Lja Sauzier Nominees Pty Ltd v Zoccoli

[1993] HCATrans 258

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pl0 of 1993

B e t w e e n -

L.J.A. SAUZIER NOMINEES PTY LTD

Applicant

and

GARRY PETER ZOCCOLI

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 27 AUGUST 1993, AT 12.48 PM

Copyright in the High Court of Australia

Sauzier 1 27/8/93

MSC.A. WHEELER:  May it please Your Honours, I appear for

the applicant in this matter. (instructed by·

P.A. Panegyres, Crown Solicitor for Western

Australia))

MR L.W. ROBERTS-SMITH, QC: If the Court pleases, I appear

for the respondent. (instructed by D'Alessandro

and D'Angelo)

MASON CJ: Yes, Ms Wheeler.

MS WHEELER:  My learned friend has kindly pointed out to me

this morning, Your Honours, that the notice of

appeal before the Full Court, which appears at

pages 15 to 18 of the application book, is the

wrong one, it having been amended prior to the

appeal. Your Honours do not, I think, have the

the notice of appeal as it was eventually before the Full Court, but it is summarized, if I could

indicate for Your Honours' assistance, at pages 23

to 24 of the application book.

MASON CJ:  And that is sufficient for the purposes of this

application?

MS WHEELER: Yes, Your Honours. Broadly, Your Honours, we

would submit that there are three issues of public

importance which arise in this application, the

first being the question of what onus, if any, is

borne in a case of multiple distinct torts by a

tortfeasor whose tort is not that the most

proximate to the disability of which the plaintiff

complains.

The second raises the role of an appellate

court, particularly in evaluating the interplay

between questions which involve credibility and

those other issues which do not. It also, on the

question of credibility, raises the issue of the

extent to which expert evidence can, or should, be

said to be depending upon questions of credibility.

The third issue is the question of whether it

is proper for a court to have regard to the outcome
of a settlement to which the defendant was not a

party, for the purposes of estimating the extent of

the defendant's liability. The third point rather

speaks for itself, and I will come back to it in

due course, Your Honours.

The way in which the first two arise and the questions of general principle involved are

somewhat obscured in this matter by what is, in our

submission, the rather idiosyncratic way in which

Sauzier 2 27/8/93

the Full Court chose to approach the facts of the

matter.

Your Honours, if I could mention those facts

very briefly. They commence at page 24 of the

application book in the reasons of His Honour the

Chief Justice, and if I could just mention some of

the central ones it will assist to put, not only
the grounds of the application in context, but it

also assists to explain a passage which would,

perhaps, otherwise tell against this application in

those reasons.

Very briefly, by way of background, the

respondent had an accident at work in November

1985. He had a pre-existing - - -

MASON CJ: There is no need to summarize the facts. We are

aware of the facts and we have read the judgments.

MS WHEELER:  May it please Your Honours, yes. A central

question of causation then, Your Honours, appears at the trial to have been whether it was the work accident for which the applicant was responsible or

the motor vehicle accident which caused the

disability of which the respondent complained at

the time of the trial. It was common ground that

there was a developmental defect, a pars defect,

and it seems that either the motor vehicle accident

or the work accident could have caused it to be

symptomatic to the extent complained of.

As to that question, His Honour the

Chief Justice, in a judgment with which
Their Honours Mr Justice Nicholson and

Mr Justice Murray concurred, said this at page 36 of the application book, about line 10:

There was no examination at the trial of the

question whether the motor vehicle accident on

its own would have had a sufficient impact

upon the appellant's spine to make the pars

defect symptomatic.

I wanted to go to the facts first, Your Honours,

simply to point out that it would appear that if

that meant what one would normally understand it as

meaning, that would probably be the end of this

application. With respect to His Honour, however,

our submission is that the whole of the trial

proceeded on the assumption that it was a

possibility that the disability was due to the

motor vehicle accident.

If I could refer Your Honours to a number of matters, one of which is the affidavit of

Deanne Marie Scarfone, which is filed by the

Sauzier 27/8/93

respondent in this matter - I think Your Honours

have it. It does not appear in the application

book. It was an affidavit which was filed and

separately supplied by the respondents to the·

Court. That question is raised in the passage of

transcript exhibited to that affidavit and it

appears at the foot of that page. His Honour the

Chief Justice asks my learned friend:

You may help me about this but was there any

examination at the trial of the question

whether the motor vehicle accident on its own
would have had a sufficient impact upon the

appellant's spine to make the pars defect

symptof!latic?

Mr Roberts-Smith replied:

I think the short answer to that is, "No," -

and, in our submission, it is the following passage

which is significant -

and the reason is because, by the time the

orthopaedic surgeons became involved in the

matter, much later down the track, it was

difficult to assess certainly the contribution

that each accident had made to the plaintiff's condition other than by relating his condition to the ebb and flow of the symptomatology.

There was a good deal of evidence at the trial,

Your Honours, directed to the two questions of what

was the ebb and flow of that symptomatology and

what views had the medical witnesses formed as to

causation as a result of what they had been told

about those symptoms.

I do not want to take Your Honours to each of

the various opinions provided by the medical
witnesses, but might I just mention briefly the

pages of the application book at which differing

views are expressed by the medical witnesses on

those questions. The view of Dr St Vincent appears

at page 30 of the application book; that of Mr Hill
at pages 30 to 31; that of Mr Hardcastle at

pages 36 to 37. Mr Bell is mentioned at page 10 in

the reasons of the trial judge; Mr Slinger, the

orthopaedic surgeon, at pages 32 to 36;

Sir George. Bedbrook at page 38 and Mr Ker, the

specialist in rehabilitation medicine, at pages 40

to 41.

If I could summarize the position,

Your Honours, varying opinions were expressed as to

whether the cause of the disability complained of

at whatever time the specialists saw the respondent

Sauzier 4 27/8/93

was due to the motor vehicle accident or to the

work accident or to both. There was no suggestion

anywhere in the evidence that for some clinical

reason the motor vehicle accident could not have

caused such a disability. That, in our submission,

puts an entirely different complexion upon what one

might otherwise understand by that passage at

page 36 of His Honour the Chief Justice.

Now, that question in issue being then whether

the work accident in 1985, or the motor vehicle
accident in 1987, caused the disability as at the

trial date 1991, and there being no clinical reason

to exclude either, it seems, there were a number of

factors considered by His Honour the trial judge,

and I do not wish to take Your Honours through

those. They included the extent to which the

respondent had returned to work immediately

following upon the work accident, and what he had

said to a variety of people at different times

about his symptoms.

Now, against that background the Full Court held this, if I can take Your Honours to page 36 again of the application book, at line 13,

immediately following the passage to which I have

already referred, His Honour the Chief Justice

said:

In my opinion, this was an area -

that is the area, it seems, competing causation as

between the motor vehicle and the work accident -

an area in which the onus lay on the

respondent to -

the applicant, of course, in this application -

to unravel the competing causes, assuming that

they existed.

MASON CJ:  Was the question of onus in issue in the

Full Court?

MS WHEELER:  The question of onus in that form does not seem

to have arisen in the Full Court, Your Honour.

What was argued before the Full Court was the

question as to whether - it was broadly expressed
in the grounds of appeal - the question as to

whether the work accident was a cause, or

contributing cause, of the respondent's condition.

That appears at page 22. It seems to have been

accepted that the overall onus was upon the

respondent to prove his injury and its cause, but

there was a question as to whether there was, at

any time, a shifting of onus under what seems to

Sauzier 27/8/93

have been the Full Court's understanding of the

principle, as expressed in Watts v Rake and Purkess

v Crittenden.

Now, if I can take Your Honours back one step

to Purkess v Crittenden and the reference to it in
the reasons of the Full Court. It is first

referred to in this way, a little earlier on the
reference to it appears at the top of page 36, and

it arises out of passages in Mr Slinger's report.

Mr Slinger's report, the relevant passages from it,

are set out at pages 34 to 35 of the application

book and, if I could summarize thqse passage in

broad terms:  Mr Slinger is saying that the work

accident caused certain symptoms, but those

symptoms got worse, and that their progress could

have been due to a number of things. They could

have been due to injuries unrecognized, to

degeneration or to other factors and, Your Honours,

if that were all one had to go on, then it does

seem clear that Purkess v Crittenden puts an onus

on the defendant to untangle the possible competing

causes, the question as to whether it is due to

degeneration from a pre-existing condition and the

like.

DEANE J:  Ms Wheeler, I appreciate the legal point you want

to argue, but reading His Honour's judgment I was

left in no doubt at all that his decision did not

turn on onus. Any judge who is deciding a matter

on onus of proof invariably indicates that that is

so, in my experience. This judgment seems to me to

make it arguably plain that that was not so. Have

I missed anything, or can you point to anything

that indicates that notwithstanding His Honour's

statements about Mr Slinger's evidence and the
ultimate result, and so on, he was really deciding

the matter on onus?

MS WHEELER:	Your Honours, we are not entirely clear, with decision, and that is perhaps why a misapprehension respect, as to the precise basis of His Honour's	of the onus point may be important. There is, from
that passage on page 36 onwards, a fairly lengthy
consideration of the evidence of the course of
His Honour's reasoning and so on.  Then at page 42
there is the global conclusion at line 5:

For these reasons -

which he seems to refer back to the starting point

of onus and then to carry on through the analysis

which is based, in our submission, upon the view

that it is for the applicant to untangle those

matters -

Sauzier 6 27/8/93

I consider that the learned trial Judge was in

error in not accepting the evidence of

Mr Slinger.

Then, of course, His Honour continues:

The rejection by the learned Judge of that

evidence appears to have been based upon both

a failure of logic, and a failure to have

regard to the body of evidence which was

either consistent or supportive or both, and

which did not depend upon information related

to the medical practitioners~

and so on. The significance of the reference to

"failure to have regard to the body of evidence

which was either consistent or supportive or both",

is that that passage does not refer to what seems

also to have been, we would submit, the undoubted

fact that at the trial there was a a body of

evidence, and medical evidence, which was
consistent with or supportive of the view contended

for by the applicant and that if one were not taking the view that the onus rested upon the applicant to untangle causes, one might have taken

a slightly different approach to the weighing up of

all those various factors.

DEANE J:  What about the paragraph on page 44 where

His Honour brings everything together - they are

talking about ground 2:

In my opinion, ground 2 has been made out.

MS WHEELER:  In fact, all the evidence before the learned

Judge pointed to the opposite conclusion - Our submission about that is simply that it has to

be read in the light of what has gone before and

His Honour's approach to - - -

DEANE J:  I do not want to get in an argument with you but

that simply is not the way a judge speaks if he is

saying, "The evidence is, on the one hand, this, on

the other that. I have a touch of judicial atrophy

and therefore I will decide it by the onus of

proof."

MS WHEELER:  Our submission on that, I was going to say to

Your Honour, can be shortly summarized as this: it

is simply that if one were proceeding on the basis

that it was necessary not to place any weight at

all on the question of onus, but to have regard to

the whole of the evidence, the onus being firmly

upon the respondent, then one would have had regard

to the whole of the evidence in a way rather

different from that which, in our submission, is

Sauzier 7 27/8/93

indicated by the passage on page 42, and by the

discussion in the four or five pages which

immediately precedes it.

That is why, in our submission, the question of onus is important in this case. Our submission

also, of course, is that it is important as a

general question of the administration of justice,

that what His Honour appears to be doing on

page 36, having correctly applied the principle in

Purkess v Crittenden as it relates to possible pre-

existing conditions and degeneration, is - that

principle is then, a little later on towards the

middle of the page, wrenched away from its

foundation in logic, and applied in an entirely

different and inappropriate situation so as to

elevate it to a new rule which has, in our

submission, no foundation in principle.

Our submissions about that are contained in

paragraphs 2 and 3 of the applicant's outline of

submissions, which I hope Your Honours have been

given. I do not propose to repeat the submissions

there made. It seems to us that that point is a

fairly narrow and, in our submission, a fairly

clear one. As to the question of whether it is an

error which is of such importance as to require

correction by this Court, our submission is simply that as a matter of practicality, this is the sort

of factual situation which is not uncommon and that

the question has been approached in a different

way, and in our submission, an appropriate way, in

other jurisdictions. In paragraph 4 we refer to

the Queensland case of Edwards v Hourigan, (1968)

Qd R 202. At 209 the application of

Purkess v Crittenden in this sort of situation is expressly rejected by the Supreme Court of

Queensland.

The ACT case of Weinmann v Botten, (1991)

104 FLR 146, at paragraph 4. There is no reference

to the principle, no shifting bonus, and that is

simply an illustration of what, in our submission,

is an appropriate way of approaching the question

of causation where one is dealing with a prior

tortfeasor.

I can move on, Your Honours, then to the

second of the issues to which this application

gives rise. The passage on page 36 to which I have

already referred Your Honours is an illustration of

this ground which is not easy to express, but in

the outline of submissions it appears at

paragraphs 6 through to 8, and it boils down to

this: the heart of it, I suppose, is the submission

that every trial is conducted upon the basis of

certain assumptions as to what is really in issue

Sauzier 27/8/93

as to what the essential points of the trial are,

and that there is a flavour to a trial which allows

the trial judge to see what is important to the
case. In our submission, it entirely misses the
point of the authorities concerning the proper role
of an appellate court, for that court to sift
through the transcript, to identify issues upon
which the trial judge has not specifically ruled,

or which were not the subject of express question

in cross-examination, in order to arrive at what

can, with technical accuracy, be called a finding
based on undisputed facts.

There are a number of findings of that type which, in our submission, illustrate

notwithstanding what appears to be an accurate

summary of the relevant authorities at page 23 of

the application book, those errors which we

identify in our submission point to a

misapprehension as to the role of the trial judge,

particularly where issues of credibility and other

issues are inextricably interwoven, as we submit

they here are.

Our submission is that some findings, for

examples - here the finding that the respondent was

unreliable as a witness, which appears in

His Honour the trial judge's reasons, at page 12 of the application book, carry clear implications for

other parts of the evidence. The most obvious

example, in this case, being the implication for
the evidence of the surgeons, which was based upon
what this, as the trial judge found~ unreliable

person told them and our submission is that the

appellant court must recognize and give full effect
to those implications as well as to the findings
expressed on questions of credibility.

Now, our submission is that in this case the Full Court has set up a quite artificial and

unrealistic, in our submission, distinction between

what it calls questions of undisputed fact and

questions of credibility, and we have identified

certain passages in paragraph 8 of the outline of

submissions which, we would submit, illustrate that

approach. If I might take Your Honours to, not

all, but a couple of them, that at page 36 I have

already referred to. There is another at page 39,

in our submission, starting at about line 15, where

His Honour says:

While the credibility of the appellant

was called into question, there does not seem

to have been any challenge at the trial to the

factual assumptions made by both Mr Slinger

and Mr Hardcastle that the increase in

symptoms following the motor vehicle accident

Sauzier 9 27/8/93

subsided and went back to something very

similar to the levels prior to that accident.

Now, it is conceded, Your Honours, that there

was no specific cross-examination of the respondent

in which the question was asked, "It is put to you

that your symptoms did not subside following the

motor vehicle accident." What he was asked about

was what he was able to do following each accident,

and -

GAUDRON J: Ms Wheeler, could I ask you this? It was common

ground, was it, that the Court of Appeal should

proceed to make its own findings of fact?

MS WHEELER:  It was common ground that the Court of Appeal

could proceed to make its own findings of fact or

to draw its own inferences from what were

undisputed facts, Your Honour. What we quarrel

with here, of course, is, I suppose, the definition

of what is an "undisputed fact", and - - -

GAUDRON J: But, this very much depends on how the appeal

was conducted, does it not?

MS WHEELER:  Yes. Well, the way in which the appeal was

conducted so far as the applicant is concerned is

illustrated by reference to the submissions made on

behalf of the applicant which appears at page 41 of

the application book, for example. It was

contended, on behalf of the applicant - it appears

at line 15 of page 41 that:

comments by the learned trial Judge regarding

the evidence of Mr Slinger indicated that
there were grounds based on credibility for

the rejection of that evidence.

And, reference is made to a number of authorities:

Holtman v Sampson and Joyce v Yeomans contain

general discussion of the role of credibility in

the evaluation of expert evidence.

Nicholson v Fremantle Port Authority - I have not

referred Your Honours to it - but, it contains a

reference, not only for that, but to the weight

which should be given to expert evidence where that

evidence clearly rests on information which the

expert gleaned from a witness the trial judge has

found to be unreliable.

GAUDRON J: But, there are two issues, Ms Wheeler. The

first is whether the original finding should be set

aside, and that was done, and the next issue which

is what you seem to be attacking now, is the basis

on which the Court of Appeal should, itself, reach conclusions of fact. Now, that very much depends,

I would have thought, on how the case was

Sauzier 10 27/8/93

conducted, and it seems to have been implicit in

the submissions for the parties that the court

could itself go on to make its own findings of fact

without hearing further evidence.

MS WHEELER:  On evidence which was not disputed, yes,

Your Honour. What was in question at the appeal

was whether the court was justified in - a

two-stage thing I suppose - setting aside the

decision of the learned trial judge on the basis of

inferences which it drew from, what it called

undisputed facts, without giving appropriate weight

to that question of what the trial judge had, in

fact, determined. It is a rather rolled-up answer,

Your Honour, but it is difficult to approach the

role of the appellant court in any other way. What

is complained of, at the moment, is the failure in

deciding whether to set aside the finding of the

learned trial judge to have due regard to what it

was that he was deciding - particularly with

respect to credibility - and the implications that

that must carry for the rest of the trial.

GAUDRON J: Yes, but it does not make it clear to me on what

basis the Court of Appeal was to go on and make the

further findings.

MS WHEELER:  The difficulty that I have in answering that

perhaps, Your Honour, is that our submission is

that the Court of Appeal should not have put itself

in the position of having to make those further

findings, that there was no basis applying proper

principles upon which the appeal court could have

found that His Honour the trial judge had made any

error of fact based upon findings that were open to

him.

MASON CJ:  Ms Wheeler, we will adjourn now and we will

resume in half an hour's time.

AT 1.16 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 1.49 PM:

MASON CJ: Yes, Ms Wheeler.

MS WHEELER:	May it please Your Honours, just before lunch I was failing to answer a question from Your Honour
Justice Gaudron, I think. Could I come at it in
this way: if I could take Your Honours, just for
the moment to the authority which is No 7 on the

Sauzier 11 27/8/93

applicants list, De Vries v Australian National

Railways Commission, (1993) 112 ALR 641, and if I

could just refer Your Honours to the passage at

page 646 in the joint judgments of Your Honours

Justices Brennan, Gaudron and McHugh. The passage

to which I wanted to take Your Honours is at the
top of page 646, and it is this:

If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can

be shown that the trial judge "has failed to

use or has palpably misused his (or her)

advantage" or has acted on evidence which was

"inconsistent with facts incontrovertibly

established by the evidence" or which was

"glaringly improbable".

Now, Your Honour, if I could put it this way: our

submission is that that principle, which has two

aspects, has been misapplied by the Full Court, and
misapplied in two respects; the first is the
question of how one establishes what are the

findings which do depend, to a substantial degree,

on credibility, and there are two aspects of that,

I will come back to it in a moment; and the second

is, in identifying those facts which are
incontrovertibly established by the evidence so as

to determine whether, notwithstanding that there is

a finding based upon credibility, it should be

nevertheless set aside.

I can deal with that second aspect by

illustrating it by reference to page 40 of the

application book. An example of the misapplication

of that principle appears, in our submission, at

about lines 15 through to 20. It refers back to

this whole question of Mr Slinger's evidence, which

was to the effect that the disability was caused by

the work accident, and the submissions made on

behalf of the application, both at trial and before

the Full Court, that that finding or the evidence

of Mr Slinger rested upon what Mr Slinger was told

by the respondent, and in relation to that the

Full Court said this, at line 15:

That may be so, but what the appellant told

Mr Slinger and the other doctors in this respect does not appear to have been challenged. There was no attack on the

appellant's credit in relation to this

evidence. The learned trial Judge appears to

have accepted it, or was at least content not

to question it or reject it.

Now, in our submission, the learned trial judge did not have to question or reject it, and one would

Sauzier 12 27/8/93

expect His Honour the learned trial judge to be
somewhat surprised by that view of his approach to

the evidence in the light of his findings.

As to the respondent's evidence generally -

they appearing at page 11 of the application book,

and being to the effect that he found the

respondent an unreliable witness - and in relation

to his findings in relation to other evidence which

appeared to contradict that of Mr Slinger, that

being the evidence as to what the respondent was

able to do by way of working and other activity

following each of the accidents, and the evidence

of Mr McConnin, the treating chiropractor and the
only person who had seen the respondent, both

before and after each of the accidents.

So that, in our submission, one cannot

possibly regard what the respondent told Mr Slinger

as fact incontrovertibly established by the

evidence so as to entitle an appellate court to

rely upon it in order to set the trial judge's

finding aside, simply because it appears not to

have been the subject of a specific finding by

His Honour, a specific finding which, in our

respectful submission, was unnecessary having

regard to what His Honour did find at the trial.

One would have expected, had His Honour had his

attention specifically drawn to it, that

consistently with the tenor of the whole of his

judgment and whole of way in which the trial

appears to have been conducted, that he would have

found against the respondent on that point also.

That is what I was attempting to get at when I

was referring Your Honours to that question of the

interplay between issues of credibility and other
issues, and the need to have regard to the whole of

the course of the trial and not dissect it out into

narrow categories of facts which are not

specifically disputed, and other issues relating to

credibility.

Our submissions are that there are a number of

passages along similar lines and showing a similar

error throughout the course of His Honour's

judgment, and the other examples are set out - I do

not need to take Your Honours to them - in

paragraph 8 of our outline of submissions.	They
are to, generally, the same effect, in our
submission.

Going back to that question of whether the finding depends to any substantial degree on the

credibility of the witness, in relation to

Mr Slinger, that was the subject of submissions by

counsel for the applicant on the hearing of the

Sauzier 13 27/8/93

appeal, and they are the submissions to which I

have referred, referred to by the Full Court at

page 41 of the application book. Our submission is simply that in failing to accept those submissions,

the Full Court overlooked the advantage which is

enjoyed by a trial judge, even where expert
evidence is concerned.

Your Honours will be aware from a reading of the application book that there were certainly what

can be described as varying shades of opinion

between the different experts, and Your Honours

will see from the chronology which I have provided,

which is attached to the outline of submissions,
that all of the experts, leaving aside the

chiropractor, suffered from the disadvantage of

having seen the respondent quite some considerable

time after even the second of the accidents.

So they were reconstructing and there was

nothing, when one reads the extracts from their
reports, to suggest that they were doing more than

reconstructing based on their experience and based

upon what the respondent had told them.

That takes me of course to the second point

which is that, in our submission, the approach

taken by the Full Court overlooks the important

role of credibility in testing expert evidence

where it must be the case, as in this case, that

the evidence of the expert is only as good as the

factual assumptions upon which the expert has based

his opinion. Those factual assumptions were

derived from the report of the witness whom the

trial judge had found specifically to be

unreliable.

So that, Your Honours, our general submission

in relation to this area is that the point of

principle in this application is perhaps that there

is no formula but that it is not appropriate to

take what has been said in the authorities as to
the two principles involved, that the appeal court

should be slow to overturn findings based upon

credibility but that it has a duty in relation to

established facts, and to apply that in such a

manner as to dissect the trial down into its

smallest components identifying each as either

related to credibility or in the box of undisputed

fact and then to rebuild the whole edifice of the

trial as the appeal court sees it, disregarding, in our submission, the flavour of the trial, the tenor of the trial, as it must from his reasons have

appeared to His Honour the trial judge.

The authority to which I have already referred

Your Honours, De Vries, demonstrates, in our

Sauzier 14 27/8/93

submission, the need to emphasize that there is no

thick, black line dividing credibility from all

other issues and that a common sense approach to

the whole of the trial and to the overlap of issues

is required and that in this case, our submission

is that the Full Court has failed to take that

broad common sense approach.

Your Honours, there is one further matter

raised by the draft grounds of appeal. It simply

relates to the Full Court having decided that it

would set aside the finding of His Honour the

learned trial judge on the question of causation and then being faced with determining for itself

what roles the motor vehicle accident and the work

accident respectively played in the disability

which the respondent then suffered from. At

pages 45 and 46 of the application book, it appears

that a factor in that assessment was the

circumstance that the motor vehicle accident was

compensated for by a settlement reached for the sum

of $8000. The court had regard to that settlement

and took the view that it was entitled:

to proceed on the assumption that the amount

of his settlement of his motor vehicle
accident claim was reasonable in all the

circumstances.

It would appear that the court took the view then

that it was appropriate to have regard to that

amount in assessing what degree of disability arose from the motor vehicle accident. Our submission as

to that is set out at paragraphs 11, 12 and 13 of

the outline of submissions.

The point of that is simply, of course, that the applicant was not a party to those settlement

negotiations, and was not in a position to say

anything about the sum arrived at, and that it is

inappropriate for the Court to have regard to that

material, rather than to the evidence before of the

witnesses at the trial in order to arrive at an evaluation of the extent of contribution to the

disability. May it please Your Honours.

MASON CJ: Thank you, Ms Wheeler. The Court need not

trouble you, Mr Roberts-Smith.

The only question of general principle raised in the proposed appeal is whether the onus lay on

the defendant of establishing that a subsequent

event displaced the chain of causation. However,

it seems that this point was not argued by the

defendant in the Full Court and on our reading of

the judgment of Chief Justice Malcolm the decision

of the Full Court was not based on onus.

Sauzier 15 27/8/93

Otherwise, the grounds sought to be raised do not
di3close any error of principle on the part of the

Full Court. The application for sp~cial leave is

therefore refused.

MR ROBERTS-SMITH:  May it please the Court, we seek an order

for costs.

MASON CJ:  Yes. You do not oppose such an order,

Ms Wheeler?

MS WHEELER:  No, Your Honours.

MASON CJ: The application is refused with ·costs.

AT 2.03 PM THE MATTER WAS ADJOURNED SINE DIE

Sauzier 16 27/8/93