Parish v Wu
[2010] VSC 21
•8 February 2010 (reasons provided 10 February 2010)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
No. 6200 of 2009
| DAVID PARISH | Plaintiff |
| v | |
| YIXUAN WU | Defendant |
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JUDGE: | J. FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 February 2010 | |
DATE OF RULING: | 8 February 2010 (reasons provided 10 February 2010) | |
CASE MAY BE CITED AS: | Parish v Wu | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 21 | |
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PRACTICE – Jury trial – Counsel’s opening – Pecuniary loss damages under the Transport Accident Act 1986 - Application to discharge jury – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Casey QC with Mr A. Moulds | Burt & Davies |
| For the Defendant | Mr R.H. Gillies QC with Ms R. Annersley | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
This ruling explains the reasons why I refused the application made yesterday afternoon by Mr Gillies QC on behalf of the defendant, Mr Yixuan Wu to discharge the jury. The application was made at the conclusion of the opening address by Mr Casey QC on behalf of the plaintiff, Mr David Parish.
Background
Mr Parish was injured in a motor vehicle collision on 21 August 2004 when the vehicle he was driving collided with a vehicle driven by Mr Wu. In the accident, Mr Parish’s wife, Mary, (who was a passenger in his vehicle) suffered injuries which have left her with cognitive and/or psychological deficits. Both she and Mr Parish are entitled to benefits under s 60 of the Transport Accident Act (“the Act”).
Mr Parish is entitled, pursuant to s 93(7) of the Act, to make a claim for pecuniary loss damages.
Proceedings were issued by Mr Parish on 24 April 2009 in which he alleged that he had sustained injuries to both his back and neck, as well as psychological upset. Mr Wu, in the defence filed on his behalf, admitted that the plaintiff suffered injury in the collision but denied “the nature, extent or consequence of the injury, loss and damage” pleaded by Mr Parish.
In a list of special damages filed in September 2009, Mr Parish asserted that between February 2006 (being the relevant statutory date)[1] and 4 February 2010, he lost approximately $306,000 of income by reason of his inability to work as a helicopter pilot. In the particulars of loss of earning capacity, it is asserted that he sustained injuries to his spine, such that he is totally and permanently incapacitated for work as a helicopter pilot, and that his only other qualification is as a diesel mechanic, which involves heavy physical work of a sort that he is now unable to perform on account of his injuries. He asserts that he has suffered a net weekly loss of $2,206 with a retained earning capacity of approximately $300 net per week.
[1]Transport Accident Act s 93(10).
It is common ground that there will be evidence in the course of the trial (provided it is deemed to be relevant) that since February 2006, Mr Parish has spent a considerable amount of time caring for his wife, for which at times he has received Commonwealth benefits. The benefits are repayable, as I understand the position, upon a verdict being given in his favour.
The opening address for the plaintiff
In the course of Mr Casey’s opening remarks, he explained to the jury that over the past four years Mr Parish had spent much of his time looking after his wife. He described her injuries to the jury and explained that she needed assistance with domestic tasks and childcare.[2] He told the jury that the Transport Accident Commission (“TAC”) had not provided for an attendant carer or domestic assistance and it was necessary that Mr Parish carry out these tasks.[3] He informed the jury that Mr Parish had received payments from the Commonwealth in the form of a carer’s pension.[4]
[2]T36-37.
[3]T44.
[4]T44.
He also told the jury that, insofar as Mr Parish’s own injuries were concerned, his treatment had been delayed due to an inability to receive funding from the TAC for rehabilitation services to be arranged by a doctor in the United States and by his treating general practitioner at Sale.
The objections to the address by counsel for the defendant
Mr Gillies’ primary objection to Mr Casey’s opening remarks was that there should be no mention whatsoever of Mrs Parish’s condition and the care provided to her by her husband. He contended that this was irrelevant to the exercise to be carried out by the jury, which is simply to determine the impairment of Mr Parish’s earning capacity as a result of the injuries sustained and caused by Mr Wu’s negligence. He said that the decision to look after Mrs Parish was a choice made by Mr Parish unrelated to his injuries. He further argued that introducing such evidence ran contrary to s 93(10) of the Act, which precludes Mrs Parish from claiming for the provision of attendant care or voluntary services in a common law claim. He also argued that Mr Casey’s address had introduced two specific irrelevancies, namely (a) the claim made by Mrs Parish upon the TAC for attendant care and domestic assistance (and the delays in processing that claim), and (b) Mr Parish’s claim to the TAC and the delay in funding of the rehabilitation services by the TAC. He asserted that neither matter was relevant to the assessment of Mr Parish’s damages.
Underpinning Mr Gillies’ application was a concern that a jury would be inclined to compensate Mr Parish for the care and support of his wife “by a side wind” in the form of an award of damages of Mr Parish’s entire alleged loss of earnings. This was significantly enhanced, he contended, by the fact that the jury would necessarily know that Mr Wu was the driver of the car which produced Mrs Parish’s injuries.
Relevant principles
In Rees v Bailey Aluminium Products Pty Ltd,[5] the Court of Appeal said as follows in relation to the final address of counsel:
Although a civil trial is adversarial in nature, each party is entitled to a fair trial in which they are afforded a reasonable opportunity to present their case; determination of the proceeding resting upon consideration of admissible evidence placed before the tribunal of fact. The litigant is entitled to have his or her case fairly tried free from intrusion of any extraneous matter calculated to influence the jury, counsel observing the rules of evidence, adhering to well recognised ethical standards and remaining within the bounds of permissible advocacy.[6] (Citations omitted.)
These principles are equally applicable to an opening address with, of course, the obvious proviso that the admissibility of evidence has not been finally determined and can only be anticipated.
[5][2008] VSCA 244.
[6]Ibid [16].
The inquiry in relation to a complaint about counsel’s address at the opening of a trial involves two aspects:
(a) Has counsel, in the course of the address, opened facts or matters which will not ultimately be admissible as evidence in the course of the trial? As I have said, at times, at the outset of a trial it may be impossible to determine whether such evidence will be admissible because much will turn on the way in which the trial is conducted. This is particularly so in personal injury litigation where the pleadings rarely define with any precision the boundaries of the factual contest. This case is a paradigm example.
(b) In the event that counsel opens facts or matters which the Court considers will not ultimately be admitted as evidence, then the Court will need to determine whether those references create a real risk that the opposing party will be deprived of the opportunity of a fair trial. In such an assessment, the Court will take into account whether an appropriate direction to the jury, at this stage, will cure the risk of an unfair trial.[7] It will also take into account the fact that the complaint has emerged at an early point of the trial and a fresh jury can be empanelled without causing any major inconvenience.
[7]Smout v Smout & Anor [1989] VR 845, 850 – 851. See also Rees v BaileyAluminium Products Pty Ltd [2008] VSCA 244 [122].
Analysis
References to Mr Parish caring for his wife
Mr Wu’s defence has put in issue all aspects of Mr Parish’s claim for both pain and suffering and loss of earning capacity. Mr Parish is required to prove every aspect of his claim.
Section 55(1) of the Evidence Act 2008 reads as follows:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
The damages claimed by Mr Parish for both past and future loss are compensable “because the diminution of his earning capacity is or may be productive of financial loss”.[8] In Kallouf v Middis,[9] the New South Wales Court of Appeal said as follows as to the assessment of loss of earning capacity:
It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position he or she would have been in if injury had not been sustained. What a worker earned in the past may provide very useful guidance about what would have been earned if that worker had not been injured. But the inquiry is one about the likely course of future events and evidence of past events does not always provide certain guidance about the future.[10]
[8]Graham v Baker (1961) 106 CLR 340, 347. See also Medlin v State Government Insurance Commission (1995) 182 CLR 1, 16.
[9](2008) NSWCA 61.
[10]Ibid [48]. See also Husher v Husher (1999) 197 CLR 138, [7]-[8].
In State of New South Wales v Moss[11] Heyden JA said:
Since a reduced capacity to earn is reflected both before the trial and after it, evidence of past economic loss is some, though not conclusive, evidence of reduced earning capacity.
[11](2000) 54 NSWLR 536 [64].
Thus, the jury’s inquiry, in relation to pecuniary loss is directed to the capacity of Mr Parish to engage in employment, both in the past and in the future. Therefore, it seems to me that in relation to the claim relating to loss or impairment to earning capacity, the following factual issues will need to be assessed by the jury:
(a) Whether any and, if so, what incapacity suffered by Mr Parish is related to his injuries.
(b) Mr Parish’s ability to work in the past and the future.
(c) What physical activities Mr Parish has been able to perform in the past.
(d) The manner in which Mr Parish has exercised his capacity to carry out work in the past.
(e) What remuneration, if any, Mr Parish has received for carrying out work in the past.
(f) What tasks Mr Parish can and cannot perform as a result of the effects of the injuries.
(g) Whether Mr Parish’s ability to work is related to his injury or as a result of personal choices made by him and unrelated to his injuries.
It is relevant to the jury’s consideration to scrutinize what Mr Parish has been doing with much of his time over the past four years. It is patently germane to the question of his loss of earning capacity. The jury will be directed that its task is to measure, both in the past and the future, the diminution of that earning capacity. Moreover, the jury will be told that it is not simply a task of comparing what he has earned in the past with what he would have hypothetically earned in the event of injury. Rather, it is to determine what loss of earning capacity has been produced by the subject injuries and not by any choice made by Mr Parish not related to the effects of his injuries. In my view, the evidence regarding his time spent caring for his wife, either directly or indirectly, rationally affects the assessment of the probability of a number of the matters I have identified.
Indeed, if Mr Gillies’ argument was correct, the jury would not receive any evidence relevant to his caring for his wife, which it would seem has occupied a considerable part of his life over the past four years. This would produce an injustice to Mr Parish, as it would necessarily invite the jury to speculate as to what he had or had not being doing over that period. This evidence provides an explanation for Mr Parish’ failure to obtain work during much of that period.
In my view, there is no merit in the submission made on behalf of Mr Wu.
Reference to the involvement of the TAC in relation to Mrs Parish’s injuries
I also do not accept that the reference by Mr Casey in his address to the failure or delay of the TAC to provide care or domestic assistance is irrelevant. It explains to the jury, perhaps indirectly but nevertheless relevantly, why it is that Mr Parish has been obliged to take on the role of carer. It would not matter if the decision had been made by, for example, the Victorian WorkCover Authority, a State government or Commonwealth department or authority. It is part of the mosaic of evidence which explains the basis for Mr Parish taking on this task.
Reference to the delay in TAC approving a rehabilitation program
I also conclude that it was open to Mr Casey to refer in his opening to evidence as to the delay in the commencement of Mr Parish’s rehabilitation program in the USA and later in Australia, caused by an apparent misunderstanding on the part of the TAC. This goes to Mr Parish’s capacity to work as a helicopter pilot – remembering Mr Wu puts in issue the entire extent of his impairment of earning capacity. It relates directly to the questions of his treatment and the effect of the injuries upon his capacity to work as a helicopter pilot.
Summary
I conclude that each of the matters adverted to by Mr Casey can be led in evidence at the trial and the application to discharge the jury should be refused.
Further observations
Nothing in the conclusions prevents Mr Gillies from arguing to the jury, as he has indicated that he will, that his client, Mr Wu, should not be held liable in damages for the choice made by Mr Parish to look after his wife. The jury no doubt will take this factor into account in determining the level of diminution in the earning capacity of Mr Parish both in the past and the future. But that does not mean that the jury should be precluded from receiving evidence relevant to the resolution of that question.
Finally it is important that the jury be alerted to the fact that this is not a case
which –
(a) involves any determination or finding relevant to Mrs Parish’s injuries and entitlements under the Act;
(b) involves an inquiry into the rights or wrongs of the decisions made by the TAC or, for that matter, any other body, as to whether Mr or Mrs Parish is entitled to any and, if so, what statutory benefits.
Conclusion
For the reasons that I have set out, I have determined that the jury will not be discharged, but that a direction be given to the jury as I have set out at [25].
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