PT LIMITED as trustee for McNamara Australia RESPONDENTS Property Trust & Ors
Shorey v PT Limited [2003] HCA 27
28 May 2003 S212/2002
ORDER
1. Appeal allowed with costs.
2. Set aside the orders of the New South Wales Court of Appeal dated 7 June 2001.
3. Remit the proceedings to the Court of Appeal for rehearing and determination of the appeal and cross-appeal to that Court conformably with the reasons of this Court.
On appeal from the Supreme Court of New South Wales
Representation:
D F Jackson QC with A S Morrison SC and A C Casselden for the appellant (instructed by Maurice Blackburn Cashman)
B W Walker SC with P S Jones for the first respondent (instructed by PricewaterhouseCoopers Legal)
No appearance for the second and third respondents
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Shorey v PT Limited
Appeal – Rehearing – Causation – Conflict of expert evidence – Review of trial judge's finding of fact – Where plaintiff fell and suffered physical injuries as a result of tortfeasor's negligence – Plaintiff suffering from persistent psychologically disturbed condition – Whether psychological condition caused by fall.
Negligence – Damage – Causation of – Evidentiary foundation for proof of – Existence of multiple causes of damage – Obligation of plaintiff at trial to prove damage – Sufficiency of proof that the alleged tortfeasor's conduct was a cause of the plaintiff's damage – Alleged disproportion between the tortfeasor's conduct and subsequent symptoms – Whether plaintiff malingering – Obligation of tortfeasor to take plaintiff as it finds him or her.
Evidence – Evidentiary presumptions – Multiple causes of damage allegedly occasioned by tortfeasor's negligence – Evidentiary onus of tortfeasor to exclude the operation of its wrong as a cause of continuing damage – Relevance of factual findings made at trial – Whether alleged tortfeasor has displaced the causative effect of its injury.
GLEESON CJ, McHUGH AND GUMMOW JJ. The facts of the case are set out in the reasons for judgment of Kirby J and Callinan J. The issue upon which the Court of Appeal, by majority (Handley and Powell JJA; Davies AJA dissenting), reversed the decision of the trial judge is stated at the commencement of the reasons of Callinan J.
Accepting, as did the Court of Appeal, the finding of the trial judge that the appellant genuinely experienced the extreme, and in some respects bizarre, symptoms of which she complained, and that she was not malingering, the question became whether the fall for which the respondents were responsible was a cause of the appellant's condition as it manifested itself at trial. That there were other factors which contributed to that condition was beyond doubt; but if it were correct to conclude that the fall was a cause of the condition, then the appellant was entitled to succeed.
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Shorey v PT Ltd [2003] HCA 27
Case
[2003] HCA 27
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by the appellant, Ms. Shorey, against a decision of the New South Wales Court of Appeal. The dispute concerned Ms. Shorey's claim for damages for physical injuries sustained as a result of the respondent's negligence. A key issue was whether a persistent psychologically disturbed condition suffered by Ms. Shorey was caused by the fall.
The legal issues before the High Court included whether the Court of Appeal erred in its review of the trial judge's findings of fact, particularly concerning causation. The court was required to consider the principles governing appeals by way of re-hearing, the power of an appellate court to draw inferences and make findings of fact, and the limitations on such powers when reviewing a trial judge's factual determinations, especially where the credibility of witnesses was in issue. The court also considered the sufficiency of proof of damage and the evidentiary onus on a tortfeasor to displace the causative effect of their conduct.
The High Court reasoned that an appeal by way of re-hearing must be a reality and that the appellate court has a duty to correct errors of law and fact. However, it must do so with appropriate restraint, recognising the advantages of the trial judge. The court found that the Court of Appeal had not been warranted in disturbing the primary judge's findings on causation, partly because a crucial proposition regarding the appellant's psychological condition being caused by grief rather than the fall had not been directly put to the appellant and her daughter at trial, thus weakening the argument for preferring that interpretation on appeal. The court also noted that the Court of Appeal had not adequately addressed the specific complaints of the respondent as appellants in that court, particularly in light of the failure of the general attack on damages based on malingering and causation.
The High Court allowed the appeal, set aside the orders of the New South Wales Court of Appeal, and remitted the proceedings to that Court for a re-hearing and determination of the appeal and cross-appeal.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the orders of the New South Wales Court of Appeal dated 7 June 2001.
3. Remit the proceedings to the Court of Appeal for rehearing and determination of the appeal and cross-appeal to that Court conformably with the reasons of this Court.
Background
Background to the litigation
By special leave, the appellant now appeals to this Court. She seeks orders setting aside the judgment of the Court of Appeal and remitting to that Court the cross-appeal which was not decided in consequence of the conclusions which that Court reached.The facts, legislation and issues The background facts are stated by Callinan J[4]. The appeal from the judgment of the District Court[5] had to be decided by the Court of Appeal in accordance with the Supreme Court Act 1970 (NSW). Relevantly, such an appeal is by way of re-hearing[6]. The appellate court has the power and duty to draw inferences and make findings of fact on the basis of the record[7]. It may re-assess damages[8]. In specified cases, it may receive further evidence[9]. It is obliged to "make any finding or assessment [and to] give any judgment … which ought to have been given or made or which the nature of the case requires"[10].[4]Reasons of Callinan J at [57]-[67].[5]Pursuant to the District Court Act 1973 (NSW), s 127(1).[6]s 75A(5).[7]s 75A(6)(b).[8]s 75A(6)(c ).[9]s 75A(7) and (8).[10]s 75A(10). The authority of this Court upon the application of the foregoing statutory provisions is contained in a series of decisions that settles the applicable law. An appeal by way of re-hearing must be "a reality, not an illusion"[11]. The appellate court must correct decisions of the trial judge found to be wrong. This includes decisions of law; but also decisions of fact. However, in respect of decisions of fact, the appellate court must perform its functions within the limitations inherent in the appellate process and in accordance with rules validly provided by law. This involves a recognition of the significant advantages of the trial judge in fact finding, especially[12] (but not only[13]) in cases in which the credibility of the parties, or of important witnesses, was in issue at the trial.[11]Warren v Coombes (1979) 142 CLR 531 at 553.[12]Jones v Hyde (1989) 63 ALJR 349 at 351-352; 85 ALR 23 at 27-28; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482-483.[13]State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; 160 ALR 588. As in the other cases in the present series, the basic issue for decision in this appeal is whether the Court of Appeal erred in its application of the foregoing principles. Just as the proper functions of appellate courts in reviewing findings about the evidence have been the subject of detailed consideration in this Court, so in national courts in other common law countries the applicable principles have been explored and explained. The verbal formulae vary from one country to another, but the substance is much the same. In each case, the appellate court must respond in a principled way to the call for action to correct error, whilst at the same time observing the demand for appellate restraint consonant with the respective facilities and functions of the appellate and trial courts[14].[14]Fox v Percy (2003) 197 ALR 201 at 206-210 [20]-[31].
Moreover, as Davies AJA pointed out, it was not explicitly put to the appellant or her daughter that the appellant had effectively recovered from the temporary aggravation caused by the fall when she was propelled into bizarre symptoms by grief and feelings of guilt brought on by the death of her husband and its circumstances. Whether or not such a course of questioning was required by procedural fairness or otherwise, the failure to put the proposition directly to the appellant and her daughter at trial, so as to give them the chance to respond, weakened the significance of the argument that such an interpretation of events should be preferred on appeal. In my view it should not have been.Conclusion: the appeal miscarried It follows that, for reasons substantially similar to those expressed in the Court of Appeal by Davies AJA, I would conclude that that Court was not warranted to disturb the findings of the primary judge on the second issue at the trial, causation. The foundation for that step, as stated in the reasons of Handley JA was, with respect, mistaken. No other basis is demonstrated to support the conclusion on another footing. None of the respondents filed a notice of contention or relied upon a different basis to sustain the judgment of the Court of Appeal. That judgment must therefore be evaluated in terms of the reasons given by the majority to sustain it. Even if I had come to the conclusion that the appeal to the Court of Appeal was bound to succeed (for example because of unsatisfactory reasoning by the primary judge in failing to address specifically the suggested force of the cross-examination of Dr Phillips) this would not, in my opinion, have been a case in which the Court of Appeal was entitled to substitute its own assessment of the appellant's damages for that arrived at in the trial[42]. There were, in addition to Dr Phillips, a number of witnesses whose evidence needed to be given weight in judging the duration of any disability caused by the fall, most notably the appellant herself and her daughter. The Court of Appeal had seen neither give evidence, yet their evidence was important, even perhaps critical. In such circumstances the most that the respondents could properly have hoped for was a retrial in which the alleged defect in reasoning at the trial was addressed and all of the evidence fully weighed and subjected to improved judicial reasoning. I see no defect in the primary judge's reasons sufficient to warrant such criticism and consequential relief.[42]cf Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 477 [60], 501 [132]; Fox v Percy (2003) 197 ALR 201 at 212 [42] and 225 [97]-[98]. The conclusion reached by the majority in the Court of Appeal appears to have diverted that Court from examining the particular complaints of the respondents, as appellants in that Court – such that related to the issue that led Davies AJA to propose an adjustment to one item in the composition of the damages. The Court of Appeal needed to assess the correctness of the complaints of the appellant on the footing that the general attack upon the damages, grounded in the arguments of malingering and causation fail, as in my opinion, they do. Because it is necessary for the cross-appeal to be heard and determined by the Court of Appeal, it seems appropriate to require that the appeal and cross-appeal both be returned to the Court of Appeal to be heard and determined conformably with these reasons.Orders