Nominal Defendant (Queensland) v Nilon

[1988] HCATrans 57

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B75 of 1987

B e t w e e n -

THE NOMINAL DEFENDANT

(QUEENSLAND)

Applicant

and

IAN LESLIE NILON

First Respondent

and

SALVATORE BEZZINA

Second Respondent

Application for special leave

to appeal

Nominal

MASON CJ

WILSON J TOOHEY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERR-A

ON FRIDAY, 25 MARCH 1988, AT 10.35AM

Copyright in the High Court of Australia

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MR R.R. DOUGLAS, QC: If the Court pleases, I appear with

my learned friend, MR J.J. CLIFFORD, QC, for the

applicant. (instructed by Mr W.R. Scott and Scott)

MR R.I. HANGER, QC: If the Court pleases, I appear with

my learned friend, MR F. CLAIR, for the first

respondent. (instructed by Barron and Allen)

MR K.A. CULLINANE, §C: If the Court pleases, I appear with

my learne friend, MR A.J. WILLIAMS, for the

second respondent. (instructed by Macrossan

and Amiet)

MR DOUGLAS:  Your Honours, this application arises out of

the result of an appeal to the Full Court of the

Supreme Court of Queensland involving two actions

which were heard together. The first respondent

to this application was the plaintiff in each of

the actions.	He was a person who, prior to the
30 September 1976, suffered from a	congenital

condition known as spinal stenosis which was,

then asymptomatic. On 30 September 1976, he was

injured in a motor accident in circumstances which

involved the second respondent's negligence. In

1982, six years later, on 9 April, he was injured
again in circumstances where it was alleged by

him that he sustained further damage to his lumbar

spine, that is, the part of his body which had

previously been damaged in the accident in 1976.

The assessment of his damages was heard by

His Honour Mr Justice Demack and he gave judgment on 1 April 1987. His Honour, in our submission,

did not apply correct principle in assessing the

damages suffered by the first respondent in respect

of two separate accidents involving two quite distinct

tortfeasors. In our submission, this is an important

question which has not been finally decided in

Australia and in England is the subject of debate.

The nub of it, Your Honours, is stated in the
application book at page 44.	We submit that, as

a matter of principle - this is line 16 of the

record:

(Continued on page 3)

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MR DOUGLAS (continuing):

the proper way to assess damages was
to have assessed the First Respondent

damages in respect of the first accident,

completely ignoring the effects of the

second accident; and then assess damages

for the further or additional damage

caused by the second accident, by

assessing damages in respect of the

First Respondent's condition after both

accidents and deducting from the total

assessment the damages assessed in respect of

the first accident.

(c) Alternatively the proper way to

assess damages was to assess the damages

attributable to the first accident

without regard at all to the second

accident; and then, with respect to

the second accident, assess those

damages treating the First Respondent -

that is the plaintiff -

as a man already subject to disabilities

with a limited earning capacity.

The divergence of views of the House of Lords in

this area, which is well known, revolves around

the two cases of BAKER V WILLOUGHBY and

JOBLING V THE ASSOCIATED DAIRIES LTD, respectfully

(1970) AC 467 and (1982) AC 794. There is,

Your Honours, an apparent conflict between those

two decisions which has not been resolved in

England and has not,so far as we know, been the

subject of any reported decision of this Court.

There is, of course, the separate view taken by

Mr Justice Windeyer in FAULKNER V KEFFALINOS,

(1970) 45 ALJR 80, at page 85. That passage for convenience, Your Honours, is set out at page 34

of the application book. Your Honours, it is clear, in our submission,

that there is some divergence of view in the area
as to how damages are to be assessed at the same

time in respect of two separate torts involving

two separate tortfeasors So far as the facts

in this case are concerned, we would submit that

His Honour really appears to have left it to a

percentage view of the doctors, particular

Dr Brazenor as he saw the plaintiff. He has left

it up to them and rather treated the matter as a

mathematical exercise and not in accordance with

principle, whatever the principle is.

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MR DOUGLAS (continuing): Of course at the appeal, Your Honours.

the second r~spondent to this application submitted,

also, that His Honour had not applied correct principle

in assessing damages but they rather stated it as it ~s

set out by His Honour Mr Justice McPherson at

page 35 of the application book. lf l could, perhaps,

read that - at line 21:

The present case is not one in which the plaintiff,
having in the first accident sustained an
impairment of a bodily faculty, subsequently

in the second accident suffered its entire

destruction by a supervening event in which

it was "submerged" or "swallowed up", or became

"obliterated" or "overwhelmed", or was otherwise

made irrelevant to the assessment of the

plaintiff's future economic and other losses

thereafter. That might have been so had the

injury received in the second accident so

shattered the plaintiff's back that, independently

of the impact of the first injury, the plaintiff

was rendered permanently incapacitated, as

might, for example, have been the case if

his spinal chord had been severed in the second

accident. On the contrary -

So, Your Honours, below in the Full Court the second

respondent was, similarly, at pains to point out

that His Honour had erred in principle in assessing
the damages which the first respondent ought to

have received.

Your Honours, the evidence was, in our submission,

there in essence; it simply seems that His Honour

the trial judge went around it without, it seems,
being referred to the cases which were referred
to the Full Court. There was no real attempt at

the trial, in our submission, to determine what

principle he should be guided by.	He simply treated
it as a mathematical approach.

WILSON J:	What do you say to the passage that appears in the
judgment of Mr Justice Macrossan that exr,resses

the opinion this was not a true case of 'submerging"
or "obliteration" of the first injury nor was the

trial judge invited to consider the case on that

basis. And I think in that regard, also, at page 18

he mentions, as I think you have just implied,

that neither of the House of Lordi cases were really

taken up in the course of the trial.

MR DOUGLAS:  Your Honour, I think it is fair to say that.

We did not appear at the trial; I am not sure if

there is anyone here who did, but I think it is

fair to say that neither of those cases were referred

to His Honour.

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WILSON J:  The applicant was represented, of course.

MR DOUGLAS:  Yes, Your Honour. We think it is fair to say

that neither of those cases were referred to

His Honour.

WILSON J:  And once you have got a findin& as there appears

to be in this case, namely, that the plaintiff's

condition was attributabl~ following the second

acciden~ equally to the two defendants, can any

complaint be made of the approach of the trial

iudge.

MR DOUGLAS: Yes, Your Honour, because it is not, with respect,

the doctors' right to assess how much of the plaintiff's

remaining disability after the second accident

is attributable to it and the other. Because His Honour

must make findings on the whole of the evidence.

He seems to have simply adopted the stab guess, if you like, of Dr Brazenor as being the end of it; rather abrogated his duty to assess the

whole of the evidence.

WILSON J:  But is not another way of putting that, simply,

that His Honour's considered finding followed the

evidence of Dr Brazenor?

MR DOUGLAS: That, with respect, we say, is not good enough because had he applied proper principle, that is, whichever of the views it might be said to be is

correct, that is, whether the view put to the

Full Court by our learned friend Mr Davies below or the view we put, a different result would be

achieved in our submission.

MASON CJ:  But do you have appropriate findings of fact that

would enable an appellate court to come to a

conclusion assuming the principle for which you

contend was to be applied?

MR DOUGLAS:  Your Honour, we submit in answer to that: yes,

we do bu½ if we do not, this is a matter which

is of such importance that this Court ought, once

and for all, determine in Australia what is the

proper way to assess damages in a case like this.

And if the result is that the matter is sent back

for a fresh trial, well so be it.

MASON CJ:  By the way, I do not think you have told us, precisely,

what is the principle which should be applied to

a case of this kind on your case.

MR DOUGLAS: 

Your Honour, on our case, we submit that the

proper way to assess damages is to assess damages
in respect of the first accident completely ignoring
the effects of the second accident and then to assess

damages for the further or additional damages caused by

the second accident by assessing damages in respect of
the first respondent's condition after both accidents
and deducting from the total assessment the damages

assessed in respect of the first accident.

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MR DOUGLAS (continuing): We draw that, Your Honours, from

JOBLING's case and from the reasoning of the

Court of Appeal in BAKER V WILLOUGHBY which was

upset, it seems, by the House of Lords.

WILSON J:  Although JOBLING leaves the matter somewhat at

large, does it not, if the view of

Lord Wilberforce is taken as indicative, namely, as favouring a pragmatic, case by case, approach directed to providing just and sufficient but not

excessive compensation, taking all matters into

account.

MR DOUGLAS: Your Honour, that may be so. Their Lordships

were careful not to overrule the decision in BAKER

V WILLOUGHBY but to confine it to its own facts

which, I think, may be said fairly in essence has

led to the dichotomy of views, the confusion in

England, and here, of course.

WILSON J: Is the approach you advocate in relation to the

first accident really very different from the manner

in which the trial judge at least set out on his
journey, namely, to assess the damages flowing

from the first accident right through to the present

time?

MR DOUGLAS:	That is what he should have done, Your Honour.
WILSON J:	I am just a little - well, I am wondering whether,

in fact, it cannot be discerned that what he did

was somewhat similar to that in effect taking the

damages, of course, entirely attributable to the

first accident up until the occasion of the second

accident and then determining that half of his

disabilities from that time on were referable to

the first accident?

MR DOUGLAS:  Your Honour, he does not appear to have done

it that way	when one reads his judgment carefully.
(Continued on page 7)

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MR DOUGLAS (continuing):  What he should have done was to

assess damage for the first accident up to the time

of trial and beyond - there is his total damage

from the first accident - he does not appear to have

done that, and then to assess his total damages overall

and deduct one from the other. Your Honour, we

should point out - it came to my attention yesterday -

this is not an isolated case. We did fax down to

Your Honours yesterday a copy of the judgment of the

Full Court in PEREZ V JOHNSON which is, I understand, reserved in your Court on another point.

MASON CJ:	It is.
MR DOUGLAS:	But a reading of that judgement - I hope Your Honours

have it -

MASON CJ:  Yes, we have.

MR DOUGLAS: - - - reveals that the same judge adopted precisely the

same method of assessment in that case from a reading

of the judgment of Mr Justice Ryan of the Full Court

at page 8 of what we sent down to you, where

His Honour sets out what was done by His Honour, and

on page 9, the second new paragraph:

The method of assessment adopted by the

learned trial Judge in this case is

precisely the same as that which he

followed in NILON V BEZZINA AND OTHERS,

and which was approved by this Court -

and referring to the judgment in this case. So it is

clear that the method of assessment which, we submit,

is incorrect in principle has been approved by the

Full Court of this State on at least two occasions, and

that is in the last six months, Your Honours. That, in

itself, with respect, calls for the matter to be looked

at by this Court as a matter of principle to determine,

as I submitted once before this morning, for once and

for all what is the proper way to do this.

~.ASON CJ:  Mr Douglas, speaking for myself, I would have no

doubt that the fundamental question of law which you

seek to raise is a question of law which, in an

appropriate case, would attract the grant of special

leave. For my part the real question here is,having

regard to the statement made by Mr Justice Macrossan,

the statement which was drawn to your attention - - -

MR DOUGLAS:	Yes, Your Honour.
MASON CJ:	- - - this an appropriate case for ventilating the

question?

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MR DOUGLAS:  We submit so, Your Honour. The applicant here -

although perhaps the case was not conducted as it should have been at the first instance - did bring

matter to the attention of the Full Court. And

at that hearing of the Full Court the applicant did

seek a fresh trial, a new trial,on the basis that

His Honour had erred in principle, so that the matter

could properly be ventilated	at first instance
again.

WILSON J:  But you cannot gainsay that the manner in which a

trial is conducted will often have a bearing on the

propriety of the Full Court, or the ability of the Full

Court to overturn the decision and send it back for

a new trial.

MR DOUGLAS:  Your Honour, certainly in most cases that is the

situation but we submit that the principle here is

one that calls for decision. I cannot put it any

higher than that. It ought to be decided by this

Court so that the confusion which seems to prevail,

at least in this State, is brought to an end.

WILSON J:  Sounds as if there might be an appropriate opportunity

forthcoming if this practice continues.

MR DOUGLAS:  Your Honour, it might not continue, I do not

know.	I understand the point was not argued in the
appeal in PEREZ V JOHNSON & ORS.	I was not there,
of course, myself.

MASON CJ:	It certainly was not argued in this Court.
MR DOUGLAS:	No, that is my understanding, Your Honour, yes.

Your Honour, they are our submissions as far as we can take it.

(Continued on page 9)

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MASON CJ:	Thank you, Mr Douglas.	Yes, Mr Hanger?

MR HANGER:  May it please Your Honours. 1.1:J.ere is no

basis in this case for granting special leave.

The facts of the case and the manner in which it was conducted do not give rise to any conflict,

in our submission, between competing principles of law, nor can it be said that the trial judge erred in the application of principles or

assessment of damages. The proper principles

applicable in a case of this kind were adverted

by Mr Justice Windeyer in FAULKER V KEFFALINOS,

to which our friends have referred you, at page 85,

and for convenience, the relevant section of

the judgment is set out at page 34 of the record and it was quoted by Mr Justice McPherson in the

Full Court.

MASON CJ:  But that is the expression of opinion of a single

Justice of this Court, is not it, and what is

more it is not entirely in line with the views

expressed in BAKER V WILLOUGHBY and JOBLING V THE

ASSOCIATED DAIRIES LTD?

MR HANGER:	Your Honour, as we see it, I would not quarrel with that, but this case is not really one
where BAKER V WILLOUGHBY arises, because as we
understand BAKER V WILLOUGHBY and the other
English cases, the divergence of views relates to
a second injury that submerges the first injury where the one part of the body is injured, twice
shall we say, the second accident being far more
serious than the first. That is not the case here and the findings are to the contrary. So that in our respectful submission the dichotomy of views that arise in England do not arise for
consideration on this case, and we would respectfully
adopt what Your Honour the Chief Justice said in
that respect. And furthermore as I think has been conceded, and Mr Justice Macrossan pointed
out, the case was not conducted in such a way as to
suggest that His Honour was faced with a situation
involving any conflict of existing principles. That
appears from the record, page 18, lines 4 to 11. Your Honours, we of course appear for the
plaintiff, as opposed to our friend, Mr Cullinane,
who appears for the other respondent, and we would
submit that if there is any basis for granting
special leave, the argument on appeal should be confined to the point of law that is alleged to
be raised and should be confined to the apportionment
of damages between the other two parties. The
plaintiff, in our submission, has nothing to do
with that. There are in fact, Your Honours, grounds set out in the notice of appeal which really make

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the appeal simply an appeal on quantum - well not

just an appeal on quantum, but an appeal on quantum

as well as an appeal on this point of law. And

we would submit that if special leave is given the only allow our friends to deal with the point of

law to which he has alluded. The grounds that

relate to what you might call simply an appeal

on quantum are grounds 3 to 6, which appear at pages 52 and 53, and those grounds do not raise

any important point of law.

Now, if therefore there is to be any appeal

we would submit that we should not have any

interest in it. And can we draw the Court's

attention to the fact that there are a number of

authorities over the years which indicate that

ultimately the plaintiff, be it one accident or two,

should be compensated for the injuries received

and we would suggest that it should not make any

difference whether he received ultimately the

injuries in two accidents or one followed by a

second one. This point is correctly recognized

by Mr Justice Macrossan at page 18 of the record,

line 21. Could we refer the Court to page 18,

line 21. His Honour says:

Putting aside the contest between

the two defendants and looking at the

situation so far as the plaintiff is

concerned, I should add that I am not

persuaded that, in the case of injuries

due to two successive torts, the

injured persons's total damages when

assessed in the one proceeding i.e. the total of what is payable to the

plaintiff by both defendants, should be

less than the amount which would be

appropriate if all of the injuries and

incapacity were suffered in one accident.

(Continued on page 11)

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MR HANGER (continuing):  The support referred to by

Mr Justice Macrossan in the House of Lords' cases

to pages 814 and 815 in Lord Keith's judgment and

is best set out in JOBLING V THE ASSOCIATED DAIRIES

page 821 in the judgment of Lord Bridge.	The
passage at 821 appears at paragraph E:

There is powerful, perhaps irresistible,

attraction in the argument that, in the

circumstances envisaged, the aggregate of
the damages recoverable by the plaintiff,

should, provided both tortfeasors can be

found and can meet their liability, be

sufficient to cover the aggregate loss of

earnings, past and future, which results from

the combined effect of both injuries.	But
whether this end is properly achieved as

between the two tortfeasors, by apportioning

liability on the principle which commended

itself to the Court of Appeal, or on the

principle for which Mr Griffiths contended

in argument, seems to me a very difficult

question.

Your Honours, that a different approach to the

method of assessment of contribution would not

affect the overall assessment of damages is also

recognized by Mr Justice McPherson at page 36 of

the record, line 21, to page 37, line 9.

So that, if special leave were to be granted

in this case, the argument, in our respectful
submission, should be confined to assessment of

contribution between the tortfeasors and the

question does not involve a question of the

overall assessment of damages. It is appropriate,

therefore, that the plaintiff should not be
involved in the appeal. If the appeal were so
confined and the plaintiffs' ultimate damages were not

to be affected, we would withdraw from the proceedings

in so far as the High Court is concerned.	Those
are our submissions, Your Honours.

MASON CJ: Yes, Mr Cullinane.

MR CULLINANE:  Your Honours, this is not, in our submission,

a case for the granting of special leave. The

point that is said to be of general importance

in the affidavit of Mr Dickson does not arise,

in our respectful submission, on the facts of this

case. Both of the two judgments of the House of

Lords referred to in paragraph 4 concern a situation

where a person has suffered injuries in one incident

and the consequences of that incident are then submerged as a result of the consequences of a subsequent incident.

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In the present case, the facts as found by

the trial judge exclude that situation. This was

a case in which His Honour the learned trial judge

had to apportion damages between the consequences

of two torts, each of which were then contributing
to the plaintiffs' disabilities, and, in our
submission there can be no argument with the way
in which His Honour, having found those facts,
apportioned the damages between the two torts.
Further, as has been pointed out, the case was

not conducted before the trial judge upon the basis

that the consequences of the second tort obliterated

the effects of the first.

It was at all times conducted and the facts

were found accordingly upon the basis that the

two accidents, the two torts, contributed to the

position of the plaintiff at the time the trial

was held. Consequently, in our submission, the
question which may have to be resolved at some

does not arise and, in our submission, it

time and which is set out in paragraph 4 of simply

is not an appropriate case for the grant of special

leave. Those are the submissions of the second

respondent, in summary.

MASON CJ: Thank you, Mr Cullinane. Yes, Mr Douglas.

MR DOUGLAS: Your Honours, so far as the plaintiff is

concerned, it may be that on a proper assessment of damages, according to principle, he would get less or more depending upon how it fell out.

(Continued on page 13)

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MR DOUGLAS (continuing):  However, if Your Honours are of

a view that an appeal should be confined only

to the issues between the tortfeasors ~hat, of

course, leaves the plaintiff out. If he is to

stay in we have instructions, Your Honours, to

pay his costs at any event, of the appeal .when it is

heard and, of course, o.f this application. We say nothing

more about the submission of Mr Cullinane than

what we said before. Thank you.

MASON CJ:	Thank you, Mr Douglas. Underlying the assessment of damages for personal injury in cases of this kind where the plaintiff has suffered successive
and related injuries at the hands of different
tortfeasors  is a question of law of fundamental
importance. The question is the subject of continuing
debate, no settled principle having yet emerged:
see BAKER V WILLOUGHBY, (1970) AC 467; JOBLING V
ASSOCIATED  DAIRIES LTD, (1982) AC 794 and
FAULKNER V KEFFALINOS, (1970) 45 ALJR 80,at page 85. So the question sought to be raised would attract
the grant of special leave in an appropriate case.
But it seems to us that this is not such a case.

In the Full Court of the Supreme Court

Mr Justice Macrossan, responding to the contention

which the applicant seeks to raise for consideration

in the proposed appeal,said:

That the proper response to a submission
of this kind is that the present trial was

conducted in a certain way. Each side had a full opportunity to present its case and a body of evidence was adduced upon which

the trial judge was obliged to base his

conclusions as best he could. There is no

hint that the judge was invited to view the

case as one of submerging or obliteration
or that his attention was directed to

authorities, such as the two cases in the

House of Lords.

The two cases to which His Honour referred are

BAKER V WILLOUGHBY and JOBLING V	ASSOCIATED
DAIRIES LTD.	The correctness of the statement

made by Mr Justice Macrossan, which I have just

quoted, was not disputed. In the circumstances,
particularly having ~egard to the way in which

the case was conducted, it is not a suitable vehicle

for a determination of the question of law sought

to be raised. The application is therefore refused.

MR HANGER:  I make an application for costs, Your Honour.

MASON CJ:  Yes. I take it an application is made by both

respondents?

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MR HANGER:  Yes, Your Honour.

MASON CJ:  Yes. You cannot resist that, Mr Douglas?

MR DOUGLAS:  No, Your Honours, certainly not.

MASON CJ:  Yes. The application is refused with costs.

AT 11.05 AM THE MATTER WAS ADJOURNED SINE DIE

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