case, it appears to be a restatement. It is my view that no change to the common law position was intended. This conclusion is fortified by s 59(1) and (2) of the Supreme Court Act 1935 which reads:
"(1)In any cause or matter in which a verdict has been found … by a judge without a jury … the Court of Appeal may order a new trial … or vary or set aside such verdict, or reduce the damages awarded.
(2)Subject to the provisions of this Act, any application for a new trial may be made on any ground on which a new trial could be ordered in an action at law immediately before the commencement of this Act."
Before the commencement of the Supreme Court Act 1935, s 16 of the Supreme Court Act 1880 applied and it merely stated that it was "lawful for the full Court in any cause or matter in which a verdict has been found by a … Judge without a jury … to order a new trial".
Finally, reference should be made to Western Australia v Watson [1990] WAR 248. A situation similar to this case arose in Watson's case. The respondent in that case was suing for damages for tort following the contraction of an asbestos related disease. Counsel for the defendant sought to cross‑examine the respondent on a document prepared by his solicitors entitled "Summary of Respondent's claim for past and future loss of earnings and special damages": see Watson at 290. Cross‑examination was interrupted and the trial Judge ruled that cross‑examination could not continue. The Full Court consisting of Malcolm CJ, Brinsden and Seaman JJ in a joint judgment considered that his Honour erred in ruling that counsel for the defendant could not continue with cross‑examination, (see 293) and they continued at 293 ‑ 294 referring to that ground of appeal and two other similar grounds of appeal:
"All three grounds concern cross‑examination as to credit touching upon the respondent's economic loss. Counsel for the appellant was not able to direct us to any particular detriment which flowed from his Honour's rulings in the course of a detailed, thorough and lengthy cross‑examination of the respondent by leading counsel. Although in our view Mr Burbridge should have been permitted to proceed further on all three occasions, the appellant has not, in our opinion, demonstrated that any substantial miscarriage of justice resulted. These grounds do not, by themselves, justify an order for a new trial."
This case confirms that a new trial does not follow "as of right" when evidence has been improperly rejected.
If the error involved the rejection of admissible evidence, then O 63 r 12 seems to be clear that the court is not authorised to grant a new trial unless the wrongful rejection of evidence has caused a substantial wrong or miscarriage of justice.
If the excluded evidence may have reflected materially on the respondent's credibility, then it might be impossible for this Court to decide whether the excluded evidence would or would not have influenced the trial Judge in reaching the decisions she did which depended on the respondent's credibility. If so, a retrial would have to be ordered.
It is therefore necessary to consider whether the excluded evidence may have materially reflected on the respondent's credibility.
Since writing the paragraphs above under the last heading in these reasons, the High Court has delivered judgment in Weiss v The Queen [2005] HCA 81. I note that the High Court says at [17] that the better view is that the "common law" (and which the High Court refers to as the "Exchequer rule") established no absolute rule that a new trial must be ordered. The High Court notes however, that it was often expressed in absolute terms and that the common law rule was "done away with" [14] by the new Judicature Act rule. This means that the Wilson opinion expressed in 1875 was correct. I adopt the observations of McLure JA concerning the Weiss decision.
Did the excluded evidence materially reflect on the respondent's credibility?
In my opinion, in the circumstances neither the schedules themselves nor the cross‑examination nor a combination of the two could have materially reflected on the respondent's credibility.
Each schedule sets out a claim for damages. In relation to items which correspond (in amount and description) and which were not the subject of cross‑examination, there is nothing which shows that there was not some foundation for each of the claims. Thus, for example, neither this Court nor the trial Judge was shown any evidence to suggest that there was no evidence at all for proffering a claim for past travel expenses, some in relation to the work accidents and some in relation to the motor vehicle accident.
Some of the items in exhibit 3 were the subject of cross‑examination. The cross‑examination was directed first to past and future economic loss. The respondent agreed that he was making the same claim against his employer as he was making in the motor vehicle accident case. It was at that point that exhibit 3 was tendered. The respondent agreed that exhibit 3 was prepared by his lawyers and with his approval. He was asked why he claimed that each accident was the cause of his problems and he answered that it was "the leg accident that debilitated me up to a certain amount of time but over the years the headaches have got worse." He was asked whether he could explain why, just before the pre‑trial conference, he claimed exactly the same thing against both sets of defendants. He said that he did not know.
Counsel for the appellants put to this Court that when the respondent was asked "You really are putting the case to her Honour that all of your problems and future … economic loss is caused by the motor vehicle accident rather than your serious knee injury?" and he answered "No. It's all caused by the motor vehicle accident", that this evidence was inconsistent with exhibit 3. Thus, it was contended that exhibit 3 contained a prior inconsistent statement. In my opinion, exhibit 3 did not contain a prior inconsistent statement. Item 11 on exhibit 3, which refers to future loss of earning capacity, is not inconsistent with the respondent's later oral evidence. Item 11 in exhibit 3 reads that future loss of earning capacity is:
"[c]alculated at the rate of $642 net per week to age 65 (multiplier 581.8) equals $373,515 less discount for any retained earning capacity and contingencies to be discussed."
The words in italics make it clear that his claim for $373,515 damages for the work accident would be reduced by any retained earning capacity (following the settlement of symptoms in relation to the work accidents). It is therefore plain that when settlement discussions took place, the respondent expected that future loss of earning capacity would be a matter of dispute and that the amount of $373,515 was a maximum which would have to be reduced to take account of retained earning capacity, which then left the appellant in this case to meet the damages assessed for the loss of that retained earning capacity. The $373,515 was therefore the maximum amount which could be recovered from the two sets of defendants. In my opinion, item 11 is therefore not inconsistent with the appellant's testimony.
In relation to item 9, which referred to past loss of income, the respondent claimed in both schedules $27,010 from both defendants. It must have been evident to both sets of defendants in November 2003 that the past loss of earnings was likely to be the subject of debate. All three accidents had caused injuries which required the respondent to take time off work. As is clear from her Honour's reasons, the respondent claimed that he would have been fit to resume his duties in 2001, but her Honour found that he would not have been fit until 2003. The fact that he claimed that he would have been fit in 2001 is not something which reflected on his credibility. The respondent had suffered different injuries in different accidents which produced pain and other symptoms which had one effect, namely to disable him from working. The extent to which each accident caused his past loss of earnings was a matter to be sorted out at a trial if no settlement was reached with any of the defendants. The past loss of earnings figure in each Schedule is the total past loss of earnings recoverable from the combined defendants. In my opinion, the presentation of two schedules, each setting out the total loss suffered as a result of all three accidents, is not something which reflected at all on the respondent's credibility.
The respondent was cross‑examined also about the items in both schedules claiming the same amount for past gratuitous services and the fact that there was a doubling‑up of one item of painkiller. The latter point reveals that the respondent did try and make some assessment about which symptoms from which accident required which painkiller. There is nothing which could reflect upon the respondent's credibility in making that attempt, nor in the fact that in relation to one item there appeared to be some duplication.
The fact that the claim for gratuitous services (past and future) is in the same amount is a further example of the respondent setting forth in each schedule the total loss suffered in all accidents. It was for the defendants in each action and the respondent to agree on the extent to which they caused the need for past and future gratuitous services.
In my opinion, it is significant that the two schedules are dated the same day, that the pre‑trial conferences in both actions were listed on the same day, that at trial the appellants' counsel had possession of exhibit 3 and that counsel made no attempt to suggest that the appellant was kept in the dark about the quantum of the claim against Fremantle Steel. These points lead me to infer that both sets of defendants knew that, save for a few items where the respondent attempted an apportionment, the whole financial loss suffered by the respondent as a result of all three accidents was set out in each schedule. If the appellant had established that the respondent had been duplicitous and had concealed from the appellant that he was presenting the similar information in his claim against Fremantle Steel, then that would have reflected on his credit. Not only was this not established; it was not even suggested.
The result is that if her Honour had not excluded the two exhibits and the cross‑examination, she could only have reached the conclusion that neither the two exhibits nor any of the cross‑examination was capable of adversely reflecting on the respondent's credibility. The result is that although ground 1 was made out, this is a case, like Western Australia v Watson (supra), where no substantial miscarriage has occurred, and so O 63 r 12 applies with the result that no new trial should be granted.
Ground 2(a) - Low back injury
The contention is that the respondent's testimony that he suffered lower back pain was uncorroborated by the medical evidence. In my opinion, there was no error on her Honour's part in accepting the respondent's evidence. Her Honour was entitled to accept evidence which was not contradicted by any medical evidence. Her Honour found that the work accidents and the degenerative disc disease were the primary causes of his low back pain. The appellant contended that the low back pain must have had some influence on future earning capacity, but that is contrary to her Honour's finding ([38]) where her Honour concluded that she was satisfied that the headaches were the reason why the capacity for work had been lost. This ground of appeal should be dismissed.
Ground 2(b) and (c) - Obesity, diabetes and depression
The appellant contends that her Honour breached her duty to give reasons for her conclusion that the respondent suffered obesity, diabetes and depression as a consequence of the motor vehicle accident. The appellant contends that the evidence was that the weight gain was mainly during 2000 when the respondent was rehabilitating from an operation on his right knee, which was unrelated to the motor vehicle accident, and that Dr Lim attributed weight gain to the work accident. The appellant also contends that the "only" doctor who considered that there was an association between the motor vehicle accident and diabetes was Dr Krishnan. The appellant also submitted that her Honour's reasons were deficient in relation to her conclusion that depression was caused by the vehicle accident.
As to the weight gain, the respondent's knee operation was on 14 February 2000, and he was on crutches until about July 2000. He said that his weight "ballooned" in 2000 from 90 - 93 kilos to 105 kilos (AB 53/54). However, he said that the reason that he could not walk, and therefore exercise, was because of his headaches (AB 54), which her Honour found were caused by the motor vehicle accident. Dr Lim mentioned weight increase since the work related accident, but in the same section of his report (362) notes that he suffered headaches and neck pain diagnosed as trauma induced migraine. Dr Lim's evidence is therefore consistent with the respondent's evidence.
As to diabetes, Dr Krishnan said, when asked if the diabetes had no relationship to the accident (meaning in context the motor vehicle accident) (at 133):
"There is an association between obesity and diabetes. It's a well‑known association. His obesity is related to his inability to work and to move and to, you know, have reasonable recreation, and so in a sense, yes, there is an association between his injuries and his diabetes, in the sense that he has become obese and the obesity has contributed to that ---"
As to depression, Dr Krishnan gave evidence that antidepressants were prescribed and that they related to the motor vehicle accident (AB 136), and refuted a suggestion in cross‑examination that the "input of the motor vehicle accident" to depression was "very tenuous". Dr Loke said the respondent's headaches were the main perpetuating factor for his depression (373), and respondent confirmed this (61).
None of this evidence was contradicted, and it was therefore not necessary for her Honour to explain in detail why she reached the decision that she did that the headaches, which she had found were caused by the motor vehicle accident, were the explanation why the respondent could not exercise which led to obesity which led to diabetes. The headaches caused the depression.
Even if her Honour's reasons were regarded as inadequate on these points, it is the task of this Court to draw its own conclusions and, on the evidence referred to above, I would reach the same conclusion as her Honour, relying on the evidence referred to above. These grounds should be dismissed.
Ground 2(d) - Headaches
The appellants' brief submission in relation to this ground was that the respondent allegedly did not immediately complain of headache following the motor vehicle accident. Reference was made to Dr Burkett's account of what Dr De Galvez had noted when the respondent visited that doctor. There is nothing in the Burkett letter which establishes that the respondent did not complain to Dr De Galvez. All that can be said is that Dr Burkett said that Dr De Galvez did not record any such complaint. The appellants' submissions contend that her Honour's conclusion that the respondent complained of headache from the first visit with his general practitioner was erroneous, but that is not a sustainable submission. It is clear that the respondent complained to his usual general practitioner, Dr Saverimutto on his first visit about a month after the accident. This ground of appeal should be dismissed.
Grounds 3(a) and 3(c)
Grounds 3(a) to 3(c) are in essence a complaint about whether the respondent would have been fit for work as an assistant transport manager and would have found such work after the work accident if the motor vehicle accident had not taken place. The appellant referred to conflict between the respondent and a Mr Mellor, who was the respondent's superior when the respondent was working with BGC Transport as a transport controller. The respondent had been dismissed by BGC Transport and Mr Mellor gave evidence, saying in effect that he was unsuitable because of his manner with clients, and that this was established as a result of reports about the respondent's dealing with clients. The respondent contended that he had been dismissed by reason of "office politics".
Her Honour said:
"40 The defendant led evidence from Mr Roy William Reginald Mellor, the general manager of BGC Transport, who said that the plaintiff was dismissed from his employment as a transport controller in February 1998 due to unsatisfactory work performance. Under cross-examination it became apparent that Mr Mellor's testimony was based extensively on hearsay accounts that caused Mr Mellor to believe that the plaintiff had a bad telephone manner with customers and that he did not always get the bricks to the work sites on schedule.
41In his evidence the plaintiff admitted he was sacked by BCG but he maintained it was because of office politics and he denied that he could not do that job. I accept the plaintiff's evidence about that. It is corroborated to some extent by the plaintiff's ability to subsequently gain employment at Fremantle Steel and at Ultrafloor in similar work. I do not find as the defendant suggests that the plaintiff is totally unsuitable for work as an assistant traffic controller. On the contrary, his experience and training qualify him for this sort of work."
In my opinion there is no error revealed in these paragraphs. It is clear that the evidence about complaints concerning the respondent's work performance were complaints by clients to Mr Mellor. The evidence by Mr Mellor about what clients said out of court to Mr Mellor about the respondent's conduct was hearsay evidence. In any event, even if it be accepted that the respondent was sacked because of poor work performance with BGC, it does not then follow that he could never find employment again. These grounds of appeal should be dismissed.
Ground 3(d) - Contingencies
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.
Ground 3(e)
I agree with McLure JA in relation to this ground.
Ground 4
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.
Ground 5 - Gratuitous services
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.
Conclusion
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.
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