Carvalho v Town

[2020] ACTCA 54

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title: 

Carvalho v Town

Citation: 

[2020] ACTCA 54

Hearing Date: 

4 November 2020

Decision Date: 

13 November 2020

Before: 

Murrell CJ, Loukas-Karlsson and Stewart JJ

Decision: 

The appeal is dismissed with costs.

Catchwords: 

APPEAL – NEGLIGENCE – Appeal from Supreme Court – Breach of duty – Whether arguable grounds raised on appeal –

Whether Magistrate erred in the apportionment of damages for

contributory negligence – Appeal dismissed

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT) s 102(1)(b)

Cases Cited: 

Lee v McGrath [2019] ACTCA 6
Watt v Bretag (1982) 41 ALR 597

Parties: 

Benjamin Leomar Carvalho (Appellant)
Daniel Frederick Town (First Respondent)

Australian Capital Territory Insurance Authority (Second
Respondent)

Representation: 

Counsel

Self-represented (Appellant)
S Whybrow (First and Second Respondent)

Solicitors

Self-represented (Appellant)
ACT Government Solicitor (First and Second Respondent)

File Number: 

ACTCA 15 of 2020

Decision under appeal: 

Court/Tribunal:	ACT Supreme Court
Before:	Mossop J
Date of Decision:	20 February 2020
Case Title:	Carvalho v Town
Citation:	[2020] ACTSC 1

THE COURT: Introduction 

1.       On 27 February 2013, a motor vehicle driven by the appellant was involved in a collision with what is commonly referred to as a fire engine on Adelaide Avenue immediately outside The Lodge in Canberra. Almost three years later, the appellant as plaintiff commenced a proceeding in the ACT Magistrates Court against the driver of the fire engine and the ACT Insurance Authority (the Authority) for damages for personal injuries arising from the collision.

2.       By reasons delivered on 5 November 2018, the learned Magistrate found that the collision was caused by the negligence of the drivers of both vehicles and apportioned their responsibility for the collision 60/40 against the appellant. The learned Magistrate

assessed the appellant’s damages as $40,600 but, after taking into account the

apportionment and the cost of repairs to the fire engine which were sought as damages by way of cross-claim, subsequently made an order that the Authority pay the appellant $12,429.23 and costs assessed at $2,500.

3.       It is relevant to note that, at the trial of the proceeding, the appellant was represented by counsel. Amongst other evidence, the appellant relied on the evidence of himself and his mother and the expert evidence of an accident reconstruction specialist, Mr

Johnston. The appellant’s counsel cross-examined the respondents’ witnesses,

including the driver of the fire engine and two other personnel who were in the fire
engine at the time of the collision.

1. Each side’s accident reconstruction expert gave evidence concurrently and was

   examined and cross-examined. The trial was conducted over three days and generated more than 300 pages of transcript. Eight witnesses were cross-examined.

5.       Dissatisfied with the findings of the learned Magistrate, the appellant appealed to the Supreme Court. The appeal was heard by a judge of the Court who dismissed the appeal in written reasons published on 20 February 2020. The appellant was self- represented in the appeal proceeding. He raised a plethora of issues which were dealt

with carefully and comprehensively in his Honour’s judgment.

6.       Still dissatisfied, the appellant appealed to the Court of Appeal. He remained self- represented and raised the same issues as he had raised in the first appeal, as well as a few more.

Grounds of appeal

7.       The amended notice of appeal has 15 grounds of appeal numbered (a) to (o). Grounds (a) to (l) are essentially the same grounds of appeal that were advanced and dismissed in the first appeal. Each of those grounds then, and now in the second appeal, assert errors by the learned Magistrate. They do not identify or assert errors in the first appeal

judgment. Having considered the appellant’s written and oral submissions, we have

not found any errors in the first appeal judge’s treatment of appeal grounds (a) to (l)

and they must accordingly be dismissed.

8.       The new grounds of appeal are stated as follows:

m) The honourable Mossop J failed to address oral submissions in relation to the professional standard that ought to be attributed to the respondent given they are a professional driver and ought to be held to any such standard under the CLWA 2002.

n) The honourable Mossop J has erred in his characterisation of the qualifications and the
weight and value of the learned Dr Shorts expert evidence.

o) Collectively, the outlined reasons support a hearing de novo in the interest of accountability. These issues are of the highest concern to the community and of vital importance in the maintenance of the community's faith in the judiciary. [sic]

Ground (m)

9.       There are a number of reasons why ground (m) must fail.

10.     First, the contention that the driver of the fire engine should be held to a higher standard was not an appeal ground in the first appeal and no reasons have been presented which might justify leave being granted for it to be raised as a ground of appeal in the second appeal. In that regard, it is important to bear in mind that there is a strong public interest in finality in litigation. Litigation cannot simply be left to go on and on. Not only is finality important for the parties, but it is also important to bring an end to the expenditure of public resources, in particular the valuable resources of the Court that are also required for adjudicating the disputes of other litigants.

11.     The events of this case, although of obvious and understandable importance to the appellant, are not of particularly pressing public importance. This was a relatively minor collision. No one was seriously injured. Three days of trial were taken up before the Magistrate and the hearing of the first appeal took another day. In addition, much time was also taken in preparing the lengthy, detailed and careful judgments of the learned Magistrate and the first appeal judge. There would have to be good reason, after all that, to allow a new matter to be raised in the second appeal, yet no reason at all has been presented.

12.     Second, the pleaded case at trial did not assert that the driver of the fire engine was under any special duty in the sense of being subject to a higher or particular standard of care. Such a special duty would require to be pleaded and it would require a factual foundation in the evidence. All that was pleaded was that the driver was negligent in various identified respects; there was no exploration in the evidence of a factual foundation to a special duty and no submissions were made to the learned Magistrate, either in opening or closing, about a special duty. It would therefore not have been open to the appellant to contend in the first appeal that the driver was under a special duty, and there is no basis to advance such an argument in this appeal.

13.     Third, the learned Magistrate found that the driver of the fire engine was in breach of his duty of care to other road users, including the appellant. Thus, there was a breach of the duty of care, at whatever standard of care that duty is found to be. To the extent that the appellant contends that this issue has a bearing on the apportionment of

liability, no error in the first appeal judge’s approach to apportionment has been

identified. Further, s 102(1)(b) of the Civil Law (Wrongs) Act 2002 (ACT) gives a very wide discretion to reduce damages for contributory negligence, and much latitude must be allowed to the trial magistrate in deciding what is just and equitable: Watt v Bretag (1982) 41 ALR 597 at 599 (per Gibbs CJ, Mason and Brennan JJ) and at 601 (Murphy J in dissent); Lee v McGrath [2019] ACTCA 6 at [76].

Ground (n)

14.     Turning to ground (n), this raises whether a further expert report (by Dr Short) should have been admitted in evidence in the first appeal. The appellant applied in the first appeal to admit the report, as well as a number of other documents. That application was dismissed by the first appeal judge.

15.     The same application was then made in the second appeal. At the hearing, the appellant accepted that the application raises no new or different issues to those that had been raised in the application in the first appeal and that it could therefore be dealt with in the second appeal itself. That is the approach that the Court adopted.

16.     No error was identified in the first appeal judge’s reasons for rejecting the report of Dr

Short. There was no explanation for why the report had not been procured earlier and used at the trial. It raises significant factual contentions at odds with the versions of several witnesses and which were not put to them. It was inevitable that the first appeal judge would reject it.

Ground (o)

17.     Ground (o) is essentially a prayer for relief. It does not raise any identifiable error in the judgment of the first appeal judge. It asserts issues of policy not appropriate to the appeal, which is concerned with correcting any error in the first appeal judgment. In any event, for the reasons already given, the appellant has had ample opportunity to

pursue interests of “accountability” in this litigation. Both the driver of the fire engine

and the appellant, as drivers of motor vehicles on a public road that were involved in a collision with each other, were held to account in the proceeding. Both were found to have negligently caused the collision and their respective responsibility for it was

apportioned. Contrary to the appellant’s approach, the community’s faith in the

judiciary would be undermined if the Court reopened cases without good cause, allowing litigation to needlessly go on and on. There is no substance to this ground, and it fails.

Order

18.     There is no merit in the appeal, and it should be dismissed with costs.

I certify that the preceding eighteen [18] numbered
paragraphs are a true copy a true copy of the
Reasons for Judgment of their Honours Chief Justice
Murrell, Justice Loukas-Karlsson and Justice

Stewart.

Associate:

Date: