Jane EDQUIST v David James William Morewood

[2005] ACTCA 25

JANE EDQUIST v DAVID JAMES WILLIAM MOREWOOD
[2005] ACTCA 25 (9 May 2005)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 35 - 2004
No. SC 149 of 2004
Judges:         Higgins CJ, Crispin P and Tamberlin J
Court of Appeal of the Australian Capital Territory
Date:            9 May 2005

IN THE SUPREME COURT OF THE       )          No. ACTCA 35 - 2004
  )          No. SC 149 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JANE EDQUIST

Appellant

AND:DAVID JAMES WILLIAM MOREWOOD

Respondent

ORDER

Judges:  Higgins CJ, Crispin P and Tamberlin J
Date:  9 May 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. The appellant pay the respondent’s costs of and incidental to the appeal. 

1. The appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 35 – 2004
  )          No. SC 149 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JANE EDQUIST

Appellant

AND:DAVID JAMES WILLIAM MOREWOOD

Respondent

Judges:  Higgins CJ, Crispin P and Tamberlin J
Date:  9 May 2005
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

1. May I say that notwithstanding the very careful and forceful arguments of Mr McDonogh, and we are grateful for the way in which he put them orally, as well as for the written submissions which have been given to us by each of the two parties, we nevertheless have reached a firm view.  I will not repeat the facts of the matter because they are of course stated in the Master’s judgment. Indeed, no factual conclusion of itself is challenged. 

1. Really, the two matters that are raised, alleging errors on the part of the Master, are these. 

1. First of all, the prognosis for surgery.  In relation to that, as I indicated in discussion with Mr McDonogh, there was a statement by the plaintiff to the effect that he had been told that shoulder surgery would, in effect, fix the problem.  The Master does refer to that.  But there was also medical opinion from two well-qualified specialists, Drs Burke and Coyle, who are much less optimistic than that.  In any event, the plaintiff gave what the Master was entitled to think was a valid reason for not wishing to submit himself to surgery. 

1. In those circumstances, the fact that the plaintiff had determined not to undergo surgery, was not itself a reason why the Master might either diminish the damages otherwise to be awarded or regard the plaintiff as being in some way responsible in part for his own continuing misfortune. 

1. The second matter was a submission that the Master was in error in comparing the position of the plaintiff before the accident and after.  Not so much because of that comparison, as I understand it, but rather that when the plaintiff described his post accident position he had referred to the effect upon him as, and I quote from paragraph 10 of the submissions where the evidence is cited, finding things “frustrating”.  He said that he was upset about the lack of general fitness level that he had after the accident and as a result of it.  He gave evidence that he loved his sporting activities before the accident.  There was no challenge to the fact that he had been extremely successful before the accident and indeed was to be regarded as an elite veteran athlete. 

1. The Master found that the effect of the injuries had a devastating impact on the plaintiff’s life and his enjoyment of life, and described them as “immense”.  A challenge was made to that finding as, in effect, not being based on the evidence before the Master indicated, and it is certainly correct to say, that the plaintiff himself did not describe the effect in those terms.  But there are two matters that might answer that.  One is the question of the impression made upon the Master by the plaintiff when he gave evidence.  Notwithstanding the relatively mild terms in which the plaintiff described the effect on his life, the Master was entitled to think that it was greater than that.  Indeed, if you compare his level of achievement before the accident with that afterwards, that very fact in itself would warrant the sort of inference that the Master drew. 

1. It was suggested that the Master, if he was impressed by the plaintiff’s demeanour, should have said something about it.  I do not agree with that.  The influence of demeanour has sometimes been described as “subtle”.  Sometimes it is quite indescribable but nevertheless the ultimate conclusion follows from it, or, at least, is assisted by it.  I see nothing that I would interfere with in the Master’s judgment.  I agree of course that $80,000, as the Master himself acknowledged, is a high award, and it is often very difficult to understand simply from a statement of it why a certain amount is attributed to the past and why it was 50 per cent rather than 45 per cent or 55 per cent.  That sort of judgment is a discretionary one, and I would not myself interfere with it.  For the reasons I have just indicated I would dismiss this appeal.

1. The appellant is to pay the respondent’s costs of and incidental to the appeal.  Otherwise the appeal stands dismissed.

   I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

   Associate:

   Date:     9 May 2005

IN THE SUPREME COURT OF THE       )          No. ACTCA 35 – 2004
  )          No. SC 149 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JANE EDQUIST

Appellant

AND:DAVID JAMES WILLIAM MOREWOOD

Respondent

Judges:  Higgins CJ, Crispin P and Tamberlin J
Date:  9 May 2005
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:

1. I agree with the approach suggested by the Chief Justice and with his Honour’s reasons for judgment.  I would, however, add that it is clear from paragraph 9 of the Master’s judgment that he did take into account the prospect of suggested surgery, and referred to the decision of the High Court of Australia in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643.

1. That factor, however, could clearly not have loomed large in the assessment of damage, firstly because the plaintiff made it clear that he would have such surgery only if, [and I quote], “absolutely necessary”, for reasons that the Master found acceptable and, secondly, because even if moved to have the surgery, the prognosis was guarded. 

1. So far as the question of demeanour is concerned, I agree with the observations of the Chief Justice.  In my opinion the impact of demeanour on the assessment of damages is clearly implicit in the Master’s reasons for judgment, even if not expressly stated.

   I certify that the preceding paragraphs numbered nine to eleven (9-11) are a true copy of the Reasons for Judgment herein of his Honour, President Crispin.

   Associate:

   Date:     9 May 2004

IN THE SUPREME COURT OF THE       )          No. ACTCA 35 – 2004
  )          No. SC 149 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JANE EDQUIST

Appellant

AND:DAVID JAMES WILLIAM MOREWOOD

Respondent

Judges:  Higgins CJ, Crispin P and Tamberlin J
Date:  9 May 2005
Place:  Canberra

REASONS FOR JUDGMENT

TAMBERLIN J:

1. I agree with the reasons for judgment and orders proposed by the Chief Justice in this matter and with the additional observations made by Crispin P. 

1. I would simply draw attention to par 14 of the judgment below, in which the Master noted that this was an unusual case and that the impact of identical injuries would have been very much less on a man of similar age and occupation who had chosen leisure pursuits that were more sedate.  In par 15, the Master states that:

… the injuries have completely changed the plaintiff’s life. He has lost the capacity to engage in activities which were of great importance and enjoyment for him. The effect of the injuries on the plaintiff’s enjoyment of life has been and will continue to be immense ...

The Master was quite conscious that he was making a much greater award of damages than would normally be associated with a person who did not engage in these types of activities.

1. It is evident from the Master’s observations that demeanour played a significant part in the assessment of the impact of the injuries on the respondent, and, given that this is a matter of fact and degree, I am not persuaded that any error of law or principle has been established in the Master’s application of the prevailing law to the facts of this particular case.

1. Accordingly, I agree with the orders proposed by the Chief Justice.

   I certify that the preceding paragraphs numbered twelve to fifteen (12-15) are a true copy of the Reasons for Judgment herein of his Honour, Justice Tamberlin.

   Associate:

   Date:     9 May 2005

Counsel for the Appellant:  Mr M A McDonogh

Solicitor for the Appellant:  Phillips Fox

Counsel for the Respondent:  Mr R Mildren

Solicitor for the Respondent:  Vandenberg Reid

Date of hearing:  9 May 2005

Date of judgment:  9 May 2005