Gray v Motor Accident Commission

Case [1998] HCA 70

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

DONALD GRAY  APPELLANT

AND

MOTOR ACCIDENT COMMISSION
(Formerly State Government Insurance

Commission)  RESPONDENT

Gray v Motor Accident Commission (A36/1997) [1998] HCA 70
17 November 1998

ORDER

  1. Appeal allowed with costs.

  1. Set aside the order of the Full Court of the Supreme Court of South Australia.  In lieu thereof, order that the appeal to that Court be allowed with costs and there be a new trial on the issue of damages, other than aggravated and exemplary damages.

  1. The costs of the new trial be in the discretion of the judge at that trial.

On appeal from the Supreme Court of South Australia

Representation:

S W Tilmouth QC with G A Britton for the appellant (instructed by Aboriginal Legal Rights Movement Inc)

S Walsh QC with M F Newell for the respondent (instructed by Finlaysons)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Donald Gray v Motor Accident Commission (formerly State Government Insurance Commission)

Damages - Personal injuries - Exemplary damages - Whether trial judge precluded from awarding exemplary damages where tortfeasor already punished in criminal proceedings.

Damages - Personal injuries - Exemplary damages - Where tortfeasor insured under a scheme of compulsory insurance.

Damages - Personal injuries - Economic loss.

Words and Phrases - "substantial punishment".

  1. GLEESON CJ, McHUGH, GUMMOW AND HAYNE JJ.   The appellant, then aged 16 years, was seriously injured in September 1988 when he was struck by a motor car driven at him deliberately by Darren James Bransden.  In March 1991, Bransden was convicted of causing grievous bodily harm with intent to cause grievous bodily harm to the appellant and was sentenced to seven years' imprisonment.  The sentencing judge described the attack on the appellant as "brutal and cowardly" and one for which there was "no mitigating factor at all".

  2. In 1993, in the District Court of South Australia, the appellant commenced an action against Bransden claiming damages for personal injury.  The action was framed (at least principally) as a claim for damages for negligence.  In January 1995, pursuant to certain provisions of the Motor Vehicles Act 1959 (SA) the respondent, the compulsory third party insurer of Bransden, was substituted as defendant in the action. Although the respondent did not admit liability, there seems to have been no real dispute about that issue at trial. A certificate of the conviction of Bransden and the sentencing remarks relating to him were tendered by consent of the parties as evidence of the truth of their contents.

  3. The trial judge (Judge Pirone) assessed the appellant's damages at $72,206 comprising $15,000 for past economic loss, $30,000 for future economic loss, $18,190 for what is called in s 35A of the Wrongs Act 1936 (SA) "non‑economic loss" and $9,016 for special damages.  The trial judge made no award of exemplary damages.  He held that if the appellant were otherwise entitled to such an award, the…

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AGLC
Gray v Motor Accident Commission [1998] HCA 70
Case
[1998] HCA 70
Decision Date

CaseChat Overview and Summary

Donald Gray, the appellant, was injured when struck by a motor vehicle driven by Darren Bransden. The vehicle was insured under South Australia's compulsory third party scheme, with the Motor Accident Commission (the respondent) being the insurer. The primary judge found that Bransden deliberately drove at a group of Aboriginal youths, including Gray, intending to seriously injure him. Bransden was subsequently convicted of intentionally causing grievous bodily harm and sentenced to seven years imprisonment. Gray brought proceedings against Bransden, later substituted by the Commission, claiming damages for negligence, including a claim for exemplary damages. The Full Court of the Supreme Court of South Australia heard an appeal from the primary judge's decision.

The legal issues before the High Court concerned the assessment of damages. Specifically, the Court was required to determine whether the trial judge was precluded from awarding exemplary damages given that the tortfeasor, Bransden, had already been punished in criminal proceedings. Further issues related to the assessment of economic loss and whether the Full Court had erred in its handling of the appeal concerning the quantum of damages.

The High Court allowed the appeal, setting aside the order of the Full Court. The Court reasoned that while the claim for exemplary damages was rightly dismissed, there were errors in the assessment of other components of damages that necessitated correction. The Court concluded that a new trial on the issue of damages, excluding exemplary damages, was the appropriate remedy. The costs of this new trial were to be at the discretion of the judge presiding over it.

Orders

Orders of the court

1.

Appeal allowed with costs.

2.

Set aside the order of the Full Court of the Supreme Court of South Australia. In lieu thereof, order that the appeal to that Court be allowed with costs and there be a new trial on the issue of damages, other than aggravated and exemplary damages.

3.

The costs of the new trial be in the discretion of the judge at that trial.

Background

Background to the litigation

Special leave was granted primarily to permit examination, yet again[70], of the vexed question of exemplary damages. The quantification of damages in this case, a matter which would not normally attract the attention of the Court, was doubtless left open in case it might require reconsideration in the light of the outcome of the claim for exemplary damages. Whilst I am of the opinion that the claim for exemplary damages was rightly dismissed, the examination of the other components of the damages, occasioned by the appeal, demonstrates error which required correction by the Full Court. The only acceptable solution is a retrial of the question of damages. However, such damages must exclude the exemplary damages claimed.[70] See Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Fontin v Katapodis (1962) 108 CLR 177; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; Lamb v Cotogno (1987) 164 CLR 1.The facts Mr Donald Gray (the appellant) is an Aboriginal Australian. On 9 September 1988 at Salisbury, a suburb of Adelaide, he was injured when struck by a motor vehicle driven by Mr Darren Bransden. The motor vehicle was insured under the compulsory third party provisions of the Motor Vehicles Act 1959 (SA) ("the MV Act")[71]. The insurer was the State Government Insurance Commission now renamed the Motor Accident Commission ("the Commission").[71]Pt IV of the Act. The primary judge found that the appellant was injured when Mr Bransden drove directly at a group of Aboriginal youths, including the appellant, doing so with the intention of running the appellant down and seriously hurting him. At trial, liability for negligence was not disputed. Nor was it contested that Mr Bransden's conduct was deliberate, evidencing a want of regard for the safety and person of the appellant. Contributory negligence was not shown. The case was therefore one for the assessment of damages. Mr Bransden was charged with the criminal offence of intentionally causing grievous bodily harm to the appellant[72]. He was convicted of this offence by a jury[73] and sentenced to seven years imprisonment[74]. The sentencing judge described his conduct as inexcusable, with no mitigating factor at all. It was, he said, a "blatant breach of the law" that was "brutal and cowardly". The primary judge in these proceedings took a similar view of Mr Bransden's conduct.[72]Criminal Law Consolidation Act 1935 (SA), s 21.[73] R v Bransden, unreported, Supreme Court of South Australia, 26 February 1991 (Bollen J).[74] R v Bransden, unreported, Supreme Court of South Australia, 14 March 1991 (Bollen J). The background of the appellant was explained in the evidence. He was abandoned by his parents soon after birth. He was brought up by an aunt and uncle. He attended public schools but, because he was one of only two Aboriginal students at the secondary school, he was continuously picked on. He played various sports at school and was chosen for successful Australian Rules football teams in his local area. He enjoyed long distance running. He was visited occasionally by his natural father and when, in 1987 his aunt and uncle died, he went to live with a cousin in Salisbury. He commenced a course at a college there which specialises in Aboriginal education. However, he left the college to take a six month job at a local school earning $250 a week net. The work involved building school facilities. Necessarily, it required the appellant to engage in squatting, lifting materials and bending. The primary judge accepted that the appellant liked the work, that he did it well and that his performance was satisfactory. This was his situation at the time he was deliberately run down and injured.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HUGH, GUMMOW AND HAYNE JJ KIRBY J
The appellant brought proceedings in the District Court of South Australia, initially against Mr Bransden, claiming damages against him for negligence. The claim was not framed in terms of trespass to the person. Amongst the damages claimed was a specific claim for exemplary damages. In 1995 the proceedings were amended to substitute State Government Insurance Commission as the defendant[76]. The substitution of the Commission for Mr Bransden was effected pursuant to s 125A of the MV Act. That section provides that the Court may, on the application of the insurer, join it as a defendant to the action. Where it is so joined the insurer is taken to have "directly assumed the liability (if any) of the insured person upon the claim in respect of ... bodily injury and, where such a liability is found to exist, judgment upon that claim will be given not against the insured person but against the insurer"[77]. Although provision is made for the insured person to remain a party for purposes of defending, in effect, a property claim or prosecuting a counter-claim, neither of these was relevant. In accordance with the MV Act, Mr Bransden "cease[d] to be a party to the action"[78]. Provision is made in certain circumstances for the insurer to recover from the insured in respect of its liability where the insured has contravened or failed to comply with a term of the policy of insurance[79]. The appellant submitted that this possibility, although not yet carried into effect, continued to expose Mr Bransden to the possibility of recovery at the suit of the Commission, for example for any exemplary damages which the Commission was ordered to pay by reason of Mr Bransden's deliberate driving.[76] By order of a Master of the District Court on 23 January 1995 on the application of the Commission.[77]MV Act, s 125A(3)(a).[78]MV Act, s 125A(3)(b).[79] MV Act, s 124A(1).["Where an insured person incurs a liability against which he or she is insured under this Part and the insured person has contravened or failed to comply with a term of the policy of insurance ... by driving a motor vehicle ... with the intention of causing ... bodily injury to ... a person ... the insurer may ... recover from the insured person any money paid or costs incurred by the insurer in respect of that liability."]Decision of the primary judge The primary judge assessed the appellant's damages at $72,206. Judgment was entered in his favour in that sum together with an amount for interest. The components of the judgment were $15,000 for past economic loss; $30,000 for future economic loss; and $18,190 for non-economic loss (calculated in accordance with the Wrongs Act 1936 (SA), s 35A(b)[80]). The out-of-pocket expenses were agreed at $9,016. The appellant complained that this judgment was "manifestly inadequate". Specifically, he argued that the judge had erred on failing to include a sum for exemplary damages. More generally, he complained that the amounts provided for economic loss, past and future, were erroneous, being arrived at by faulty reasoning which should be corrected on appeal. He submitted that such correction was available, notwithstanding several references by the judge to credibility findings which were adverse to him.[80] That section provides that in such cases non-economic loss is to be assigned a numerical value on a scale rising from 0 to 60. The primary judge assigned the number 17. At the relevant time, this produced the component of the judgment of $18,190. See the definition of "prescribed amount" in s 35A(6)(b).

Ratio Decidendi

Legal Principle Established

Established by: HUGH, GUMMOW AND HAYNE JJ, KIRBY J

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