Laidler v Greenway

[1994] HCATrans 80

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Perth         No P12 of 1994  No C17 of 1993

B e t w e e n -

ROBERT JOHN LAIDLER

Applicant

and

LESLEY ANNE GREENWAY

Respondent

Application for special leave
  to appeal

MASON CJ
DEANE J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 25 OCTOBER 1994, AT 2.55 PM

Copyright in the High Court of Australia

MR C.L. ZELESTIS, QC:  May it please Your Honours, I appear for the applicant with my learned friend, MS J.H. AUERBACH.  (instructed by Talbot & Olivier)

MR I.L.K. MARSHALL:  May it please Your Honours, I appear for the respondent.  (instructed by David Rawlinson)

MASON CJ:   Yes, Mr Zelestis.

MR ZELESTIS:  May it please the Court, this case raises no question of general principle, but the issue whether the Full Court was entitled to reverse the trial judge’s finding with respect to the question of economic loss, the trial judge finding that the respondent had suffered no significant economic loss, nothing beyond what could be taken into account in an assessment of general damages.

The trial judge did not refer at any length to the evidence which the respondent gave, but it is summarised at pages 31 to 35 in the judgment of Justice Wallwork, with whom the other Justices agreed in the Full Court, and it includes in two passages which His Honour refers to at pages 32 line 15, and 34 line 10, direct assertions that the main limitation which she suffered in her capacity to work as an architect was her inability to draft for long periods of time.  So her case very squarely was that she suffered that limitation.

In the Full Court it was held that the trial judge had erred in two respects.  It was said, firstly, that he had erred by accepting the opinion of Mr Slinger, an orthopaedic surgeon, which was said to describe the respondent’s condition at trial, but then rejected the remainder of that opinion which expressed the orthopaedic surgeon’s view of her capacity for work.  That was said to be an error and, indeed, an inconsistency.  Secondly, an allied criticism was that it was said that the trial judge erred in not giving sufficient weight to Mr Slinger’s opinion.  Then the third step which the Full Court took was to say that the case was one in which they were entitled to draw inferences from facts which had been found or were not in dispute, and so the case was one in which they were entitled to interfere.

All of that was done notwithstanding what appears to have been a clear recognition at page 45 that the trial judge’s conclusion with respect to economic loss was inconsistent with the respondent’s evidence.  At page 45 line 8 Mr Justice Wallwork said:

The effect of his Honour’s finding is that he does not accept that Mrs Greenway was accurately portraying her condition, but he does not say so.  His finding concerning loss of earning capacity is inconsistent with both Mr Slinger’s and the appellant’s evidence.

One might have understood the significance of that had it been followed by a reference to the passage in the judgment of Justice McHugh in Abalos, 171 CLR, to which we refer in our outline at pages 178 and 179, where His Honour refers to the position of a trial judge making findings which, although not containing any direct reference to a witness’s evidence, are nevertheless necessarily inconsistent with it.  But no, the Full Court does not use that recognition at page 45 to lead to what we say was the inevitable next step, but uses it to lead in what we say is an impermissible and indeed, opposite direction.  That is to say that the principles referred to in Taylor v Johnson and Warren v Coombs concerning the drawing of inferences are apposite, and that the Full Court was entitled to draw its own inferences.

So, in our submission, there was in this case a very clear recognition that the trial judge had not simply drawn inferences from facts which were not in dispute, but had indeed rejected the respondent’s evidence concerning the extent of her limitations.

May I deal briefly then with the alleged inconsistency between the rejection of Mr Slinger’s expert opinion concerning capacity for work and the acceptance of his description of the respondent’s condition at trial.  The latter emerges at pages 9 and 10 in the judgment of the district court trial judge, and one sees that it is a very general description, lines 20 on page 9 to 5 on page 10.  It is a very general description of the lady’s condition, she having suffered only soft tissue injuries, and really amounts to no more than saying that she should continue to try and control her symptoms by avoiding the doing of things which provoke pain; and it did not purport to be any exhaustive statement of particular limitations or their impact upon her capacity for work.

The other point to be made, of course, is that Mr Slinger frankly acknowledges, and indeed Their Honours in the Full Court noted, that his view of her capacity for work was based upon her evidence of her symptoms; and secondly, upon his understanding that hand drafting using T‑squares and such like was the main work that the respondent would have to do as an architect; and there was evidence to which the Full Court clearly refers that hand drafting has long since departed from architecture, and that the bulk of drafting is now done with computer‑aided techniques which involve people sitting at a desk using a mouse and other computer equipment.  So there was a real question there for the trial judge concerning the nature of the activities involved in this lady’s chosen profession, the extent to which those activities could be adjusted by seating position and so on to accommodate her pain, the extent to which her complaints were to be accepted, and the extent to which at the end of the day she might be thought to be disabled from earning income in her chosen profession.

You see the difficulty, with respect, that the Full Court was in when they intervened because having decided that the trial judge’s finding should be set aside the Full Court does not make any particular finding itself as to the extent of her incapacity for work, but goes from the conclusion at 46 that the judge was wrong in not giving sufficient weight to Mr Slinger’s opinion straight to an assessment at 47 line 5 taking particular salary level less the adult minimum wage, less one‑third for contingencies.  The breadth of the brush used there is, in our respectful submission, a reflection of the fact that this was not a case of drawing inferences from established facts.  It was simply a case of jettisoning the trial judge’s finding without giving any proper reason for doing so.  In other words, it was never really asserted that any of the hallowed grounds for interfering with a finding that was necessarily based on credibility were to be found here.

In our submission, it is a simple case raising a simple question, and that is whether in the interests of the administration of justice special leave should be granted to consider an argument to restore the integrity of the trial judge’s finding.  Those are our submissions.

DEANE J:   It is very hard to work out, is it not, whether the trial judge found that there was no loss of earning capacity, or found that because the plaintiff did not organise herself a bit better after the time of the accident, the defendant should not be required to get involved in an inquiry as to the extent of a loss of earning capacity?

MR ZELESTIS:   The latter is part of his reasons but, in our submission, the former does not survive the statement at page 11 line 20 that it is His Honour’s finding ‑

that the plaintiff has not been precluded to any great extent in doing whatsoever she wished to do, albeit with some degree of discomfort.

DEANE J:   Except if you go back to page 10 line 24, what His Honour says at page 11 does not obviously fit in very well with a comment that -

she made no effort by way of mitigation of her damages to ascertain whether there was some employment by an architect which could have been acceptable, either by reorganisation of hours or conditions -

MR ZELESTIS:   In our respectful submission, that assists our argument, Your Honours, because what His Honour is doing is being critical of this lady’s efforts to explore her capacity for work, and that is the mind of a judge who has rejected her evidence untested by her efforts in the market‑place, her evidence that she was largely unfit because of an inability to draft.

So we would see that as a more explicit rejection than one otherwise finds in the reasons of her case which, as I say, if one reads pages 31 to 35 in the judgment of Justice Wallwork, involve a long statement of the various disabilities she claims she had, and although the trial judge has not condescended to a

detailed description of her evidence, his conclusion, with respect, is unmistakably clear.

MASON CJ:   The Court need not trouble you, Mr Marshall.

The Court is not persuaded that there was any error of principle on the part of the Full Court of the Supreme Court.  In those circumstances the application for special leave to appeal is refused.

MR MARSHALL:   May it please Your Honour, could I move for costs.

MASON CJ:   You do not resist that, Mr Zelestis?

MR ZELESTIS:   No, Your Honour.

MASON CJ:   The application is refused with costs.

AT 3.06 PM THE MATTER WAS ADJOURNED SINE DIE