Kenny v Ritter

Case [2009] SASC 139


SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

KENNY v RITTER

[2009] SASC 139

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Layton)

22 May 2009

TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES - GENERALLY

Appeal and cross-appeal from judgment of District Court in relation to motor vehicle accident - trial Judge concluded both plaintiff and defendant negligent - apportioned liability for collision 70% against defendant and appellant and 30% against plaintiff/respondent and cross-appellant - damages assessed in amount of $237,125 - whether Judge erred in approach to apportionment of liability - whether Judge erred in assessment of damages.

Held: appeal with respect to liability allowed - trial Judge's apportionment of liability set aside - plaintiff to recover one half of damages to be assessed - appeal with respect to assessment of quantum allowed - assessment of damages with respect to loss of future earning capacity increased from $33,000 to $100,000 - assessment with respect to pain and suffering increased from $11,970 to $19,470 - additional $8,757.03 awarded for special damages - total increase in damages from $237,125 to $320,382.02 - plaintiff entitled to half this amount, namely $160,191.015.

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - POWER TO CONTROL PROCEEDINGS - MISCELLANEOUS POWERS

Scope of duty of Judge to litigant in person - whether material unfairness to defendant resulted as consequence of intervention of trial Judge in plaintiff's case.

Held (per Gray & Layton JJ): Judge under significant duty to assist litigant in person - level of assistance given by trial Judge overstepped the mark - no prejudice to defendant's case resulted - no material unfairness to defendant resulted.

(per Anderson J):  not appropriate case to assess court's responsibilities to litigant in person - issue of duty of court to unrepresented litigant not sufficiently raised or argued on case - outcome on liability and quantum not affected by any interference of trial Judge - trial Judge did not intervene to inappropriate extent - no procedural unfairness resulted.

Law Reform (Contributory Negligence and Apportionment of Liability) 2001 (SA) s 7 and s 8; Wrongs Act 1936 (SA) s 35A, referred to.
Cachia v Hanes (1994) 179 CLR 403; Dietrich v R (1992) 177 CLR 292; Neil v Nott (1994) 121 ALR 148; Rajski v Scitec Corporation Pty Ltd (unreported, NSWCCA, 16 June 1986); Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438; Johnson v Johnson (1997) 139 FLR 384; Hunter v Webb (unreported, Federal Court, 19 July 1996); Studer v Konig (unreported, NSWSC, 4 June 1993); Panagopoulos v Southern Health Care Network (unreported, VicSC, 25 August 1997); Blair v Maynard, 324 SE 2d 391 (W .Va. 1984); Maher v Wall [2000] SASC 176; Pezos v Police (2005) 94 SASR 154; Stoekel v Harpas (1971) 1 SASR 172; Walton v Rowbottom (unreported, SASC, 17 September 1986); Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492;

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AGLC
Kenny v Ritter [2009] SASC 139
Case
[2009] SASC 139
Decision Date

CaseChat Overview and Summary

The Court of Appeal considered an appeal and cross-appeal from a judgment of the District Court concerning a motor vehicle accident. The trial judge found both the plaintiff and defendant negligent in causing the collision, apportioning 70% liability to the defendant and 30% to the plaintiff. The damages were assessed at $237,125. The plaintiff, as cross-appellant, challenged the apportionment of liability and the assessment of damages, while the defendant, as appellant, contested the trial judge's approach to apportioning responsibility and the quantum of damages awarded.

The Court of Appeal examined whether the trial judge had erred in apportioning liability between the parties and in assessing the damages. Regarding the apportionment, the appellate court found that the trial judge's approach was flawed and set aside the original liability distribution, ordering that the plaintiff recover half of the damages to be reassessed. As for the damages, the appellate court increased the assessment of loss of future earning capacity, pain and suffering, and special damages, leading to a total damages award of $320,382.03. Consequently, the plaintiff was entitled to half of this amount, $160,191.015.

The appellate court allowed the appeal concerning the apportionment of liability, setting aside the trial judge's 70/30 split in favour of an equal 50/50 division. It also allowed the appeal regarding the damages assessment, increasing the total damages from $237,125 to $320,382.03, with the plaintiff ultimately entitled to $160,191.015. The judgment would take effect from the date of the District Court's original judgment, 18 June 2008, and the parties would be heard on costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY AND LAYTON JJ
Finally, as earlier referred to, it was agreed that the damages assessment should be increased to provide an allowance for special damages of $8,757.03.Conclusion As a result of the foregoing, we would increase the assessment of the plaintiff’s damages from $33,000.00 to $100,000.00 with respect to loss of future earning capacity; from $11,970.00 for pain and suffering to the sum of $19,470.00; and by the sum of $8,757.03 for special damages. The total increase is an amount of $103,257.03. This leads to a total assessment including interest of $320,382.03. The plaintiff, in our opinion, is entitled to recover one half of his assessed damages - a total sum of $160,191.015. We would allow the appeal with respect to liability, set aside the apportionment of liability made by the trial Judge. In lieu we would order that the plaintiff recover one half of his damages to be assessed. We would allow the appeal against the assessment of damages. We would increase the assessment including interest from $237,125.00 to $320,382.03. The plaintiff is entitled to judgment in the amount of $160,191.015. We would order that the judgment take effect as from the date of the judgment of the District Court - 18 June 2008. We would hear the parties as to costs. ANDERSON J: In this matter I have had the advantage of reading reasons in draft prepared by Gray and Layton JJ. I agree with their Honours’ conclusions both in relation to liability and in respect of damages. I also agree with the reasons expressed by their Honours for those conclusions. I further agree with the orders proposed in those draft reasons. However, I do not agree with the comments made in relation to the topic of the assistance given by the trial judge to the plaintiff who presented his case as an unrepresented litigant. It is my view that this is not an appropriate case in which to make general statements as to a court’s responsibilities toward an unrepresented litigant because the point has not been sufficiently raised or argued and because it makes no difference to the result. There is no ground of appeal raised by the defendant relating to the question of the role of the trial judge. The point arose in the written response of the defendant to the cross-appeal by the plaintiff relating to Her Honour’s assessment of the appropriate damages to be awarded to the plaintiff. The plaintiff did appeal on the basis of the lack of opportunity to prove special damages but Mr Birchall for the respondent conceded that this ground of appeal was based on an error as to what occurred. In the written outline of argument provided to the court, counsel for the defendant summarised the following under the heading “Her Honour’s Involvement in the Plaintiff’s Case”:1. Her Honour assisted the plaintiff’s case. Her Honour asked questions in chief.2.A good example is page 55 and page 62 onwards, where her Honour asked questions almost as counsel would.3.Her Honour cross-examined Mr Robinson, page 549.10.4.Her Honour cross-examined Dr Begg at page 641.10.5.Her Honour challenged counsel as not being candid, but was wrong to have done so, as she conceded subsequently, page 675.02.6.It is the defendant’s position that her Honour went too far. The involvement in the plaintiff’s case and then the failure to make crucial findings on issues that were important to the defendant and the acceptance of the plaintiff, both on the question of liability and quantum, appears to have on the face of it reflected this involvement.7.Pezos v Police (2005) 94 SASR 154 at [9]-[21] illustrates the principles.In oral argument Mr Walsh QC, counsel for the defendant, although maintaining the criticism of the judge in the written outline, properly described Her Honour’s involvement as going “a little bit too far”. He said he was not making “a strident criticism”. He also acknowledged the fact that the judge had to ask some questions and assist in the examination-in-chief of the plaintiff.

Ratio Decidendi

Legal Principle Established

Established by: GRAY AND LAYTON JJ

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