Kenny v Ritter - [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; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Mugford v Ames [2000] SASC 241; Hooker v Grinham (1997) 26 MVR 233; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Cesan v R (2008) 250 ALR 192, considered.

KENNY v RITTER
[2009] SASC 139
Full Court Gray, Anderson and Layton JJ
GRAY AND LAYTON JJ.

This is an appeal and cross-appeal from a judgment of the District Court following a civil trial.
At or about 5.35 am on 29 August 2002, a motor vehicle driven by the plaintiff and cross-appellant, Linsay James Ritter came into collision with a motor vehicle driven by the defendant and appellant, Douglas Shane Kenny, on the Riddoch Highway near Tarpeena in the South East of South Australia.
The trial Judge concluded that both plaintiff and defendant were negligent in the driving of their motor vehicles and apportioned liability for the collision 70% against the defendant and 30% against the plaintiff. The Judge assessed the plaintiff’s damages, including interest, in the amount of $237,125.60. Judgment was entered for the plaintiff for $165,987.50.
On appeal, the defendant submitted that in the circumstances, the plaintiff was solely responsible for the collision, but that in the alternative, an apportionment of 70/30 against the defendant was manifestly inappropriate.
The plaintiff submitted that the apportionment was appropriate, but contended that the damages award was inadequate. It was said that more substantial assessments should have been made with respect to three components – pain and suffering, gratuitous services and future loss of earning capacity. The plaintiff raised one further complaint relating to special damages. However, during the hearing of the appeal the parties agreed that special damages of $8,757.03 be included as part of the plaintiff’s assessed damages.
The Unrepresented Litigant
Before embarking on a consideration of the issues of liability and quantum arising on the appeal, it is convenient to raise at the outset a contention of both parties that the Judge had inappropriately handled the trial at which the plaintiff was unrepresented.
The defendant’s amended notice of appeal contains grounds that relate to the Judge’s findings of credibility and reliability in respect of a number of witnesses. The defendant’s written submission developed these complaints[1] and further complained that the Judge involved herself too much in the unrepresented plaintiff’s case. It was said that the Judge failed to give adequate reasons for her acceptance and rejection of the evidence of those witnesses.
[1] The written submission included the following:
HER HONOUR’S INVOLVEMENT IN THE PLAINTIFF’S CASE
Her Honour assisted the plaintiff’s case. Her Honour asked question in chief.
A good example is p 55 and p 62 onwards, where Her Honour asked questions almost as counsel would.
Her Honour cross-examined Mr Robinson, p 549.10.
Her Honour cross-examined Dr Begg at p 641.10.
Her Honour challenged counsel as not being candid, but was wrong to have done so, as she conceded subsequent, p 675.2.
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.
Pezos v Police (2005) 94 SASR 154 at paras 9 to 21 illustrates the principles.
It became apparent during the course of the defendant’s oral submissions that much of the criticism directed toward the Judge’s findings on credibility and reliability related to passages of evidence where the Judge herself had engaged in extensive questioning of the witnesses. During the course of oral submission, counsel for the defendant further developed the contention that the Judge had gone too far in the examination and cross-examination of witnesses and had entered into the fray too much. It was said that the Judge had engaged in “impermissible cross-examination” and had gone so far as to run the cross-examination on behalf of the plaintiff. Attention was drawn to the observations of Debelle J in Pezos v Police.[2] However, notwithstanding these complaints it was accepted by the defendant, that if no unfairness arose as a result of the role adopted by the Judge, no consequence would follow.
[2] Pezos v Police (2005) 94 SASR 154.
Counsel for the plaintiff on appeal took no objection to counsel for the defendant advancing these submissions. No complaint was raised that the defendant was advancing contentions that went beyond the grounds of appeal.
The cross-appeal included a ground that the Judge had failed to ensure that the plaintiff, as an unrepresented party, had the opportunity to prove his entitlement to special damages. The written submissions developed this complaint and called in aid observations made by Duggan J in Maher v Wall.[3]
[3] Maher v Wall [2000] SASC 176 at [45] – [49].
The plaintiff complained that the Judge failed to point out to the plaintiff the need to tender evidence with some particularity with respect to a claim for special damages. This complaint was addressed by the parties agreeing the quantum of special damages at the hearing of the appeal. The defendant’s concession that the special damages should be included in the ultimate assessment was subject to the defendant suffering no other prejudice from that concession.
In this State a consideration of the court’s responsibilities toward the unrepresented litigant has been discussed in a number of authorities by single Judges, generally sitting on appeal from magistrates. The earlier decisions referred to, of Maher v Wall[4] and Pezos v Police,[5] make reference to a number of the authorities discussed below.
[4] Maher v Wall [2000] SASC 176.
[5] Pezos v Police (2005) 94 SASR 154.
The common law has long recognised the right of litigants in civil or criminal proceedings to appear for themselves.[6] That right should be respected.
[6] This right has been described as “fundamental”: Cachia v Hanes (1994) 179 CLR 403 at 415.
It is generally accepted that self-represented litigants pose a challenge to the courts. The difficulty presented by the self-represented litigant is consequent upon the difficulties faced by a person when entering an arena of adversarial litigation designed to be conducted by persons with the appropriate professional skill. In the absence of competent legal representation, the court does not receive the assistance that it ought in relation to questions of fact and law. As a consequence, a burden is often placed upon the court to assist the unrepresented litigant, particularly when that litigant might be faced with an opponent represented by competent legal counsel.[7]
[7] The difficulties that arise as a consequence of the unrepresented litigant were addressed by the Australian Law Reform Commission: Australian Law Reform Commission, The Unrepresented Party (1996) December, adversarial background paper 4, Australian Government Publishing Service, Canberra. In the course of its conclusion, the Commission summarised the dilemma of Judges when faced with an unrepresented litigant:
A court is faced with different challenges in cases where one or both parties are unrepresented. When only one party is unrepresented, a primary difficulty can be maintaining the perception of impartiality. Judges need to ensure that all relevant evidence is heard, relevant questions asked of witnesses, and that the unrepresented party knows and enforces their procedural rights. The represented party may see such judicial intervention as partisan, and judges must ensure they do not apply different rules to unrepresented parties…
The High Court of Australia has recognised these difficulties. In Cachia v Hanes, Mason CJ observed:[8]
Whilst the right of a litigant to appear in person is fundamental, it would be disregarding the obvious to fail to recognise that the presence of litigants in person in increasing numbers is creating a problem for the courts[9]. It would be mere pretence to regard the work done by most litigants in person in the preparation and conduct of their cases as the equivalent of work done by qualified legal representatives. All too frequently, the burden of ensuring that the necessary work of a litigant in person is done falls on the court administration or the court itself. Even so, litigation involving a litigant in person is usually less efficiently conducted and tends to be prolonged[10]. The costs of legal representation for the opposing litigant are increased and the drain upon court resources is considerable.
[8] Cachia v Hanes (1994) 179 CLR 403 at 415.
[9] The problem is well documented in the United States: see Mueller, "Abusive pro se Plaintiffs in the Federal Courts: Proposals for Judicial Control", (1984) 18 Journal of Law Reform 93 at 101; Rubin, "The Civil Pro Se Litigant v The Legal System", (1989) 20 Loyola University Law Journal 999; Gillies, "Who's Afraid of the Sanction Wolf: Imposing Sanctions on pro se Litigants", (1989) 11 Cardoso Law Review 173.
[10] See Powles, "Litigant in Person - Discussion Paper" in Australian Institute of Judicial Administration, The Litigant in Person, (1993) 7 at 10-11.
In Dietrich,[11] Mason CJ and McHugh J outlined a number of the disadvantages suffered by the litigant in person, and the necessary involvement of the court to alleviate these:
An unrepresented accused is disadvantaged, not merely because almost always he or she has insufficient legal knowledge and skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the Crown. The hallowed response that, in cases where the accused is unrepresented, the judge becomes counsel for him or her, extending a “helping hand” to guide the accused throughout the trial so as to ensure that any defence is effectively presented to the jury, is inadequate for the same reason that self-representation is generally inadequate: a trial judge and a defence counsel have such different functions that any attempt by the judge to fulfil the role of the latter is bound to cause problems. As Sutherland J stated in Powell v Alabama, when delivering the judgment of the United States Supreme Court: “But how can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that in the proceedings before the court the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.”
These observations apply equally to civil proceedings.
[11] Dietrich v R (1992) 177 CLR 292 at 302 [footnotes omitted].
The courts have recognised that when faced with a litigant in person, a measure of judicial intervention is not simply permissible but necessary, in order to ensure a fair hearing. The nature of the duty of a judge conducting a trial with a self-represented party has been the subject of a number of authoritative discussions. The general approach which a court should take to a litigant in person in civil proceedings was addressed by Samuels JA in Rajski v Scitec Corporation Pty Ltd:[12]
In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. In these days of reasonably available legal aid, a litigant in person is becoming increasingly uncommon. At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. It may add weight on the unrepresented party's side of the scale; it must not lighten the other. An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.
[12] Rajski v Scitec Corporation Pty Ltd (unreported, NSWCCA, 16 June 1986) at 14.
The duty of the judge is not to advise the unrepresented party how to conduct that party’s case but to ensure that the party is fully aware of the legal position in relation to the procedural and substantive aspects of the case, thereby putting the party in a position to make effective choices. These duties have been similarly observed in the criminal context, where the courts have recognised that where an accused is unrepresented, the trial judge is under a duty to ensure that the accused has a fair trial.[13]
[13] See the observations of Chernov JA in R v White; R v Piggin (2003) 7 VR 442 at [38]; and of Hunt J in R v Gidley [1984] 3 NSWLR 168 at 181; see also McPherson v R (1981) 147 CLR 512 at 546–547 (Brennan J); see also at 535 (Mason CJ).
The scope of the duty of the court to the litigant in person is constrained by the fact that the judge must endeavour to maintain the appearance of impartiality. This difficulty was commented upon by Sheppard J in Hunter v Webb:[14]
[The applicant] was unrepresented and suffered the difficulties unrepresented parties often have in courts. I think it should be clear that judges are very understanding of their difficulties. They realise that, particularly in a matter that is apparently as complex as this, a litigant in person is disadvantaged. The court to a degree endeavours to make up for this, but it cannot redress the balance completely because, if it does so, it will appear to be acting favourably to the litigant in person and adversely to the litigant who is represented. It thus creates an appearance of unfairness and disadvantage for the person who is represented which is to be avoided. So the path the court has to tread is not an easy one, and it is not unlikely that misapprehensions and misinterpretations of what the court does or does not do from time to time during the course of a case will occur. That is something that judges have to put up with, particularly bearing in mind the increasing numbers of cases which we are now finding coming before the court in which there are unrepresented parties.
[14] Hunter v Webb (unreported, Federal Court, 19 July 1996).
In Studer v Konig,[15] McLelland CJ also noted the limitations that constrain the court with respect to how far the court may go in providing assistance to a litigant in person:
But there are limits to how far the court can properly go in providing such assistance, and the limits are reached when to go any further would either: (a) compromise either the impartiality, or the appearance of impartiality, of the court; or (b) result in procedural or substantive injustice to the other party.
[15] Studer v Konig (unreported, NSWSC, 4 June 1993).
The challenge posed by litigants in person is not unique to the Australian courts.[16] Lord Woolf has commented in relation to the United Kingdom experience that too often the litigant in person is regarded as a problem for the judges and for the court system, and that the true problem is the court system and its procedures which are still too often inaccessible and incomprehensible to ordinary people.[17] In his report on access to justice, Lord Woolf recommended that judges should be prepared to adopt an interventionist approach in all cases involving an unrepresented party in order to ensure that the unrepresented party gets a fair hearing and understands and accepts the outcome of the case.[18]
[16] See commentary in Canadian Bar Association National Task Force on Systems of Civil Justice Report The Canadian Bar Association (1996); see commentary in relation to the position in the United States in R Craston, Access to justice: Background Report for Lord Woolf’s Inquiry, Lord Chancellor’s Department London (1995) at 156.
[17] Lord Woolf, Access to justice: Interim report to the Lord Chancellor on the civil justice system in England and Wales (1995) at 119 as cited in Australian Law Reform Commission, The Unrepresented Party (1996) December, adversarial background paper 4, Australian Government Publishing Service, Canberra.
[18] Lord Woolf, Access to justice: Interim report to the Lord Chancellor on the civil justice system in England and Wales (1995) at 135.

In the United States, similar concerns have been canvassed and the necessary involvement of the courts has also been recognised. As the court noted in Blair v Maynard:[19]
We are not proposing that trial judges should become surrogate attorneys for pro se litigants. The fundamental tenet that the rules or procedures should work to do substantial justice, however, commands that judges painstakingly strive to insure that no person’s cause or defense is defeated solely by reasons of their unfamiliarity with procedural or evidentiary rules.
Of course, the court must not overlook the rules to the prejudice of any party. The court should strive, however, to ensure that the diligent pro se party does not forfeit any substantial rights by inadvertent omission or mistake. Cases should be decided on the merits, and to that end, justice is served by reasonably accommodating all parties, whether represented by counsel or not. This “reasonable accommodation” is purposed upon protecting the meaningful exercise of a litigant’s constitutional right of access to the courts. Therefore, ultimately, the pro se litigant must bear the responsibility and accept the consequences of any mistakes and errors.
This Court recognizes that “[t]he proper scope of the court’s responsibility [to pro se litigants] is necessarily an expression of careful exercise of judicial discretion and cannot be fully described by specific formula.”[20] Each case presents a wholly different set of circumstances which require careful attention so as to preserve the rights of all parties.
[19] Blair v Maynard, 324 SE 2d 391 (W .Va. 1984) [footnotes omitted].
[20] ABA Commission on Standards of Judicial Administration, Standards Relating to Trial Courts, § 2.23 Conduct of Cases Where Litigants Appear Without Counsel (Commentary) (1976).
These authorities clearly demonstrate that when the self-represented litigant is before the court, the judge must ensure that a fair trial takes place. In order to achieve this, the judge is required to assist the self-represented litigant. However, the judge must equally ensure that despite any assistance to the litigant in person, the perception of impartiality is maintained. In our view, the following principles emerge from the authorities discussed.
-A litigant has a fundamental right to appear in person. When faced with a litigant in person, the court is under a duty to give such assistance to that litigant as may be required to ensure that there is a fair trial. The purpose of the assistance is to ensure that as far as possible, the disadvantage that litigants may suffer as a result of lack of representation is adequately addressed.
-Although the duties of the court in relation to self represented litigants are discussed by numerous authorities, it is difficult to ascertain a common approach as to the manner and form in which assistance is provided which can be applied in practice to all circumstances. This is unsurprising bearing in mind the myriad of circumstances in which litigants may appear in person. However, the authorities do provide general guidance as to principles which can be applied by the courts.
-Judicial assistance would include ensuring that unrepresented litigants are aware of their substantive and procedural rights, which in turn would depend upon the nature and circumstance of the case.
-The degree and form of the judicial assistance required depends upon several factors, including the overall knowledge and skills of the litigant and the particular circumstances of the case.
-Judicial assistance is to be limited to that which is necessary to diminish so far as possible the disadvantage that the unrepresented litigant will suffer when another party or parties are represented by a lawyer. It is a matter of redressing imbalance so far as possible but at the same time ensuring that the party who is represented is not thereby disadvantaged and thereby obtains less entitlements.
-In order to provide assistance to redress any imbalance or disadvantage which may arise by reason of lack of legal representation, the court should first assess the degree to which an unrepresented person may require assistance. This is not to be an automatic assumption.
-It is not part of the role of a judge to become an advocate for the unrepresented person; or stand in the shoes of counsel acting for that litigant; or unduly interfere with the conduct of the trial on the litigant’s behalf. Instead, the court has the difficult task of striving to achieve a balance between these seemingly conflicting duties to ensure that there is a fair trial.
-The court at all times is under an obligation to maintain the appearance of impartiality and neutrality and not be seen to apply preferential rules to the self represented litigant to the disadvantage of the represented litigant.
Whether a court in a particular case oversteps the mark between these difficult conflicting duties must be assessed on an individual case basis. Each case necessarily turns on its own facts and circumstances.
The difficulties which arise from an unrepresented litigant are not simply those of the judge. The circumstance gives rise to a number of difficulties for counsel who are representing a party. Lawyers not only represent the interests of their clients, they are also officers of the court.
As officers of the court, counsel representing a party should not take inappropriate advantage of an unrepresented litigant. It would also be expected of counsel to assist the judge in ensuring that the topics that are necessary to be covered for the purposes of the case are appropriately identified in the interest of a fair trial. There may be times when counsel for a party may need to modify the manner and form in which objections to evidence are taken and rely where possible to evidence being admitted de bene esse with objections to be formalised and argued later rather than interrupting the trial process. Pedantic objections should be avoided where possible as these may be unnecessarily disruptive to the trial process and highly unsettling for unrepresented litigants.
At the same time, counsel for a represented party has a duty to put that party’s case in the most favourable manner. These duties may on some occasions cause tension, and on other occasions be in conflict with the overall interests of justice and the judicial process. The latter must always prevail.
Further, with particular regard to the role of counsel in relation to unrepresented litigants, there is also a duty on counsel to raise concerns or make an objection to a trial judge if undue assistance appears to be given by that judge to an unrepresented litigant to the disadvantage of the client who he or she represents.
The extent of the duty which is placed on counsel, albeit in a different criminal context and one which involved a sleeping judge in a jury trial, was recently discussed by French CJ in the case of Cesan:[21]
The question whether there has been the reality or appearance of a substantial failure by the judge to perform his or her duty will require assessment of a number of factors including:
1.Whether the conduct of the judge can be said to have affected the outcome of the trial.
2.Whether the conduct of the judge has created a risk that the outcome of the trial may have been affected.
3.Whether counsel raised the question of the trial judge’s conduct at the trial.
4.Whether the jury appeared to have noticed or to have been distracted or otherwise affected by the judge’s conduct.
None of these factors, taken by itself, is determinative. There is an overall assessment to be made in deciding whether a failure or apparent failure by the judge for whatever reason to attend to the duty of supervising and controlling the trial process amounts to a miscarriage of justice. In so saying it should be emphasised that the duty of counsel in a case of non trivial inattention is to draw these issues to the attention of the judge in the absence of the jury. The failure of counsel to do so may support an inference that the judge’s conduct did not amount to a substantial failure in the judicial process of the trial. However, it will not always be determinative.
[21] Cesan v R (2008) 250 ALR 192 at [93]
While recognising there is a duty on counsel, at all times the fundamental and overriding responsibility remains with the judge to ensure that an unrepresented party is not treated unfairly by reason of lack of representation.
Before considering the facts and circumstances of this case, we indicate that we have considerable sympathy with the dilemma in which the judge was placed with a self represented litigant in a complex trial as to both liability and quantum, conducted over many days and involving expert evidence. Counsel for the defendant also raised many objections in the course of the trial as to matters requiring clarification; admissibility of evidence; hearsay evidence; lack of expertise, confusing and inappropriate questions and also errors in assumptions made within the questions. These were understandable objections by counsel when looked at from the perspective of the party whom counsel was representing.
While recognising those difficulties, there are a number of concerning features about the role of the Judge in this case.
In relation to the plaintiff’s evidence, the examination in chief of the plaintiff spans some 63 pages of transcript (excluding the view) in relation to which judicial questioning occupied some 59 pages. The judge immediately commenced by examining the plaintiff in chief in a direct question and answer form and only some nine pages later, gave an opportunity to the plaintiff to give an unaided statement as to circumstances of collision and later of his injuries. This unaided evidence amounted, at best, to only some four pages and the remainder of the plaintiff’s evidence was in response to specific judicial questions. The judge did not appear before taking this approach, to assess the extent to which the plaintiff was able to tell his own story with minimal prompts. The level of judicial questioning seems to have been assumed simply on the basis that the plaintiff was self represented.
Further, when the plaintiff called his seven witnesses, the Judge with only one exception,[22] commenced the examination in chief of each of the witnesses on behalf of the plaintiff. It was many pages later that the Judge asked the plaintiff whether or not he wished to ask his own questions. Thereafter the Judge overwhelmingly undertook the examination in chief of the witnesses.
[22] Evidence of Ms East.
In relation to the one exception to this approach, in the evidence of the plaintiff’s partner, the plaintiff commenced examination in chief, but shortly thereafter, questions were overwhelmingly asked by the Judge with only a few interspersed questions by the plaintiff. Even taking into account that there were particular problems posed for the plaintiff in examining the witness because of his relationship, the extent of questioning by the Judge appears to have been excessive.
Further, when counsel for the defendant called his seven witnesses, the Judge largely conducted the cross examination of three of those witnesses[23] on behalf of the plaintiff, notably of Adam Robinson and Jules Gerard Begg. In the case of the lay witness Mr Robinson, there was a particularly intense section of questioning of the witness by the Judge on the topic of why he chose to ask about the welfare of the plaintiff at the scene and not the defendant. In relation to Dr Begg, there were some ten pages of cross-examination with only a few interspersed questions by the plaintiff occupying only a couple of pages.
[23] Evidence of Mr Robinson, Dr Begg and Dr Duke.
In short, viewing the transcript overall, the questions asked of the Judge went much further than might be expected to rectify the level of disadvantage that the plaintiff may otherwise have had in conducting the trial without representation. There is no doubt that the plaintiff did require a degree of assistance because he had difficulty posing questions and there were many times when his questions were objected to by counsel for the defendant. However, the extent of questioning by the Judge indicated that she had stepped into the shoes of counsel for the plaintiff and was in fact conducting his case for him. Unfortunately, this is in spite of an awareness indicated by the Judge soon after the completion of the examination in chief of the plaintiff, when her Honour addressed Mr Ward as follows:
Could I leave you to ask questions that I haven’t covered and not from the point of view of – because obviously at some stage the whole trial is going to go off the rails if he’s not given the opportunity to speak on matters that are clearly relevant through my oversight or someone else’s. It’s very hard for a judge to conduct the case on behalf of the plaintiff; I don’t want to do that so I’m looking for some assistance from you.
Counsel for the defendant replied that he appreciated that circumstance.
In this case, whilst counsel for the defendant raised many objections to evidence of the usual sort taken when both parties are represented, there was no protest about the extent to which the Judge took over the conduct of the plaintiff’s case, nor about the nature or extent of any cross examination. It is sometimes not an easy judgment call for a counsel on this topic as the conduct of a trial takes place usually over a period of time and there may be a gradual accumulation of examples.
Unfortunately with all of the best of intentions, the level of assistance given by the trial Judge to ensure that the plaintiff in this case was not unfairly disadvantaged by lack of representation, overstepped the mark. In this case, an excessive level of judicial questioning commenced from the outset and continued over many days. However it was not such as to thereby inappropriately prejudice the defendant in the prosecution of his case. There was no material unfairness brought about by the content of her questioning. A further factor that allows this conclusion is that counsel for the defendant, who was not inexperienced, raised no protest or objection, when he had been quick to raise objections in relation to other topics. The approach of defence counsel, and the Judge’s evident concerns to avoid prejudice to the defendant, allow the conclusion that no material unfairness resulted.
Issues on Appeal
Liability
The early morning of 29 August 2002 was dark and wet. The plaintiff was driving a sedan in a northerly direction at a speed of about 100 km an hour. He entered a sweeping left-hand bend. His vehicle headlights were on low beam and remained on low beam at all relevant times. As he approached the northern end of the bend, he observed bright red tail-lights of a vehicle to his north. This was the defendant’s motor vehicle, a Ford Falcon sedan. The plaintiff also saw a set of dull red tail-lights from another vehicle to the left of the Ford Falcon.
Unbeknown to the plaintiff, an earlier incident had occurred when a vehicle driven by Leigh Tori Kent had collided with a bough that had fallen on the roadway. Mr Kent had brought his vehicle to a halt a short distance to the north of the debris. A truck driven by Mr Frieske had stopped at the scene of Mr Kent’s collision with the bough. The truck was to the left of the scene and off the roadway. Mr Frieske had set about dragging the bough from the road. The defendant when travelling north had come upon the scene and stopped. He stopped in the middle of the north-bound carriageway of the Riddoch Highway. The defendant’s vehicle was proximate to Mr Frieske’s truck and a few metres to the north of the position of the truck. Mr Kent walked to the defendant’s vehicle and had a conversation with the defendant for between 20 and 40 seconds. Mr Frieske observed the defendant’s stationary vehicle and the defendant conversing with Mr Kent.
It was common ground that the plaintiff was first able to observe the tail-lights of the vehicles when about 180 metres or a little more, to the south of the tail-lights. He described in evidence about being confused as to what lay ahead and as starting to brake but not appreciating for some time that the vehicles were stationary. When he did so, the plaintiff applied “emergency braking” but was too late to avoid a collision. Impact damage was evident to the front near-side of the plaintiff’s vehicle and to the rear off-side of the defendant’s vehicle. The collision took place at or about the point where the northern carriageway of the Riddoch Highway developed from one lane for north-bound traffic to two lanes for north-bound traffic. There was room for the plaintiff to manoeuvre his vehicle to the right of the defendant’s vehicle, but at that point there was no second north-bound carriageway.
The Judge concluded that the defendant had commenced to move his vehicle for a short distance before the impact occurred. It is evident that the point of impact was close to the position of Mr Frieske’s truck, as he feared for his personal safety as he stood by his truck at the moment of the collision.
The Judge accepted the plaintiff as a credible and reliable witness and accepted much of Mr Frieske’s evidence. The Judge’s reasons include a summary of each witness’s evidence with respect to the circumstances of the collision. Counsel for the defendant complained that the Judge failed to give adequate reasons for her conclusions as to the credibility and reliability of the witnesses. The reasons set out the Judge’s findings in regard to the plaintiff’s evidence, her acceptance of that evidence and the rejection of certain of the criticisms of the plaintiff advanced. It is to be accepted that the Judge did not provide detailed reasons for her conclusions as to credibility and reliability. However, the Judge’s reasons did allow defence counsel to fully argue the appeal.
Ultimately, most critical facts were little in dispute. It is evident that the defendant’s vehicle obstructed the northern carriageway. It was in the path of the plaintiff’s vehicle. There was ample room for the defendant to move his vehicle off the carriageway but he elected not to do so, instead remaining stationary on the carriageway engaged in a conversation with Mr Kent. Rule 125 of the Australian Road Rules relevantly provides:
A driver must not unreasonably obstruct the path of another driver or a pedestrian.
Offence provision.
In our view the Judge was correct in her conclusion that the defendant was negligent. This was a serious breach of duty involving the obstruction of a rural highway on a dark and wet morning and on which one could expect to encounter fast moving traffic.
On any view, the plaintiff was negligent, as was conceded by his counsel on the appeal. He failed to drive prudently and failed to reduce his speed as soon as he became confused as to what lay ahead. There was ample distance in which the plaintiff could have brought his vehicle to a halt, well short of the defendant’s vehicle. On a dark and wet morning, there was every reason for the plaintiff to drive at a more moderate speed. Even if his reaction to the emergency which faced him was delayed, at a reduced speed, there was room to manoeuvre around the defendant’s vehicle. In this Court’s view, the plaintiff was guilty of a serious breach of duty.
The circumstances of this collision bring to mind the often cited and salutary remarks of Wells J in Stoekel v Harpas[24] where he spoke some three decades ago about the duty of defensive driving. He said:
Three or four decades ago it was, speaking generally, reasonable to expect a driver to deal with the exigencies of motor and pedestrian traffic as they presented themselves from moment to moment, but he was not asked to look very far ahead and to seek out possible trouble. Today, I think that the situation has changed fundamentally. Population has increased; a high proportion of families have at least one car and not infrequently two; accidents are numerous; and death on the roads has become tragically familiar. In these circumstances, I think courts, when performing the role of a jury, are entitled, indeed bound, to require of motorists a measure of what is sometimes called defensive driving, or a look out that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger. Nowadays, for example, a young child on the footpath is not just a person so many feet away, but is a human being that may suddenly present himself in your path; a green light is not just an authority to spring off the mark without further thought, but is an invitation to look to right and left before moving off in case someone is trying unsuccessfully to beat the lights; a bus is not just a stationary vehicle, but represents cover from which, at any time, a pedestrian may emerge; a car with its turning flicker on may not be going to turn, but may have left his flicker on inadvertently; the car that you are following is to be kept a respectable distance in front of you because, at any moment, the driver may stop or slow down virtually without notice; a crest in the road is not just another part of the road, but is a danger point where a motorist, coming in the opposite direction, may well seek to pass on the rise. All these situations, and countless others besides, call for consideration by the reasonable driver because experience has repeatedly shown that perils on the road, as time goes by, seem to be giving less and less warning of their emergence. Of course, what I have said has its corollaries for other road users, but because of the marked increase in the power, weight and speed of today's vehicles, as compared with those of the immediate post-war period, the implications for the drivers of motor vehicles are, in my view, stronger. The courts have, from time to time, spoken of the need to guard against human follies, but, in my opinion, there is a need for courts to emphasize that the guarding referred to includes an ever-present attempt to foresee dangers well ahead of the immediate driving situation.
[24] Stoekel v Harpas (1971) 1 SASR 172 at 172-173.

In 1986 von Doussa J in Walton v Rowbottom[25] observed that community expectations for careful driving had heightened since 1971. He said:
...The cost to the community of death, bodily injury and property damage on the road, has continued to grow. In an effort to encourage greater care and to deter bad driving penalties for offences under the Road Traffic Act have been progressively increased. The community now requires not only a measure of defensive driving, but a measure of protective driving - to protect drivers, cyclists or pedestrians. Drivers must guard against all reasonably foreseeable dangers. Prominent amongst the foreseeable risks which drivers must have in mind is the one that other road users may be careless. ... Many provisions of the Road Traffic Act establish arbitrary standards the breach of which is punishable. They do not establish immutable ‘rights’ to drive up to the limits prescribed regardless of prevailing circumstances. ...
These observations remain relevant today.
[25] Walton v Rowbottom (unreported, Judgment No 9362, 17 September 1986).
Contributory Negligence
Section 7 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) governs the question of apportionment of responsibility. That section relevantly provides:
Apportionment of liability in cases where the person who suffers primary harm is at fault
(1)If contributory negligence contributes to (but is not the sole cause of) the harm for which a claimant seeks damages, the claim is not to be defeated on the ground of the contributory negligence.
(2)If a claimant's harm is caused partly by another's negligent wrongdoing and partly by contributory negligence, the court must proceed as follows:
(a)the court must determine (and record) the amount of the damages to which the claimant would have been entitled assuming there had been no contributory negligence; and
(b)the court must then reduce the amount so determined to the extent the court thinks just and equitable having regard to the extent the contributory negligence contributed to the harm.
...
(4) In this section, a reference to contributory negligence extends, in the case of a claim for derivative harm, to negligence on the part of the person who suffered the primary harm.
Section 8 provides for section 7 to have retrospective effect.
The principles guiding the court on the issue of apportionment are well established. They were summarised by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd[26] as follows:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd; Smith v McIntyre and Broadhurst v Millman, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.
These remarks were approved by Mason, Wilson and Dawson JJ in Bankstown Foundry Pty Ltd v Braistina.[27]
[26] Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 493-494.
[27] Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 311. See also Mugford v Ames [2000] SASC 241 and Hooker v Grinham (1997) 26 MVR 233.
When discussing apportionment, the Judge under appeal reasoned:
In determining apportionment, I must consider the entire conduct of each of the parties. I must consider their respective culpability and the part that each played in the accident.
Having found that the defendant was in breach of his duty, it is necessary to evaluate the seriousness of that breach.
The action of the defendant in stopping his vehicle in the middle of the road in the circumstances in which he did, was unusual and unexpected.
The defendant allowed a highly dangerous situation to exist. It was virtually inevitable that an accident would result.[28]
I regard the negligence of the defendant as serious.
I have taken into account the heavy onus on the plaintiff as the following driver, his speed and the weather conditions at the time.
In my view, the plaintiff had no forewarning of a dangerous situation arising until he travelled around the sweeping bend and saw what he believed to be an obstruction to his intended path of travel. The plaintiff had only a limited opportunity to avoid the impact once he became aware of the situation of danger created by the defendant.
However, the plaintiff’s opportunity to avoid the impact became even more limited because of the plaintiff’s poor lookout and his failure to drive defensively. The plaintiff’s breach of duty occurred because of his failure to commence to brake early enough, once he realised that there was a vehicle stopped on the road in front of him.[29]
In my view, the plaintiff was guilty of contributory negligence.
However, I find that the defendant ought to bear the major responsibility for the collision.
His vehicle was the instrument by which the danger was created. More importantly, that driver had ample time, as well no doubt as the means at hand, to adopt suitable precautions which had every prospect of obviating the risk that eventuated.[30]
Therefore, undertaking the comparison of culpability required, I regard the defendant as 70% responsible for the collision and the plaintiff responsible to the extent of 30%. The plaintiff’s damages are to be reduced by that amount.
[28] Cook v Jennings [2007] TASSC 40 at [36].
[29] cf. Ticehurst v Skeen (unreported, NSWSC, Judgment No 9146/82, 5 March 1986).
[30] Lawes v Nominal Defendant [2007] QSC 092 at [45].
Counsel for the plaintiff conceded that the Judge’s conclusion set out above, “that it was virtually inevitable that an accident would result” as a consequence of the defendant’s conduct, could not be sustained. It was accepted that there was sufficient time for the plaintiff to have brought his vehicle to a halt well before reaching the defendant’s vehicle had he kept a proper lookout and acted earlier. Further, in our view, the plaintiff had more than a limited opportunity to avoid the impact, once he became aware of danger ahead. A prudent driver would have avoided the collision.
Both counsel made reference to other authorities dealing with “particular fact” situations. Those authorities are of no real assistance in determining apportionment in this case. Other cases necessarily take on their own idiosyncratic facts.
As we have concluded that the Judge erred in her approach to apportionment, it is appropriate for this Court to come to its own conclusion as to a just apportionment. Each of the parties was guilty of a serious departure from a want of due care. The defendant created a serious danger. He brought his vehicle to a stop in the middle of the carriageway for north-bound traffic at the end of a sweeping bend. He did so in hours of darkness and in poor weather conditions. There was no need for him to bring his car to a stop on the carriageway. He was able to move his vehicle off the carriageway. The plaintiff’s departure from a want of care was also serious. Having observed something of concern ahead, he failed to slow his speed. As a consequence, he drove into the rear of the defendant’s vehicle. He had ample opportunity to avoid the collision. We have reached the conclusion that the parties were equally culpable. The plaintiff should recover 50% of his damages to be assessed. The Judge’s apportionment of 70/30 against the defendant should be set aside and an equal apportionment substituted.
Damages
At the time of the collision the plaintiff was aged 37 years, and 42 years of age at the time of the hearing. The plaintiff in his younger years had been fit and healthy.
When aged 18 years the plaintiff commenced employment as an abattoir worker. Later he joined the army and trained as a chef. On leaving the army the plaintiff worked as a chef in Queensland and South Australia.
At the time of the collision the plaintiff had been employed at the Auspine Kalangadoo Mill and then the Tarpeena Mill for approximately two years. He enjoyed his work at Auspine. His work at Auspine included training to drive a forklift. His earnings equated to about $860 gross per week.
After the collision the plaintiff was absent from work for a period of four weeks. He then resumed his previous duties at Auspine. He was informed in November 2002 that his claim for compensation had been rejected. In July 2004 he was granted a disability pension.
The plaintiff has two children who formerly lived with their mother in Queensland, but after a custody dispute, he was awarded custody of those children. He is now in another relationship with a woman who has two children. All four children live with the plaintiff and his partner on their property at Mount Gambier.
The plaintiff contended that the award of damages was too low, and identified the three particular components referred to earlier in these reasons. The defendant, although not challenging the assessment by way of appeal, submitted that the Judge’s findings with respect to the plaintiff’s credibility were flawed. It was also said that the findings of causation could not be sustained.
Pain and suffering
The plaintiff’s evidence of his injuries was summarised by the Judge as follows:
The plaintiff suffered multiple soft tissue injuries. As a result of the accident, the plaintiff saw Dr McEntee on 29 August 2002. He remained absent from work for a period of four weeks. He was able to return to his employment at Auspine and manage his duties with the assistance of his supervisor. Eventually, he ceased work in July 2003.
The plaintiff, in his evidence, described a total incapacity for any kind of employment and substantial impairment of his ability to carry out the most basic tasks. The plaintiff said that this impairment persisted.
He said that from the time that he ceased work in July 2003, his parents provided him with assistance around the home. He could not mow the lawns or work in the garden and he spent periods resting during the day. This was in marked contrast to his pre-accident work history, involvement in sport and active pursuit of various activities.
Currently, there are not many areas in his body where he does not experience pain. The plaintiff said that he suffered pain in his back, hips, shoulders, limbs, knees, feet and wrists. He described experiencing continuous pain in the middle of his back and lower back. The pain is enhanced by physical activity and sitting for any prolonged period.
He experiences constant pain in both shoulders which affects his lifting ability. He has constant pain in his knees. This causes difficulty squatting and kneeling. He experiences difficulty walking but walks slowly and, at times, with a limp. He experiences discomfort in both ankles and feet.
He experiences tiredness. He is moody and has decreased tolerance in relation to the children. He has difficulty sleeping. He spends much of the day resting.
His experience of pain means that he can spend only a limited amount of time undertaking duties around the property that are within his capabilities. He collects the children from school but driving a motor vehicle aggravates his pain.
He is able to function with the assistance of morphine injections. He is on a disability pension.
The defendant submitted that the plaintiff’s credibility was affected by his failure to inform a number of reporting medical practitioners of the many tasks that he had undertaken or attempted to undertake.
The Judge’s conclusions with respect to pain and suffering were as follows:
I have considered the many criticisms of the plaintiff’s evidence, and the opinions of the medical experts, some of which may appear to be in conflict with the plaintiff’s account of his extensive disability. Despite those criticisms, I am satisfied that the plaintiff’s evidence was honest and reliable in relation to both his past and current experience of pain and his disabilities. I am satisfied that he did not intentionally mislead any medical or psychological expert whom he consulted in relation to these matters. However, a real question arises as to the extent to which his experience of pain in the past and currently, is psychological.
Immediately following the accident, the plaintiff suffered pain and discomfort in his neck and back. I am satisfied that the plaintiff suffered major stress as a result of the rejection of his claim by the insurer. In my view, the plaintiff’s disabilities initially had a physical basis. However, psychological factors, which developed as a result of his physical injuries and the rejection of his claim, contributed increasingly to the plaintiff’s experience of pain and to his disability. In my view, the plaintiff’s complaints and experiences of pain are genuine and his disabilities associated with his feelings of pain are real to him. He has suffered and continues to suffer significant disabilities. I accept his account of those ongoing disabilities. I find that the plaintiff now suffers from a long-standing psychological pain disorder.
Counsel for the defendant took the Court to a number of instances said to support his submission. The defendant challenged the plaintiff in cross-examination about his claimed disability. Allegations were made regarding the plaintiff’s ability to engage in manual work around his property. It was suggested that he had undertaken tasks such as digging, chain sawing, helping to erect a shed, climbing ladders, loading sheets of iron and using a pick and shovel. The defendant submitted that the Judge did not make any findings on these matters and that she was in error in not taking those matters into account in assessing the plaintiff’s overall level of disability.
In our view, this submission overlooked the fact that the plaintiff’s disability was primarily psychological and that a component of his psychological symptoms was the taking by the plaintiff of an “unreal view” of his pain and disability. He was advised by his treating psychologist to attempt to do as much as he could. It was not suggested to the psychologist in cross-examination, apart from one or two matters, that he was consciously misinforming doctors of his problems or that he was malingering.
As earlier observed, the Judge concluded that the plaintiff suffered from a severe psychological disability and that his perceptions of pain were real although not having necessarily a physical explanation. The defendant’s submissions should be rejected. They do not directly address the substantive cause of the plaintiff’s disabilities.
The defendant further submitted that the plaintiff had not established causation. Following the collision there was a dramatic change. The Judge concluded on the question of causation:
In my view, the accident remained the significant cause of the plaintiff’s injuries and, more importantly, of his ongoing psychological condition. I am not satisfied that any subsequent event is a relevant contributing factor to the pain condition. I am satisfied that the plaintiff has proved that the defendant’s negligence materially contributed to his current condition. I am not satisfied that any other possible causes of the plaintiff’s pain condition can be disentangled.
I accept that the plaintiff has been unable to enjoy his previous activities and has been restricted in his potential to pursue previous sporting interests.
I accept that the plaintiff’s enjoyment of life has been restricted for a significant period by his constant pain and disability.
I am not satisfied that any pre-accident condition or personality traits of the plaintiff were such that the plaintiff was more susceptible or vulnerable to injury, and that he would have suffered his pain or disabilities in any event.
There was ample evidence to support the Judge’s conclusion that the collision was a material cause of the plaintiff’s injuries both physical and psychological. The plaintiff had a good health and work history prior to this collision. This was not challenged by the defendant. The Judge attended to the relevant authorities and identified the correct legal principle. The medical evidence clearly supported the plaintiff’s case on causation. There is no substance to this complaint.
Damages for pain and suffering are to be assessed in accordance with the provisions of section 35A of the Wrongs Act 1936 (SA). Those statutory provisions provide a rating scale from zero to sixty. The Judge addressed those provisions as follows:
The court is required to assess damages on the scale of 0-60 where 60 is the worst possible loss that anyone could suffer, not merely that which the particular individual could suffer. For an accident which occurred in 2002, 1 point equals $1,170.00.
The court is required to determine what injuries arose from the accident and then apply to them a numerical figure.
Not only must I consider the initial presentation in 2002, but also I must assess the pain and suffering the plaintiff experienced after he ceased work until the date of trial.
…
In my view, the plaintiff’s chronic pain disorder was caused by the accident and the subsequent litigation, following the defendant’s denial of liability. In my view, it ought to resolve substantially within about one year after this litigation is concluded. I find it is appropriate to assign a numerical value of 7 out of 60. I assess pain and suffering at $11,970.00. There is no interest to be added to this allowance.
Earlier in these reasons we have set out the Judge’s findings with respect to the extent of the plaintiff’s injuries. The plaintiff suffers from a long-standing psychological pain disorder. The pain he feels is genuine and the disabilities associated with that pain are real to him. He has suffered ongoing significant disabilities for more than six years. These findings allow the conclusion that the rating of 7 made by the Judge was too low and manifestly so. The selection of an appropriate rating is necessarily a matter of judgment. We consider a rating of 12 to be appropriate.
Loss of future earning capacity
With regard to the plaintiff’s loss of earning capacity, the Judge concluded:
The plaintiff’s injuries had the result that the plaintiff was unable to work for about a month after the accident. When he returned to work, he continued to suffer pain and discomfort. Despite his injuries, he remained at work until July 2003. He was unable to continue at work from that time because of his inability to cope with his injuries.
…
I am not satisfied that since July 2003, the plaintiff has been fit for any less strenuous alternative employment. I am not satisfied that there is any failure by the plaintiff to mitigate his loss by seeking medical advice as to possible alternative duties.
On appeal, the plaintiff complained about the assessment of future economic loss. In that respect, the Judge concluded:
The plaintiff is also entitled to future economic loss for the period during which he is likely to be incapacitated from work in the future. I must consider both favourable and unfavourable contingencies such as the prospect of ill health, unemployment and accident. I refer to my previous findings in relation to the plaintiff’s disabilities. I accept the evidence of Mr Smith in relation to the plaintiff’s prognosis. I find that the plaintiff should be able to resume work in about one year from the date of this judgment. I accept that past events are not necessarily determinative of an issue about future earning capacity. In my view, as a result of the collision, the plaintiff’s earning capacity is totally impaired for a period of one year. Adopting a broadaxe approach, I award the sum of $33,000.00 in respect of future economic loss.

On appeal, it was submitted that the award for future economic loss proceeded on a misunderstanding of relevant legal principle. It was pointed out that the plaintiff was entitled to damages for any proven future loss of earning capacity. It was said that the evidence did not support a conclusion that the plaintiff would be able to resume work about a year from the conclusion of the trial. It was contended that the cumulative effect of the soft tissue injuries, the depressive and anxiety state, the chronic pain syndrome and the fact that the plaintiff had been out of work for some six years, would lead to a longer term loss of earning capacity. It was argued that his ability to return to heavy manual work was likely to be impaired.
It was further submitted that the assessment made by the Judge failed to take into account that the plaintiff may have been unable to take up any offer of employment either as a mill hand or chef or in any other capacity. It was said that the Judge failed to assess and weigh the problems the plaintiff might encounter in the future when attempting to resume employment. The Judge was required to consider the capacity of the plaintiff to earn income if there had been no injury and to then make a comparison with the plaintiff’s present capability. While that exercise involves a degree of speculation and a level of uncertainty, it is an exercise which nevertheless must be conducted to properly compensate the plaintiff. This exercise was required in respect of the remainder of the plaintiff’s working life and not limited to a 12-month period.
There is substance to the plaintiff’s submission. The Judge erred in her approach by restricting her consideration to loss of earnings for a limited period of 12 months into the future and thereby failing to properly consider future loss of earning capacity.[31] The approach to be taken to the assessment of loss of earning capacity was outlined by McHugh J in Medlin v State Government Insurance Commission:[32]
In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings. In practice, there is usually little difference in result irrespective of whether the damages are assessed by reference to loss of earning capacity or by reference to loss of earnings. That is because “an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss”^. Nevertheless, there is a difference between the two approaches, and the loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff’s ability to earn income. Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff’s pre-accident and post-accident earnings. This sometimes means that no attention is paid to that part of the plaintiff’s capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred.
[31] Medlin v State Government Insurance Commission (1995) 182 CLR 1.
[32] Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 13.
For the reasons discussed above, it is probable that the plaintiff will suffer a loss of earning capacity for some years, and not simply for one year. The Court is left to assess the probabilities as best it can. The assessment to be made in the present proceeding necessarily involves the use of a “broad axe” approach. We would make an allowance of $100,000.00 in lieu of $33,000.00 for future loss of earning capacity.
Gratuitous services
The plaintiff complained of the modest award of $500.00 for the gratuitous services rendered by his parents. It was agreed between counsel that this award could only cover gratuitous services for the 12 month period following the collision. Services were rendered by the plaintiff’s parents for about four hours a week for that period. The evidence was sparse, with little attention to particularity with respect to tasks performed, times spent or the relevant value of the work. In these circumstances, the Judge made a minimal allowance of $500.00. The burden of proof was on the plaintiff to prove this head of damage and although it is possible that this award is inadequate, nothing more was proved. Given the extreme paucity of the evidence, the allowance made by the Judge should not be disturbed.
Special damages
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.
I will deal with the summary set out above. Complaint is made relating to the judge’s questions between pages 55 and 61 of the appeal book. In that part of the evidence of the plaintiff the trial judge is leading the plaintiff as to his background. Her Honour, in my view, asks appropriate questions to establish the plaintiff’s background, including his qualifications and employment history. It also included his personal details and those of his family. I can see nothing inappropriate in the questions which Her Honour asks in order to set the appropriate background and assist the plaintiff to the extent necessary. Had that assistance not been given it is possible that the plaintiff could have been done an injustice. The defendant suffered no injustice as a result of that questioning. As I have indicated, Mr Walsh acknowledged this in oral argument.
From page 62 of the transcript Her Honour leads the plaintiff in questions about the background to the accident. Again, in my view, this was quite permissible and indeed appropriate. Her Honour asked all the relevant questions as to the plaintiff’s driving leading up to the accident and when she got to the crucial part of the story being related by the plaintiff she said: “Well put your statement aside and just tell us from your memory what happened”. The plaintiff then gave a long answer in his own words as to his description of the accident. At several further points Her Honour again appropriately asked the plaintiff relevant questions related to the accident and then let the plaintiff give his account in his own words.
Mr Walsh submitted that Her Honour cross-examined the witness, Robinson, at appeal book 549.10. Her Honour certainly asked the witness a lot of questions. Counsel for the defendant objected to the relevance of Her Honour’s questions. Her Honour stated: “It’s very relevant” and then proceeded to further question Mr Robinson. Given the conclusions which this court has reached regarding the questions of both liability and quantum, any transgression by Her Honour, if it is one, has not translated into any procedural unfairness in my view. It is a matter of minor importance in the context of the case.
Dr Begg was a witness called by the defendant. It was again submitted by Mr Walsh that Her Honour, at appeal book 641.10, cross-examined Dr Begg. After Dr Begg related his views, Her Honour asked this question: “Dr Begg, how long did you spend with Mr Ritter”, and Dr Begg answered: “One hour”. Her Honour then asked some questions relating to when it was in his examination of the plaintiff that the plaintiff appeared to manifest symptoms suggesting that he had unconsciously magnified his pain. This issue forms no part of the decision of this court on the question of damages and is not part of any ground of appeal. Again, if it is a transgression, it is a minor one.
Mr Birchall, for the plaintiff, submitted that in relation to liability the fundamental circumstances of the accident were basically inescapable. I agree with that submission. The real question was: what was the appropriate apportionment of liability as between the plaintiff and the defendant? It is my view that on the question of liability Her Honour adopted an appropriate role in any assistance she gave to the plaintiff.
On the question of damages, Mr Birchall submitted that Her Honour could have advised the plaintiff during the trial as to the need to prove or agree special damages. However, after the trial concluded the judge’s chambers contacted the plaintiff and advised of the need to prove special damages. It was suggested that a list of agreed special damages be provided. No list was provided and Her Honour then proceeded to deliver her judgment. In my view, as with liability, no questioning by the judge has had any affect on the outcome of the assessment of damages. In fact this court has found that Her Honour’s assessment did not favour the plaintiff and has increased it. The appeal on the aspect of special damages, based on a factual error, is the only actual ground of appeal relating to Her Honour’s involvement in the trial.
It is my view that there is nothing which Her Honour has done in the course of the trial which affected the outcome on either the issues of liability or quantum. This is not a case of a trial miscarrying because of a judge’s interference. This Court has been able to make its own decision on both the question of liability and quantum.
It is very difficult for a trial judge faced with an unrepresented litigant to assist the unrepresented party to the degree regarded as appropriate and, at the same time, ensure that justice is done so that the other side is not unduly prejudiced by the trial judge’s involvement in the evidentiary process.
A trial judge these days is faced with an increasing number of self-represented litigants. It is important, in my view, that the judge takes a pragmatic approach in assisting the litigant and saving court time by directing or leading the litigant on relevant topics. It is very difficult for the trial judge, in my experience, to draw a hard and fast line as to where assistance stops and interference begins. There must be variations and exceptions to any general rule and the trial judge is required to deal with these matters in the course of the general running of the trial. It is a dynamic situation which has to be constantly reviewed as the trial progresses.
There can be no hard and fast rule. The trial judge will assess the needs of a self-represented litigant. Each litigant will differ in their ability to understand the issues and procedural aspects of the trial which confronts them. The range of the needs of such a litigant is very wide.
It is important that the trial judge should, in my view, adopt a role which ensures that the litigation is completed in an orderly way but protects the unrepresented party from any important omissions on key aspects of the case. The trial judge will assess the particular needs of the litigant and the litigant’s ability to grasp the relevant concepts.
As I have indicated, in my view any interference by the trial judge in this matter has had no impact on the decision of this court to allow both the appeal and the cross-appeal.
No argument was addressed to the court on the many decisions referred to in the joint reasons and whether this case fell within the principles set out in those decisions. There has been no material unfairness as a result of anything done by the trial judge in the course of the trial. This case is not an appropriate vehicle to decide questions of general importance for judges dealing with unrepresented litigants.
As I have said, the relevant principles can only be applied to the dynamic situation which develops during the trial. The trial judge is best placed to deal with an application of those principles in the situation that develops.
Unless there is a procedural unfairness – and it is conceded that there is none in this matter – I consider it unhelpful to attempt to state matters of principle and policy when the issues in the case were very clear and easily resolved by the appeal court.
I do not agree with the conclusion that the judge intervened to an inappropriate extent. I am in favour of a more robust involvement by the trial judge provided the basic rules are maintained.
It is for those reasons that I do not share in the comments relating to this topic in the reasons of Gray and Layton JJ.