Fergusson v Latham

[2008] HCATrans 194

[2008] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S47 of 2008

B e t w e e n -

OLIVIA FLOYD FERGUSSON BHNF LARA FLOYD

Appellant

and

KIM LATHAM

Respondent

GLEESON CJ
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 20 MAY 2008, AT 10.19 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR R.I. GOODRIDGE, for the appellant.  (instructed by Firths The Compensation Lawyers)

MR R.V. LETHERBARROW, SC:   May it please the Court, in this matter I appear with my learned friend, MS C.J. ALLAN, for the respondent.  (instructed by Sparke Helmore Lawyers)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   If it please the Court.  In this case there was a trial as to what is called “liability”, that is, as to what was called “liability” in the order fixing it for hearing.  During the course of the trial and of the appeal thereafter, a number of descriptions fell from my learned friend as to his client’s position, which of course have to be evaluated in the context of the pleadings, and in particular the notice of appeal in the Court of Appeal, but those expressions which you have seen quoted in the written submissions accurately, with respect, characterised the factual contest as it is to be seen in the nature of the expert evidence called and the nature of the testing of it and, that is, that his client was guilty of no negligence – those two words “no negligence”.

A rather more obscure comment by my learned friend can be seen on the last page of volume 1 of the appeal book, page 321, about line 28.  After my learned junior’s address, Mr Letherbarrow, I think, if you look over the past few inches of that transcript, it looks like he is trying to get a fourth go, and there is an exchange between him and Judge McGuire:

HIS HONOUR:   This is all or nothing situation is it not?

MR LEATHERBARROW:  It is your Honour.

I am not able with quite such confidence as I can from the two words “no negligence” describe that as a description of the issues, but it is certainly consistent with the way we characterise it.

Now, I am bound to point out that in the draft notice of appeal, which was the vehicle for arguments in the Court of Appeal – which you will find relevantly at page 599 in volume 2 – reflecting the form of the summons for leave to appeal, you will find the second ground aims at the question of causation and that brings me to the point in this case.  In the familiar, if not always scrupulous, division of a personal injuries claim into liability and quantum, which is the usual way of doing things, not necessarily the best, there may be concealed in what I will call a common law setting – if that could be imagined pure any more – questions of causation which would be left to the quantum phase.  But one thing is for sure, liability for the tort of negligence requires something and something significant and substantial about causation in the first phase, otherwise there is nothing to quantify – no damage for which there should be damages.

Now, this case, however, is quite far from being anything in the nature of pure common law.  It is a blend of the tort of negligence at common law as very heavily modified and regulated by the Motor Accidents Compensation Act.  Could I take your Honours to the provisions which, in our submission, are absolutely critical to the foundation we need for our argument in relation to this split of a case between liability and what else there is, which is damages, and the effect it had when my friend failed in his contention no negligence but nonetheless seemed to enjoy some success in relation to what I will call causation of the collision?

HEYDON J:   How does this relate to the Crown in the notice of appeal to this Court?

MR WALKER:   I am so sorry your Honour?

HEYDON J:   How does your argument relate to ground 1 of the notice of appeal in this Court?

MR WALKER:   It relates in this sense that in the Court of Appeal there was a finding of negligence, but then insufficient or wrong attention to the implications of that for the remaining issues of causation concerning the injuries suffered by my client.

HEYDON J:   Your notice of appeal says that the Court of Appeal gave no consideration or inadequate consideration of the issue of causation, yet I understood your written submissions to say that it would have been an error on the part of the Court of Appeal to have entered into questions of causation at all?

MR WALKER:   Your Honour, that has been picked up by our learned friends in written submission as if it is a discordance.  It is reconciled in the following way.  It would have been an error in the appeal from the liability issue as tried between the parties for the court of Appeal to regard itself as able to conclude all the issues of causation necessary before you could enter verdict for the defendant.  They were not indeed able to finish off in our favour, but nor were they able to finish off in the defendant’s favour because there were outstanding issues of causation to which the consideration they should have given would have been a concluding paragraph to the effect, this leaves outstanding the question of what difference, if any, would have been made by the collision at a lesser speed, which would have been the case, but for negligence.

MR WALKER:   That is it, your Honour.

HEYDON J:   That was the subject of the oral argument on the special leave application, but on the one hand that oral argument is not replicated in your written submissions, and on the other hand, your written submissions find no counterpart, I think, in the oral argument that led to the selection of this ground of appeal.

MR WALKER:   I am sorry if that appears so, your Honour.  Our written submissions are designed to advance - and to advance only, and they are permitted to advance only - the argument that, upon reaching the position that their Honours did in the Court of Appeal they could not enter a verdict for the defendant, but had to leave outstanding the question, being one of causation, not addressed at trial or the Court of Appeal, as to what if any difference to the injuries suffered by my client would have been the case in the absence of the found negligence.

KIRBY J:   That was certainly the way you put it on the special leave application and I think ultimately at the very end of the special leave application the suggestion was that you should go away and formulate a ground, but then the Court came back and gave special leave on the ground as formulated which is in the notice of appeal.

MR WALKER:   Yes, your Honour.  That is as we understand it and we certainly do not intend or seek to argue outside that understanding of the special leave ground, an understanding, which, with respect, Justice Heydon correctly says, is in the context of the argument presented at that application.

KIRBY J:   What concerns me is that the matter that you ultimately formulated on the special leave application and that is now before this Court was not, or never appeared to be, a basis that you argued for at trial as an alternative foundation for the plaintiff’s case and therefore a question arrises as to whether, at this late stage and in the final court, you are not breaching the Holcombe v Coulton decision in which the Court of Appeal -including myself - was reversed, so it is written on my heart.  I would like to be satisfied that this does not involve a procedural unfairness to the respondent.

MR WALKER:   Yes.  We are aware that that is a major matter we have to confront.  In a nutshell, we seek to do so as follows.  The way in which the case was run at trial and in the Court of Appeal had the all or nothing flavour, the simply no negligence on the part of the driver which I have referred to in opening.  The Court of Appeal did not uphold that ground of appeal.  They rejected it.  It is true, that is, it is discernible that in so doing, neither did they simply adopt what the learned trial judge had found in relation to negligence. 

That may be of real significance when one comes to considering the possibility of different result in the absence of negligence, because your Honours will recall that one of the particulars of negligence upheld by the trial judge but either not held by the Court of Appeal or positively rejected by them, the preferable view would be the latter, was that there should have been an even earlier sighting of what I will call the happenings at the pedestrian crossing so that speed would have been actually reduced at an earlier time than what I will call the first braking point as held by the Court of Appeal.

In those circumstances, were the Court of Appeal, as it is fully entitled to do in an appeal by way of rehearing, upholds neither party’s contentions in whole, in our submission, it called for attention which was not the subject of assistance by the parties at the hearing because it was not ventilated at the hearing as to what should be the appellate relief upon finding negligence but finding that the collision was, even without negligence, going to happen.

Now, that is a case which, as I say, had not been fought at the trial and the proposition of the first defendant being negligent was opposite to the stance that they had adopted throughout the trial and, indeed, the Court of Appeal.  Now, there is a qualification necessary to that and I have tried to make it at the outset.  It is to be recalled that the second ground of their notice of appeal in the Court of Appeal was about causation; the injuries were not caused by the negligence.

KIRBY J:   Is there not a basic procedural unfairness question at least?  I realise how it came up and therefore in a sense you say, “Well, our essential point is we were caught by surprise at that finding and they had a logically necessary step before they reached the verdict for the defendant”.

MR WALKER:   Yes, I need to be careful ‑ ‑ ‑

KIRBY J:   But it does mean that the respondent has not had a chance to ask its expert or to seek other lay witnesses about whether it is possible to brake within a certain space of time and reduce the damage or whether, with a child of this immature age, any impact of motor car trauma is going to have the same consequences.

MR WALKER:   Yes.  Can I deal with those matters as follows?  We should be careful – that is, on our side we should be careful in pointing to surprise.  I do not have a procedural fairness point.  It would be wrong to put it that way.  It is in the nature of our succeeding on negligence that the question of appellate relief must come up and I do not have a complaint against their Honours in the Court of Appeal to that effect.  It is simply that the appellate relief was inappropriate bearing in mind the way the issues were joined, the case had been split between liability and the rest and the way in which the statute to which I wish to come governs that arrangement.

Now, as to the other matter that Justice Kirby raised, namely, is it unfair to the defendant, because of a deprivation apparent after the event when it is too late, of an opportunity to test things forensically at trial, the short answer is no.  This is not a case where a matter was taken by us at a later stage which could have and should have been the subject of attention at the trial.  At the trial very plainly the defendant took the position that there had been no negligence and did not, notwithstanding that front and centre was the issue could the car have stopped in time from the point, either measured in distance or time, when the driver should first reasonably have seen the child or otherwise reacted with alert.  There, front and centre it was their case that the acts, the collision, would have been inevitable in any event.  What they did not do, ever, was to call, either through their engineering expert, who no doubt would not have been qualified to do so in any event, or by the kind of evidence which would, one would expect, be for a medical assessment under the Act, evidence presumably in the nature of neuropathology and other trauma medicine concerning what, if any, discernible difference there probably was in the injuries actually suffered by my client compared to what would have been the case had the car been slowing but not stopped at the point of impact.

Now, your Honours will have seen the references to common sense in our learned friend’s written submissions based upon the approach enunciated in March v Stramare and here enlisted in order to produce what we would call an intuitive response to the timings involved.  But it is to be borne in mind that the timings involved, though they are split seconds, are of course still significant.  The significance can be measured by the fact that at the distance in question – that is, where in the Court of Appeal one can find the insufficient lookout is held to have been negligent so that there should have been, after an expected reaction time, the application of brakes, not simply the removal of a foot from the accelerator, one sees that sufficient difference could have been created so that, had the car been travelling at 12 kilometres an hour rather than 40 kilometres an hour, it would have stopped.

Now, that is one empirical measure of a non‑negligible difference and it is that, which in our submission, should have produced, in line with the statutory structure set out in section 83 of the Act the appellate relief which would have left the liability finding. Of course a different set of particulars in negligence now was the state of affairs binding the parties in the Court of Appeal concerning the nature of the negligence and then leaving ‑ ‑ ‑

KIRBY J:   That also was not really run at trial, was it, that you had a separate, different, distinctive statutory entitlement under the Motor Accidents Compensation Act and that that was an alternative way in which you were advancing your case?

MR WALKER:  Yes, your Honours, can I take you to section 83?

HAYNE J:   Sorry, I know you want to get there and I will delay you a little longer.  At trial the judgment that was entered is described as verdict for the plaintiff, but presumably that is a judgment for damages to be assessed.  Is that right?

MR WALKER:   Yes.

HAYNE J:   On appeal judgment is entered for the defendant?

MR WALKER:   Yes.

HAYNE J:   What is the form of order that you say should have been considered, but was not in the Court of Appeal?

MR WALKER:   There should have been a finding accorded no doubt by a declaration, which is what ought to have happened at trial in any event as to the commission of negligence having caused or materially contributed to the plaintiff’s injuries.  “Verdict for the plaintiff” is a difficult expression to defend at trial.  It is, however, very usual in this setting.

HAYNE J:   You say there should have been some form of declaratory relief, do you?

MR WALKER:   There should have been a finding of liability.  That is the expression of the statute.

HAYNE J:   That is a separate question.

MR WALKER:  It is related, your Honour, in the sense that this was a liability hearing and the word “liability” is to be understood in the statutory setting found in section 83(1). Parliament has used the expression unquestionably aware of the fact that there is necessary causation wrapped up in liability, but also as I hope to demonstrate, understanding that there is also causation questions involved in the rump of the case –what is sometimes called quantum, what might be called damages. Now, the way in which it works is, in section 83, that it is contemplated by Parliament that there may be something admitted or determined called liability, wholly or in part. The expression “wholly or in part” is not entirely crystal clear, but it would seem from experience to reflect, in particular, admissions subject to contributory negligence.

It would also, in our submission, admit of admissions or determinations leaving open the question of novus actus for some extent of injury such as, for example, unreasonably refusing medical assistance.  So that what was being done in the District Court was an attempt to determine liability and that, with respect, is why in our submission a superior form of order would not have been a verdict, but would have been something in the nature of a declaration.

HAYNE J:   Well, is the premise for that proposition that 83(1), in its use of the word “determined”, is necessarily and exclusively referring to curial process?

MR WALKER:   It certainly is referring to curial process, yes, your Honour.

HAYNE J:   Is it not consistent with the scheme of the Act that non‑curial determinations might be made?

MR WALKER:   Yes, but this certainly includes curial determination.

HEYDON J:   The expression “determination in whole or in part” is to be given a distributive operation that would include reference to arbitrator, reference to the like.

MR WALKER:   Unquestionably, but “the whole or in part” will apply as to whatever means a determination is of liabilities being undertaken.  As I say, the understanding is, in practice, that the usual so called “partial liability”, to quote an expression from a previous form of this kind of legislative regulation of this kind of litigation, was to leave open the question of the proper proportion to be borne by the plaintiff pursuant to contributory negligence. 

Your Honours see that what happens under subsection (1) is that upon such an event, that is, the admission or determination of liability, wholly or in part, then a statutory obligation of centrality to the scheme – you see, for example, that it is a condition of the insurer’s licence under subsection (4) that they comply – for ongoing payment designed to assist in rehabilitation and the like immediately sets in.  I stress, immediately before any damages have been awarded.  Subsection (2) uses language which recognises, we submit, the nature of the causation issues that must have been involved in that determination for there to be liability and negligence at all. 

The liability, your Honours, under the definition section 3 is in negligence or other tort.  Here it is negligence.  You will see at the beginning of subsection (2) that the duty to make payments under subsection (1) applies only to the extent to which those payments – dropping down to paragraph (c) – relate to the injury caused by the fault of the owner or driver of the motor vehicle to which the third party policy taken to be have been issued by the insurer relates.  We draw to attention that the duty applies only to the extent to which those payments relate – it does not include the broader question – applies only if the payments relate to the injury caused.

GLEESON CJ:   How does the possible topic of contributory negligence in a case relate to this statutory scheme?

MR WALKER:   Your Honour, by the following device, is my best answer to that. Under subsection (5) you will see that a payment at a phase of dealings which is described as “before the claimant obtains judgment for damages against the defendant” – so that follows upon the determination of liability – is to the extent of its amount a defence to proceedings by the claimant against the defendant for damages credit is given. Further, one finds under section 110, in a situation where an insurer required under section 83 to pay has made some calculation about the likely or mounting payments and the perhaps likely contributory negligence contribution, allocation to the plaintiff, is entitled under section 110 to require the claimant to commence court proceedings.

GLEESON CJ:   In the case of a curial determination of liability under section 83, in practice that would usually be accompanied by a decision about contributory negligence. That would usually be made at the liability stage of the litigation, would it not?

MR WALKER:   One would expect so, not least because of the identity of the witnesses assembled and section 138 is the statutory enactment of that regime.  The common law under subsection (1), the common law and enacted law as contributory negligence apply with the modifications then set out and you see that they include responses to various mischiefs perceived in relation to the road toll.

KIRBY J:   Can I get clear in my mind, section 83(1) did not apply, did it, at any stage to this case because liability was not admitted wholly or in part?

MR WALKER:   This was a case about achieving this section 83(1) stage.

KIRBY J:   But is it your submission that the section means that even though you may not have a liability for the fault of the driver, that you can recover your medical and hospital expenses under this Act?  It is a sort of no‑fault scheme?

MR WALKER:   No, not at all, it is the antithesis of no fault.

KIRBY J:   If that is so, how can you have a separate entitlement under section 83 unless you can overcome the obstacle that stands in your way by reason of the decision of the Court of Appeal? You cannot?

MR WALKER:   We cannot.  We will get no damages on account of this finding.

KIRBY J:   You do not have any case under the statute as such?

MR WALKER:   No.

KIRBY J:   This is all consequential of overcoming the impediment that presently stands?

MR WALKER:   Yes.  The scheme of the Act, particularly with someone injured when they were 21 months old, including by brain damage, that is, the archetypal case to wait and see, as it were, with damages, provides for a split of the claim and litigation upon the claim between what is called liability and damages.  I stress, we cannot allocate all causation questions neatly only on one side or other.  That is not correct.  Once there has been ‑ ‑ ‑

KIRBY J:   Part of liability is ‑ ‑ ‑

MR WALKER:   In negligence.

KIRBY J:   In negligence is proving that any default on the part of the driver has caused the damage.  In this case there is no question but that there is damage and there is no question but that there is a duty of care?

MR WALKER:   Quite, and it has been held there is a breach.

KIRBY J:   And the Court of Appeal has held that in some way the driver was at fault?

MR WALKER:   Yes.

KIRBY J:   So the obstacle is presented by the causal relationship between the fault and the damage, but it means that there has not been a determination against the person against whom the claim is made?

MR WALKER:   That is right. The order of the Court of Appeal does not satisfy section 83(1). The prior dealings between these parties I cannot give full detail of because they are not in the record, but there is a reference to them in general terms when the trial was opened, which your Honours will find in volume 1, the foot of page 17 about line 53 over to the top of page 18 about line 8 or so, and making allowance for mis‑transcription, what it adds up to is that there had been payments made ‑ which I am instructed is not surprising in such a case – before a decision had been made to deny liability.

Your Honours are aware that there are obligations, none of which is material here, for such litigation in New South Wales not to commence until there has been an exchange of position, in effect.  Finally, what happened in this case was the payment ceased, the liability was denied, so there was neither an admission nor a determination.  My client sues in order to obtain the determination.  Upon suing, does so, to determine liability as opposed to damages.

KIRBY J:   I just do not see what this little journey into the statute does for you.  It is all consequential upon your overcoming the impediment.

MR WALKER:   What it tries to identify is the nature of the issues including what was not raised by the defendant at the trial.  The defendant did not raise contributory negligence.  Now, for obvious reasons, to which we have drawn attention in our written submissions, a 21 month old child.  That is the reason.

KIRBY J:   But that was not the problem of the obstacle and it was not suggested that the problem was that there was contributory negligence.  It was suggested that the defect on the part of the driver, default, had not caused the injury because of the fact that even if she had noticed and tried to stop earlier she would still have hit the child.

MR WALKER:   Yes.  That is the way in which the Court of Appeal determined the case and we are bound by that finding.  I do not seek to go behind it.

KIRBY J:   Is it not inherent in the Court of Appeal’s conclusion that if it came to that point, that a fast moving vehicle going without braking at a child, even if the braking had started a second or a little bit before, would still have caused substantial overwhelming injuries?

MR WALKER:   Yes.

KIRBY J:   If that is their factual finding, though they have not spelt it out, is that not fatal to your recovering against the respondent?

MR WALKER:   No, for this reason.  It was not an issue, for example, whether all the payments necessary for the hospital, medical, pharmaceutical and rehabilitation expenses, which are the obvious ones for my client at the moment, as to whether they would all relate to the injury caused by the fault of the driver in the sense that the collision as it would have occurred without negligence would have been at a lesser speed, a matter which medically was not explored and was not an issue to be explored at the trial.  I repeat, the first defendant’s position was no negligence.  They have won on the ground available to them in the Court of Appeal, no injury caused by negligence, but that was done in a way that did not reflect the way in which the trial was constituted and remarkably in relation to a brain damaged child is done without anything in the nature of medical evidence.

The explanation for that is not error on the part of those preparing the trial on both sides at first instance, but the ‑ ‑ ‑

KIRBY J:   We are not concerned and you are not seeking to defend the trial judge’s reasoning.

MR WALKER:   I am bound by the findings of fact in the Court of Appeal.  My one and only point – I hope I have made this clear – is the nature of the appellate relief stemming as it does ‑ ‑ ‑

KIRBY J:   But cases have come up here where the factual findings by the Court of Appeal have been challenged.  The fact that they reach a different view does not mean – I mean, there is at least a theoretical argument in my mind that the trial judge who disregarded the decision of the expert and concluded that the respondent ought to have been alerted to the fact that a child was coming by the fact that a mother and a pram was looking behind her, I mean, one can see how the trial judge constructed a decision of causative negligence, but that is not before us.

MR WALKER:   I have special leave only on one point and I make it clear, if there are shortcomings in the way the written submissions marry with both the argument for and the order of special leave to appeal, we are putting just the one point, namely, that the implications of causation between the negligence and my client’s state of injury received no attention in the Court of Appeal leading to error in the form of the appellate relief. 

In one sense, of course we cannot complain and do not complain about the Court of Appeal not embarking, using their powers of rehearing, on a determination of the neurological state of my client. How could they? They could not have and should not have but, having reached that position, the appellate relief ought to have left that for the procedures which section 83 contemplates.

GLEESON CJ:   I have a recollection, it may be imperfect, that one of the ways you were attempting to put an argument on the special leave application related to a matter of procedural fairness in this respect, that it was suggested that because there was this separation of issues of liability and damages and therefore no medical evidence, for example, about the condition of the plaintiff, everybody, or at least all the judges, were blindsided, as it were.

MR WALKER:   Yes, that is right.  That is the closest I can come to procedural fairness and I have to be careful and, I hope, courteous in expressing that against the judges in the Court of Appeal.  They did not have argument addressed to them on the form of appellate relief in the event that the appellant’s contention about no negligence was dismissed but the appellant’s contention that the collision would have occurred without negligence was upheld.

GLEESON CJ:   But that seemed, as I recollect it, to have involved some suggestion that if this had been a full blown trial on liability and negligence ‑ ‑ ‑

MR WALKER:   And damages, your Honour.

GLEESON CJ:   Sorry, by liability and damages with detailed exploration of the condition of the plaintiff, it might have concentrated people’s minds on some issues of causation that in the event, as you argued, were not considered.  Now, we were not willing to grant special leave on a procedural fairness point, but your argument seems to involve the theory that there was some viable case of lesser damage that might have resulted if the driver had been keeping a proper lookout.

MR WALKER:   Yes, that is the only reason to be here.  Yes, it does.  That is critical.

HAYNE J:   And it is a point, is it not, which, if it is right, should have found reflection in the way in which the trial judge expressed the order that was made because the order, on this assumption – you say it should have been declaration or something in that nature which would have said that all the medical consequences suffered by this child were brought about by reason of the negligent driving of the driver?

MR WALKER:   No, I do not go that far at all, for this reason. What the District Court judge could and should have done on the findings he made – so just clearly on the findings he made – was to have held – and whether this is done by formal entry of judgment for damages to be assessed or by the declaratory method may not matter – he should have held that the plaintiff’s injury was caused by the fault of the driver of the motor vehicle, et cetera, without venturing into the issue of (a) the damages which would flow from that at law and (b) the extent to which hospital, medical, pharmaceutical expenses and rehabilitation expenses to be incurred would relate or did relate to the injury caused by the fault of the owner; those being disputes which, under section 83(2), are left to be worked out from time to time, including by a medical and other dispute assessment procedure, notwithstanding liability has already been determined.

That is the critical thing that we would wish to make about section 83. Subsection (1) has the determination which we obtained in the District Court, thenceforth the duty of payment. Subsection (2) says that that duty is limited, relevantly, the payments must relate to the injury caused so that this defendant would be entitled, on the theory of the case, a viable differential effect for a no‑negligence collision, would entitle this defendant to come and say, “But this medical procedure is caused by the injury which would have occurred even without negligence and has nothing to do with the greater impact for which our insured driver is liable”.

HAYNE J:   You describe the point that you agitate here as being that the implications of causation between negligence found and stated injury were not decided in the Court of Appeal.

MR WALKER:   Yes.

HAYNE J:   What factual base and, indeed, what joinder of issue was there that raised as a live issue at trial or on appeal any connection between negligence and state of injury?  What I have in mind is, did we have any evidence from medical experts at trial?

MR WALKER:   No.

HAYNE J:   None at all?

MR WALKER:   No, this was a trial which eschewed in its entirety how the plaintiff was.

HAYNE J:   Just so?

MR WALKER:   Yes.

HAYNE J:   So what is it that either made it a live issue in these proceedings, either to be determined by the Court of Appeal or reserved for later determination at some point further down the forensic track, that there was some issue about whether the injuries were suffered because the driver did not keep a proper lookout and hit the child at the speed she did?

MR WALKER: I am bound to say that the issue is raised by the word “liability” in section 83 and “fault” as defined in section 3, “fault” meaning “negligence or any other tort”. The pleading was negligence. The liability is the liability in negligence as pleaded and I accept Parliament must be taken to have enacted these provisions on the basis that liability in negligence requires proof that the plaintiff’s alleged injuries were caused by the fault, by the negligence of the defendant; were caused in the sense that the law uses that word.

Then we come to the next strand of our argument about what was and was not up for grabs at trial and thus properly available in the Court of Appeal for ultimate determination, final determination.  I stress, there was no contributory negligence pleaded in this case and so there was no question of apportioning anything to the plaintiff on account of her conduct.  That is important.  That is consistent with the “all or nothing” statement.

I stress as well there was nothing to say this neurologist’s observation is of a phenomenon which probably would not have occurred but for collision at such and such a speed or conversely, from the defendant’s mouth, would have occurred at a speed far lower than the non‑negligent speed of collision as reconstructed after the engineer’s evidence.  There was none of that done at all.

Now as to onus, we of course bear the onus, bore the onus at trial of proving that the defendant’s fault materially contributed to the plaintiff’s injury.  It was common ground that the little girl was injured in the collision; no question about that.  That was not the subject of any words of evidence at the trial apart from the descriptions which were adequate to prove the fact of injury of the immediate aftermath that one finds in the lay witnesses.  So she was injured, it was brought about by the collision.  We submit that we had certainly done enough to satisfy what we had to do for material contribution.

KIRBY J:   That is the question, you see.  Justice Hayne’s question is putting his finger on the matter that worries me.  Have you done enough?  If you do not signal, even contingently or alternatively a possible argument that you can still win the case or win it in part by differentiating between the cause of the catastrophic injuries that were occasioned to your client, or the cause of lesser injuries if only the reaction time had been quicker or the response had been earlier, then how can you really say that there is a factual foundation?  One way to put this is, is there a factual foundation?  Another way to put it is, if you do not run it, is it not procedurally unfair for you now, having received the decision of the Court of Appeal, to be trying to run it in the final court?

MR WALKER:   With respect, most of that we need to accept, but I have an answer to it as follows.  Of course we are not in this Court looking for any finding about injury caused by the negligence.  What we are asking for is the opportunity for someone who at the moment is left, unlike an adult against whom contributory negligence would have been run no doubt, she has been left with no damages; not with reduced damages, but none at all.  We are asking simply for a form of order which permits matter which was never the subject of issue joined at trial and was thus not the subject of signalling or flagging, including by us, including by us in the Court of Appeal ‑ ‑ ‑

KIRBY J:   It is not unusual for a court reaching a point in its process of decision making to send a message through a registrar to the parties and say, “We do it quite commonly”.  We are doing it at the moment in a case recently heard.  What do you say about this possibility?  We have come to this point.  We want to know what, if anything, the parties say on the possibility that had the defendant noticed the little girl or anticipated her presence earlier she would have taken steps earlier and then the damage would have been less.

MR WALKER:   Yes.

KIRBY J:   Are you saying that that is what the Court of Appeal ought to have done before it came to its verdict for the defendant?

MR WALKER:   Whether they notified the parties or not, that is the result that they should have brought about.

KIRBY J:   Then the question comes to my mind, what was there in the evidence that signalled that properly to the Court of Appeal to do that?

MR WALKER:   What there was in the evidence was – bearing in mind that the ‑ ‑ ‑

KIRBY J:   Differential damage.

MR WALKER:   ‑ ‑ ‑ Court of Appeal was finding negligence in somewhat different terms, more limited terms, from that found by the trial judge.

KIRBY J:   Yes, I accept that, but why were they not entitled to say “The plaintiff never ran such a case, and therefore we can assume that even if we come to a conclusion that there was no causal link to the damage done that we can also come to a conclusion that reacting earlier or doing something earlier would not have materially diminished the damage because that was never run by the plaintiff.”.

MR WALKER:   The answer, your Honour – and it was never run, and to make it categorical, there was no flagging or signalling of the kind your Honour has asked me about – is that the case of so‑called “liability” run in the District Court did not include any contest of any kind about the nature of the injuries, whether globally or differentially on the theory of the case, to adopt the Chief Justice’s phrase, that I have accepted as appropriate.  It was simply not run that way.  Gingerly, perhaps, that means in a sense I am raising Coulton v Holcombe against my friend.

KIRBY J:   Well, if it is not run that way, the question that I ask myself as a judge is why should I make it up myself, why should I anticipate it, why should I start even to think about it, why are you expecting me to see points?  I am very, very sympathetic, of course, to this little girl and her family, but why – if experienced lawyers do not run a point – why do I have to try and conceive it and make it up?  It is not the judge’s role.

MR WALKER:   Your Honour, one reason only, that is, in an appeal by way of rehearing a position intermediate to the party’s respective contending positions being breached the Court must, in our submission, follow through - given the logic of the particular litigation – to the appropriate appellate relief.  Now, the logic of this particular litigation was that the medical state of affairs, including the now for the first time critical question of possible differential injury between negligence and non‑negligence – now that was to the forefront.  Of course, it was not for the Court of Appeal to determine, but proper consideration of that question of causation ‑ ‑ ‑

KIRBY J:   The issue was neither flagged by the evidence nor raised as an argument deriving in some way from the motor accidents compensation either for the trial judge or for the Court of Appeal.

MR WALKER:   Your Honour, I hope I have said categorically “yes” to that observation.  I cannot point to anything.  What I can point to is, the nature of things, namely a collision at a lower speed.  That is all that can be pointed to.

HAYNE J:   The point comes, does it not, from paragraph 61 of the Court of Appeal reasons, in particular, from the last sentence of paragraph 61 at page 634 of the appeal book, the last clause:

it was not causative of the opponent’s injuries.

Now, you have to say that it was in issue or there was a point that should have led the Court of Appeal to consider whether it could properly say it was not causative of the opponent’s injuries to any extent.

MR WALKER:   That is right, yes.  In order to justify that sentence they would have to satisfied that collision at a lower speed – that is the no negligence position to be tested in causation – would have made no difference to the state of affairs for which damages might be sought.  If it could be held that there was not material a contribution in the sense that the higher speed brought about by negligence – if it could be held that there was no material contribution in the sense it was a negligible increment to the danger posed to her body, then the result in the Court of Appeal is correct, but there could not have been such a finding, certainly not intuitively or by judicial notice even with the numbers that your Honours have seen in the written submissions and the judgment because there was no evidence of that.  It had never been an issue joined.

HAYNE J:   The point becomes this, does it not?  We have a four‑wheel drive striking a two‑year old child, we have estimates being made in paragraph 61 of how far away was the driver when she should have seen that there was a danger.  Now, we have to chop up the speed distance in a way that is just difficult, is it not?

MR WALKER:   Your Honour, the figures are better figures for a defendant to have than a plaintiff, of course, but we can only work with what we have.

HAYNE J:   You can only make bricks with the straw or clay you have, if any.

MR WALKER:   Your Honours, one of the important figures is reaction time, and one of the important elements of negligence is the defendant being alert to the matter by keeping a lookout.  That is the finding of negligence at volume 2 of the appeal book, 634, paragraph 60.  So there is the finding of negligence.  In the appeal by way of rehearing she should have seen the child earlier, she was in default, that is, there was a shortcoming in her conduct measured against the reasonable standard for what Justice Hoeben calls, “her primary obligation of looking to her front”. 

Now, that could be, we would submit, put together in a way to show that these things were manifest in the proceedings but manifest as something that this hearing could not determine.  Go, for example, if your Honours would, to page 564, at trial where one of the all important figures in the, if one likes, desperate arithmetic that we have to undertake is found at the foot of page 564, about line 50 where Mr Keramidas, I am bound to point out, is not a witness that I can unequivocally call in aid.  He was cross‑examined in a particular way, there are objections as to expertise and the trial judge made the findings that your Honours will have seen – I will not take you to them – at 569, line 40 and 570, line 45 about him.  But this much appears safely from the record, particularly one will find it at page 300, lines 18 to 21, and the finding of fact is, however, this would be, that is, the expected reaction time, a little less if the driver was on alert.

Now, that is not a finding on the basis of which one could start these perhaps artificial calculations which might eventually result in a neurologist being asked whether this could be imagined to have any effect on injuries.  In the Court of Appeal there was effectively an adoption of that approach at the top of page 618 in paragraph 11 just before line 10, “This could be a little less, if the driver had been alerted”.  We say, well, bearing in mind that we have the materiality that at the distance out without negligence this driver beginning to react and eventually brake, at that distance out she would have been able to avoid the collision, that is, there would have been a complete stop had she had been travelling at 12 kilometres an hour. 

That, in our submission, is a finding.  You find that at 316, line 42.  That is a piece of evidence, I should say, not challenged, which we can turn to our account in the present argument to show that on the face of things, in what I have to accept was an unexplored possibility at trial and in the Court of Appeal, one could not say the negligent speed, that is, the speed produced by negligently never seeing the child – the evidence was the defendant never saw the child, not even at the time of impact.  To say that that was not a material contribution, on the basis of this material not explored was, in our submission, not open to the Court of Appeal.

Now, it may be as Justice Kirby has suggested that in hindsight it would have been better had the parties been alerted to this, but whether so or not, in our submission ‑ ‑ ‑

KIRBY J:   Well, that is why I ask myself was there anything in the evidence or the way the case was run, or was there anything that was glaringly improbable in the language of those cases that should have alerted the Court of Appeal, and I find it very hard – it is accepted there was nothing in the differential evidence, it is accepted there was no differential submission to the Court of Appeal, and as to whether there is something glaringly standing out so that the judges should have said, “Hold on, we have come to this point.  We should allow the opportunity to consider this”; I just find it hard to say they should have.

MR WALKER:   Your Honour, I need to make this clear.  The only references in the record to such a matter is in debate between my learned friend and the Bench during the course of which it was remarked that there was no evidence to support any such matter.  There is nothing from our side flagging it otherwise.  Your Honours, it is for those reasons, in our submission ‑ ‑ ‑

HEYDON J:   Mr Walker, can I just raise this with you?  You said that the Court of Appeal should have made a declaration as to the commission of negligence which had contributed to the plaintiff’s injuries.  You also said that it was necessary for the Court of Appeal to do various things to justify the last line of paragraph 61 in which they said the breach of duty was not causative of the injuries.  As to that, it is really for you, I think, to show that it is wrong, rather than for them notionally to defend themselves.  This is just a personal view that I am experiencing at the moment.  It is entirely tentative, it could be wiped away.  I think these endeavours on your part are hopeless. 

Another endeavour which ordinarily would be regarded as hopeless, but might not be, would be to say this, that the Court of Appeal should have ordered a new trial because somehow or other the real issue in the case had slipped through the cracks.  It was not anyone’s fault particularly, each side was putting its best foot forward, and either side was contending for alternative possibilities.  But the fact is you might wish to argue that an injustice has been done because of an unfortunate contact between the common law and the Act which virtually mandates this system of decision of a separate point for trial, which in civil law generally works out very unsatisfactorily.  Is that not right?  Do you not need a new trial, or at least a Court of Appeal which is prepared to receive a whole lot of fresh evidence?

MR WALKER:   The latter would involve matters of discretion where we would, we expect, at the very outset properly be met by the objection that this is radically different from the way in which the issues were fought, or constituted and fought at trial.  Now, that does not deprive the Court of Appeal of power, but places us in a very vulnerable position obviously.  Your Honours, what I would seek to persuade you in answer to Justice Heydon’s question, including his Honour’s description of our present plight, is that ‑ ‑ ‑

GLEESON CJ:   Tentative.

MR WALKER:   Tentative – I am sorry – tentative description of what might be our present plight is this, that what we are seeking is in this blend of common law and statute and most particularly in this statutory arrangement of matters concerning compensation for the fault liability in motor vehicle accidents that what we are contending for falling out from proper appellate relief is that we are left for a trial – not necessarily forensic, it may be by medical assessment – but we are left for an occasion when there can be investigation and testing dispute - it is called a dispute under subsection (2) – about the very matter that the parties understandably chose in a liability contest comprised as negligence or no negligence, all or nothing, they decided to leave to one side. 

So that it is functionally the same as a retrial, but without going over the matter that we really should not get another go at, which is the fault; neither for that matter should the other side get another go at the fault. 

HEYDON J:   Mr Letherbarrow seems to postulate a very narrow type of new trial which is parallel or in line with what you have just said.

MR WALKER:   That is dealt with by the statute is all I am saying, your Honour, so that functionally it is the same as a new trial, but it is dealt with by the statute and could have been achieved simply by the Court of Appeal doing that which subsection (1) contemplates - a determination of liability ‑ ‑ ‑

HEYDON J:   Liability means liability in tort, for negligence.  It does not just mean ‑ ‑ ‑

MR WALKER:   No, it does not.  I hope I made that clear at the outset.  That is a difficulty.  What we have to say is that, bearing in mind these figures, it cannot be said – and I had better assume the onus probably here – it ought to be held that, I should say, there was a material contribution to the injury.  Now, it might have been a very small contribution but nonetheless material, that is, not such as to be ignored by the law.

GLEESON CJ:   There is an aspect of the facts that is concerning me at the moment in relation to that.  As I read the reasons of Justice Hoeben on 633 and 634, he says that the fact that the driver was travelling at 40 kilometres an hour with her foot off the accelerator but not on the brake was reasonable.

MR WALKER:   Yes.

GLEESON CJ:   So any impact with this little child that was going to occur was an impact between a car travelling at about 40 kilometres per hour and the child.  There is no question, in other words, that the non‑fault hypothesis would have involved the driver sort of slowing down and running over the child’s foot or something like that.

MR WALKER:   Your Honour, with respect, the finding in 61 at line 4, line 39 of the book, “insufficient time for her to react and brake so as to avoid impact”.  It is not insufficient time to start braking; it is insufficient time for the braking to be sufficiently efficacious as to avoid the impact.  That was the point of the figure.  She would have had to have been travelling at that distance out.  She would have had to have been travelling at only 12 kilometres an hour with braking after reaction time to produce a halt before the child.  But it is not the case that 58 and 61 combine so as to have it reasonable for the driver to have maintained, as it were, the coasting of the motorcar without any braking right through to the point of impact.

That is not the finding of the Court of Appeal.  The finding of the Court of Appeal is that she should have observed earlier than she did and, after all, she did not observe until after the impact, she should have then reacted.  We have submitted that the reaction may not have been one and a half seconds, as the defendant’s figures would have it, it could be less than that, and I have drawn to attention that that was left open ended, and that the braking would have produced some decrement in speed.  Even Mr Karamidas on his figures suggests that, though I am bound to point out that I think he came up with the grand total of one or two kilometres an hour difference in the closing speed.

Now, we are obviously submitting that it could well have been greater than that, but that was not explored at trial. It was not issue joined in the Court of Appeal and has now been precluded as a medical or other dispute within the meaning of section 83(2) by the judgment against us.

GLEESON CJ:   Having regard to Ms Floyd’s description of what she did, that is to say, what was going on on or near the pedestrian crossing, it is not very surprising that her conduct attracted the attention of the driver.

MR WALKER:   And I have no comment to make against that.  The Court of Appeal actually takes that into account in nonetheless finding that there was a breach of duty of care; see paragraph 60.

KIRBY J:   Are there any decisions of this Court that you call our attention to?  Some reference is made to a couple of cases concerning motor vehicle negligence, but all of them are really determining their own facts.

MR WALKER:   On their own facts, yes.

KIRBY J:   Is there any principle that is stated that you are invoking in this appeal?

MR WALKER:   Your Honours, it is not a principle.  It occurred to me this morning.  The first part of my answer is of course when one thinks about onus, though we have an onus to prove material contribution, when it comes to disentangling the consequences of the negligence from the

consequences of what would anyhow have happened, we submit that Watts v Rake and Purkess v Crittenden provide some assistance for us.  I apologise to my friend, I have not draw this to his attention.  I was not sure any such thing would arise.

In Fitzgerald v Penn (1954) 91 CLR 268 at 276 to 277, in the case of two drivers both negligently speeding, but only one negligently across the centre line, it was suggested by Chief Justice Dixon and Justices Fullagar and Kitto that with the hypothetical jury it would have been better to explain the position by telling them to ask themselves the question whether they were satisfied that the collision would not have taken place with the same results if driver A, that is the plaintiff, had been driving at a reasonable speed.

Now, I do not know that that actually makes it to the area of principle, but in our submission that is the nature of the case with particular emphasis on “with the same results” that we rely upon, and in particular we rely on the fact that the way in which the litigation was conducted had not permitted the same results in terms of seriousness of injury and the payments that had to be made for medical, pharmaceutical and rehabilitation expenses as a result.  That too had been ventilated - by the statute and by the disposition of the parties was to come after a determination of liability.  Your Honours, those are our submissions.

GLEESON CJ:   We will adjourn for a short time to consider to the course that we will take.

AT 11.27 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.35 AM:

GLEESON CJ:   In this matter I will ask Justice Hayne to deliver the first judgment.

HAYNE J:   The appellant contends that the Court of Appeal erred in its conclusion that the failure of the driver of the vehicle which struck the infant plaintiff and caused her catastrophic injuries “was not causative of [her] injuries”; (2006) 46 MVR 412 at 423 paragraph 61.

The error alleged is that the Court of Appeal did not consider the possibility that, had the driver been keeping a proper lookout, the collision would still have occurred but the injuries sustained by the plaintiff would have been less serious.

The appellant accepts that the point which is now advanced was not raised at first instance or in the Court of Appeal. It was sought to support the point in this Court by reference to section 83 of the Motor Accidents Compensation Act 1999 (NSW). These arguments were not advanced in the courts below. They are not arguments that meet the difficulty that is presented by not having raised, at an earlier stage of these proceedings, any question about the possibility of different or lesser injuries if the driver had kept a proper lookout.

Having now had an opportunity to consider the appellant’s arguments in more detail than was possible at the time of the grant of special leave, I am persuaded that, given the way in which the proceedings were conducted, there is no reason to doubt the correctness of the conclusions reached in the Court of Appeal. 

There was no attempt in this Court to argue that the approach and order of the primary judge should be restored and any such approach would be outside the sole ground upon which special leave was granted to the appellant.

Further, in her written argument, the respondent, responding to the appellant’s written submissions, made it clear that it relied on the principles governing procedural fairness in appellate decision‑making stated by this Court in decisions such as Coulton v Holcombe (1986) 162 CLR 1 at 7, in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483.

It was not suggested that the appellant, either at trial or in the Court of Appeal, had presented evidence or advanced submissions on a differential chance of injuries to the appellant that might have occurred if the respondent had acted more quickly to anticipate the danger that was presented.

In all these circumstances, I would revoke special leave.

GLEESON CJ:   I agree.

KIRBY J:   I also agree.

HEYDON J:   I agree.

CRENNAN J:   I agree.

GLEESON CJ:   The order of the Court is that special leave to appeal is revoked.  Can you resist an order for costs, Mr Walker?

MR WALKER:   No, your Honour.

GLEESON CJ:   The appellant must pay the respondent’s costs.

MR WALKER:   If it please the Court.

GLEESON CJ:   We will adjourn until 10 o’clock on Thursday, 22 May 2008.

AT 11.40 AM THE MATTER WAS CONCLUDED