Purkess v Crittenden

[1965] HCA 34

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Taylor, Menzies and Windeyer JJ.

PURKESS v. CRITTENDEN

(1965) 114 CLR 164

16 July 1965

Damages—Evidence

Damages—General damages—Quantum—Onus of proof—Shifting evidentiary presumptions in relation to damages—Onus of proof to establish case or to introduce evidence. Evidence—Onus of proof—Onus of establishing case—Onus of introducing evidence.

Decisions

July 16.
The following written judgments were delivered: -
BARWICK C.J., KITTO AND TAYLOR JJ. In an action for damages for personal injuries heard without a jury the appellant secured an award of 10,219 pounds 19s. 6d. This amount was made up of 5,000 pounds for general damages excluding economic loss, 5,064 pounds representing an assessment of economic loss and 155 pounds 19s. 6d. for proved special damages. Following the entry of judgment for this amount the present respondent appealed to the Full Court on the ground that the damages awarded were excessive. The present appellant thereupon gave notice of cross-appeal on the ground that the award was manifestly inadequate and indicated that the Full Court would be asked to increase the amount of the judgment to 13,509 pounds 19s. 6d. In the result the Full Court allowed the appeal reducing the amount of the judgment to 8,000 pounds and dismissed the cross-appeal. We are now asked by the appellant to set aside the order of the Full Court and direct that judgment should be entered for the appellant for 13,509 pounds 19s. 6d. (at p166)

2. At the time when the appellant received her injuries she was forty-nine years of age and the main disability of which she complains is the existence of constant severe and disabling pain in the cervical region. This is said to have resulted from being thrown first against the left-hand side of the cabin of the vehicle in which she was riding at the time of the accident and, thereafter, head first against the roof. (at p166)

3. There was, however, evidence that some eighteen months before the accident the appellant had experienced severe pains in the lumbar region of her back and that previously to the accident she was suffering from degenerative changes in the spine which were most marked in the cervical region. This condition was said to have been long-standing and it was asserted on behalf of the respondent that the evidence showed that it was probable that at some unspecified time during the ten years following the accident the appellant would have become similarly disabled even if she had not suffered the injury of which she now complains. It is not altogether clear what view the learned trial judge formed concerning this evidence though he expressly said that he accepted Dr. Sutherland's evidence that the plaintiff might not have developed her present symptoms if she had not had an injury. Nevertheless, he added, there was competent medical evidence to the effect that "from the state of the degeneration of her spine, one could expect the plaintiff would be in some trouble within at least the fifty to sixty range" and that "the plaintiff was of such an age when she would be likely to expect trouble from her degenerative spine". The evidence does not define what "trouble" might have been expected at some time during that period and, not unreasonably, the learned trial judge assessed damages on the basis that her then present condition and resulting permanent disability were the result of the accident in which she was involved. But in doing so he referred to Watts v. Rake (1960) 108 CLR 158 , a case which, it was said, contains dicta suggesting that where a plaintiff asserts that he has become permanently disabled as a result of a negligent act on the part of the defendant and the defendant sets up a case that by reason of a pre-existing condition the plaintiff would in any event have become permanently disabled within an ascertainable period, the onus of proof on this aspect of the case rests upon the defendant. (at p167)

4. We do not regard that case as formulating the proposition that once a plaintiff has established a prima facie case that he has been incapacitated as a result of the injuries inflicted upon him by the defendant's negligence the burden of establishing that his incapacity is wholly or partially the result of, or that total or partial incapacity would, in any event, have resulted from, some pre-existing condition in the plaintiff passes to the defendant in the sense that, when the whole of the evidence in the case has been given, the onus of proof on this issue rests upon him. The expression "burden" or "onus" of proof, "As applied to judicial proceedings . . . has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading - the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence" (Phipson on Evidence, 10th ed. (1963) par. 92). This is a proposition which has been frequently acknowledged (See e.g. Fitzpatrick v. Walter E. Cooper Pty. Ltd. (1935) 54 CLR 200, at p 218 and Mummery v. Irvings Pty. Ltd. (1956) 96 CLR 99, at p 118 et seq ). The position is, we think, correctly stated by the learned author of the work to which we have referred when he says: "the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates" (ibid. par. 95) and it was with the meaning of this expression in its secondary sense that the case mentioned was concerned. We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v. Rake (1960) 108 CLR 158 was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence. In the present case the evidence accepted by the learned trial judge by no means established with any reasonable degree of precision the extent of the appellant's pre-existing affliction or what its future effects, apart from the result of the defendant's negligence, were likely to be. That being so we think it was proper for him to deal with the case on the basis that the defendant's negligence was the cause of the appellant's permanent disability and, accordingly, we propose to deal with this appeal on the same basis. (at p169)

5. In dealing with the appeal before it the Full Court refused to interfere with the assessment of 5,064 pounds for economic loss. They found themselves unable to say that the amount was either too large or too small. Upon an examination of the material upon which it was based we think that it was a generous assessment but we find it impossible to say that it was excessive. We add that we can find no ground upon which, as was contended by the appellant, the damages under this heading should be increased by a further amount in excess of 3,000 pounds. (at p169)

6. The Full Court, however, did think that the sum of 5,000 pounds assessed in respect of the plaintiff's past, present and future pain and suffering and for loss of the enjoyment of life was excessive. They thought, "having regard to current standards in Australia", that the assessment was so large as to call for a review. The effect of the order made by the Full Court was to reduce the amount under this head of damages by some 2,200 pounds. We think that when regard is had to the character of the disability with which the appellant is now afflicted and the effect it must necessarily have upon her life, no case was made out before the Full Court for disturbing the assessment of the trial judge. (at p169)

7. We therefore think that the appeal should be allowed and the initial judgment restored. (at p169)

MENZIES J. Having considered the evidence given at the trial, the judgment of the learned trial judge and that of Hanger J. in the Full Court, with which the Chief Justice and Lucas J. agreed, I have reached the conclusion that the Full Court was justified in reducing the damages awarded at the trial, viz. 10,219 pounds 19s. 6d., and that this Court should not interfere with the damages assessed by the Full Court, viz. 8,000 pounds. My conclusion that the Full Court was warranted in reducing the damages awarded by the trial judge depends in some measure upon my own view that 5,064 pounds was an over-generous estimate of the appellant's business loss due to the accident. (at p169)

2. It is, of course, the Full Court's award of 8,000 pounds as the sum for total compensation that this Court has to consider and, as I am not satisfied that this assessment was in error, I would dismiss the appeal. (at p170)

WINDEYER J. I agree in the judgment of the Chief Justice, Kitto and Taylor JJ. I shall, however, say something for myself as I concurred, without giving any reasons, in the decision in Watts v. Rake (1960) 108 CLR 158 . Observations in the judgments in that case have, it seems, been misunderstood. This has occurred from a failure to distinguish between the two main senses in which the term "burden of proof" is commonly, but perhaps confusingly, used by lawyers: see on that Professor Cross's work on Evidence, 2nd ed. (1963), pp. 65-76. (at p170)

2. In a personal injury case the ultimate burden is on the plaintiff to establish the extent of his injuries caused by the conduct of the defendant. If when the tort occurred the plaintiff was suffering from a progressive disease which, even if he had not been tortiously hurt, would certainly and within some reasonably predictable time have disabled him in the same way as the tort did, then the defendant's conduct has merely hastened the inevitable; and damages must be measured accordingly. But a plaintiff, tortiously injured, who suffers thereafter in a way in which he had not previously suffered, may in the absence of any countervailing evidence rely upon the prima facie conclusion that for his disabilities and sufferings the defendant is responsible. It is not incumbent on the plaintiff to lead evidence to displace or discount the inference to which the facts would otherwise give rise. But he must prove his case: and when the whole of the evidence is before the tribunal of fact the burden is on him to establish the measure of his damages. The evidence may not show that the conduct of the defendant did more than accelerate misfortune. But of course, it will not avail a defendant to show that but for the plaintiff being in some way ailing when he was hurt his injuries would have been less serious than they were. A tortfeasor gets no allowance because of the frailty of his victim. (at p170)

3. In Watts v. Rake (1960) 108 CLR 158 there is also a reference by Dixon C.J. to another situation, that which arises when it is said that a plaintiff's disabilities should be regarded as the separate consequences of concurrent and independent causes only one of which is the conduct of the defendant. Such cases can no doubt exist. But again a defendant is not relieved of responsibility for the consequences of his conduct because the plaintiff would not have suffered as he did unless other contributory factors had existed. The ordinary conclusion when a man suffers a hurt is that all the consequences that follow it are attributable to the events that immediately caused it. If it be suggested that this is not so, that some of the apparent consequences are not causally related to it, then some material is required to support that suggestion. It is in this sense and at this stage that a burden of adducing evidence is upon the defendant. This was so clearly stated by the learned Chief Justice in Watts v. Rake (1960) 108 CLR 158, at p 160 that I venture to repeat what he said: "If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause". The plaintiff in his own case need do no more than rely upon the conclusion to be drawn from the basic facts that before the accident he was not disabled: that after it he was disabled in a way that could be a consequence of the hurt he sustained. Whether one calls such a conclusion an inference, a presumption of fact or a presumptio hominis matters not. It is an inference which any tribunal of fact would ordinarily draw until the defendant had, by evidence elicited in cross-examination or led, provided some material to overcome it - either by proving the contrary or throwing the matter into doubt. (at p171)

4. It was argued in the present case that the learned primary judge misapplied these principles when he said, "I accept Doctor Sutherland's evidence that the plaintiff might not have developed her present symptoms if she had not had an injury. It was for the defendant to prove not only that the accident did no more than accelerate the occurrence of a condition that was inevitable but also the extent of the acceleration". The use of the word "prove" there may be criticized. But I see no reason to disagree with the view taken in the Full Court that there was no evidence sufficiently precise and definite to displace the inference that the disabling pain from which the plaintiff suffered after the accident was caused by the hurt she then received. It was suggested in argument for the respondent that the chronic pain and restricted movement from which she now suffers could somehow be as it were apportioned, part only of each being attributed to the accident, the rest being attributed to other factors. But there was nothing at all to sustain this entangled and difficult proposition. Her infirmities before the accident may have made its consequences more serious for her than they would have been for a person in good health. But that does not reduce the damages for which the defendant is liable. (at p172)

5. The case is not, I think, one in which it is possible to estimate entirely independently damages for economic loss arising from a deprivation of earning capacity and damages for loss of the capacity to enjoy life to the full. If I had myself to assess the damages that the plaintiff should recover, I think I would probably have awarded her less in total than did the trial judge. But I cannot say that he approached the question in an erroneous way or that any sufficient ground existed for the setting aside of his assessment. I would therefore allow the appeal and restore his judgment. (at p172)

Orders

Appeal allowed with costs.

Order of Full Court of Supreme Court of Queensland set aside and in lieu thereof order that appeal and cross-appeal to that Court to be dismissed with costs, costs to be set off. The sum of 50 pounds in the hands of the Registrar of the Supreme Court to be applied as may be directed by the said Court or a Judge thereof.