Samantha Scott Ely Webb v Venci Leo Pavicic

[2011] ACTCA 9

SAMANTHA SCOTT ELY WEBB v VENCI LEO PAVICIC
[2011] ACTCA 9 (10 May 2011)

APPEAL – appeal from decision of Master – reasons given by Master for findings on respondent’s credit were inadequate – judgment of Master set aside – matter remitted for re-trial on question of damages.

EX TEMPORE JUDGMENT

Supreme Court Act 1930 (ACT), s 37P(a)
Waterways Authority v Fitzgibbon (2005) 221 ALR 402

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 17 - 2010
No. SC 520 of 2004

Judges:         Gray P, Penfold and Katzmann JJ
Court of Appeal of the Australian Capital Territory
Date:            10 May 2011

IN THE SUPREME COURT OF THE       )          No. ACTCA 17 - 2010
  )          No. SC 520 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SAMANTHA SCOTT ELY WEBB

Appellant

AND:  VENCI LEO PAVICIC

Respondent

ORDER

Judges:  Gray P, Penfold and Katzmann JJ
Date:  10 May 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The judgment entered for the Plaintiff be set aside.

3. The matter be remitted for re-trial, limited to the question of damages, before another judge.

4. The Respondent pay the Appellant’s costs of the appeal.

IN THE SUPREME COURT OF THE       )          No. ACTCA 17 - 2010
  )          No. SC  520 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SAMANTHA SCOTT ELY WEBB

Appellant

AND:  VENCI LEO PAVICIC

Respondent

Judges:  Gray P, Penfold and Katzmann JJ
Date:  10 May 2011 
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. The Court is of the view that this appeal should be allowed, the judgment set aside and the matter remitted for re-trial limited to the question of damages.

1. This is an appeal from an assessment of damages made by the Master (Pavicic v Webb [2010] ACTSC 37) in respect of injuries sustained by the respondent, Venci Leo Pavicic, in a motor vehicle collision on 10 March 2004.

1. The appellant, Samantha Scott Ely Webb, was the driver of the other vehicle.  The respondent makes two concessions:

   (1)That the Master made an arithmetical error in the calculation of damages for loss of superannuation.  The appeal must be allowed in respect of that aspect. 

   (2)The other concession concerns the Master’s acknowledged failure to determine the issue as to whether the respondent had not taken steps to mitigate his damages by accepting treatment for a medical procedure described as a radio frequency neurotomy.

1. The appellant put it that if the Master did not fall into error in accepting the credit of the respondent, then the appropriate course in respect of this issue would be to remit the matter to the Master for further determination.  On the face of it that course would not be without its own difficulties.  Section 37P(a) of the Supreme Court Act 1930 (ACT) would permit this Court to remit this matter to consider a particular issue.  That should only be done where such a determination will not affect the other facts in controversy, and we refer generally to Waterways Authority v Fitzgibbon (2005) 221 ALR 402.

2. In the present case the appellant makes a further point as to the Master’s treatment of the issue concerning the respondent’s direct representation, to the ACT Road Transport Authority in the application for renewal of his driver’s licence in January 2008, that he did not have a long term disability that could affect his control of a motor vehicle, contrary to his account to both medical practitioners and to the court.  The evidence on this question went to the three critical issues in the case, the extent of the respondent’s disability, the extent of his lost earning capacity and above all his credit.

3. The credit issue was of great importance as all the medical witnesses conceded that whether the respondent suffered from the diagnosed conditions depended upon whether he was believed.  Senior counsel for the respondent conceded that there was an inconsistency between the evidence the respondent had given and his representations to the Road Transport Authority.  A close inspection of the transcript indicates that the reasons given for dismissing the significance of the inconsistency were quite inadequate.

4. The Master made a finding as to the respondent’s credibility.  At paragraph 25 of his judgement he said;

A number of discrepancies were put to the plaintiff in cross-examination between his evidence-in-chief and words he had used in histories he had given to various doctors.  It is unnecessary for me to deal with each of the inconsistencies.  It is enough to say that none of these minor differences caused me to doubt the plaintiff’s general truthfulness.  It is a matter of common experience that human memory is fallible, and minor discrepancies of this kind are to be expected.

1. He then dealt with the topic the subject of complaint in the following way in the next succeeding paragraph of his judgment.  He said:

An example of the focus of the cross-examination was the plaintiff’s application, signed and dated 15 January 2008, for renewal of his driving licence.  The form includes a number of questions with yes and no boxes.  The plaintiff conceded that he had ticked the no box for the question “Do you have any long term disability that could affect your control of a motor vehicle?”.  In circumstances where the plaintiff’s unchallenged evidence was that he had not driven a motor vehicle for something like a year prior to completing the form, I hardly see this as a major blow to his credit.  He was clearly capable of driving a car a short distance in an emergency, and might conceivably have been called upon to do so.  Additionally, although the plaintiff did not proffer this as an explanation, it is common knowledge that a driving licence is a useful, indeed sometimes almost indispensable, means of identification for purposes quite unrelated to the driving of a motor vehicle.  This aspect of the cross-examination seemed to me to amount to little more than clutching at straws.

1. In dealing with this issue in that way the Master appears to be discounting the detailed cross-examination of the respondent on this topic.  Neither of the explanations that he assigned to the respondent was the subject of the respondent’s evidence.  Rather the respondent’s answers exhibited a considerable degree of prevarication.  At no time did the respondent proffer an explanation for his representation to the Road Transport Authority that he did not have a long term disability.

2. Whilst that might not establish that he was not to be believed in his explanation to the various doctors that he had such a condition, the respondent had at least called into question his general credibility in making such an assertion.  The Master did not deal at all with this issue.  By not giving proper consideration to this matter we consider the Master has not had regard to a relevant consideration in his overall assessment of the respondent’s evidence.

3. In the light of the respondent’s earlier concession that a matter in issue has been overlooked, there seems to be no alternative but to remit the proceeding for a new trial, limited to the question of damages, to be heard by another judge.  We expressly refrain from commenting upon the other grounds of appeal.  They are properly matters to be considered upon the remitter. 

4. The appellant should have the costs of the appeal.

   I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date:      26 May 2011

Counsel for the Appellant:  Mr S.G Campbell SC
Solicitor for the Appellant:  Sparke Helmore
Counsel for the Respondent:  Mr R Crowe SC
Solicitor for the Respondent:  Maliganis Edwards Johnson
Date of hearing:  9 and 10 May 2011 
Date of judgment:  10 May 2011