Davis v Murdoch

[2006] HCATrans 318

[2006] HCATrans 318

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S34 of 2006

B e t w e e n -

BRADLEY ROBERT DAVIS

Applicant

and

GERALD MURDOCH

Respondent

Application for special leave to appeal

GUMMOW ACJ
KIRBY J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 JUNE 2006, AT 10.27 AM

Copyright in the High Court of Australia

MR S.G. CAMPBELL, SC:   May it please the Court, I appear with my learned friend, MR I.D. CULLEN, for the applicant.  (instructed by TL Lawyers)

MR M.R. ALDRIDGE, SC:   May it please the Court, I appear with my learned friend, MS M. FRASER, for the respondent.  (instructed by Brydens Law Office)

GUMMOW ACJ:   Yes, Mr Campbell.

MR CAMPBELL:   Your Honours, the decision at first instance in this case was of a kind that was perfectly routine.  A claim for damages for personal injury was made; certain matters were put forward as being the facts upon which the damages should be assessed; they were contradicted by competing evidence; and the trial judge made a decision which was based upon his assessment of, in particular, the plaintiff as a witness.  As I say, your Honours, that was an perfectly routine decision in the exercise of the type of judicial power that the District Court of New South Wales exercises every day. 

When the matter went on appeal, your Honours, the Court of Appeal, as your Honours have seen, decided that there had to be a retrial because of what was said to be an inconsistency between a finding made, or impliedly made, on the basis of a certificate under section 61(2) of the Motor Accidents Compensation Act and the finding made by the trial judge on the evidence that there were no ongoing consequences after the date of the film – and we would interpolate no ongoing consequences sounding in damages.  As we have advanced in the summary of argument, your Honours, we submit there is no inconsistency of the type found by the Court of Appeal.

KIRBY J:   But is it not inherent in the logic of the certificate that there is some continuing disability and, at least arguably, Judge Bishop got a bit carried away by the film.  I mean, films, as we all know, do not always tell the full story.  People have good and bad days.

MR CAMPBELL:   May I answer your Honour’s question in two parts?  Firstly, as to the second part, that is why the trial judge is there to make a decision as to whether the film ‑ ‑ ‑

KIRBY J:   That is true, but some trial judges sort of get a bit carried away with films, in my experience.

MR CAMPBELL:   With respect, his Honour seems to have assessed the evidence very carefully, we would submit, and was not carried away with the film.  The second part of the answer, which is the real part of the answer, is, as we have argued, that the certificate is good for a certain purpose.  By the provisions of section 131 of the Act, Parliament has established a gateway, as it has been put, through which a plaintiff must proceed before he is entitled to any damages for non‑economic loss only. 

“Non-economic loss” is defined by section 3 of the Act, which I will take your Honours to in just a moment if I may, in terms which do not pick up the language of impairment which is the language of section 131.  Your Honours, we have filed some supplementary documents ‑ ‑ ‑

KIRBY J:   What is the procedure for having the certificates reassessed?  If you contend that a person is better than is shown in the certificate, there is a procedure, is there not, for reassessment?

MR CAMPBELL:   There is a procedure found in two sections, your Honour.  Section 62 is the primary section which permits either the parties on conditions or the court without condition to re‑refer the matter.

KIRBY J:   That would have been available to Judge Bishop?

MR CAMPBELL:   It would have been, your Honour.

KIRBY J:   Why was that not the correct way to deal with a suggestion that there was a inconsistency between what he had seen in the film and send the film off to the certifying doctors, not just ignore their certificate?

MR CAMPBELL:   Your Honours, that application was made by my learned friend, Mr Cullen, at the trial and his Honour declined to accede to the application ‑ ‑ ‑

KIRBY J:   He just decided he could ignore the certificate ‑ ‑ ‑

MR CAMPBELL:   Not at all, your Honour.

KIRBY J:   ‑ ‑ ‑ though it appeared on its face to say that there was a continuing disability – permanent.

MR CAMPBELL:   I am sorry, I spoke over your Honour.

KIRBY J:   No, do not worry.  We do that all the time here.

MR CAMPBELL:   Not at all, your Honour.  His Honour decided on the basis of Hodgson v Crane that he did not need to re‑refer it because the certificate simply satisfied the gateway requirement but it did not determine how damages ought to be assessed.  So on that basis his Honour said, “Well, I need to comply with the certificate, I need to give weight to it to the extent to which it is conclusive, but when it comes to assessing damages then I assess them in the traditional common law fashion.”

KIRBY J:   What used to happen in the old days, Mr Campbell, with the section 16 certificate?  Did a trial judge who was sitting alone take that into account in assessing – could a trial judge have decided that the person had not lost his leg in the face of a certificate that said he had?

MR CAMPBELL:   Is that section 16 of the Workers Compensation Act, your Honour?

KIRBY J:   Yes, the good old days when everything was simple.

MR CAMPBELL:    I think, your Honour, there were certificates under section 51(8) of the Workers Compensation Act. 

KIRBY J:   You are much more recent then. 

MR CAMPBELL:   Based upon the table appended to section 16, your Honour, under section 51, some certificates were conclusive – that was section 51(4) – some were not – that was section 51(8).  If it was a section 51(4) certificate, then the trial judge had to give it full weight, but that was by applying that assessment to a statutory rate ‑ ‑ ‑

KIRBY J:   Was that kept in the new regime or not – the current regime?

MR CAMPBELL:    That has changed in the workers compensation regime now, your Honour.  There are medical panels, but I am not quite sure how they work these days.  Under the present regime, which is the Motor Accidents Compensation Act in relation to motor accidents, there is a scheme which is founded on the idea that these disputes about quantum and the like will be determined before you get to court by what is called the Claims Assessment and Resolution Service.  To assist that service, your Honour, there is established a Medical Assessment Service which gives certificates for all different types of medical matters, as they are called, but only some of those certificates are conclusive.  Just like the old Workers Compensation Act, some are conclusive and some are not. 

There is no doubt that the type of certificate we are talking about here was a conclusive certificate under section 61(2)(a), but conclusive for what purpose?  We submit, your Honours, that it is only conclusive for the purpose of determining that critical question under section 131:  do you or do you not get damages for non‑economic loss?  The cases that we have referred to, your Honours, which I will turn to in a moment quickly ‑ ‑ ‑

KIRBY J:   It is conclusive evidence of the matters contained in subsections (2)(a), (b) and (c).

MR CAMPBELL:   Yes, your Honour.

KIRBY J:   So that is what it is conclusive of and you now, on Judge Bishop’s theory of the operation of the Act, have an inconsistency between what he has found and what the certificate provided by the Act is conclusive for.

MR CAMPBELL:    We submit not, your Honour, for this reason.  Impairment is, with respect, not a matter which of itself is necessarily relevant to any head of damage which Judge Bishop assessed.  It is not necessarily relevant, your Honours, to damages for non‑economic loss and it is not necessarily relevant to damages for economic loss. 

Those matters are, may I say with respect, established by now two decision of the New South Wales Court of Appeal, the first being the decision of Hodgson v Crane to which we have referred in the written argument and the second being a recent decision of Brown v Lewis [2006] NSWCA 87. Could I take your Honours from the supplementary material to some of the passages in Brown v Lewis.  In particular, could I take your Honours to page 26 of the supplementary material.

KIRBY J:   Why does not the supplementary material have section 61 of the Motor Accidents Compensation Act?

MR CAMPBELL:    Because section 61 is in the judgment of the Court of Appeal, your Honour, at page 27, line 15.

KIRBY J:   We generally like to have a look at it in context.  Anyway, it is page 21, is it?

MR CAMPBELL:   Section 61, your Honour, is at page 27 at line 15.  Your Honour will see that Acting Justice Brownie set out the relevant provisions of Part 3.4 in full between pages 26 and 30 of the book.

GUMMOW ACJ:   What is your point on construction of 61?

MR CAMPBELL:   Our point on construction of 61, your Honour, is ‑ ‑ ‑

GUMMOW ACJ:   Let us just look at the text and you tell us what your construction point is.

MR CAMPBELL:   Your Honour, one has to start with section 58 and the things which are specified as matters in section 58(1).  Your Honour will see in section 58(1)(d) that “the degree of permanent impairment”, et cetera, is a matter.

KIRBY J:   If there is a certificate as to “the degree of permanent impairment of the insured person as a result of the injury”, then that would normally sound in some continuing disability, if it is a permanent impairment, in an ordinary worker, depending on the part of the body involved.

MR CAMPBELL:   We have taken up the analogy from workers compensation cases, your Honours, at page 55 of the book.  We have referred to the decision in Yacob.

GUMMOW ACJ:   Just keep on the text.  Counsel always want to go to cases first.

MR CAMPBELL:   Thank you, your Honour.

CRENNAN J:   In relation to the text, may I ask you this:  how does section 61(7), which is to be found on page 28, fit with your argument?

MR CAMPBELL:   It fits in this way, your Honour, that once you have a certificate to the effect that you have a greater than 10 per cent impairment, then you have satisfied the mandatory requirements of section 131, so that the court must then go on to assess damages for non‑economic loss in the usual common law way.  That is how we read section ‑ ‑ ‑

KIRBY J:   Your theory is this is just a key that opens the door for you to get into damages in a motor accident case and once you are in the door, forget about it.

MR CAMPBELL:   Yes, your Honour.

KIRBY J:   That seems a very odd thing, that you have this body that gives a certificate which is as to permanent impairment and then you can get a judge deciding matters just as he or she chooses, but you say that the restriction that a court may not substitute its own determination is only for the purposes of the key.

MR CAMPBELL:   Yes, your Honour, bearing in mind, of course, that there were three categories of conclusive certificate, so that subsection (7) ‑ ‑ ‑

KIRBY J:   This was a permanent impairment certificate.

MR CAMPBELL:   Yes, your Honour.  Subsection (7), though, applies to each of the three categories.  Each of the three categories has a specific purpose, we would submit, your Honour.  Paragraphs (b) and (c) are not relevant to the Court at this stage.  The specific purpose of ‑ ‑ ‑

KIRBY J:   Does that mean that in a trial you could raise questions as to the reasonableness and necessity of the treatment, being the second category?

MR CAMPBELL:   No, your Honour, not as to the reasonableness and necessity of the treatment already provided, but the primary purpose of that is to deal with the position under section 83 of the Act that your Honours do not have, which requires interim payments to be made in certain circumstances before trial.

KIRBY J:   But what would have happened if before Judge Bishop the question had arisen as to whether any past payment had been reasonably and necessarily incurred and the certificate said that?  Do you say that his Honour could likewise override that certificate?

MR CAMPBELL:   Not that certificate, your Honour, because that would ‑ ‑ ‑

KIRBY J:   If you cannot override (b), why can you override (a)?

MR CAMPBELL:    Because, your Honour, (a) is not strictly relevant in the same way as (b) would be in that circumstance to the question he had to determine, which is the amount of the damages on common law principles.  I appreciate what your Honour the Acting Chief Justice has said about counsel wanting to go to the cases, but could I go to another part of the Act to illustrate the point.  If I could ask your Honours to look at page 2 of the supplementary material where we have extracted section 3, which is the definition section.  At the foot of page 2 your Honours will see the definition of “non-economic loss”, which is, as it were, an exclusive or exhaustive definition, your Honours.  It does include anything, with respect, about impairment. 

Now, I would concede, if I may, that an impairment might be relevant to – and I say “might be relevant to” – “loss of amenities of life”, or it might be relevant in some circumstances – over the page on page 3 – to “disfigurement”, but those things would sound in damages for non‑economic loss not because they are impairments but because they are losses of amenity or disfigurements.  In that way, your Honours, the old common law approach or the familiar common law approach is preserved in that the judge has to make a decision about just how much non‑economic loss a person gets. 

Now, in that regard, could I say, as your Honours know, that it is not as though Judge Bishop did not award any damages for non‑economic loss because of what he saw in the film; he did award damages for non‑economic loss and the damages ‑ ‑ ‑

KIRBY J:   Only up to the date of the film

MR CAMPBELL:   Only up to the date of the film, your Honour, but in the sum of some $35,000, which was not an insignificant sum.  This is not relevant but it is interesting to note that there was about 10 or 11 per cent of the maximum then payable.  One has to look at the result and the justice of the result, your Honours.  Could I then perhaps ‑ ‑ ‑

KIRBY J:   Could we not say, as we have in tax cases, that they are basically to be left in the Federal Court in most matters?  Why can we not leave the Motor Accidents Act in the Court of Appeal of New South Wales?  Justice Brownie is a very experienced judge in this area.

MR CAMPBELL:   With respect, he is, your Honour, but for the reasons we have rehearsed at paragraph 8 of his judgment he made a certain elision of ideas in this case which we ‑ ‑ ‑

KIRBY J:   I realise you say this.  Is this a common problem?  Is this a repeating problem in ‑ ‑ ‑

MR CAMPBELL:   I withdraw that your Honour, I beg your Honour’s pardon.  It is a problem which is capable of changing markedly how these things are dealt with in a large number of cases.  Indeed, your Honour, if one takes a trilogy of cases – Hodgson v Crane, this case and the subsequent case of Brown v Lewis – Hodgson v Crane and Brown v Lewis seem to support, if I can put it that way, the argument which we make, whereas this case is out of step with them and, with respect, ought to be corrected.  What it does, your Honours, is it means that rather than proceeding as Hodgson says the trial judge should, the judge is, as it were, bound to give full effect to a certificate as to impairment ‑ ‑ ‑

KIRBY J:   No, he is not.  He can send it back to the certifying body and say, “I am not going to make an order in my judgment that is inconsistent with this legal document.  I have seen this film.  You haven’t seen it.  Have a look at it and see if you have overestimated.”

GUMMOW ACJ:   It is that avenue that makes this a perhaps unattractive – I will not use the word “vehicle” – makes it an unattractive occasion for the grant of leave. 

MR CAMPBELL:    Could I deal with those issues, your Honour, then, if I could quickly try and deal with them, because those things are said against us, of course, by our friends.  May I remind your Honours, as is set out in Justice Brownie’s decision at 23 of the book at paragraph 4 of his decision and also at 36, paragraph 20 – this is not a case where we lay in wait to catch someone by surprise and then sought to drive home some unfair forensic advantage.  We said at the outset that the doctors had not seen this film and we want to show it to them.  The man had come a long way and we said, “Let us take his evidence and then we would ask your Honour to send it back for reassessment under either section 132 or section 62”. 

When we made that application at the appropriate time, we submit his Honour, without referring to it but by obvious reference to Hodgson v Crane, said, “This is only a gateway provision.  Once he is through the gateway, it is up to me to assess damages in the usual way.”  For that reason his Honour refused the application we made.  As it turns out, your Honours, if I can put it this way, we were not unhappy with the result in the event.  From our point of view, there was no miscarriage of justice by the refusal of our application.

Your Honours, we submit that his Honour proceeded in a manner, in making that decision, which was entirely consistent with the passage from Hodgson we have put in the book and with also the passages from Brown v Lewis that I was going to take your Honours to. If I can just, before my time is finally up, your Honours, give you a reference to them: page 26 of the supplementary material at paragraphs 20 and 21, dealing with non‑economic loss. We would emphasise, in the second line from 20, “does no more than unlock the door”. At 21, at the third line:

it may case evidentiary light (of a non‑conclusive nature) upon the issue at hand.

That is, assessing the non-economic loss.  Over the page, your Honours, at page 27, paragraph 23, the middle of the paragraph:

In short, the statutory concept of (permanent) “impairment” is not to be equated to the notion of incapacity (permanent or temporary) that may be a stepping‑stone in a case involving a claim of damages for economic loss.

I have not quoted that precisely, your Honours, and, of course, the concluding words that “Those provisions do not engage”, et cetera, the final sentence. 

I should finally point out, your Honours, at 25 and 26 the President did refer to Murdoch v Davis and thought it involved an infelicity of

language.  We, with respect, submit it does much more than that:  it involves an elision of important ideas, as we have put in writing, which must be kept separate and that their separateness must be kept firmly in mind during the process of the assessment of damages.  Those are matters which we say follow from the structure of the Act as we have tried to present it to the Court.  May it please the Court.

GUMMOW ACJ:   Thank you Mr Campbell.  Just hold your fire for a minute, Mr Aldridge.  We will take a short adjournment.

AT 10.48 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.49 AM:

GUMMOW ACJ:   We do not need to call on you, Mr Aldridge.

In view of the fact that the primary judge refused the application made under section 132(2) of the Motor Accidents Compensation Act 1999 (NSW) we are not convinced that the special circumstances of this case present the occasion for this Court to consider the issue of statutory construction and principle urged by the applicant. In the circumstances of this case we are not convinced that error has been shown in the order of the Court of Appeal and accordingly, special leave is refused with costs.

We will adjourn to reconstitute.

AT 10.50 AM THE MATTER WAS CONCLUDED