Smith v Pangallo
[2017] ACTCA 61
•15 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Smith v Pangallo |
Citation: | [2017] ACTCA 61 |
Hearing Date: | 8 November 2016 |
DecisionDate: | 15 December 2017 |
Before: | Penfold, Burns and Perry JJ |
Decision: | See [103] – [107] |
Catchwords: | APPEAL – PERSONAL INJURY – Pedestrian and motor vehicle accident – second defendant appealed assessment of general damages, assessment of contributory negligence, assessment of plaintiff’s creditworthiness, failure to admit evidence – cross-appeal on contributory negligence – consideration of evidence of plaintiff’s creditworthiness – admissibility of pleadings, judgments and orders in other proceedings – Evidence Act 2011 (ACT) ss 69, 91 – apportionment of liability – primary judge’s consideration of all the relevant circumstances – Civil Law (Wrongs) Act 2002 (ACT) s 102(1) – consideration of previous awards of damages in other cases – long history of medical complaints in present case as well as serious non-accident related conditions |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 100, 102 Evidence Act 2011 (ACT) ss 48, 59, 60, 69, 91, 102, 103, 106, Dictionary, Chapters 2 and 3 Supreme Court Act 1933 (ACT) s 37E(2)(a) |
Cases Cited: | Allen v Bennett [2008] NSWDC 119 Anikin v Sierra [2004] HCA 64; 79 ALJR 452 Boyd v Smith [2010] ACTSC 62 Briginshaw and Briginshaw (1938) 60 CLR 336 Cirina v Wong [2005] ACTSC 45 Csik v Wong [2005] ACTSC 56 Dojcinoski v Aleksovski& Anor [2015] ACTSC 357 Fallah Doghooz v Nagy [2011] NSWDC 193 Fazlic v Keily [2013] ACTSC 144 Fleming v Shoobridge [2009] ACTSC 80; 53 MVR 138 Franklin v Blick [2014] ACTSC 273 Garvie v Bulmer [2015] NSWDC 200 Heywood v Miller [2005] ACTSC 4 Hobbs v Fairall and Fairall [2016] NSWDC 116; 22 DCLR (NSW) 327 Johnson v Forefront Automotive Industries Pty Ltd [2013] ACTSC 44 McMahon v John Fairfax Publications Pty Ltd (No 5) [2012] NSWSC 218 Singh v Cooper [2016] ACTCA 55; 78 MVR 210 Steen v Senton (2015) 11 ACTLR 95 Tsueneaki v Stewart [2013] ACTCA 34 |
Texts Cited: | S Odgers, Uniform Evidence Law (Thomas Reuters, 11th ed, 2014) |
Parties: | Timothy Smith (First Appellant) Insurance Australia Limited trading as NRMA Insurance (Second Appellant) John Pangallo (Respondent) |
Representation: | Counsel Mr J Pappas (First and Second Appellants) Mr J Purnell SC with Mr W Sharwood (Respondent) |
| Solicitors Sparke Helmore (First and Second Appellants) Ken Cush & Associates (Respondent) | |
File Number: | ACTCA 33 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Mossop AsJ Date of Decision: 28 July 2015 Case Title: Pangallo v Smith and Insurance Australia Limited trading as NRMA Insurance Citation: [2015] ACTSC 313 Court File Number: SC 160 of 2014 |
PENFOLD J:
I have had the benefit of reading the judgment of Burns and Perry JJ in draft. I agree with the orders they propose, and with their reasons for those orders.
BURNS and PERRY JJ:
In the proceedings below, the plaintiff claimed damages for personal injury he alleged he received when, on 20 September 2011, as a pedestrian he was struck by a motor vehicle driven by the first defendant. The second defendant was joined in the action as the first defendant’s compulsory third party insurer. After a hearing extending over 5 days, on 28 July 2015 Mossop AsJ (as his Honour then was) entered judgment for the plaintiff against the second defendant in the sum of $258,170.00 and ordered the second defendant to pay the plaintiff’s costs.
The second defendant appealed from the orders of Mossop AsJ on the following grounds:
(a)His Honour’s allowance in respect to general damages fell outside any reasonable range for such damages and, as such, bespeaks error.
(b)His Honour’s assessment of general damages, apportioned as to the future, failed to accord logically, or at all, with His Honour’s several assessments relating to future special damages.
(c)His Honour fell into error in his assessment of general damages by failing to properly allow for the negative vicissitudes.
(d)His Honour’s assessment in relation to the plaintiff’s contributory negligence at 20 per cent was against the evidence and the weight of the evidence and, in particular:
(i)Failed to take into account appropriately, or at all, the undisputed evidence that the plaintiff was crossing a suburban street at night dressed in predominantly dark clothing.
(ii)Failed to make any allowance for the quality of the lighting in the area where the plaintiff was struck.
(iii)His Honour’s finding that the accident occurred “at the point of the intersection so as to connect up with the continuation of the footpath on the other side” (of Wanganeen Avenue) was inconsistent with his acceptance of the evidence of the witness Elizabeth Pelle as to where she found the plaintiff after the collision and his acceptance of the evidence of the first defendant that he did not reverse his motor vehicle after the collision.
(iv)His Honour failed to take into account adequately, or at all, the evidence that the plaintiff was partially deaf, particularly on the left hand side.
(v)His Honour failed to take into account adequately, or at all, the combined effect of the plaintiff’s deafness and the wearing of ear plugs through which the plaintiff was listening to an audio device as he crossed the street.
(vi)His Honour failed to take into account adequately, or at all, the evidence that the plaintiff did not hear the first defendant’s motor vehicle approaching prior to the collision.
(vii)His Honour failed to find, in accordance with the evidence, that the plaintiff was walking obliquely away from the first defendant’s motor vehicle as he crossed the street and had thus placed himself in a position where he could not and did not observe the first defendant’s motor vehicle at any time prior to impact.
(viii)His Honour failed to take into account adequately, or at all, the fact that the plaintiff was very near to the footpath on the other side of the street when struck by the first defendant’s motor vehicle and thus in a position to move quickly to safety if he had kept an adequate lookout.
(e)In assessing the plaintiff’s contributory negligence his Honour fell into error in considering his conduct by reference to a “breach of duty” rather than by reference to his failure to take reasonable care for his own safety.
(f)In assessing the plaintiff’s creditworthiness his Honour failed to take into account adequately, or at all, the plaintiff’s admission that he had, in the past, failed to disclose income for the purposes of income tax assessment, knowing that he was obliged to do so.
(g)His Honour fell into error in failing to admit into evidence the documents which were marked for identification C, D, E, F, G and J, wrongly concluding that those documents were admissible, if at all, only pursuant to s 106 of the Evidence Act 2011 (ACT).
(h)His Honour failed to draw from the whole of the evidence the obvious and compelling inference that the plaintiff was fraudulently involved in the staging of a motor vehicle accident in 1981 in respect of which a number of people made false claims for damages, upon the erroneous basis that the plaintiff, having failed to admit any “knowledge or involvement in any wrongdoing” that evidence alone was insufficient to allow such an inference to be drawn.
The second defendant seeks orders that the judgment be set aside and that the proceedings be remitted for rehearing of the plaintiff’s claim or, alternatively, that this Court re-assess the plaintiff’s damages.
By a notice of cross-appeal, the plaintiff challenges the finding by the primary judge that he was guilty of contributory negligence and the order reducing the damages otherwise appropriate by 20 per cent on that basis.
We are satisfied that the defendant’s appeal should be upheld to the extent that the assessment of $150,000 for general damages should be set aside as excessive, and a sum of $100,000 substituted. The plaintiff’s cross-appeal should be dismissed.
For convenience, we will refer to the parties by reference to their description in the proceedings below, except that we will simply refer to the second defendant as “the defendant”, the first defendant having taken no part in this appeal.
The decision of the primary judge
In the proceedings below, the defendant admitted breach of duty, but the extent of causally related damage was in dispute and the defendant also pleaded a defence of contributory negligence. It is necessary to refer to the evidence in more detail. The following is drawn principally from the judgment of the primary judge.
In September 2011 the plaintiff was 63 years old, and lived in Ngunnawal in the ACT. It was his usual practice to go for a walk in the evening in the area around his home. He gave evidence that on 20 September 2011 he intended to do a circuit from his house in Unaipon Avenue northwards along that street, turning right and walking north east along Len Waters Street, turning right into Mirrabei Drive and walking south along that street, turning right into Wanganeen Avenue before completing the circuit by turning right into Unaipon Avenue and returning to his house. While walking south west along Wanganeen Avenue he was required to cross over Jandamarra Street which intersected with Wanganeen Avenue. The intersection of Jandamarra Street and Wanganeen Avenue is a T intersection, with Jandamarra Street forming the stem of the T. The plaintiff testified that he commenced crossing Jandamarra Street at the point of its intersection with Wanganeen Avenue, and was within a metre of the far kerb of Jandamarra Street when he was struck by the first defendant’s vehicle, a four-wheel-drive.
The first defendant gave evidence that at that time he was living in Jandamarra Street, and on the evening of 20 September 2011 he was travelling home from work, which involved turning right from Wanganeen Avenue into Jandamarra Street. As he approached the intersection of Jandamarra Street with Wanganeen Avenue he saw a vehicle approaching him on Wanganeen Avenue. He testified that he waited for at least 20 seconds, and perhaps as long as 30 seconds, for the oncoming vehicle to pass through the intersection, before he commenced his right turn into Jandamarra Street. He said that his turning indicator was on at all times whilst he waited for the other vehicle to pass, and while he made his turn. He said that he turned right and was travelling in first gear when he hit the plaintiff. The first defendant said that the first time that he saw the plaintiff was when he hit him. The front passenger side of the first defendant’s vehicle struck the plaintiff, knocking him to the ground.
There was a dispute between the parties about precisely where on Jandamarra Street the impact between the defendant’s vehicle and the plaintiff occurred. The plaintiff’s case was that the impact occurred close to the intersection between Jandamarra Street and Wanganeen Avenue, consistent with the plaintiff being hit while attempting to cross Jandamarra Street and then continue south along the footpath along the western side of Wanganeen Avenue. The defendant’s case was that the impact occurred about four or five car lengths along Jandamarra Street, away from Wanganeen Avenue. The primary judge observed that if the impact had occurred at this position, it made it unlikely that the plaintiff had been intending to continue walking along Wanganeen Avenue, but may have been consistent with the plaintiff taking a different route home to that which he gave evidence of.
There were three witnesses who gave evidence relevant to resolving this dispute: the plaintiff, the plaintiff’s daughter, Elizabeth Pelle, and the first defendant. The primary judge had considerable reservations about accepting the plaintiff’s evidence both generally and on the basis that his recollection may have been affected by having been struck by the first defendant’s vehicle. The primary judge was satisfied that the first defendant “was not a particularly impressive witness”; his Honour thought it unlikely that the first defendant had waited 20 to 30 seconds for the oncoming vehicle to pass before making his right-hand turn into Jandamarra Street. In addition, his Honour also observed that if the impact had occurred where the first defendant said it did, there was no reason why the plaintiff would have been walking on the road rather than on the immediately adjacent footpath. Further, his Honour said, the first defendant, even if not paying proper attention, would have been more likely to have seen the plaintiff having regard to the fact that he would have been travelling slowly in a straight line with his headlights pointed directly towards the location of the plaintiff rather than being in mid-turn at the intersection at the point of impact. The primary judge found Ms Pelle to be an impressive witness who appeared to have a reasonable recollection of the location where she found the plaintiff after the accident. She gave evidence that she received a telephone call from the first defendant and immediately attended the scene which was approximately one and a half minutes away from her home by car. Her description of where the plaintiff was lying at the time that she arrived was substantially consistent with the plaintiff’s evidence. Based upon the evidence of Ms Pelle, his Honour found that the accident occurred substantially in the manner described by the plaintiff as he attempted to cross Jandamarra Street at its intersection with Wanganeen Avenue. Notwithstanding that his Honour did not accept the first defendant’s evidence in relation to the location of the accident, the primary judge did accept that the first defendant stopped before turning right into Jandamarra Street because of an oncoming vehicle, but his Honour did not accept that he had been stationary for 20 to 30 seconds before making his turn. The primary judge concluded:
Therefore in summary the facts that I have found are that the plaintiff was attempting to walk across Jandamarra Street at the point of the intersection so as to connect up with the continuation of the footpath on the other side. The first defendant, after having stopped his vehicle on Wanganeen Avenue to permit another vehicle to pass, made a right-hand turn and hit the plaintiff at a relatively low speed knocking him down onto the adjoining footpath.
At the time that this accident occurred the plaintiff was wearing headphones through which the radio was playing. He gave evidence of a careful and extensive examination of his surroundings at the point of departure from the kerb of Jandamarra Street, and denied any awareness of the presence of the first defendant’s vehicle on Wanganeen Avenue or the presence of any other vehicle on Wanganeen Avenue travelling in the opposite direction to that taken by the first defendant. The plaintiff gave no evidence that he continued to look out for vehicles during the course of crossing Jandamarra Street. Being satisfied that the first defendant’s vehicle and the oncoming vehicle were travelling on Wanganeen Avenue as the plaintiff commenced to cross Jandamarra Street, the primary judge said, at [20]:
A pedestrian crossing a road at night even in a relatively low traffic suburban area is obliged to take reasonable care for the person’s own safety. That obligation extends to looking and listening for vehicles on the road that have the potential to cause harm to the pedestrian. It extends to cars approaching from both in front of and behind the pedestrian. It extends to circumstances in which the road is reasonably lit. It is clear that the plaintiff neither saw nor heard the first defendant’s vehicle prior to the accident. In my view had the plaintiff been taking reasonable care either by paying greater visual attention to his surroundings or by ensuring that his hearing was not impeded by earphones and the sounds of the radio then it is likely that he would have become aware of the presence of the first defendant’s vehicle and its approach as it turned into Jandamarra Street. It is more likely than not that having regard to his proximity to the edge of the road he would have been able to take some evasive measure in order to avoid the accident.
At [23], his Honour continued:
In my view, balancing the respective responsibilities of the parties for the accident, it is clear that the first defendant is very substantially responsible. The first defendant was driving a large motor vehicle, namely, a Toyota “LandCruiser” with a bull bar, on a road at night. He should have had a good view of the area surrounding the intersection as he approached it along Wanganeen Avenue. He was making a right-hand turn in circumstances where an oncoming vehicle with its headlights on had just recently passed, potentially obscuring his vision of what was occurring on Jandamarra Street. He ought to have been aware of the possibility of a pedestrian being on the road and of being unable to see that pedestrian in the headlights during the course of his turn to the right. The plaintiff on the other hand had clearly managed to safely cross most of the intersection prior to any vehicle approaching. He was entitled to expect that even if a vehicle was approaching he would, at the point that he was on the road, be avoided by that vehicle if it was simply attempting to turn into Jandamarra Street. While his use of earphones and lack of continued attention to potential hazards did amount to a failure to take reasonable care it was not the principal cause of the accident. Bearing in mind that the question of apportionment is a matter of balance and relative emphasis weighing different considerations I assess the plaintiff’s contributory negligence at 20%.
Immediately following the accident, the plaintiff was taken by ambulance to the Canberra Hospital. The records of the hospital indicated that he was complaining of:
(a)pain in the frontal region of his head, with a subsequent diagnosis of a left temporal haematoma;
(b)tenderness in the cervical and thoracic spine;
(c)pain in the lower back;
(d)pain in the left leg, particularly in the pelvis/hip area;
(e)pain in the right knee; and
(f)tenderness in the left tibia/fibula and left ankle.
At the hospital he was diagnosed with:
(a)musculoligamentous sprain to the cervical spine;
(b)soft tissue injury to the left shoulder;
(c)soft tissue injury to the left ankle;
(d)soft tissue injury to the left side of the face;
(e)a significant injury to his left knee with an undisplaced fracture of the posterolateral corner of the upper tibia and a fracture of the posterior aspect of the lateral femoral condyle with 2 mm displacement. There was a complete tear of the medial collateral anterior cruciate and posterior cruciate ligament tear of the posterior horn of the medial meniscus; and
(f)lateral meniscus tear of the right knee.
The plaintiff did not undergo surgery and was treated with braces and crutches. He was discharged from hospital on 4 November 2011, some 6 and a half weeks after the accident. Subsequently, he had a leg brace on his left leg for about one month. He was required to use a walking frame for about two weeks, and after that he used walking sticks to assist him for some months before being able to wean himself off them, so that he was only required to use them when walking on uneven ground. The plaintiff underwent extensive physiotherapy both in hospital and following discharge.
In March 2012 the plaintiff consulted Dr Brendan Klar, an orthopaedic surgeon, and had an MRI scan of both knees. In April 2012 he underwent bilateral knee arthroscopies. The primary judge conducted an extensive and careful review of the medical evidence and concluded that as a result of the accident the plaintiff:
(a)suffered short-term injuries to his head, face and left ankle;
(b)continues to suffer some additional headaches which may be managed using pain relief medication and exercise;
(c)suffered an aggravation of pre-existing back pain; and
(d)suffered a significant injury to his left knee and a lesser injury to his right knee.
The primary judge did not accept that the plaintiff suffered ongoing disability in his left shoulder caused by the accident; nor did he accept, by reason of pre-accident medical records, the plaintiff’s evidence that he had gained some 30 kg after the accident. He also did not accept that the plaintiff had discharged the onus of proving that any erectile dysfunction from which he now suffers was due to the accident, either directly or indirectly.
The primary judge considered that the plaintiff’s most significant ongoing injury was that to his left knee. That injury, his Honour accepted, would lead to the requirement that the plaintiff have a knee replacement of the left knee most likely between 2018 and 2020. The plaintiff was unlikely to need a knee replacement of the right knee. Having regard to his age, it was not likely that the plaintiff would require a second knee replacement in his left knee.
With regard to assessing general damages, the primary judge said, at [63] to [66]:
The plaintiff suffered a significant injury to his left knee as a result of the accident. He also suffered less significant injuries to his cervical and lumbar spine, left shoulder, left ankle, the left side of his face and right knee.
The evidence in Dr Foo’s notes indicates that the plaintiff’s medical complaints had a significant effect on his quality of life prior to the accident. He had a long history of medical treatment for a variety of problems which were significant enough to require substantial time off work. After ceasing employment in 2008, notwithstanding his various medical conditions, he remained able to do physical work at the Bywong and Batehaven properties but by the time of the accident he had decided not to remain in the workforce. That was, of course, subject to the possibility that he might change his mind but that was only a small possibility.
Based on the evidence of Dr Bodel, the injury to his left knee is likely to result in the need for a knee replacement within five to seven years of the consultation in 2013. That knee replacement is likely to be effective for a period of 15 years. He is unlikely to need a knee replacement in his right knee. Therefore the likelihood is that during the balance of his life he will need a single knee replacement in his left knee. The injury to his left knee causes pain and makes mobility more difficult however the restrictions on his ability to walk which result from neurogenic claudication are not caused by the accident. Thus the impact upon his ability to control his weight, to participate in trash and treasure markets, to work on his properties and to undertake recreational activities would have occurred at least in part in any event.
In my view an appropriate award of general damages is $150,000 with $80,000 of that referable to the past. This gives interest at rates prescribed by the Court Procedures Rules 2006 (ACT)(Rules) of $10,967. Notwithstanding his age and other ailments the significant component of the award referable to the future is contributed to by the requirement to undergo a left knee replacement at the point where pain and disability from that knee make it necessary.
In the proceedings below, the plaintiff claimed economic loss on the basis that he had intended to establish a gardening and general maintenance, minor electrical and minor plumbing business at some stage in the future. Whilst the plaintiff gave no oral evidence in the proceedings below of the amount that he expected to earn in any such enterprise, he made statements to medical expert witnesses to the effect that he intended to earn $15,000.00-$20,000.00 or more from such an activity. The primary judge accepted that, by reason of s 60 of the Evidence Act 2011 (ACT), the statements made by the plaintiff to the medical experts could be relied upon as evidence of the facts asserted. There is no challenge to that determination in the present proceedings. The position ultimately adopted by the plaintiff in cross-examination was that at the time of the accident he had no intention of returning to work, but he might have changed his mind. The plaintiff’s case was ultimately that because of the accident he had lost the opportunity to return to work if he had chosen to do so.
Prior to the accident the plaintiff attended trash and treasure markets about 40 times a year. There was little evidence to establish how much money he made by regularly attending trash and treasure markets. The plaintiff did not disclose any income from that activity to the Commissioner of Taxation as he operated on the understanding that it was undertaken as a hobby and did not need to be disclosed. He had also undertaken some jobs in the past for which he was paid cash in hand, and which he did not declare for taxation purposes. The primary judge accepted that the plaintiff had established that he had suffered a loss of earning capacity which would be productive of financial loss in relation to his participation in trash and treasure markets as well as the loss of an opportunity to resume paid work. His Honour considered the damages that the plaintiff had suffered as a result of those losses to be modest. His Honour considered the prospect of the plaintiff actually returning to formal paid employment to be remote. His Honour considered that a buffer of $10,000.00 would be sufficient to compensate the plaintiff for any future economic loss.
In the proceedings below the plaintiff claimed an award for Griffiths v Kerkemeyer damages for the past as follows:
(a)20 September 2011 to 4 October 2011: 28 hours per week at $35.00 per hour;
(b)4 October 2011 to 1 November 2011; four hours per week at $35.00 per hour; and
(c)1 November 2011 to the date of judgment: three hours per week at $35.00 per hour.
No evidence was led as to the commercial rate for such care, nor was there any agreement indicated between the parties that $35.00 an hour was the appropriate rate. His Honour declined to make any award for damages under this heading for the period that the plaintiff was in hospital, as there was no evidence that any need for care was created and there was no evidence that any member of his family or anybody else was required to provide gratuitous assistance to him. His Honour accepted that for a period of about a month after he was released from hospital the plaintiff’s wife assisted him with domestic duties. His Honour allowed a claim for four hours per week for four weeks following his release from hospital at a rate of $25.00 per hour, making a total of $400.00. To this sum, his Honour added $100.00 in interest. In relation to the period after the period of four weeks after the plaintiff was released from hospital, there was no evidence that the plaintiff needed additional assistance. Similarly, in relation to the future there was no evidence that he needed any particular assistance in the course of his daily life. His Honour did, however, consider it likely that he would need some assistance at the time of his knee replacement, and he allowed a buffer equivalent to 150 hours of care amounting to $3,750.00.
In the proceedings below, the plaintiff claimed $50,000.00 by way of a buffer for future loss of the capacity to perform domestic services, for care received after any future bilateral knee surgery and for an inability to perform work on his family home, farm and family coast property. After referring to the provisions of s 100 of the Civil Law (Wrongs) Act 2002 (ACT) his Honour allowed $4,940.00 for the past, together with $677.00 interest, and $6,065.00 for the future.
Out-of-pocket expenses for the past appear to have been agreed upon at $77,005.00. His Honour allowed interest on past out-of-pocket expenses which had not been paid by the defendant in the sum of $1,216.00. With regard to future out-of-pocket expenses, which included the cost of a knee replacement, his Honour allowed $47,601.00.
The primary judge assessed the plaintiff’s damages as follows:
General damages $150,000 Interest on past component ($80,000) $10,967 Income loss – past (inclusive of interest) $10,000 Income loss – future $10,000 Griffiths v Kerkemeyer – past $400 Interest on past Griffiths v Kerkemeyer $100 Griffiths v Kerkemeyer – future $3,750 Domestic services – past $4,940 Interest on past domestic services $677 Domestic services – future $6,065 Out-of-pocket expenses – past $77,005 Interest on past out-of-pocket expenses $1,216 Out-of-pocket expenses – future $47,601 Subtotal $322,721 Less 20% for contributory negligence $64,544 Award of damages $258,177
The nature of the present appeals
These appeals are brought pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT). With regard to such an appeal, this Court recently stated the nature of the appeal in Singh v Cooper [2016] ACTCA 55; 78 MVR 210:
[44] The present appeal is brought under s 37E of the Supreme Court Act 1933 (ACT). The principles governing such appeals are well settled. The appeal is by way of rehearing: Huen v Hyland [2004] ACTCA 5; Australian Capital Territory v Crowley (2012) 7 ACTLR 142 at 146; [2012] ACTCA 52. In such an appeal, whilst the Court is obliged to conduct a “real review of the trial” and give “the judgment which in its opinion ought to have been given at first instance”, the Court cannot simply substitute its opinion for that of the first instance decision maker; error must be demonstrated before this Court may intervene: Dearman v Dearman (1908) 7 CLR 549 at 561, 15 ALR 287, quoted with approval in Fox v Percy (2003) 214 CLR 118 197 ALR 201; 38 MVR 1; [2003] HCA 22 at [68]. A further limitation upon an appeal such as the present was referred to by Dowsett J (with whom Burns J agreed) in Gaundar v Hogan [2014] ACTCA 4 at [6]:
[S]ome aspects of a case may allow for more than one “correct” answer, although the “correct” answer may fall within a range. Again, an appellate court will not intervene to substitute its view for that of the primary Judge, unless error is first shown. See also Fox v Percy (2003) 214 CLR 118; 197 ALR 201; 38 MVR 1; [2003] HCA 22 at [22]-[31] per Gleeson CJ, Gummow and Kirby JJ at [22] – [31]. An award of damages for personal injuries may contain numerous components. Some may be capable of precise calculation whilst others may not be so easily calculated. In some cases, there is a risk that mathematical calculations may be used to make a mere guess appear to have a mathematical basis.
[45] Dowsett J went on to say at [7]-[9]:
In Precision Plastics Pty Ltd v Demir (1975) 49 ALJR 281; 132 CLR 362 at 369; 6 ALR 311 at 317; 49 ALJR 281 at 285 per Gibbs J (McTiernan, Stephen and Murphy JJ concurring):
It is unnecessary to discuss at length the principles that govern an appellate court in the performance of its task when it is called upon to review an assessment of damages for personal injuries. Whether the assessment was made by a judge or a jury the court of appeal will not interfere simply because it would have awarded a different figure had it tried the case at first instance. Where the assessment was made by a judge, and it has not been shown that he acted on any error of principle or misapprehension of the facts, the appellate court will only intervene if satisfied that the judge has made a wholly erroneous estimate of the damages suffered.
In Wilson v Peisley (1975) 7 ALR 571 at 576; 50 ALJR 207 at 209 Barwick CJ said:
The setting aside of an award of damages in a trial which has not been irregular or unfair, and where there is neither challenge to the findings of fact made by the trial judge nor any demonstrated misconception of the evidence should, in my opinion be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages is so great as to make the award quite unreasonable, indeed outrageous, in the circumstances, whether by being too great or too small, and therefore of itself a demonstration of error though otherwise undisclosed. The less ponderable the elements of the damages under consideration, the less likely will there be a case for setting aside an award by a judge who has not overlooked any significant fact at the end of the trial not blemished by error or irregularity.
In Gamser v Nominal Defendant (1977) 136 CLR 145 at 159; 13 ALR 387 Aickin J (Gibbs and Stephen JJ concurring) endorsed the remarks made by Barwick CJ in Wilson v Peisley and cited above. I should say, however, that at CLR 149; ALR 391 Gibbs J seems to have deprecated the use by Barwick CJ of the word “outrageous”.
[46] In Fox v Percy, the plurality (Gleeson CJ, Gummow and Kirby JJ) described the requirement of such an appeal at [25]:
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes, the majority of this Court reiterated the rule that:
"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."
As this Court there said, that approach was "not only sound in law, but beneficial in ... operation"…
(citations omitted)
[47] Later, their Honours continued at [28]-[29]:
Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
(citations omitted)
The grounds of appeal
In its written submissions, the defendant grouped its grounds of appeal into four headings. A number of these headings are interrelated. The four headings were:
(i)the amount awarded in general damages was too high;
(ii)separate and apart from the fundamental excess in general damages, the primary judge failed to apply any, or any appropriate, discount either to past or future general damages so as to take account of the negative vicissitudes;
(iii)the primary judge’s discount of 20 per cent on account of contributory negligence was manifestly inadequate; and
(iv)the primary judge failed to deal adequately with aspects of the plaintiff’s creditworthiness which infected his assessment of general damages, his approach to the question of negative vicissitudes and his assessment of contributory negligence.
It is convenient to firstly address the defendant’s complaints regarding the primary judge’s assessment of the plaintiff’s creditworthiness, as this is a matter which permeated the defendant’s submissions with regard to all grounds of appeal.
Ground (f) – failure to take into account the plaintiff’s admission that he had failed to disclose income for the purposes of income tax assessment.
Ground (g) – failing to admit into evidence documents marked for identification C, D, E, F, G, and J.
Ground (h) – failing to draw an inference that the plaintiff was fraudulently involved in the staging of a motor vehicle accident in 1981.
The defendant acknowledged that the primary judge made a number of unfavourable findings or observations in relation to the plaintiff’s creditworthiness, including finding that the plaintiff:
(a)had overstated the state of his health prior to the accident;
(b)gave conflicting evidence concerning his future intention of starting a small business;
(c)had misstated the extent, if any, of his post accident weight gain; and
(d)had falsely claimed an absence of erectile dysfunction prior to the motor vehicle accident.
The defendant submitted, however, that the primary judge wrongly rejected the tender of documents marked for identification, failed to make findings in relation to the plaintiff’s dishonest nondisclosure of income, and failed to make findings with regard to the plaintiff’s knowledge of and involvement in fraudulent claims for damages in the past. The defendant submitted that appropriate findings with respect to these matters should have resulted in an even more unfavourable assessment of the plaintiff’s reliability as a witness than that arrived at by the primary judge.
Before considering the matters raised by the defendant, it is appropriate to consider what the primary judge said with regard to the plaintiff’s creditworthiness:
13. I had the benefit of observing the plaintiff giving evidence in chief and being cross examined over a four day period. On contested issues of fact where his evidence was not corroborated I considered that I should treat it with caution because of a tendency to give emphatic evidence that was supportive of his claim in circumstances where the true picture was more complicated. This is consistent with a report dated 4 April 2014 of Greg Aldridge, a clinical psychologist engaged by the solicitors for the plaintiff, which included the following assessment of the plaintiff:
Mr Pangallo conveyed a sense of both anger about inadequate compensation and an entitlement to compensation. He tended to over emphasise matters that supported his claim and minimise that which did not support his claim. This did not seem to be conscious but just how he saw the matter.
14. Two aspects of the evidence illustrate that on issues significant to the assessment of damages his evidence needed to be treated with care:
(a) The evidence disclosed that his circumstances were not as good as he portrayed them prior to the accident and hence illustrated an over emphasis upon the significance of this accident for his overall well-being. That conclusion was consistent with the medicolegal report of the clinical psychologist Mr Aldridge quoted above. It was also consistent with the medical records of Dr Jacob Foo, his general practitioner… which illustrated his complaints of chronic ill-health, back and knee pain in the year prior to the accident.
(b) Similarly, in relation to his future work intentions he had, for the purposes of this case, asserted a specific intention to return to paid work by the establishment of a “gardening and general maintenance, minor electrical, minor plumbing business” at some stage after he had completed his maintenance work on a 100 acre property at Bywong owned by his wife. However the documentary material put to him in cross-examination demonstrated that he had expressly disavowed any intention to return to paid employment or contracting work substantially prior to the accident. Thus the evidence went from a clear intention to establish a small business to a clear intention not to establish such a business subject only to the possibility that at some undefined time in the future he might change his mind.
15. In assessing the weight to be given to his evidence I do not place any weight on the evidence concerning his involvement as plaintiff or defendant with claims arising out of motor vehicle accidents in December 1978 and February 1981. While the cross examination could have elicited evidence that substantially affected his credibility and at least one of the accidents gave rise to some suspicion on the part of the third-party insurer at the time, the plaintiff denied any knowledge or involvement in any wrongdoing and the evidence was not sufficient to permit a finding that he was a knowing participant in any wrongdoing.
16. Finally I note that no corroborative evidence was led from any other person in relation to the overall effect of the accident having regard to his prior health or, specifically, in relation to his claim of causally related erectile dysfunction.
From the above it is clear that the primary judge adopted a cautious approach to the evidence of the plaintiff, particularly when it was not corroborated by independent evidence. The cautious approach taken by the primary judge is demonstrated by his Honour’s rejection of aspects of the plaintiff’s evidence, with a corresponding reduction in the damages awarded.
In approaching this aspect of the appeal, it is important to note that the defendant has not challenged the plaintiff’s right to damages, or any specific aspect of the primary judge’s award of damages except for the award for general damages. The complaint that the primary judge erred in his assessment of the plaintiff’s creditworthiness must therefore be connected with the defendant’s assertion that the award for general damages was too large. The proposition asserted by the defendant is that a proper consideration of the plaintiff’s creditworthiness would have resulted in a lower award for general damages. At a general level, one answer to this assertion is that the primary judge did not significantly rely on the plaintiff’s evidence in assessing general damages. The primary judge set out the basis of the award of general damages at [63] to [65], quoted at [21] above.
The primary judge then assessed general damages in the sum of $150,000.00. What emerges from the portion of the primary judge’s assessment of general damages quoted at [21] above is that his Honour relied primarily upon the independent medical evidence, and not upon any description by the plaintiff of the effects of the accident upon him. We will, nevertheless, consider the specific matters raised by the defendant.
Ground of appeal (f) complains that the primary judge failed to take into account adequately, or at all, evidence of past tax evasion by the plaintiff. This evidence was in two parts. First, the plaintiff agreed that he had since 2007 sold goods at “Trash and Treasure” markets. He agreed that he had not declared as earnings for taxation purposes any profit he made in the course of selling items at these markets, but denied any dishonesty in doing so because, he said, he had been told by others similarly engaged that the sale of goods at such markets was considered by the Taxation Office to be a hobby, not requiring the declaration of any profit as income. There was no evidence to contradict the plaintiff’s assertion that this was his belief or, indeed, that any such belief was mistaken. This was not a matter which could have significantly, adversely affected the credit of the plaintiff.
The second aspect of the evidence concerning tax evasion by the plaintiff concerned work undertaken by the plaintiff in 2007 and 2008 for a company called Fieldforce. This involved minor maintenance work. At that time he also did other work for householders on an ad hoc basis. The plaintiff agreed that he did this work for cash in hand and did not disclose any income he received for taxation purposes. He said that about half a dozen jobs were involved, and he “didn’t worry” about declaring the income. Similarly, between December 2008 to September 2011 he did “one or two” cash jobs for people on the South Coast of NSW and did not declare the income he received for tax purposes. There was no evidence of the amount of income received by the plaintiff from these endeavours, but it may be inferred that it was not significant.
The primary judge did not refer to this second aspect of the evidence concerning tax evasion by the plaintiff, but we do not accept that the evidence could have significantly altered the primary judge’s approach to determining the plaintiff’s creditworthiness. It must be accepted that the evidence was relevant to the plaintiff’s credit. This evidence, of course, must be considered in its context. The misconduct of the plaintiff occurred between 2007 and 2011, some years prior to him giving evidence before the primary judge. It did not involve the giving of false evidence or the making of a false statement on oath. There was no suggestion that this evidence would have warranted a complete rejection of the plaintiff’s evidence. How, then, was the primary judge supposed to use this evidence? The evidence did not warrant a different approach to the plaintiff’s evidence than that taken by the primary judge, being that the evidence of the plaintiff was to be approached with caution, especially where it was not independently corroborated.
Grounds of appeal (g) and (h) are concerned with cross-examination of the plaintiff calculated to establish that he had previously been a party to fraudulent motor vehicle personal injury claims. Ground of appeal (g) complains of a decision by the primary judge to refuse to admit into evidence certain documents which were shown to the plaintiff during cross-examination. Ground (h) complains that the primary judge declined to draw an inference from the evidence that the plaintiff had previously been involved in the making of false claims for damages arising out of alleged motor vehicle accidents.
The plaintiff was cross examined about a motor vehicle accident in which he claimed to have been involved in 1978. He said that he was in a motor vehicle which was hit from behind, causing him neck and back injuries. He agreed that he made a claim for damages, but said that he did not proceed with the claim as his lawyers advised him to “drop it”. The plaintiff was shown by counsel for the defendant a number of documents apparently relating to this claim. He was shown a Statement of Claim which asserted that the driver of the motor vehicle that struck his vehicle was a man by the name of Mr Cox. He was also shown an application dated 29 November 1990 in the Supreme Court to strike out that claim on the basis that he had not proceeded with it. Finally, he was shown a consent order in those proceedings dated December 1990 in which he consented to judgment being entered for the defendant in those proceedings.
The plaintiff was then cross examined about a motor vehicle accident in which he said he had been involved in 1981. The plaintiff agreed that he had been driving a Ford Fairlane when he collided with the rear of a Fiat 850 motor vehicle in 1981. He said that he believed that his brakes may have failed. He said that he could not recall how many people were in the Fiat, but he did recall speaking to the driver and exchanging details. He agreed that the driver of the Fiat may have been of Italian origin. Later in cross‑examination he agreed that the driver of the Fiat was Sam Laria, a person he knew. He said that he was unaware of the presence of five other Italians in the Fiat. He later became aware that NRMA Insurance denied liability on claims arising out of that accident on the basis that it was “a put up job”. The plaintiff, however, denied that he had been involved in staging the accident. The plaintiff was asked whether he knew people by the name of Ross Rocca, Rocco Carbone, Joseph Carbone or Francesco Carbone. He said that he did not know any of them. He was provided with some paperwork by NRMA Insurance in relation to claims which were made arising out of the 1981 accident. The plaintiff was shown a copy of a claim made by Rocco Carbone and it was suggested to him that he became aware shortly after 19 October 1990 that Rocco Carbone had abandoned his claim arising out of the 1981 accident. The plaintiff denied this, stating that he had only become aware that those proceedings had been discontinued “quite a long time after”. He was also shown a defence which had been filed in the claim made by Rocco Carbone, which included a pleading that the accident had been “contrived and arranged”. The plaintiff denied that he had been involved in any wrongdoing. He further denied the proposition that he had discontinued his proceedings in December 1990 relating to the alleged 1978 motor vehicle accident because he was afraid that his involvement in the alleged staging of the accident in 1981 would “come back to haunt” him.
The plaintiff agreed that he was aware that his brother Antonio Pangallo and his sister‑in-law had in October 1985 been unsuccessful in proceedings which they had commenced for damages arising out of another motor vehicle accident. He said that whilst he was aware that they had been unsuccessful in those proceedings, he did not know why. It was suggested to the plaintiff that it had been alleged in those proceedings that the motor vehicle accident upon which the claims were based had been set up. The plaintiff denied any knowledge of that.
Documents that were shown to the plaintiff in the course of this cross-examination were, at the request of the defendant’s counsel, marked for identification. Unfortunately, those documents were not part of the appeal papers, but the description of the documents in the transcript of the proceedings below, and in the judgment of the primary judge, are sufficient to allow us to properly consider the issues raised by the defendant. MFI C consisted of pleadings and orders in the proceedings brought by the plaintiff regarding the alleged 1978 accident. MFIs D, E, F and G were pleadings and orders with respect to claims brought by persons who alleged that they were passengers in the Fiat at the time of the alleged 1981 collision. MFI J was a copy of the decision in which judgment was entered for the defendants in the claims brought by the plaintiff’s brother and sister-in-law.
The defendant attempted to tender all of the documents that had been marked for identification C, D, E, F, G, and J. In doing so it sought to rely upon the provisions of s 103 of the Evidence Act 2011 (ACT) (the EA), which provides that the credibility rule in s 102 (credibility evidence about a witness is not admissible) does not apply to evidence adduced in cross-examination of the witness if the evidence could substantially affect the assessment of the credibility of the witness. The defendant pointed to the decision of McCallum J in McMahon v John Fairfax Publications Pty Ltd (No 5) [2012] NSWSC 218 as authority for the proposition that s 103 permitted the admission of a document used in the cross-examination of a witness. The primary judge noted that this decision had been criticised by the learned author of Odgers, Uniform Evidence Law, 11th edition, who submitted that the tender of such a document fell to be considered under s 106 of the EA. The primary judge preferred the approach suggested in Odgers, and applied the requirements of s 106 to the tender of the documents. He refused the plaintiff leave to present the evidence under s 106(1) of the EA. In the present proceedings, the plaintiff submitted that the primary judge had wrongly applied ss 103 and 106, and had failed to apply ss 48 and 69 of the EA.
In order to address these submissions it is necessary to set out the relevant provisions of the EA:
48 Proof of contents of documents
(1) A party may present evidence of the contents of a document in
question by tendering the document in question or by any 1 or more
of the following methods:
(a) presenting evidence of an admission made by another party to
the proceeding as to the contents of the document in question;
(b) tendering a document that—
(i) is or purports to be a copy of the document in question;
and
(ii) has been produced, or purports to have been produced, by
a device that reproduces the contents of documents;
(c) if the document in question is an article or thing by which
words are recorded in a way as to be capable of being
reproduced as sound, or in which words are recorded in a code
(including shorthand writing)—tendering a document that is or
purports to be a transcript of the words;
(d) if the document in question is an article or thing on or in which
information is stored in a way that it cannot be used by the
court unless a device is used to retrieve, produce or collate it—
tendering a document that was or purports to have been
produced by use of the device;
(e) tendering a document that—
(i) forms part of the records of or kept by a business
(whether or not the business is still in existence); and
(ii) is or purports to be a copy of, or an extract from or a
summary of, the document in question, or is or purports to
be a copy of the extract or summary;
(f) if the document in question is a public document—tendering a
document that is or purports to be a copy of the document in
question and that is or purports to have been printed—
(i) by the government printer or the government or official
printer of the Commonwealth, a State or another
Territory; or
(ii) by authority of the government of the Territory, the
Commonwealth, a State, another Territory or a foreign
country; or
(iii) by authority of an Australian Parliament, a house of an
Australian Parliament or a committee of an Australian
Parliament or of a house of an Australian Parliament.
(2) Subsection (1) applies to a document in question whether the
document in question is available to the party or not.
(3) If the party presents evidence of the contents of a document under
subsection (1) (a), the evidence may only be used—
(a) in relation to the party’s case against the other party who made
the admission; or
(b) in relation to the other party’s case against the party who
presented the evidence in that way.
(4) A party may present evidence of the contents of a document in
question that is not available to the party, or the existence and
contents of which are not in issue in the proceeding, by—(a) tendering a document that is a copy of, or an extract from or
summary of, the document in question; or
(b) presenting evidence from a witness of the contents of the
document in question.
Note 1 The dictionary, pt 2, s 5 is about the availability of documents.
Note 2 The Commonwealth Act, s 182 gives the Commonwealth Act, s 48 a
wider application in relation to Commonwealth records and certain Commonwealth documents.
69 Exception—business records
(1) This section applies to a document that—
(a) either—
(i) is or forms part of a record belonging to or kept by an
entity in the course of, or for the purposes of, a business;
or
(ii) at any time was or formed part of the record; and
(b) contains a previous representation made or recorded in the
document in the course of, or for the purposes of, the business.
(2) The hearsay rule does not apply to the document (so far as it
contains the representation) if the representation was made—
(a) by a person who had or might reasonably be supposed to have
had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a
person who had or might reasonably be supposed to have had
personal knowledge of the asserted fact.
(3) Subsection (2) does not apply if the representation—
(a) was prepared or obtained for the purpose of conducting, or for
or in contemplation of or in connection with, an Australian or
overseas proceeding; or
(b) was made in connection with an investigation relating or
leading to a criminal proceeding.
(4) If—
(a) the happening of an event of a particular kind is in question;
and
(b) in the course of a business, a system has been followed of
making and keeping a record of the happening of all events of
that kind;
the hearsay rule does not apply to evidence that tends to prove that
there is no record kept, in accordance with the system, of the
happening of the event.
(5) For this section, a person is taken to have had personal knowledge
of a fact if the person’s knowledge of the fact was or might
reasonably be supposed to have been based on what the person saw,
heard or otherwise perceived (other than a previous representation
made by a person about the fact).
Note 1 Sections 48, 49, 50, 146, 147 and 150 (1) are relevant to the mode of
proof, and authentication, of business records.
Note 2 The Commonwealth Act, s 182 gives the Commonwealth Act, s 69 a
wider application in relation to Commonwealth records.
91 Exclusion of evidence of judgments and convictions
(1) Evidence of the decision, or of a finding of fact, in an Australian or
overseas proceeding is not admissible to prove the existence of a
fact that was in issue in the proceeding.
(2) Evidence that, under this part, is not admissible to prove the
existence of a fact may not be used to prove the fact even if it is
relevant for another purpose.
Note Section 178 (Convictions, acquittals and other judicial proceedings)
provides for certificate evidence of decisions.
103 Exception—cross-examination as to credibility
(1) The credibility rule does not apply to evidence given by a witness in
cross-examination if the evidence could substantially affect the
assessment of the witness’s credibility.
(2) Without limiting the matters to which the court may have regard for
subsection (1), it must have regard to—
(a) whether the evidence tends to prove that the witness knowingly
or recklessly made a false representation when the witness was
under an obligation to tell the truth; and
(b) the period that has elapsed since the acts or events to which the
evidence relates were done or happened.
106 Exception—rebutting denials by other evidence
(1) The credibility rule does not apply to evidence that is relevant to a
witness’s credibility and that is presented otherwise than from the
witness if—
(a) in cross-examination of the witness—
(i) the substance of the evidence was put to the witness; and
(ii) the witness denied, or did not admit or agree to, the
substance of the evidence; and
(b) the court gives leave to present the evidence.
(2) Leave under subsection (1) (b) is not required if the evidence tends
to prove that the witness—
(a) is biased or has a motive for being untruthful; or
(b) has been convicted of an offence, including an offence against
the law of a foreign country; or
(c) has made a prior inconsistent statement; or
(d) is, or was, unable to be aware of matters to which the witness’s
evidence relates; or
(e) has knowingly or recklessly made a false representation while
under an obligation, imposed by or under an Australian law or
a law of a foreign country, to tell the truth.
The legislative intention behind s 48 of the EA is to facilitate the proof of the contents of documents by providing for methods by which the documents may be adduced. The term “document” is given an extended definition in the Dictionary to the EA, and includes records of information that would not have been considered to be documents at common law. The purpose of s 48 is to avoid technical arguments about admissibility based on the form of the document, as exemplified by the common law “best evidence” rule. The terms of s 48 must, however, be considered within the context of the EA as a whole; it falls within Chapter 2 of the EA, which deals with the ways in which evidence is adduced. It is a provision that addresses the mechanics of the adducing of evidence. The provisions of Chapter 2 do not address broader questions of admissibility, such as whether the contents of the document are relevant, or whether they are inadmissible as hearsay. Such matters are addressed in Chapter 3 of the EA, and for a document to be admissible it must satisfy the requirements for admissibility found in Chapter 3. One of the exceptions to the admissibility of otherwise relevant evidence found in Chapter 3 is the hearsay rule: s 59.
The documents which the defendant tried to tender in the proceedings below fall into two broad categories: pleadings in other proceedings, and judgments or orders in other proceedings. Insofar as the tender involved pleadings, the documents contain representations of asserted fact. Those representations are clearly hearsay and prima facie inadmissible pursuant to the hearsay rule found in s 59 of the EA. The question is: do the representations fall within any of the exceptions to the hearsay rule? The exception which the defendant has referred to is found in s 69 of the EA, dealing with business records. It is clear, however, that the provisions of s 69 do not operate to make the impugned documents admissible as an exception to the hearsay rule. Even if sub‑sections (1) and (2) of s 69 are satisfied (about which we express no opinion), s 69(3) removes from the operation of the provision any document prepared for the purpose of conducting an Australian proceeding. This would clearly exclude from the operation of s 69 pleadings prepared for, and in fact used in, proceedings commenced by the plaintiff for damages arising out of the 1978 collision, and by the alleged occupants of the Fiat motor vehicle with regard to their claims for damages with regard to the alleged 1981 collision. The provisions of s 69(3) would also exclude from the operation of s 69 any defences prepared by the defendants to those proceedings. Put briefly, insofar as the defences represented that the accidents, or any of them, were contrived, it was not open to the defendant to attempt to prove the truth of that representation by the tender of the documents.
In his submissions to the primary judge, counsel for the defendant, however, appeared to suggest that the tender of the documents was for a non-hearsay purpose, although that is not abundantly clear. Counsel said to the primary judge:
… they [the documents] are not put forward to prove, as it were, the truth of anything in them, other than those bits of it Mr Pangello [sic] accepts in his evidence.
It must follow from what counsel said to the primary judge, that the contents of the documents which the defendant was seeking to tender could only prove the truth of matters already admitted by the plaintiff, including the state of his knowledge about the proceedings bought by his brother and sister-in-law at the time that he consented to judgment being entered for the defendant in the proceedings he, the plaintiff, had brought with regard to the 1978 accident. Even if the defendant were correct that the terms of s 103 of the EA governed the admission of the documents rather than s 106 (a matter about which we also express no opinion), the documents could not satisfy the requirements of s 103(1) as they could not substantially affect the assessment of the credibility of the witness. The evidentiary worth of the line of cross-examination undertaken by the defendant with regard to the events to which the documents relate is, as counsel for the defendant acknowledged, to be found in the evidence given by the plaintiff. The documents themselves add nothing to that evidence, and could add nothing to the primary judge’s assessment of the credibility of the plaintiff.
The relevant pleadings could be relevant for a non-hearsay purpose if the purpose in tendering the documents was not to prove the truth of the representations therein, but simply to prove the fact that such assertions had been made. This may, for example, be relevant to establishing the plaintiff’s state of mind at a particular time, or his motive for acting in a particular way. The problem for the defendant is that the documents by themselves could not prove anything relevant to the plaintiff’s credit. The value of the documents was as a basis for cross-examination of the plaintiff, but the documents themselves could add nothing to the assessment of the plaintiff’s credibility.
Turning to the second category of document, judgments or orders in other proceedings, s 91 of the EA makes inadmissible evidence of a decision, or of a finding of fact, in an Australian proceeding in order to prove the existence of a fact that was in issue in the proceeding. It follows that the defendant was not entitled to tender documents that fell into this second category if the purpose of the tender was to prove the truth of any fact in issue in the proceeding, including whether a collision between vehicles was arranged or contrived. On the other hand, if the purpose of the tender was confined to establishing the truth of matters already admitted by the plaintiff in cross-examination, as seems to have been the case, the documents could not have satisfied the requirements of s 103(1) of the EA for the same reasons we gave with respect to the first category of documents. Even if it were suggested that the documents were admissible for a non-hearsay purpose, they could add nothing to the primary judge’s assessment of the plaintiff’s credibility.
In our opinion, the primary judge did not err in rejecting the tender of MFIs C, D, E, F and J.
As we have noted, the defendant was permitted to cross-examine the plaintiff with regard to the events to which these documents referred, and to use the documents in the process of cross-examination. The defendant complains in ground of appeal (h) that the primary judge should have drawn from the evidence the inference that the plaintiff was fraudulently involved in the staging of the motor vehicle accident with the Fiat in 1981. In our opinion there is no merit in this complaint.
The evidence concerning the plaintiff’s decision to consent to judgment for the defendant in his proceedings arising out of the 1978 motor vehicle accident was quite thin. The plaintiff said that he did not proceed with the claim on the advice of his then lawyers. The decision to consent to judgment for the defendant came after an application had been filed by the defendant in those proceedings to strike out the proceedings on the ground that the plaintiff had not taken steps to progress his claim. This occurred in late 1990, some 12 years after the 1978 accident was said to have occurred. It was just as likely that the decision of the plaintiff to consent to judgment against him was prompted by the actions of the defendant in those proceedings to strike out the proceedings as by the plaintiff’s awareness of any decision by Rocco Carbone to abandon his claim arising out of the alleged collision involving the Fiat in 1981.
With respect to the alleged collision involving the Fiat in 1981, the evidence established that the plaintiff knew the driver of the Fiat. It did not establish any connection between the plaintiff and any other person who may have been in the Fiat. Any decision by those who claimed to have been present in the Fiat at the time of the alleged collision to abandon their claim may have been based on considerations that do not include the plaintiff being part of a staged collision; for example, those who lodged claims may not have been in the Fiat at all, but may have opportunistically exploited the fact that the accident occurred to make a false claim. This may, or may not, have involved the connivance of the driver of the Fiat. The defendant seeks to have this Court infer dishonourable, and probably criminal, conduct on the part of the plaintiff based not on his conduct but on the conduct of others and in circumstances where the conduct of those others, as asserted by the defendant, must also be inferred, because the evidence as to why they acted as they did in abandoning their claims is not before us.
The final material the defendant relies upon is the evidence concerning the plaintiff’s brother and sister-in-law having been unsuccessful in claims made by them for damages for injuries said to have been sustained in a motor vehicle accident. There was no evidence that the plaintiff had any involvement in the events that formed the basis of these claims, and he was not a party to any proceedings concerning those events.
It is apposite at this point to recall the often cited passage from the decision of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336:
No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
In our opinion the primary judge was absolutely correct to decline to draw from this material the inference suggested by the defendant. We are consequently not satisfied that the primary judge erred in his assessment of the plaintiff’s creditworthiness.
Ground of appeal (d): the primary judge’s assessment of contributory negligence was too low
Ground of cross-appeal: the primary judge’s assessment of contributory negligence was too high
Turning to the issue of contributory negligence, it is convenient to address concurrently both the defendant’s complaint that the level of contributory negligence assessed by the primary judge was too low, and the plaintiff’s contention that it was too high.
Much time was taken by the defendant both in the proceedings below and on the hearing of this appeal attempting to convince the Court that the plaintiff had not been walking directly across the intersection where the accident occurred with a view to continuing to walk on the footpath along Wanganeen Avenue, but instead had been walking diagonally across Jandamarra Street with the intention of walking on that street. The defendant’s submission appeared to be that the plaintiff’s contributory negligence would be more substantial if this alternative scenario was the case, as the plaintiff’s back would to some degree have been towards the defendant as he drove along Jandamarra Street.
In our opinion, the debate on this issue is sterile. It was common ground that the plaintiff did not see the defendant as he travelled along Wanganeen Avenue and as he turned into Jandamarra Street. The primary judge quite rightly found that the plaintiff would have seen the defendant if he had been keeping a proper lookout. No greater or different finding could have been made if the plaintiff had been walking diagonally across Jandamarra Street, rather than directly across it. Nor would any such finding have reduced the defendant’s culpability. As the primary judge noted, if the plaintiff had been walking diagonally across Jandamarra Street some 4 or 5 car lengths from the intersection, it would have made the first defendant’s failure to see the plaintiff more inexplicable, suggesting a higher degree of negligence by the first defendant.
The primary judge had the opportunity of seeing and hearing the plaintiff give his evidence, and being extensively cross-examined. Similarly, the primary judge had the advantage of seeing and hearing the evidence of Ms Pelle and the defendant. We would not interfere with the finding of the primary judge in these circumstances unless convinced that the primary judge was wrong. The attack on the finding of the primary judge was based largely on marks made on photographs of the scene by the witnesses during the proceedings below. Such marks could only be estimates of where the collision occurred, or where the plaintiff was found after the accident, based on recollection. The evidence did not establish that the collision could not have occurred as found by the primary judge and having regard to the advantages possessed by the primary judge we would not interfere with his finding.
The defendant also complained that the primary judge did not take into account in assessing the extent of the plaintiff’s contributory negligence that the plaintiff was wearing dark clothing and that the street lighting at the scene of the collision was poor. The plaintiff described the lighting in the area of the intersection of Jandamarra Street and Wanganeen Avenue as “good”. The first defendant gave evidence that the lighting was not good, as a number of trees in the vicinity blocked the light from the streetlights. The primary judge found that the area where the collision occurred was “reasonably lit”. We have had the opportunity of viewing photographs of the scene taken after dark, as did the primary judge. Caution must be exercised in drawing any inference about the state of the lighting based upon these photographs, as the extent to which the photographs accurately reproduce the lighting in the area as experienced by the human eye cannot be known, but taking that caveat into account we are satisfied that the primary judge did not err in describing the lighting as reasonable.
The plaintiff was wearing dark clothing at the time of the accident. In the proceedings below, the defendant alleged as a particular of contributory negligence that the plaintiff had failed to wear ‘bright and/or reflective clothing’ in order to ensure that he could be seen while walking in the dark. In addressing that allegation, the primary judge said, at [21]:
I do not consider that [the plaintiff] failed to take reasonable care for himself because he was not wearing bright or reflective clothing. Had he been wearing such clothing then perhaps the extent of vigilance required of him might have been affected because he could proceed on the basis that an approaching vehicle would see that clothing. However not wearing such clothing was not a breach of duty.
The use of the term “breach of duty” by the primary judge was criticised by the defendant, as not articulating the correct test for contributory negligence: see [68] below. In our opinion, when his Honour’s reasons are read in full, it is clear that his Honour was aware of, and applied, the correct test. It was conceded by the defendant that as the first defendant turned into Jandamarra Street his headlights must have traversed the plaintiff as he was in the process of crossing Jandamarra Street. It is obvious that on any version of events the plaintiff was in motion and was reasonably close to the first defendant at that time. No matter what clothing the plaintiff was wearing he would have been visible to the first defendant had the first defendant been keeping a proper lookout. The fact that the first defendant did not see the plaintiff until after the collision leads inevitably to the conclusion he was not keeping a proper lookout. So much was admitted in the proceedings below. In our opinion the primary judge was entitled to discount the suggestion that the plaintiff failed to take reasonable care for himself by reason of the clothing he was wearing. That is not to say that the colour of the plaintiff’s clothing was irrelevant to the assessment of contributory negligence. The fact that the plaintiff was wearing dark clothing is a circumstance that fell to be assessed with the other relevant circumstances, such as his failure to keep a proper lookout as he crossed the road, in assessing the plaintiff’s level of responsibility for his damage. By itself, however, the wearing of dark clothing was not a failure by the plaintiff to take reasonable care for himself. In our opinion, the primary judge correctly approached the assessment of contributory negligence by considering the combination of relevant circumstances.
In Podrebersek v Australian Iron & Street Pty Ltd (1985) 59 ALJR 492 (Podrebersek) in a joint judgment (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) the Court said with regard to apportionment of liability in contributory negligence, at 493-494:
A finding on a question of apportionment is a finding upon a “question not of principle or positive findings of fact or law, but of proportion, of balance and relative emphasis and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds”…Such a finding, if made by a judge, is not lightly reviewed.
(citations omitted)
Later, the Court said, at 494:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man… and of the relative importance of the acts of the parties in causing the damage.
(citations omitted)
In assessing the question of apportionment in the present matter, the primary judge was obliged to apply the provisions of s 102(1) of the Civil Law (Wrongs) Act 2002 (ACT) (the Wrongs Act), which provides:
(1)If a person (the claimant) suffers damage partly because of the claimant’s failure to take reasonable care (contributory negligence) and partly because of someone else’s wrong –
(a) a claim for the damage is not defeated because of the claimant’s contributory negligence; and
(b) the damages recoverable for the wrong are to be reduced to the extent the court deciding the claim considers just and equitable having regard to the claimant’s share in the responsibility for the damage.
In our opinion, the test found in s 102(1) of the Wrongs Act, requiring a reduction of damages on the basis of contributory negligence assessed on the basis of what is “just and reasonable”, does not differ from the requirements of the common law as explained in Podrebersek.
In Pennington v Norris (1956) 96 CLR 10 (Pennington v Norris), the High Court considered a case involving circumstances which bear a degree of similarity to the present. The appellant was struck by a motor vehicle as he crossed a road at night. The respondent accepted that he had been negligent but claimed in the first instance proceedings that the appellant had been guilty of contributory negligence. The first instance judge found each of the parties to be equally at fault, and reduced the appellant’s damages by 50 per cent. On appeal the High Court (Dixon CJ, Webb, Fullagar and Kitto JJ) reduced the assessment of the plaintiff’s contributory negligence to 20 per cent, and in the course of their reasons they said at 16:
Here, in our opinion, the negligence of the defendant was in a high degree more culpable, more gross, than that of the plaintiff. The plaintiff’s conduct was ex hypothesi careless and unreasonable but, after all, it was the sort of thing that is very commonly done : he simply did not look when a reasonably careful man would have looked. We think too that in this case the very fact that his conduct did not endanger the defendant or anybody else is a material consideration. The defendant’s position was entirely different. The learned judge found only that he was negligent in not keeping a proper look-out, but there were several other important elements in the case, as Mr Wright pointed out. We think, indeed, that the equal allocation of responsibility by his Honour must have proceeded from an overlooking of these elements. The first matter is his speed. It could not on the evidence have been found to be less than thirty miles per hour. Again, there was a large number of people in the vicinity, - the defendant himself says that he noticed “quite a number of people about”. The hotels, of which there were three in the immediate vicinity, had closed a very short time previously. It was a misty night, and the road was wet. Visibility must have been impaired by these factors, and it was further impaired by mistiness on the inside and outside of the windscreen. To drive at thirty miles per hour in a town at night under these circumstances seems to us to have been to do an obviously dangerous things, and to have amounted to negligence of far greater culpability than anything that can possibly be attributed to the plaintiff.
In Anikin v Sierra [2004] HCA 64; 79 ALJR 452 Gleeson CJ, Gummow, Kirby and Hayne JJ referred to Pennington v Norris with approval, but made it clear that the decision in Pennington v Norris was based upon its own facts. As this Court observed in Steen v Senton (2015) 11 ACTLR 95 (Refshauge, Penfold and Rangiah JJ), while there is no legal principle that, in a collision between a motor vehicle and a pedestrian, the driver of the motor vehicle is more culpable, the application of the approach taken in Pennington v Norris has generally resulted in drivers being held more culpable.
The proposition advanced by the plaintiff, that his failure to take reasonable care for himself was momentary, and just at the point where he was almost across Jandamarra Street, should be rejected. As the primary judge made clear, the plaintiff’s failure to keep a proper lookout commenced before he started to cross Jandamarra Street, and continued up to the point of the collision. On the other hand, the defendant’s responsibility for the collision was more substantial than that of the plaintiff. The plaintiff was wearing dark clothing, but that did not render him invisible. As conceded by the defendant at the hearing of the appeal, the defendant’s headlights must have illuminated the plaintiff as the defendant turned into Jandamarra Street, so that the lighting in the area and the darkness of the plaintiff’s clothing cannot be said to be significant factors in causing the collision. The conclusion reached by the primary judge was, with respect, the only rational one available, being that the defendant, while driving a large four-wheel-drive vehicle equipped with a bull bar in a residential area, failed to keep a proper lookout.
The primary judge considered all of the relevant circumstances in forming his assessment of apportionment of liability between the plaintiff and the defendant. No error has been demonstrated by either the plaintiff or the defendant in that assessment, which was one well open to the primary judge. This Court should not interfere with the assessment made by the primary judge.
Grounds of appeal (a), (b) and (c) – the primary judge erred in his award for general damages
The primary contention for the defendant was that an award of $150,000.00 for general damages in the circumstances of this case was simply too much. The defendant submitted that at the time of this accident the plaintiff was 63 years old and had a substantial medical history prior to the accident, including:
(a) a long history of back and neck pain;
(b) elevated blood pressure;
(c) gout;
(d) prostatitis;
(e) perianal problems;
(f) otitis externa;
(g) asthma;
(h) sleep apnoea;
(i) kidney stones;
(j) a cataract affecting his left eye;
(k) carpal tunnel syndrome;
(l) left ankle injury;
(m) anxiety, depression and post-traumatic stress disorder;
(n) degeneration of the right knee.
The primary judge noted that on 13 September 2011, one week prior to the accident, the plaintiff described to his general practitioner a series of complaints consistent with chronic ill health. The doctor’s record of that consultation, as set out in the primary judge’s reasons, is as follows:
for last 10 years not one week goes by without him getting sick .. headaches comes and goes .. [occasional] runny nose .. sore eyes .. tiredness .. trembling shivering feeling .. [occasionally] head feels cold but [occasionally] feels hot .. lethargic and lacking energy .. [occasionally] shortness of breach requiring him to take deep breath, but able to walk and cycle .. [occasionally] feels crook after exercise .. back always cold .. voltaren can also sap his energy .. unable to drink cold water from fridge .. has problems with car air conditioning .. cops it really strong at least once a week .. feels tired after walking ..
denies depression .. sleeps well .. uses CPAP .. weight fluctuates but remains about the same .. glands nil, heart drnb, lungs clear, abdomen obese, LSK np, pedal pulses ok
discussed possible diagnoses .. ?connective tissue disease ??allergy ??chronic infection
The primary judge considered this entry as a reliable contemporaneous record that illustrated that the plaintiff’s health, as he perceived it, was not good prior to the accident.
Following this accident, in 2013 the plaintiff was diagnosed with a serious heart condition, for which he is treated with medication, and in 2014 he spent 5 days in hospital with cellulitis. In that year he was also diagnosed with mild to moderate bilateral hearing loss. Finally, in October 2014 the plaintiff was diagnosed with neurogenic claudication due to spinal canal stenosis, the effect of which is to cause numbness in his legs and an inability to walk for more than a few hundred metres. There was no evidence that any of these conditions were caused or aggravated by this accident.
At the date that the primary judge handed down his judgment, the plaintiff had a life expectancy of between 19 and 20 years.
In assessing damages, the primary judge made it clear that, having regard to his concerns about the reliability of the plaintiff’s evidence, the contemporaneous medical records were more likely to be reliable than the oral evidence given by the plaintiff. The basis for the primary judge’s assessment of general damages is set out at [21] above.
The defendant referred us to a number of previous decisions in order to illustrate its submission that the primary judge’s assessment of general damages was too high. In Fleming v Shoobridge [2009] ACTSC 80; 53 MVR 138, the 33 year old plaintiff’s hand was caught in the handle of a car door which drove off and dragged him along the road for some distance. He was taken to hospital where he underwent surgery to both knees. He was initially discharged in a wheelchair and underwent physiotherapy for a month. Harper M accepted that the plaintiff had suffered excruciating pain at the time of his injury, and had periodically suffered severe pain since then. He had also suffered “other sensory symptoms” which had been extremely unpleasant for him. The plaintiff would require future surgery to both knees. As a consequence of the injuries he sustained, the plaintiff was initially demoted but subsequently lost his employment altogether. His long‑term relationship broke down, in part because of a serious interference with his capacity to engage in sexual relations due to his injuries. The plaintiff suffered from no pre-existing medical problems at the time of the accident. Harper M assessed general damages in the sum of $100,000.00, of which $70,000.00 was attributed to the past, and $30,000.00 to the future.
In Heywood v Miller [2005] ACTSC 4, the 59 year old plaintiff suffered injuries when struck by a motor vehicle on a service station forecourt. The plaintiff suffered significant orthopaedic injuries including a spinal fracture of the left fibula. She experienced significant pain, requiring strong painkilling medication. The plaintiff’s ability to work was substantially reduced by her injuries, and she experienced ongoing pain which affected her sleep. The plaintiff found her diminished ability to work traumatic. Harper M accepted that the plaintiff’s injuries had “devastating psychological consequences” for her. He also accepted that she was likely to develop osteoarthritis in her ankle, requiring intensive treatment which may include surgery. His Honour assessed general damages in the sum of $75,000.00, of which $35,000.00 was attributed to the past and $40,000.00 to the future.
In Cirina v Wong [2005] ACTSC 45 and Csik v Wong [2005] ACTSC 56, Harper M considered claims by two pedestrians knocked down by a motor car in a suburban street. Mrs Cirina was almost 67 years old at the time of trial, and 63 years old at the time of the accident. She was retired. She had pre-existing spinal degeneration and had experienced back pain for many years. The accident significantly aggravated her lower back pain, and although that improved it was still at a much higher level than before the accident. Harper M noted that the plaintiff’s low back would likely have deteriorated in any event, but that the process had been accelerated due to her injuries. The plaintiff was also left with a tender and deformed right thigh, which was likely to be permanent. His Honour awarded general damages of $45,000.00, of which $25,000.00 was apportioned to the past.
The second plaintiff, Ms Csik, was 70 years old at the time of the accident. She also had retired. In the accident she suffered a fractured pelvis and a fractured ankle. She spent more than 4 weeks in hospital and spent many months walking with the aid of a walking frame or a walking stick. She experienced continuing pain and difficulty walking. She suffered from an adjustment disorder with mixed anxiety and depressed mood. The plaintiff had developed mild osteoarthritis in her ankle, which would be prone to deterioration over time. Harper M awarded her $70,000.00 in general damages of which $40,000.00 was apportioned to the past.
The plaintiff submitted that the majority of the medical conditions set out at [76] above were of historical interest only, and were not operative at the time of the accident. The plaintiff referred to the findings made by the primary judge of the injuries he sustained in the accident, which we have set out earlier in these reasons. The primary judge was also satisfied that as a result of his injuries, the plaintiff:
(a) was treated with braces and crutches;
(b) spent 6 and a half weeks in hospital;
(c) had a leg brace on his left leg for about a month;
(d) underwent extensive physiotherapy;
(e) was reviewed at the Fracture Clinic at the Canberra Hospital until the end of 2011;
(f) underwent bilateral knee arthroscopies in April 2012; and
(g) undertook hydrotherapy to strengthen his knees, and neck exercises to lessen his headaches.
The plaintiff submitted that no error on the part of the primary judge had been demonstrated. He submitted that the primary judge had considered each of the “negative” matters that were relevant to assessing general damages, and had assessed damages accordingly. The defendant, the plaintiff said, merely disagrees with the assessed figure.
The plaintiff submitted that the cases referred to by the defendant did not support any argument that the primary judge’s assessment of general damages was so far out of the range of damages that could be appropriate as to speak of error. He then referred us to a number of cases which, he submitted, supported the primary judge’s assessment of general damages.
In Dojcinoski v Aleksovski& Anor [2015] ACTSC 357 the plaintiff sustained injuries when a motor vehicle in which he was a passenger left the road and collided with a tree. He was about 30 years old at the time of the accident. He had sustained previous injuries to his knee and back. He also sustained injuries to his neck and lower back in the accident. He suffered from ongoing pain which substantially interfered with his capacity to work. As a result of his injuries he developed difficulties in his relationships with other people which lead him to fall out with others. General damages were assessed in the sum of $110,000.00, of which $85,000.00 was attributed to the past. We note that the plaintiff Dojcinoski was much younger than the plaintiff in the present matter, and did not have the same level of non-accident related disability as the present plaintiff.
In Franklin v Blick [2014] ACTSC 273, the plaintiff was riding a bicycle on a busy road when he was knocked off his bike by the defendant, who was also riding a bicycle. The plaintiff fell in front of a motor vehicle, which ran over him. He suffered intense pain and was transported to hospital by ambulance. He required strong pain relief, including intravenous morphine. He suffered a fractured pelvis, a fractured right transverse process, internal bleeding, grazes and bruising. He had to wait about 6 days for the internal bleeding to stop before doctors could operate to repair his pelvis. He suffered intense pain after the operation. In the operation he had an external fixator attached into the iliac bones, which then protruded about 10 cm from his body, and were then attached with rods. A screw was placed into his sacrum; this screw was removed in 2012. After the operation the plaintiff again required strong painkillers and was almost entirely bed bound. The plaintiff remained in hospital for 28 days, and was then discharged still with the external pelvis fixation device in place. When discharged, he had limited endurance, used crutches and had pain due to infection at the entry points of the external fixation device. Prior to the accident the plaintiff was fit and healthy, participating in a number of triathlons and other physical activities. He rode his bike almost every day, did yoga, swam and was part of running and riding groups. After the accident he found exercise increased his pain, although he continued to swim once a week. His ability to work was significantly affected, as was his social life. He suffered continuing pain requiring him to use strong painkillers. General damages were agreed between the parties in the sum of $150,000.00. It is clear that the plaintiff Franklin suffered significantly greater injuries than the plaintiff in the present matter. He also had no prior medical conditions and was younger than the present plaintiff.
In Tsueneaki v Stewart [2013] ACTCA 34, this Court rejected an appeal against an award of general damages of $120,000.00 on the ground that it was excessive. The plaintiff was injured in a motor vehicle accident. He was 35 years old at the time of the accident, and 41 years old at the time of judgment. He had been an army officer until 1996, and thereafter worked as an information technology consultant. He had a history of significant disability from back pain between 1991 and the date of the accident. The plaintiff suffered a very serious low back injury, and a moderately serious neck injury which caused him very considerable pain over an extended period, greatly limiting his leisure activities and considerably reducing his enjoyment of life generally. Before the accident the plaintiff had engaged in considerable strenuous physical activity including gardening and touch football. The plaintiff Tsueneaki was younger than the present plaintiff, and had no relevant prior medical conditions.
In Fazlic v Keily [2013] ACTSC 144 the plaintiff was injured in a motor vehicle collision. At the time of trial he was almost 50 years old. There was no relevant prior medical history. The plaintiff was incapacitated for work by low back pain. He experienced low back pain of varying intensity from the time of the accident in 2007 until the time of trial in 2013. At times, the pain was severe and disabling, and was responsible for a high degree of interference with the plaintiff’s enjoyment of life. He was unable to continue to enjoy the recreational pursuits he had enjoyed prior to the accident. An award of $120,000.00 was made for general damages. The plaintiff Fazlic was somewhat younger than the present plaintiff and had no relevant prior medical conditions. His injuries also resulted in a greater loss of enjoyment of life.
In Johnson v Forefront Automotive Industries Pty Ltd [2013] ACTSC 44 the plaintiff suffered a serious penetrating injury to his eye in the course of his employment causing pain and trauma, depression and adjustment disorders, permanent interference with depth perception, diplopia, sensitivity to glare and the involuntary closing of his left eye. The plaintiff was 22 years old at the time, and by reason of the injury was precluded from achieving his ambition of a career in the Army. General damages were assessed at $200,000.00. The plaintiff Johnson was considerably younger than the present plaintiff, and because of his injuries he lost the opportunity of a much anticipated career.
In Boyd v Smith [2010] ACTSC 62, the plaintiff was a 50 year old bus driver who suffered a neck injury in a motor vehicle accident in 2001. He had sustained previous injuries to his left shoulder and neck, and had pre-existing asymptomatic degeneration in his cervical spine. He suffered ongoing pain and headaches which “effectively ruined” his life. As a result of his ongoing disabilities, his mood was affected, and his marriage of 22 years broke down. Harper M described him, at the time of trial in 2010, as living a miserable life. General damages were assessed in the sum of $120,000.00. The plaintiff Boyd was younger than the present plaintiff, and his injuries had a more serious impact upon him.
In Moussa v Confoy [2015] NSWDC 103, the plaintiff sustained injuries in a motor vehicle accident in 2009. At the time of trial in 2015 he was 32 years old. The plaintiff had been involved in a number of prior accidents involving injuries to neck, left shoulder, back and right knee, but there was no evidence that he continued to suffer any pain or disability from those accidents at the time of the 2009 motor vehicle accident. In the motor vehicle accident the plaintiff sustained injury to his neck, back, left shoulder, right knee and psychological disability. The plaintiff underwent surgery on a number of occasions to address his injuries. He continued to experience pain up to the date of the trial. General damages were assessed at $150,000.00. The plaintiff Moussa was younger than the present plaintiff.
In Fallah Doghooz v Nagy [2011] NSWDC 193, the plaintiff suffered injury to her neck, leg and back in a motor vehicle accident. She had a long history of problems with her low back, but the accident made her condition substantially worse. The injury to her neck caused pain and some limitation of movement. She suffered a serious injury to her leg necessitating four operations. She was left with significant scarring. The reported decision does not give the plaintiff’s age, but based upon the award for future economic loss it appears that she was about 57 years old as at the time of trial in 2011. As a result of the accident she developed major depression which had a marked effect on her daily life. General damages were assessed at $200,000.00. The plaintiff was required to undergo multiple operations due to her injuries, which had a more severe impact upon her quality of life than the present plaintiff’s did on him.
In Allen v Bennett [2008] NSWDC 119, the plaintiff in a workplace accident suffered aggravation to a pre-existing back injury causing pain in his lumbar spine, right sacro‑iliac joint, right buttock and right thigh, trauma to the abdomen causing internal injuries that were surgically repaired but which resulted in ongoing abdominal wall pain caused by secondary neuropathy or nerve entrapment, urological and sexual dysfunction, post traumatic stress disorder and post-surgical scarring. He had continuing significant symptoms of pain and was reliant on narcotic medication for relief. The plaintiff was nearly 30 years old at the time of the accident. His injuries and disabilities affected his relationship with his partner, his children and others. General damages were assessed at $150,000.00. The plaintiff Allen was younger than the present plaintiff and suffered greater injury than the present plaintiff which had a more significant impact upon him.
The next case to which we were referred was Miller v Hawkins [1999] NSWSC 1163, the plaintiff was injured in a motor vehicle accident “of great severity” in 1996. She suffered a fracture of her right patella, laceration and soft tissue injuries to both knees, soft tissue injury to her lower back and cercival spine, three fractured ribs and general bruising. She underwent bilateral arthroscopies and lateral releases to her left and right legs. She subsequently underwent further surgery to her knees. It was accepted that the plaintiff would develop severe osteoarthritis in both knees, requiring bilateral knee replacement. She received numerous injections into the occipital region for temporary pain relief. There was a prospect that she may require surgery to her cervical spine in the future. She initially suffered panic attacks after the accident, which was treated by a psychologist. She also suffered cosmetic scarring. The reported judgment does not reveal the plaintiff’s age. General damages of $136,500.00 were awarded. The plaintiff Miller suffered more substantial injuries than the present plaintiff and required multiple surgeries.
In Hobbs v Fairall and Fairall [2016] NSWDC 116; 22 DCLR (NSW) 327, the 64 year old plaintiff was thrown from a horse while riding alongside a road. The plaintiff was then taken to hospital by ambulance, where he was found to be hypotensive. He suffered fractures to nine ribs, and he had a left-sided pneumothorax and subcutaneous emphysaema which required an urgent intercostal catheter. He also sustained a fracture of the right hip, which required open reduction and internal fixation, as well as a grossly comminuted fracture of the left scapula. He spent three days in an induced coma in Intensive Care. The plaintiff underwent 20 days of intensive physical therapy. It was accepted that the plaintiff had suffered substantial pain and suffering, substantial anxiety and distress and substantial loss of amenity “in his senior years”. General damages were assessed at $250,000.00. The plaintiff Hobbs suffered more substantial injuries than the present plaintiff and had less significant non-accident related medical disabilities.
In Garvie v Bulmer [2015] NSWDC 200, the plaintiff suffered injuries in a motor vehicle accident. He was 61 years old at the time of injury. The plaintiff suffered severe injuries resulting in significant disfigurement by scarring to his right upper limb and the pain and suffering involved in undergoing a skin graft. He also suffered an aggravation to a pre‑existing shoulder injury, and a soft tissue injury to his neck. There was an impairment of his sexual relationship with his wife due to his disabilities. He also suffered loss of enjoyment of recreational activities such as fishing and physical involvement with his grandchildren. General damages were assessed at $175,000.00. The injuries suffered by the plaintiff Garvie were more significant than those suffered by the present plaintiff, he had less significant non-accident related medical disabilities, and his enjoyment of life was more significantly affected.
The next case to which we were referred by the plaintiff was Waters v Dalli [2009] ACTSC 158. The plaintiff was seriously injured in 2005 when the motorcycle he was riding was struck by a car. In addition to a head injury which caused loss of consciousness for a short time, the plaintiff suffered multiple fractures of the right femur, tibia and fibula and bones in the right foot. He also suffered a degloving injury to his right foot and toes. He fractured four lumbar vertabra, two ribs and his left scapula. He also sustained injuries to both knees and his left ankle. He underwent numerous surgical procedures, requiring him to spend many months in hospital. The plaintiff was 60 years old at the time of injury and had previously enjoyed golf and tennis. He may require a knee replacement in the future. Harper M described the plaintiff’s injuries as having a “devastating effect” on him. General damages were assessed at $180,00.00. The injuries suffered by the plaintiff Waters were much more serious than those suffered by the plaintiff. He was required to undergo multiple surgeries. He had no relevant prior medical disabilities, and his enjoyment of life was affected to a much greater extent than the present plaintiff.
Finally the plaintiff referred us to the decision in Roberts v DRB Holdings Pty Ltd [2013] ACTSC 268 where the plaintiff suffered an injury to his L5-S1 disc as a consequence of a work accident in 2007. As at the date of trial, 2013, he continued to suffer from significant back pain for which he was required to take considerable amounts of medication. He also suffered from chronic depression secondary to his back pain. The plaintiff was 43 years old at the time of injury. General damages were assessed at $120,000.00. The plaintiff Roberts was younger than the present plaintiff.
The plaintiff’s purpose in referring us to these cases was to demonstrate that awards in the vicinity of $150,000.00 for general damages are not unheard of, and that the primary judge’s assessment was appropriate. The cases to which we were referred are not, however, factually equivalent to the present case. Indeed, having carefully examined the cases to which we were referred, we are satisfied that an award of $150,000.00 to the plaintiff was excessive, and to such an extent as to bespeak error. The plaintiff was 63 years old at the time of the accident. The contemporaneous medical records accepted by the primary judge demonstrated that the plaintiff had a long history of medical complaints that were to a significant degree detrimentally affecting his enjoyment of life prior to the accident. After the accident, he was diagnosed with serious non-accident related conditions which have had a most severe impact on his life (see [78] above).
In our opinion, the award for general damages should be set aside and an award of $100,000.00 substituted. Of this sum, $70,000.00 should be attributable to the past and $30,000.00 to the future. In the circumstances, we will not interfere with the award of interest on past general damages, as the difference would be minimal.
Having regard to our reduction of the general damages award, it is unnecessary to consider specifically the defendant’s complaint that the primary judge erred in his approach to negative vicissitudes in assessing general damages.
The sub-total arrived at by the primary judge of $322,721.00 before adjustment for contributory negligence must be reduced by $50,000.00 to $272,721.00. Reducing that sum by 20 per cent to allow for contributory negligence leaves a sum of $218,176.80.
The appeal will be allowed, the judgment entered by the primary judge is set aside and a judgment of $218,176.80 is substituted.
Whilst the defendant has ultimately been successful, there were a number of grounds of appeal advanced that were unsuccessful, which may bear upon the question of costs. Our tentative view is that an appropriate costs order would be that the plaintiff pay 60 per cent of the defendant’s costs of the appeal, including the cross-appeal. If the parties cannot resolve the issue of costs by agreement, on this basis or any other, they are to file and serve written submissions on costs not exceeding four pages by 2 February 2018.
| I certify that the preceding one hundred and seven [107] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 15 December 2017 |
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