Gray v State Govt Insce Com

[1997] HCATrans 131

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A45 of 1996

B e t w e e n -

DONALD GRAY

Applicant

and

STATE GOVERNMENT INSURANCE COMMISSION

Respondent

Application for special leave to appeal

DAWSON J

TOOHEY J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 MAY 1997, AT 10.14 AM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC:   May it please the Court, I appear with my learned friend, MR G.A. BRITTON, for the applicant.  (instructed by Aboriginal Legal Rights Movement Inc)

MR S. WALSH, QC:   May it please the Court, I appear with my learned friend, MR M.F. NEWELL, for the respondent.  (instructed by Finlaysons)

DAWSON J:   Yes, Mr Tilmouth.

MR TILMOUTH:   If the Court pleases, this Court, in Cotogno v Lamb, as, indeed, the Court of Appeal of New South Wales in the same case determined that in cases involving exemplary damages their purpose was far more extensive than simply to punish a defendant.  Both decisions, if the Court pleases, very strongly suggest that a wider use of that head of damage also involves deterrence by specific and general, it deals with the question of the desire of the aggrieved party to seek revenge otherwise than through the courts, and it serves to mark the court’s displeasure at the wrongful behaviour.

In this case, if the Court pleases, when the question of exemplary damages came up before the learned judge, his Honour refused the order - although he assessed it at $10,000 - but he refused to make the order on discretionary grounds on the basis that the driver of this car, the insured driver who was not the party, had been punished by way of a criminal sentence for the behaviour which clearly otherwise would have warranted exemplary damages.  In doing so, if the Court pleases, at pages 15 and 16 of the appeal book - which I do not read at all, but just to isolate where we submit the error initially occurred on page 16 - is that his Honour applied a single judge’s decision of Justice Nettlefold in Watts v Leitch, in the middle of the page and determined that, because the insured driver had been punished by conviction and sentence, that there was a double punishment, as it were, and that, therefore, exemplary damages should not be awarded - line 21.

TOOHEY J:   Mr Tilmouth, you put it on the basis that the trial judge thereby exercised his discretion, and it is true that on page 16, at line 20, the trial judge did speak of the exercise of his discretion, but I must say, on a reading of his judgment, it rather reads as if he saw Watts v Leitch as excluding exemplary damages in this sort of situation.  In other words, he seems to have treated it as rather more basic than just an exercise of discretion, almost as if he were precluded, as a matter of law, from awarding exemplary damages in this situation.

MR TILMOUTH:   If the Court pleases, that is my submission exactly.  It was regarded by his Honour, and the Full Court, as an absolute bar to the award of exemplary damages.  The point I make about the application of Watts v Leitch, if the Court pleases, without going to it, is that, in that case, it was an assault involving a fine.  The judge in that case had already awarded aggravated damages, so there was, in a real sense, a doubling up - or, the greater danger of doubling up at the least and, in any event, there was conduct in that case of a provocative kind which was clearly relevant to the discretion.

Now, when it came to appeal, if the Court pleases, the appeal was based essentially on two heads:  the first was that the question of imprisonment or punishment was irrelevant because, in this case, the actual party - the defendant - was the insurer, which had been substituted under South Australia legislation. 

The other alternative was that even if it had to be treated on the basis that the insurer stood in no better or worse position than the insured driver, that there were other significant factors in the discretion over and above the question of whether there had been a sentence.  Those were the factors such as identified in my opening submissions.  When it came to the Full Court - and, by the way, those grounds of appeal appear at page 42 of the application book - when it came to the Full Court, if the Court pleases, in my submission the court rather treated the question of punishment as exclusively determining the issue without more. 

If I can take your Honours to the appeal book at page 54, at the bottom of the page, that last paragraph defines where the court dealt with this issue.  There is a reference to Lamb v Cotogno  and then your Honours will see the reference to Watts v Leitch at line 35.  At the end of it Justice Millhouse concluded on the second to last line:

Just the situation here. 

That is the situation where there was punishment, apart from the claim for compensation.  The learned judge was aware of his discretion to award exemplary damages and chose not to exercise it in favour of the appellant.  So, if the Court pleases, the error of treating this issue as decisive has been perpetuated but there is further error in the Full Court, if the Court pleases, in the failure to look at the other important aspects going beyond just punishment in the head of exemplary damages, and the failure as well to deal with the appeal ground that this was a different situation anyway in that it was not the driver who was the defendant, it was the substituted insurer.  In our submission, if the Court pleases ‑ ‑ ‑

DAWSON J:   What difference does that make, Mr Tilmouth?

KIRBY J:   Is that not a problem for you?

MR TILMOUTH:   One can look at it two ways, if the Court pleases.  Either one looks at it in the pristine way that the insurer is a driver, it does create a problem, but the answer is this Court’s decision in Lamb v Cotogno, where the insurance situation is irrelevant.  If one looks at it on the other hand on the basis that the insurer simply subrogates all the rights and liabilities, as it were, of the insured driver, then the problem is that the court only dealt with it on the narrow basis of the purely punishment issue without dealing with it on the far wider basis laid down by this Court in Lamb v Cotogno.

KIRBY J:   I thought you were putting it up on the special leave basis, that the case presents the issue of whether where, unlike Lamb v Cotogno, the individual driver is not sued, you are suing the corporation, which is now increasingly done, that that itself raises a question that the Court might have to consider.

MR TILMOUTH:   That is one basis, if the Court pleases; but the primary ground which we seek for special leave is that both courts dealt with exemplary damages as being confined only to the aspect of punishment and failed to look at the wider implications, and treated the question of the fact that the driver in this case had been punished by imprisonment as wholly decisive of the issue, not discretionary, really, but as precluding, as a matter of law, the awarding of damages.  It is that latter basis we put as the first basis for special leave.  The alternative basis on this issue is the Lamb v Cotogno point but only on the contingency the Court treats the insurer as the defendant rather than standing in the shoes of the insured driver for all purposes.  If the Court pleases, in our submission, the reason why this is of special importance ‑ ‑ ‑

TOOHEY J:   I am sorry, Mr Tilmouth, could I just ask you this, because it is not clear to me from the way you are putting your argument?  Are you saying that punishment is a relevant consideration, or are you saying that it is not but there are other considerations that are relevant, or perhaps that it is relevant but it may not matter particularly in this case?

MR TILMOUTH:   More the latter.  We have to concede there is a discretion, if the Court pleases, and we have to concede in some places it may be relevant, but only as one aspect of many in the question of whether exemplary damages should be awarded and the difficulty in this case, as I have endeavoured to emphasise, is the court virtually forgot about all those other aspects of exemplary damages and treated the fact of punishment as decisive almost as a rule of law precluding the award of exemplary damages and it is on that basis ‑ ‑ ‑

TOOHEY J:   What are the other considerations, and I do not want you to go into any detail in the evidence, but briefly what do you say are the considerations that would have justified an award of exemplary damages in this case?

MR TILMOUTH:   Of course, the wanton behaviour - there does not seem to be any dispute about that - and as wider issues general deterrence to assuage the sense of grievance that would be held by the plaintiff in this case and as a measure of the court’s displeasure at what was extremely bad wanton driving and the wider implications we have endeavoured to summarise, if the Court pleases, in our written outline in paragraph 7.3 page 4.  I do not read them now, if the Court pleases, but in our submission the ruling in this case has wider implications, not only because it misunderstands the nature of exemplary damages and it is a decision of the Full Court after all that this question of punishment is rather decisive, but there are other implications for all awards of damages when an exemplary head is pleaded and, as we said in the last dot point, may have a considerable effect in relation to criminal injuries type awards as well.  So, in our respectful submission, it is not just a situation isolated to one case.  It has very wide implications in an age, if the Court pleases, where there is more emphasis on victims than there was perhaps in the past. 

If the Court pleases, the other issue of special leave relates to the question of future earning capacity and as a prelude to that we simply point out that there were findings that there were serious injury.  There was a serious and significant head injury - they are the words of the trial judge - there was considerable cognitive deficit and there were two serious leg injuries, all of which his Honour found would clearly affect the applicant’s ability to obtain work and sustain work in the future and also would confine the type of work which was available to him.

In this case, if the Court pleases, the plaintiff was just 16 when the accident occurred.  He was 23 at trial.  One was therefore looking at a very long - practically a whole working life of 30 or 40 years and, if the Court pleases, his Honour effectively held that his prospects for future employment, even without the accident, were very poor, essentially because his school reports showed a lot of absenteeism and those school reports, of course, your Honours, were in a very isolated period of two years.  He had racial problems at school, as the Court knows from the papers.  He was living with his guardians, both of whom died in the second year of that schooling, and the main problem, of course, was alcohol, which led to some other problems with breaches of the law and so on.

TOOHEY J:   Could I just ask you this:  do you suggest that that ground of appeal of itself would warrant special leave to appeal?

MR TILMOUTH:   Yes, I do, if the Court pleases, because what the finding of the trial judge and the Full Court entails is the assumption that there were no favourable prospects at all for the plaintiff’s improvement or resolving his situation and bettering himself in the future.  Effectively what this case decides is that a very small microcosm of his life stereotyped the entire future, 30 or 40 years or more, and in our submission there is simply no question of allowing for favourable contingencies, that he would beat the alcohol problem, that he might grow out of it, that he might obtain employment in other areas, that he might have obtained employment in other areas, done courses and bettered himself.  The whole assumption of both courts below is that once he was in a situation beginning at school with chronic absenteeism, that that was going to permeate the rest of his life.

DAWSON J:   What was done was to decide those questions on the balance of probabilities.  What is wrong with that?

MR TILMOUTH:   It was done on a very isolated period of this man’s life, if the Court pleases.

DAWSON J:   Sometimes there is not very much evidence on which a court has to go but it still has to decide on the probabilities.

MR TILMOUTH:   That is true but it also has to consider, if the Court pleases, the favourable contingencies and really no ‑ ‑ ‑

TOOHEY J:   When you put it that way, Mr Tilmouth, you are really saying not much more than that this Court should review the assessment of damages and make its own assessment, are you not?

MR TILMOUTH:   With respect, there is a wider issue here and that is the issue of just how does a court go about assessing favourable contingencies where you have particularly a young plaintiff ‑ ‑ ‑

TOOHEY J:   I would have thought there was a wealth of authority on that aspect.  It does not really need this Court to take that question up again, does it?

KIRBY J:   I would have thought your better answer to Justice Toohey earlier was:  if the Court is minded to bring the matter up on the question of Lamb v Cotogno and exemplary damages, then these additional matters would not take up much time.  I would have thought your special leave point, good or bad, is the first point and the issue then is whether it is confined to that or whether the Court would look at the other matters as well.

MR TILMOUTH:   I am obliged to your Honour.  I was going to put that as a last resort.

DAWSON J:   Mr Tilmouth, what you are really saying, if you boil it down is, “Look, the damages were inadequate we say here and that situation was exacerbated by the wrongful failure to award exemplary damages”.

MR TILMOUTH:   That is true.  The two are not isolated.  I agree with that and that is my argument.  Just to try and perfect this point, could I take your Honours to page 54 of the application book where in four or five lines the Appeal Court dealt with this entire issue of economic loss, future economic loss of capacity and the entire issue of the plaintiff’s future life.  What it held at line 27 on page 54 was:

As for the future, the appellant has little permanent disability -

Just pausing there, as the Court knows, that was not the trial finding.  I have referred to what they were earlier.  The court went on:

and he has always been likely, even if he had not been injured, to have found it difficult to get and hold employment -

But, if the Court pleases, even if that be true, the injuries here clearly affected the capacity of the applicant to try and get further employment.  Even if one says the first part is true, there is absolutely no doubt that these injuries made it more difficult for him to better himself.  The court went on to hold:

his employment future, given his lack of skills and motivation, has never been a good one.

Even accepting that if it is true, the lack of skills is affected by the plaintiff’s loss of cognitive ability.  His ability to take courses to try and improve himself and get better employment has clearly been affected by these injuries, both the brain injury and the leg injuries.  All of those things have

been put aside, in our respectful submission.  Then Justice Millhouse speaking for the court simply added:

I suggest we should not interfere with that assessment, either.

That demonstrates exactly what I am saying about this case on that point.  If the Court pleases.

DAWSON J:   Thank you, Mr Tilmouth.  Mr Walsh.

MR WALSH:   If the Court pleases, there are four points that we raise with respect to a comparison of the case at Bar to the case of Lamb v Cotogno.  The first point we raise is that in Lamb v Cotogno it was clearly, it would seem, a claim in trespass to the person.  Here the case is framed in negligence.  It is true that there was an amendment to simply plead the fact that the act was deliberate, but in essence the pleading was in negligence and the damages flowing from negligence.  So we raise that issue because it is something that may have to be considered in determining whether in fact this is an appropriate vehicle for a reagitation, as it were, of the issues raised in Lamb v Cotogno to the particular facts of this case.

TOOHEY J:   Mr Walsh, do you say that there is authority which would preclude an award of exemplary damages where the cause of action is framed in negligence?

MR WALSH:   No, I do not, your Honour.  I simply draw the Court’s attention to the distinction between the two cases.  I accept that it may be said, for example, as in fact the learned author Luntz says in his assessment of damages, that reckless negligence might give rise, for example, to a claim or successful claim for exemplary damages, but I make the point that there is at least a potential issue to be discussed if special leave is given based upon the fact that the pleadings are not clear in relation to whether it is trespass to the person or negligence on the other hand.

The second point we raise with respect to Lamb v Cotogno is that that was a case where the defendant was a wrongdoer.  In the New South Wales Court of Appeal in Lamb v Cotogno which is contained within the book of authorities his Honour Justice McHugh in appeal, as he then was, at page 31F of the booklet of authorities said this:

Compulsory third party insurance exists to reimburse defendants for the verdicts obtained against them, not to reduce the rights of plaintiffs to recover damages.  The formal record of the court is a barrier through which the insurer is not allowed to pass.

Now, in the present case, for whatever reason, the fact remains that the defendant in this case is in fact the insurer, not the wrongdoer and, in our respectful submission, the cases over the last two centuries as they are referred to by his Honour Justice McHugh in Lamb v Cotogno focus upon the wrongdoing of a defendant and visit upon a defendant, the wrongdoer, the court’s punishment, as it were, for the contumelious behaviour of that defendant and in our respectful ‑ ‑ ‑

DAWSON J:   Yes, but you met with Lamb v Cotogno in this Court where it was said the fact that there is insurance does not necessarily preclude the award of exemplary damages.

MR WALSH:   Quite so.  We accept that, your Honour.  That is an unassailable proposition, but the point of distinction in Lamb v Cotogno as opposed to this case is that there the defendant was on the record before the court, the wrongdoer that is, I mean, was before the court and if one is looking at the concept of the rationale behind exemplary damages an onlooker looking at the result, namely, an award of exemplary damages against the insurer and not the defendant, it may be thought that that onlooker or the victim himself or herself might say, “Well, that is irrelevant to me and in terms of the grief or the concern that I have,” and what the person who is injured might turn to will be, “What happened to the wrongdoer?”

In this case, as we know, the wrongdoer was punished and there were some interesting features that no doubt may have been considered, although not specifically stated so, by the learned trial judge and no doubt by the Full Court because his Honour specifically refers to the evidence - and this is my next point - namely, here the wrongdoer was punished and in particular circumstances.  At page 12 of the appeal book his Honour Judge Pirone dealt with some of facts relating to the issue of punishment and I refer to page 12 at about line 13:

Indeed, as part of the plaintiff’s case, I have received with the consent of the defendant a document headed “Certificate of Record” certifying that on the 26th day of February, 1991 Darren James Bransden appeared before the Supreme Court of South Australia and was convicted by the jury of the offence of causing grievous bodily harm with intent to do such harm to a man called Donald Clement Gray.  The accused was sentenced by His Honour Bollen J -

Then he deals with the matter further at page 15, at line 27:

Mr. Newell reminded me that Bransden has been convicted of the offence with which he had been charged and has been sentenced to a term of imprisonment for his offending.  His submission, therefore, was that no exemplary damages should be awarded given that the defendant has already been punished in the criminal proceedings.

I think there was a passage, which I must have missed, where it was clear that he pleaded guilty to the charge.  No, I am sorry, that is not so; there must be another case.  But the fact is that the person who suffered the injury in a case of this kind is likely to look at the fact that there has been a punishment, there has been a sentence, and there has been, no doubt, an appropriate punishment in terms of the sentence upon the wrongdoer.  Now, that is the focus, we say, of the injured person’s grievance; not upon an insurer, where the wrongdoer is not, in fact, the defendant.  So, in fact, there was a very important point of distinction between the case at Bar and in Lamb v Cotogno.  His Honour Justice McHugh ‑ ‑ ‑

TOOHEY J:   But that is, perhaps, only inviting this Court to consider what you put forward as an important question, namely, where there is an insurer sued, the considerations that in the past have led to the award of exemplary damages are not available to the plaintiff.  Is that what you are saying?

MR WALSH:   Well, in a sense I can see how that might be used against me in terms of there being a special point.  But in our respectful submission, what we are saying to the Court is that here there is not, in our respectful submission, a warrant for special leave because the decision of the Full Court, and of the judge at first instance, is not tainted with error, and is not attended with sufficient doubt to justify the grant of special leave because it raises different issues.  The Court, in Lamb v Cotogno, clearly has dealt with the issue generally with respect to exemplary damages and, in our respectful submission, there is no warrant to reconsider the matter again.

TOOHEY J:   Could I just put this to you?  I think the worry about the Full Court judgment is the passage at the foot of page 54 in which, although perhaps not while referring to it as a matter of discretion, it seems fairly clear that this authority seems to have been regarded by the Full Court as - that is the authority of Watts v Leitch - as standing in the way of an award of exemplary damages.

MR WALSH:   In our respectful submission, that conclusion does not flow; that is the gloss my learned friend put on it.  If one continues, at the foot of page 54, his Honour Justice Millhouse then said:

The learned judge was aware of his discretion to award exemplary damages and chose not to exercise it in favour of the appellant.  There is no reason why we should interfere.

All that the court is saying is that there was a discretion available  That was one factor that would weigh, no doubt, in the exercise of discretion, as there must be other factors as well and, in the exercise of that discretion, it cannot be shown that at the end of the day the discretion miscarried.  That is all that flows, in our respectful submission, from that statement; not the gloss that my learned friend puts on it.  Every case is, of course, decided on its own facts.  One can take, by way of example, another case, and a comparison - as, indeed, we are between this case and Lamb v Cotogno - where points of distinction arise, and factual issues become important.  “Ah” says the judge of the next case, “but the facts of that case were different.”  There was a difference in emphasis, or there was a distinguishing feature, maybe not highlighted by the learned trial judge, but nevertheless available on its facts.

TOOHEY J:   But perhaps the real question here is whether the Full Court proceeded on the premise that the imprisonment of the driver really took away, in a sense, the discretion of the trial judge, because there is really no consideration of the factors that might warrant an award of exemplary damages.

MR WALSH:   It may be seen at first blush that way but, as we say, if your Honour pleases, clearly there are other issues that will be relevant and which arise in the case.  Merely because they were not specifically articulated, in our respectful submission, does not mean that there is an egregious error here which justifies the grant of special leave. 

Your Honours, one final point with respect to Lamb v Cotogno is that, in that case, the High Court said that the legislation in New South Wales was then drafted against a background of the common law.  Now, here we have the legislation drafted against the background, not so much of common law with respect to non-economic loss, but upon a completely different statutory basis.  We know, because of section 35A in our book of authorities, that the basis of an assessment now is on a scale of 0 to 60, and that is the way in which the Court must now look at an assessment for non-economic loss.

KIRBY J:   That is itself quite an important question because that is virtually uniform throughout the country now, whether this new development in statute really puts Lamb v Cotogno in legal history?  That is quite an important question.

MR WALSH:   Yes.  I understand your Honour’s point, but in our respectful submission, in this particular case, one cannot draw ‑ ‑ ‑

KIRBY J:   I am sure your client would like to have an authoritative ruling on the matter so that it knows where it stands, and other institutions around the country would find that quite helpful to premium setting.

MR WALSH:   In our respectful submission, not necessarily so.  If one looks at the Victorian legislation, for example, there are thresholds and certificates to be issued, and then you go to common law.  So that really this is somewhat unique, this 0 to 60.  New South Wales, I believe, is different also.  So that really to agitate that principle here is not going to assist, in our respectful submission, in other States.

KIRBY J:   But there is a question here, where the defendant is the insurer, as to whether that raises a different point, because that is now quite common.

MR WALSH:   With respect, that is so, your Honour, but in our respectful submission, that is a point of distinction and would not, on the facts of this case, justify the grant of special leave because it is not going to assist specifically with respect to other legislation - or certainly has not been put on that basis to this Court.  That is not the basis of the application.  In our respectful submission, one only needs to turn to Lamb v Cotogno itself to see the importance of some of those issues, namely the support for the fact that the defendant, being the wrongdoer, was an important issue in Lamb v Cotogno.  That was highlighted by the court.  If one turned very briefly to the book of authorities, at page 43.7, highlights, very briefly, the support for the propositions I have put.  Page 43, at about point 3, reference to Fontin v Katapodis:

this Court clearly proceeded upon the basis that exemplary damages were, in an appropriate case, recoverable for trespass to the person, that being, apparently, the cause of action adopted in the present case.

Without going to a different point, at the foot of that page, just above Mayne  & McGregor on Damages:

It appears that the plaintiff neither claimed nor was awarded aggravated damages and an application to the Court of Appeal to amend the grounds of appeal to raise the question of aggravated damages was refused.

My learned friend has not addressed you on that issue of aggravated damages but we have dealt with it in our outline ‑ ‑ ‑

KIRBY J:   He did not really, did he?  I did not hear the - I thought he deftly ignored that as being rather fruitless.

MR WALSH:   Yes, he did not address you, I said.

KIRBY J:   It is in the written submissions but I cannot see ‑ ‑ ‑

MR WALSH:   I merely mention it, if the Court pleases, and I then turn very briefly to page 45, at about point 3, and near the end of the first paragraph:

Moreover, whilst the smart or sting will obviously not be the same if the defendant does not have to pay an award of exemplary damages, it does serve to mark the court’s condemnation of the defendant’s behaviour and its effect is not entirely to be discounted by the existence of compulsory insurance.

It was only by - I suppose it was only a narrow issue that ultimately, in our respectful submission, caused this Court to decide in that case that exemplary damages should be awarded or should appropriately be awarded.  Here we have the distinction, namely, that it was not the defendant, and so therefore the point of distinction ‑ ‑ ‑

KIRBY J:   That is the point I was raising.  So you are urging that as a distinction; that is quite an important point, I think.

MR WALSH:   Yes, your Honour. 

TOOHEY J:   Was the present respondent substituted at some stage of the proceedings?

MR WALSH:   It was, yes, your Honour.  The present respondent was substituted pursuant to section 125A of the Motor Vehicle Act.  That happened obviously after proceedings had commenced and that was done on the basis that, as it must under that section, be shown or demonstrated that there was some conflict as between the insurer and the defendant, and on our application.

TOOHEY J:   So that up until the point where the present respondent was substituted, much of the argument you have put to us would not have been applicable, is that right?

MR WALSH:   That is so with respect to that issue.

TOOHEY J:   The argument arises because of the substitution of the defendant; is that what you are saying?

MR WALSH:   Yes, your Honour, and indeed that was the time when the argument with respect to the defendant or not being a defendant     should have been raised, and it was not.

KIRBY J:   This issue was not considered in the discretionary decision to substitute the insurer?

MR WALSH:   It was in this sense, and his Honour ‑ ‑ ‑

KIRBY J:   Was it put by you?  Whose application was it?  It was your application.

MR WALSH:   It is our application, your Honour.

KIRBY J:   Was it put that this would deprive the plaintiff of the opportunity of securing exemplary damages?

MR WALSH:   No, it was not, your Honour, but it was at about that time that ‑ ‑ ‑

KIRBY J:   Is that not a reason why one would not readily infer that if the judge did not take that into account in the substitution order?  It is a little hard on the plaintiff to say, by this procedural matter which looks inconsequential, he has lost his right to exemplary damages.

MR WALSH:   And so said Judge Pirone in his judgment, I accept that.  In our respectful submission, the fact remains that it is the record, and that is one of the important points that his Honour Justice McHugh in appeal previously adverted to.  I also put that if special leave were to be granted, that it should be limited to the issue of exemplary damages.  With respect, one short point, namely the point with respect to loss of earning capacity, it will involve full appeal books as opposed to a very narrow issue relating to exemplary damages where damages have already been assessed.

Furthermore, my learned friend puts a gloss with respect to what it is that was important in that case.  He says that essentially the learned trial judge was faced with just poor school reports.  The correct position is this:  firstly, his Honour found that the plaintiff could continue with the work that

he was doing prior to the accident.  He found that he was fit to do that kind of work.  Secondly, he found that there was a lack of motivation and he has had problems with drinking and offences at law and he had also a loss of memory, short‑term memory, all unassociated with the motor vehicle accident and the injuries sustained.

The issue of loss of cognitive function was with respect to new learning and it was a small issue on his Honour Judge Pirone’s findings.  So that what is being asked of this case is not that there be a reassessment or this Court simply substitute its own assessment where there might have been some error, but asking this Court to put a different emphasis completely on the evidence as a whole.  My learned friend’s gloss was, in our respectful submission, clearly not correct.  We point out the facts that we rely upon in our outline of argument.  I will not repeat them but it was not simply a case of loss of cognitive function, thereby being disabled in the market and nothing else contributing towards it.

KIRBY J:   Did the plaintiff in the Full Court challenge the assessment of exemplary damages?  He did not accept Judge Pirone’s assessment or did he?

MR WALSH:   No, there was no challenge to the assessment in dollar terms.

KIRBY J:   I see.  It seems rather low when you look at the 40,000 assessed in Cotogno which was a decade ago.  But anyway, if it was not assessed and it was not challenged, it was not challenged.

MR WALSH:   Quite so, your Honour.  If I may just emphasise this issue with respect to loss of future earning capacity, that it is not ‑ ‑ ‑

DAWSON J:   Your time has run out, Mr Walsh.  We have your outline.

MR WALSH:   If the Court pleases.

DAWSON J:   I do not think we need trouble you, Mr Tilmouth.

There will be a grant of special leave to appeal in this case.

AT 10.53 AM THE MATTER WAS CONCLUDED