KASUMOVIC v BLANCO

Case [2007] SASC 267

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

KASUMOVIC v BLANCO

[2007] SASC 267

Judgment of The Honourable Justice Layton

19 July 2007

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - FINDINGS ON ISSUE OF NEGLIGENCE - GENERALLY

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION - OTHER CASES

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - EXTENT OF OBLIGATION TO GIVE REASONS - GENERALLY

Appeal against decision of a magistrate who dismissed the appellant's (plaintiff's) claim for damages arising from a motor vehicle accident allegedly caused by the negligence of the respondent (defendant) - the Magistrate was satisfied that the plaintiff suffered from a severe psychiatric disorder and a back injury but not persuaded that those injuries were causually connected to the accident - whether Magistrate failed to provide adequate reasons and make appropriate findings of fact - whether Magistrate failed to properly assess the evidence, in particular corroborative evidence of the plaintiff's wife and the medical evidence - whether Magistrate erred in drawing adverse conclusions from the plaintiff's failure to call relevant witnesses and inconsistencies in his evidence.

Held: - the Magistrate's reasons were inadequate and amounted to an appealable error - the Magistrate failed to properly differentiate between narrative, submissions of counsel and findings of fact - the Magistrate failed to properly address and assess the evidence, in particular the evidence of the plaintiff's wife and the medical evidence - as a consequence the Magistrate failed to make adequate findings of fact on primary issues - the Magistrate erred in drawing adverse conclusions against the plaintiff in the circumstances - appeal allowed - dismissal of the plaintiff's claim set aside - re-trial ordered.

Magistrates Court Act 1991 s 40; Supreme Court Civil Rules 2006 Rule 292, referred to.
CSR Ltd v Della Maddalena (2006) 80 ALJR 458; Devries v Australian National Railways Commission (1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118, applied.
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; Ex parte Powter, Re Powter (1945) 46 SR (NSW) 1; Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377; Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] 6 VR 1; Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] 6 VR 1; Mifsud v Campbell (1991) 21 NSWLR 725; North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435; Public Service Board (NSW) v Osmond (1986) 159 CLR 656; Rana v SkyCity Adelaide Pty Ltd [2007] SASC 46; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, considered.

KASUMOVIC v BLANCO
[2007] SASC 267

Magistrates Appeal: Civil

LAYTON J:

Introduction

  1. This is an appeal…

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KASUMOVIC v BLANCO [2007] SASC 267
Case
[2007] SASC 267
Decision Date

CaseChat Overview and Summary

Kasumovic v Blanco was an appeal against the decision of a magistrate who dismissed the plaintiff's (appellant) claim for damages arising from a motor vehicle accident allegedly caused by the negligence of the defendant (respondent). The Magistrate was satisfied that the plaintiff suffered from a severe psychiatric disorder and a back injury but was not persuaded that those injuries were causally connected to the accident. The appeal centred on whether the Magistrate failed to provide adequate reasons and make appropriate findings of fact, whether the Magistrate failed to properly assess the evidence, and whether the Magistrate erred in drawing adverse conclusions from the plaintiff's failure to call relevant witnesses and inconsistencies in his evidence.

The appeal court found that the Magistrate's reasons were inadequate and amounted to an appealable error. The Magistrate had failed to properly differentiate between narrative, submissions of counsel, and findings of fact. The court further found that the Magistrate had failed to properly address and assess the evidence, in particular the evidence of the plaintiff's wife and the medical evidence. Consequently, the Magistrate failed to make adequate findings of fact on primary issues. Additionally, the court found that the Magistrate erred in drawing adverse conclusions against the plaintiff in the circumstances. The appeal was allowed, and the dismissal of the plaintiff's claim was set aside. A new trial was ordered to proceed before a different magistrate.

In summary, the appeal court found that the Magistrate's inadequate reasoning and failure to properly assess the evidence led to a miscarriage of justice. The complexity of the matters to be determined, including the ongoing nature of the injuries, the cause and effect of the psychotic condition, and the extent of compensable incapacity and damages, warranted a new trial.

Orders

Orders of the court

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Background

Background to the litigation

Fourth, that the Magistrate erred in drawing an adverse conclusion from the plaintiff’s failure to call his parents and workmates as witnesses.BackgroundThe trial The defendant admitted liability for the accident, but denied the plaintiff's allegations of injury, loss and damage. In the alternative, the defendant stated that if there was such injury, the plaintiff had sufficiently recovered and suffered no effect from any injury which may have been sustained in the accident. The trial took place in March 2006 and occupied some five days. The documentary evidence, particularly in the form of medical reports, was significant. Unfortunately, most of them were bundled together as Exhibit P5 and not separately numbered or identified. It is concerning as to whether by the time the matter reached this Court, all of the medical reports have been included in the exhibit. I checked this with counsel at the hearing before me and I satisfied myself that all reports were present. The following reports were tendered: The plaintiff gave evidence himself and called Dr Zuvela; Mr Redzif Nasup; Dr Siklich; Ms Arnesa Pleao, his estranged wife; Mr Paul Kassipidis and Mr Dino Ligato. The defendant called Dr Champion; Dr Synnott and Mr Lopez.Relevant legal principlesAppeal by review An appeal to this Court from the Magistrates Court is by way of rehearing.[1] This Court is therefore obliged to conduct a real review of the trial and of the Magistrate's reasons.[2] As Kirby J (with whom Gleeson CJ agreed) said in CSR Ltd v Della Maddalena:[3]... the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having concluded a rehearing as so described, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of 'weighing conflicting evidence and drawing ... inferences and conclusions'. [Footnotes omitted][1] Magistrates Court Act 1991 (SA) s 40; Supreme Court Civil Rules 2006 r 292(1).[2] Fox v Percy (2003) 214 CLR 118, 126-127 [25].[3] (2006) 80 ALJR 458 [16].Appeals concerning credibility of witnesses This appeal questions the Magistrate’s findings as to the credibility of witnesses. In Devries v Australian National Railways Commission[4] the High Court reminded appellate courts of the approach to be taken to findings of fact that depend to a substantial degree on the credibility of witnesses and of the limited basis upon which the appellate courts are entitled to interfere with such findings: More than once in recent years, this Court has pointed out that a finding of fact by a trial Judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial Judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial Judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable". [Footnotes omitted][4] (1993) 177 CLR 472, 479.

Evidence

Evidence Before The Court

Having indicated these matters in a general sense, I will now address the precise grounds of appeal, commencing with the second ground.Ground 2: Assessment of the evidence of the plaintiff's wife The essence of the plaintiff's arguments in relation to the evidence of the plaintiff's wife is that the Magistrate failed to make any finding as to his acceptance or rejection of her evidence, except for the limited topic of cohabitation. Further, it is submitted that if the Magistrate had accepted the evidence of the plaintiff's wife, he failed to have regard to the fact that it was corroborative evidence as to the plaintiff’s symptoms, the injuries sustained, and whether or not they were probably caused by the accident. It is argued that, instead, the Magistrate made an adverse finding of the plaintiff’s credit based on a lack of corroboration by relevant witnesses. Alternatively, it is submitted that if the Magistrate had rejected the evidence of the plaintiff's wife as lacking credit, he did not state that and failed to give any reasons for such rejection. In essence, counsel for the plaintiff submitted that the Magistrate did not make any relevant findings one way or the other as to the evidence of the plaintiff’s wife with regard to symptoms complained of by the plaintiff after the accident. The plaintiff’s wife, Ms Arnesa Pleao, gave the following evidence:Q. Have you any recollection of him arriving home after the accident how he looked.A.Yes, I saw him I never really forgot, I never forget, you know, that night he was really pale in the face, visibly shaken. His eyes really red and his eyes movement really strange. He couldn’t move his elbow later on.Q.Which elbow.A.I think right hand. I think but it was really long ago so I can’t tell you exactly. What else – he wanted to sit down I just put him on the bed relax a bit. He was, he just kept quiet really like shaken. Really, really strange. He wasn’t himself.…Q.Do you recall the next morning.A.Next morning he got up in pain again.OBJECTION: MR WARD OBJECTSQ.What observations did you make of your husband the next morning.A.Nothing he was still in the bed it was day, you know, time to get up and he was still in the bed, lying in the bed. I went to his door to check how is he and then he told me he is in pain. I could see the same from last night not improvement at all. I suggest for him to go to the doctor but he refused that.Q.Do you recall whether he went to work, or not.A.He went to work. He went to work. I can’t remember was it that day or tomorrow but he went to work straightaway from the accident, yes.Q.You mentioned pain did that improve over a period.A.Well he worked. He worked but every time he came back from work he just complain strong headaches, back pain and neck pain. And every day he comes from work he used to take two Panadeine Forte and Panadols and different pain reliefs for the pain and that put him to sleep for couple of hours. He was complaining all the time. You know, he wasn’t the same person really.Q.Did you do anything to assist him during that period.A.Well, yes, you know, I saw something really happening, something going on. I gave him – I tried different creams for massage to relax his muscles and joints but nothing really helped a lot and that was a physical pain and not after long – not long after that I notice some psychological changes as well.Q.What psychological changes did you notice.A.He started to be very isolated. Probably he’s that type of person when he’s in pain he never talk about that. He express himself different ways like being aggressive going out of control easily, being upset with little things. When he comes back from work always quiet, lying down. He withdraw from – we had the family friends he didn’t want to go to see anybody, no-one come to our house any more. You know, step by step I should tell you million things what happened but gradually, you know, he become really ill.Q.You said he was playing soccer – A.We had arguments all the time. I couldn’t cope. I tried to help him as much as I could. I tried, I really tried so hard.Q.What would you do. How would you try.A.I mean I tried to be patient. You know, I thought this is temporary and he will go out of this by himself. That’s what he told me. Everyone time I suggested ‘Why don’t you go and seek help?’ He said ‘I will be better. I will be better’, that’s it. No more talking, no more explanation why he is doing that like and he wasn’t really ready. He wasn’t – he wasn’t able – he couldn’t care for the child any more. Every time I pass him the child to hold or cuddle a bit he refused that as well.Q.Could you tell me the dates of birth of the two children.A.You want to know dates?Q.Yes.A.31 of August 2002 and another child 27 August 2005.Q.You said that after the first child was born you would pass him the child.A.Yes, I was going really through the emotions myself, you know, being pregnant, alone all the time and not having too much help from him. And passing through the emotions I couldn’t cope any more with him because he refused seek – he refused to go to the doctor and seek help and I couldn’t just handle any more. I couldn’t – I was really I don’t know.Q.Seek help for what.A.Well his pain. Especially for psychological, you know, thing.Q.Did you make a decision in regard to the relationship.A.Yes.Q.What was that decision.A.I decided to leave because for me life with him was just impossible. It was really hard for me so I left with the child.Q.When was that.A.December 2002 when my son was about four months.Q.I don’t mean this in any condescending way but was it a major decision for you to decide to leave the marriage.A.Of course, of course it wasn’t easy at all. Especially I’m living in such a community and, you know, how can I say – it’s not easy for me that big step wasn’t really easy but I tried so hard and I knew if I stayed even longer it would just be even worse for me. I as a woman couldn’t cope with Elmedin any more. I couldn’t be with him because it was really nothing between me and him as a man and wife. He was just sick person. He had serious problem, that’s what I think.Q.What were those serious problems he had as you saw it.A.As I told you he wasn’t himself any more, life become just so bad for him. He was so withdrawn from society and he doesn’t want to care, he didn’t want to care about me, about child any more. What a dramatical change no-one believed really not my parents and people who know us. Everybody ask me ‘What’s going on with Elemedin?’ You know, ‘Are you okay?’ You know, different questions. But I couldn’t give them an answer. I was really embarrassed, you know, in the beginning, I didn’t know what to say. I just left, yes.Q.Why were you embarrassed.A.Well embarrassed about my husband, you know, what he’s doing to himself to his family to everybody. He wasn’t like that just to me to everybody. He become like not normal you know what I mean? I mean he got upset very easily. He started – during the night for example, he started he woke up in a cold sweat screaming having nightmares about accident. Killing people, yes, he told me about killing people so many times. I said ‘Why you want to kill someone?’ Especially when he was driving it was easy for him like to attack someone or kill but he wasn’t like that before, you know. And I got surprised as his wife how come such a man become this the really 100% change. Also one night I remember he woke up in the evening he wanted to go for work in the middle of night he got dressed he said ‘I’m late, I’m late for work’. I said ‘It’s 2 o’clock, it’s 2 o’clock in the night – in the morning it’s too early’. He said ‘No, no, I have to go to work’. He start his engine like crazy, you know, he didn’t know what he was doing. You know what I mean? ….

Decision

Reasons for decision

The Magistrate appears to have formed the view that in the absence of the plaintiff calling his parents or workmates, there was no corroboration of the plaintiff’s case. In my view, there was no lack of corroborative evidence, and the Magistrate was wrong on that point. In these circumstances I consider no adverse conclusion should have been drawn by the plaintiff's failure to call his parents or workmates. Conclusion For the aforementioned reasons I consider that there are appealable errors in the Magistrate’s approach to the evidence, the inadequate reasoning given on fundamental issues in the case, as well as the apparent lack of appropriate findings. I consider that Ground 1 is also made out when all grounds of appeal are considered collectively. In my view, these errors are such as to give rise to a miscarriage of justice and warrant the intervention of this Court. I have considered whether this intervention should be in the form of a new trial or whether this is a case in which only one conclusion is reasonably open on the evidence. Having considered this issue long and hard, I have reluctantly concluded that the complexity of matters to be determined, are not straightforward. Whilst I have formed the view that the plaintiff on the evidence so far adduced, is likely to succeed in relation to his claim for damages for both physical and psychological injuries, there are other complexities which need to be addressed. These include the ongoing nature of such injures, the cause and effect of the psychotic condition and the extent of compensable incapacity and damages. Accordingly, I order as follows:1. Appeal allowed.2. The Magistrate’s dismissal of the plaintiff’s claim is set aside.3. A new trial is ordered to proceed before a different magistrate.I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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