Stafford v Carrigy-Ryan
[2014] ACTCA 27
•27 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Stafford v Carrigy-Ryan & Anor |
Medium Neutral Citation: | [2014] ACTCA 27 |
Hearing Date: | 14 May 2014 |
DecisionDate: | 27 August 2014 |
Before: | Penfold, Burns and Jagot JJ |
Decision: | The appeal is dismissed, with costs. |
Category: | Principal Judgment |
Catchwords: | PERSONAL INJURY – motor vehicle accident – driver and passenger plaintiff intoxicated by alcohol – extent to which plaintiff was aware of driver’s level of intoxication – contributory negligence – delayed complaint of injury to cervical spine – whether appellant withdrew from the enterprise APPEAL – appeal from a single judge – whether reduction in damages for contributory negligence had been correctly assessed – whether award should have been made for future loss of earning capacity – whether further evidence should have been admitted – whether award for gratuitous assistance was inadequate – appeal dismissed |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) Supreme Court Act 1933 (ACT) |
Cases Cited: | Australian Capital Territory v Crowley [2012] ACTA 52 Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd (2001) 117 FCR 424 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 |
Parties: | Aaron Lot Stafford (Appellant) Andrew Carrigy-Ryan (First Respondent) QBE Insurance (Australia) Limited ACN 003 191 035 (Second Respondent) |
Representation: | Counsel Mr G Stretton SC (Appellant) Mr K Rewell SC (Respondents) |
| Solicitors Colquhoun Murphy Lawyers (Appellant) Moray & Agnew Lawyers (Respondents) | |
File Numbers: | ACTCA 58 of 2013; SC 592 of 2011 |
Decision Under Appeal: | Court: ACT Supreme Court Before: Acting Justice Sidis Date of Decision: 4 July 2013 Citation: [2013] ACTSC 99 |
THE COURT:
The appellant was the passenger in a motor vehicle driven by the first respondent on 25 October 2008 when it failed to negotiate a corner on Corin Road, ran off the road and overturned several times. The appellant suffered injuries in the accident, although the extent of those injuries was a matter of dispute. The appellant and the first respondent had consumed alcohol together from about 5:30 or 6 pm on 24 October until approximately 1 am on 25 October, about 1.5 hours before the accident.
A blood sample taken from the first respondent 2 hours after the accident revealed a reading of 0.155 grams of alcohol per 100 millilitres of blood. In the course of the hearing before the primary judge the appellant attempted to minimise the amount of alcohol he and the first respondent consumed prior to the accident, but there was independent evidence that by midnight on 24 October 2008 they were both “quite drunk”, and that after the accident they both smelled of beer and appeared to be still intoxicated. The primary judge made the following findings of fact, which are not challenged in the present appeal:
(a) At the time the first respondent commenced driving with the appellant as a passenger, the first respondent and the appellant were intoxicated by alcohol; and
(b) The appellant knew or ought to have known that the first respondent was intoxicated.
The primary judge rejected a defence that the first respondent owed the appellant no duty of care: see Joslyn v Berryman (2003) 214 CLR 522 at [29]; Gala v Preston (1991) 172 CLR 243 at 254. She determined that the first respondent owed the appellant a duty of care, and that he had breached it. Her Honour was satisfied that the appellant’s damages should be reduced due to contributory negligence, which she assessed at 35%. The primary judge assessed damages of $107,264.91, but in doing so she did not accept that the appellant suffered an injury to his neck in the accident as he claimed. The appellant appealed from the decision of the primary judge.
Grounds of Appeal
The grounds of appeal pleaded by the appellant are:
(a) The learned trial judge erred in holding that the starting point for her consideration of contributory negligence was that the appellant and the first respondent were equally responsible for the appellant’s loss and damage in circumstances where no authority for such a starting point was referred to and where such a starting point was against the weight of authority.
(b) The learned trial judge erred in finding that the appellant had not withdrawn from the “enterprise” in which he and the first respondent were engaged at the time of the accident, despite uncontradicted evidence of the appellant that when the first respondent commenced to drive at an excessive speed the appellant repeatedly asked him to slow down.
(c) The learned trial judge erred in finding that that the appellant’s damages should be reduced by 35% for contributory negligence.
(d) The learned trial judge erred in finding that the appellant did not suffer an injury to his neck in the subject accident and failing to award damages for that injury.
(e) The learned trial judge erred in refusing to receive into evidence a copy of an email dated 29 November 2011 and an enclosed letter from the business records of DNA Architects relating to the appellant’s employment and, as a consequence, failing to make a proper award for past loss of earning capacity.
(f) The learned trial judge erred in making no award for future loss of earning capacity.
(g) The learned trial judge erred in failing to consider the evidence of Sandra Joy Stafford, Leticia Casarrubias-Tepichin and Graham Dennis Stafford in relation to the domestic assistance the appellant required and consequently making an inadequate award for gratuitous assistance.
The Nature of the Appeal
The principles governing this appeal are well settled. In Australian Capital Territory v Crowley [2012] ACTA 52 this Court said, at [5]:
The right to appeal is conferred by Part 2A of the Supreme Court Act 1933 (ACT) (“Supreme Court Act”). It is an appeal in the nature of a rehearing (Huen v Hyland [2004] ACTCA 5 at [54]), albeit that error must still be shown: Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd (2001) 117 FCR 424 at [21]-[30]. On such an appeal the Court is obliged to conduct “a real review of the trial” and the judge’s reasons and give “the judgment which in its opinion ought to have been given in the first instance”. Dearman v Dearman (1908) 7 CLR 549 at 561 quoted with approval in Fox v Percy (2003) 214 CLR 118 at 125 [23].
In Fox v Percy (2003) 214 CLR 118, the majority judgment (Gleeson CJ, Gummow and Kirby JJ) said in relation to appeals conducted by way of rehearing at [22]-[23]:
The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of witness’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (Citations omitted)
In the recent case of Nemeth v Australia Litigation Funders Pty Ltd [2014] NSWCA 198, Gleeson JA, with whom Meagher and Leeming JJA agreed, expressed the test to be applied by an appellate court where challenges are made to findings of fact by a primary judge as follows (at [102]):
The appellant must establish that the primary judge’s conclusions were erroneous by reason of incontrovertible facts or that the decision is glaringly improbable or contrary to compelling inferences: Fox v Percy at [28]-[29].
If an appellate court is satisfied, making proper allowance for the advantages of the trial judge, that error is shown, the court has a duty to intervene: Fox v Percy at [27].
Ground of appeal A: The reduction for contributory negligence
Ground of appeal B: Withdrawal from the enterprise
Ground of appeal C: Assessing contributory negligence at 35%
It is convenient to consider these three grounds together.
10. The evidence before the primary judge established that in the early hours of 25 October 2008, having attended two functions that evening at which they consumed alcohol, the appellant and the first respondent were at the first respondent’s home in Duffy, a suburb of Canberra. The first respondent then left the house and sat in the driver’s seat of the appellant’s car. The car was, in fact, the appellant’s father’s car, but it was on extended loan to the appellant who, for present purposes, was the person in lawful possession of the vehicle. The first respondent told the appellant he wanted to go for a drive, that he was not feeling well and he wanted to talk about some things. There was evidence that in the month prior to the accident the first respondent, who had mental health issues, had attempted self harm. On that occasion, the appellant found the first respondent bleeding from self-inflicted wounds, bandaged him and took him to hospital. The primary judge appears to have accepted the appellant’s evidence that he accompanied the first respondent as a passenger on 25 October 2008 because he was concerned for the first respondent’s wellbeing. In this context the primary judge said, concerning contributory negligence:
84. I did not accept the plaintiff’s claim that he was unaware of the defendant’s capacity to drive was impaired by alcohol. By the time the decision to go for a drive was made, the plaintiff was well aware that the defendant had been drinking alcohol over an extended period.
85. The defendants argued that I should reject the claim that the first defendant was upset or troubled. While Ms Cochrane noticed nothing to indicate that he was troubled, the plaintiff’s evidence of the conversation that took place at Scrivenger Dam was not denied by the first defendant who said that he remembered the events of the evening to that point. I therefore accept the plaintiff’s evidence that the first defendant disclosed his personal problems in the course of this conversation.
86. I did not however consider that the plaintiff’s concern for the first defendant’s mental health put him in a position where he could not reasonably have avoided the risk he faced as a passenger in the car driven by the intoxicated first defendant. There were alternatives available to the plaintiff. I did not accept that he could not have done more to prevent the first defendant from driving the vehicle.
87. In addition I do not accept that the plaintiff withdrew from the “enterprise” in which he and the first defendant were engaged at the time of the accident. He was content to remain as a passenger in the car driven by the first defendant for so long as he considered that he was exercising care and skill. The precise purpose of discouraging intoxicated persons from driving is that they cannot be relied upon to exercise the judgment necessary to ensure the safety of themselves, passengers or other road users. The plaintiff could not avoid responsibility by voluntarily placing himself in a situation of risk and claiming to have withdrawn from that situation at the point when the risk eventuated.
88. In ordinary circumstances, I would have held each of the plaintiff and the first defendant equally responsible for the plaintiff’s loss and damage. They were equally aware of the extent to which alcohol had been consumed and equally aware of the risk they were undertaking.
89. In this case, however, there was the added element that it was the first defendant who initiated the proposal to drive the Subaru. The plaintiff acted in response to the first defendant’s request when he was under the apprehension, in my view genuine but misplaced, that he should support his friend. I accepted that this mitigated the extent to which he should be held responsible.
90. I assess the plaintiff’s contributory negligence at 35%.
11. The appellant complained that the primary judge started from a position of 50% contributory negligence, and then reduced that to 35% based on the mitigating circumstances that it was the first respondent who initiated the proposal to drive, and that the appellant accompanied him under the apprehension that he should support his friend. The appellant submitted that there is “no authority for the proposition that equal knowledge of alcohol consumption (and equal knowledge of subsequent risk) creates a presumption of 50% contributory negligence.” He further submitted that contributory negligence is not simply a function of each party’s knowledge but also of “the relative importance of [their] acts... in causing the damage”: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529.
12. The basis of the appellant’s complaint is that the primary judge acted on a presumption of equal culpability for the appellant’s injuries. We do not accept that the primary judge, in the portion of her reasons quoted above, was purporting to suggest that there was a presumption of 50% negligence based on the parties’ equal knowledge of the first respondent’s alcohol consumption and equal appreciation of the risk they were undertaking. That paragraph of her Honour’s reasons must be read in the context of the judgment as a whole, in which she carefully considers the respective roles of the appellant and first respondent in the events in question. In particular, the primary judge fully sets out the conduct of the first respondent in driving the car which led to the accident. There is no reason to suppose that these factors did not inform the primary judge’s initial assessment of 50% contributory negligence.
13. In submissions made at the appeal, the appellant appeared to modify his position to suggest that the initial assessment of equal culpability for the appellant’s injuries was simply too high, bearing in mind their respective roles. To address this submission, it is necessary to consider the legislation and principles governing the formation of an assessment of contributory negligence, and identify the principles relevant to reviewing such an assessment.
14. There are a number of provisions of the Civil Law (Wrongs) Act 2002 (ACT) which were relevant to the primary judge’s determination on contributory negligence:
95 Presumption of contributory negligence – injured person intoxicated
(1) Contributory negligence must be presumed if the injured person was intoxicated at the time of the accident and the defendant claims contributory negligence.
(2) The presumption can be rebutted only if the injured person establishes, on the balance of probabilities, that –
(a) the intoxication did not contribute to the accident; or
(b) the intoxication was not self-induced.
(3) If the presumption is not rebutted, the damages the injured person would be entitled to, apart from the contributory negligence, must be reduced to the extent that the court considers just and equitable having regard to the injured person’s share in the responsibility for the injury.
96 Presumption of contributory negligence – injured person relying on intoxicated person
(1) Contributory negligence must be presumed if –
(a) the injured person –
(i) was at least 16 years old at the time of the accident; and
(ii) relied on the care and skill of a person (A) who was intoxicated at the time of the accident; and
(iii) knew, or ought to have known, that A was intoxicated; and
(b) the accident was caused by A’s negligence; and
(c) the defendant claims contributory negligence by the injured person.
(2) The presumption can be rebutted only if the injured person establishes, on the balance of probabilities, that –
(a) the intoxication did not contribute to the accident; or
(b) the intoxication was not self-induced.
(3) If the presumption is not rebutted, the damages the injured person would be entitled to, apart from the contributory negligence, must be reduced to the extent that the court considers just and equitable having regard to the injured person’s share in the responsibility for the injury.
(4) For this section, a passenger in a motor vehicle is taken to rely on the care and skill of the driver.
(5) The common law defence of voluntary assumption of risk does not apply to a matter to which this section applies.
15. These provisions specifically address contributory negligence in the context of intoxication of an injured person or any person upon whom an injured person relied. Part 7.3 of the Civil Law (Wrongs) Act 2002 (ACT) also contains general provisions concerning contributory negligence, effectively adopting the same “just and equitable” test found in sections 95 and 96. In the circumstances of this case, it was unnecessary for the primary judge to consider those general provisions.
16. The Civil Law (Wrongs) Act 2002 (ACT) does not attempt to define contributory negligence, which must be taken to have its well established meaning at common law. It is unnecessary to consider the circumstances that gave rise to contributory negligence at common law, as sections 95 and 96 set out the circumstances relevant to this appeal, but other rules concerning contributory negligence developed by the common law are relevant. The test of contributory negligence is an objective one: Joslyn v Berryman at [32]. The test to be applied was set out by McHugh J in Joslyn v Berryman at [38]:
Hence, the issue is not whether a reasonable person in the intoxicated passenger’s condition – if there could be such a person – would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person – a sober person – would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver’s intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication.
17. In the circumstances of the case before the primary judge, it was inevitable that a finding of contributory negligence would be made. In Podrebersek v Australian Iron and Steel Pty Ltd, the High Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) said, at 532,:
A finding on a question of apportionment is a finding upon “a question, not of principle or of positive finding of fact or law, but of proportion, of balance and relative emphasis, and of weighing different consideration. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds”: British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.
18. Later, the Court said:
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... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.
19. In Nominal Defendant v Green [2013] NSWCA 219 the New South Wales Court of Appeal (McColl and Boston JJA and Sackville AJA) considered an appeal alleging that a reduction of damages for passengers in a motor vehicle accident in which the driver was intoxicated by 35% and 40% was inadequate. The Court considered the reduction assessed in a range of previous cases, and noted that cases where assessments had been made in the higher range, such as 80%, involved plaintiffs who were in a position, not merely to decide if they would take a particular risk, but also to control the conduct of the intoxicated driver. The Court concluded that in the case before it, lacking those features of “aggravation”, the appellant had not established that reductions in the range of 35% to 40% were inadequate.
20. We are far from satisfied that the primary judge’s assessment of 35% is so high as to demonstrate error. It may, indeed, be seen as somewhat generous to the appellant. The vehicle which the first respondent was driving when the accident occurred was the appellant’s father’s vehicle, although it was, at that time, under the appellant’s control. In evidence in chief the appellant said, concerning the events after they returned to the first respondent’s home after the second function:
When you got to Duffy, what did you do there? --- I recall that I got out of the car and headed inside.
Yes? --- I got myself another beer. I was not intending to do anything much else for the rest of the evening.
What about Jodie and Mr Carrigy-Ryan, what did they do as far as you saw? --- Jodie went to bed and I’m not sure what Andrew did but I recall looking for him and I found that he had gone back outside and he was in my car.
What did you do? Did you join him? --- No, I asked him what he was doing and he told me that he wanted to go for a drive. I tried to discourage him from going for a drive. He was very insistent upon the fact that he wanted to go for a drive. I discussed with him why he wanted to do that and he said that he wanted to go and have a talk because he wasn’t feeling very well and he wanted to talk about some things with me. I asked him if he would be happy to do that, maybe, to go for a walk rather than go for a drive, and he was not – he wanted to go for a drive...
21. The appellant, as the person lawfully in possession of the vehicle, had the authority to refuse permission to the first respondent to drive it. The evidence establishes that he never even attempted this course, instead attempting to dissuade the first respondent from driving the vehicle. There is no suggestion in the evidence that the first respondent, by words or deeds, evidenced an intention to drive the vehicle without the appellant’s permission.
22. Leaving aside this consideration, which was not adverted to by the primary judge, there was ample basis for concluding that the appellant’s damages should be reduced by 35% to mark his own responsibility for his injuries. In the course of submissions before this Court, the appellant argued that an equal apportionment of liability between a passenger and an intoxicated driver could almost never be appropriate. We cannot accept that proposition. In perhaps the leading case on the correct approach to assessing contributory negligence, Joslyn v Berryman, the passenger and driver of a motor vehicle involved in an accident were both intoxicated. The trial judge attributed 25% contributory negligence to the passenger. The New South Wales Court of Appeal reduced that to zero on the basis that the passenger, by reason of his intoxication, was unaware of the driver’s intoxication. As we have already noted, the High Court on appeal stated that the test to be applied was objective and remitted the matter to the Court of Appeal to assess contributory negligence on that basis. The Court of Appeal then assessed it at 60%. We do not refer to the decision of the Court of Appeal in Joslyn v Berryman as in some way creating a tariff for these types of cases, but it does demonstrate that assessments of contributory negligence considerably greater than the present 35% are not unknown.
23. Turning now to the suggestion that the appellant withdrew from the enterprise with the first respondent, the primary judge accepted the appellant’s evidence that on Corin Road, a considerable time after the first respondent had commenced driving, the appellant became concerned by the speed at which he was driving. At [38] to [39] of her reasons, the primary judge said:
38 The plaintiff said that until this point of time the first defendant’s driving had not concerned him. As they descended from Corin Forest, the road was wet and it was foggy. The first defendant began to drive at a speed with which the plaintiff was not comfortable. The plaintiff said he repeatedly asked the first defendant to slow down. The first defendant said he knew the road well and told him not to worry.
39 The plaintiff asked the first defendant once more to slow down as he approached a sharp right hand corner, but the first defendant did not do so and he entered the corner at a speed that was too fast. The first defendant’s attempts to brake to slow his vehicle and enable the car to travel safely around the corner failed.
24. The appellant contended that, by repeatedly asking the first respondent to slow down in the moments leading to the accident, he was to be taken to have “withdrawn his consent to being driven dangerously”. The trial judge rejected that proposition.
87 In addition, I did not accept that the plaintiff withdrew from the “enterprise” in which he and the first defendant were engaged at the time of the accident. He was content to remain as a passenger in the car driven by the first defendant for so long as he considered that he was exercising care and skill. The precise purpose of discouraging intoxicated persons from driving is that they cannot be relied upon to exercise the judgment necessary to ensure the safety of themselves, passengers or other road users. The plaintiff could not avoid responsibility by voluntarily placing himself in a situation at risk and claiming to have withdrawn from the situation at the point when the risk eventuated.
25. Whilst, with respect, agreeing with the statements by the primary judge we might add to her reasons that the “enterprise” in which the appellant and first respondent were engaged was not an enterprise of driving dangerously. The course of conduct, or enterprise, in which the appellant and first respondent were engaged was that of the appellant being a passenger in a vehicle being driven by the first respondent while he was intoxicated. There is nothing in the evidence to suggest that the appellant ever withdrew, or sought to withdraw, from this enterprise. His request that the first respondent slow down cannot amount to a disavowal by the appellant of willingness to engage in the course of conduct that ultimately led to his injuries.
26. The appellant referred us to the decision in Miller v Miller (2011) 242 CLR 446, where the High Court determined that a passenger in a stolen motor vehicle had withdrawn from the joint criminal enterprise of unlawfully using the vehicle without the owner’s consent before the collision in which she sustained injuries, because she had repeatedly asked the driver of the vehicle to stop and let her out. There are a number of relevant differences between that case and the present. In the present case, there is no evidence that the appellant asked the first respondent to stop the vehicle so he could get out. Indeed, the contrary is the case. The evidence establishes that the first respondent stopped the vehicle at Scrivener Dam before the accident, and that both the appellant and the first respondent got out of the vehicle. The appellant voluntarily re-entered the vehicle, which the first respondent continued to drive. We would also note that the issue in Miller v Miller was whether the driver owed the passenger a duty of care, where it was alleged that they were engaged in a joint criminal enterprise at the time of the accident. That issue simply does not arise here.
27. In our opinion each of these grounds of appeal fails.
Ground of appeal D: The alleged neck injury
28. After the accident, the first respondent’s girlfriend attended the scene and drove both the appellant and the first respondent to the Canberra Hospital. At the hospital, the appellant was examined and discharged within hours. As the primary judge observed, the triage notes recorded that he complained of left arm pain and multiple small lacerations to both arms. They also recorded that there had been no loss of consciousness, and that the appellant denied any neck or head pain. Examination of the appellant, including examination of his cervical spine, revealed no injuries other than superficial abrasions to the right forearm.
29. After his release from hospital he was driven to the first respondent’s house where he changed clothes and attended work around 7:30 am at Fyshwick Building Suppliers. He worked until 12:30 pm, and then went on a pre-planned skydiving outing to celebrate the first respondent’s birthday. Later that evening, he attended the first respondent’s birthday party at which he consumed further alcohol.
30. There is no doubt that the appellant suffered a mild traumatic brain injury in the accident, from which he recovered well. We will not set out the details of his medical treatment for that injury, but will simply note that in the months following the accident he was seen by medical practitioners and made no complaint of neck pain.
31. The first complaint of neck pain in the medical records is on 3 February 2009, when the appellant’s general practitioner noted the appellant complained of a 2 week history of neck pain, suggesting that the onset of the pain was mid-January 2009, some 2 ½ months after the accident. The appellant underwent investigation and treatment for his neck pain, and in September 2009 an MRI report on his cervical spine stated “Focal disc protrusion at C 3/4. This could feasibly relate to the plaintiff’s recent injury.”
32. The medical evidence before the primary judge was conflicting, with some of the witnesses accepting that the accident may have contributed to the appellant’s neck pain, and at least one witness, Dr McGrath, concluding that was improbable.
33. The primary judge was required to determine whether there was a causal link between the appellant’s neck pain, and any injury or defect underlying that pain, and the accident. She had conflicting expert testimony before her, some of which supported the appellant’s case and some of which did not. The primary judge concluded that there were a number of potential causes for the appellant’s neck pain, including a soft tissue injury sustained in the accident, a biomechanical defect or some other undiagnosed strain or injury. She concluded:
The evidence pointed to these causes as possibilities only, and I was unable to reach a firm conclusion on the precise cause of the plaintiff’s symptoms. I accepted the medical opinion that the delay in the development of symptoms was such that it was improbable that they were the result of injury suffered in the accident. I therefore rejected this part of the plaintiff’s claim.
34. It is not an error on the part of a trial judge to prefer the evidence of one expert over another or others. This is not a case where all of the evidence pointed the one way. The trial judge gave reasons for preferring the evidence of Dr McGrath, which are logical and cogent. The fact that she declined to accept evidence that would have linked the appellant’s neck pain to the accident cannot be said to be an error on her part.
35. This ground of appeal must also fail.
Ground of Appeal E: Rejection of the letter of 29 November 2011
36. In the proceedings before the primary judge the appellant claimed damages for past loss of earnings capacity. The evidence was that the appellant obtained employment as a casual student architect with Dowse Norwood (a firm of architects) from October 2009 until November 2011, at which time he resigned and went to live at his parents’ home in Tathra New South Wales, before moving to Melbourne in September 2012. In evidence in chief, in response to a question why he ceased work with Dowse Norwood, the appellant said:
I wanted to try and spend some time on my health, to see if I could get myself a little better – was one of the reasons; the other was we were looking to moving somewhere that my girlfriend [L] would be able to better attain work in her chosen field.
37. The appellant was then asked by his counsel whether he had written to Dowse Norwood explaining why he was leaving, and he responded that he had. Curiously, he was then asked to look at a document, presumably the letter of 29 November 2011, but counsel then withdrew his request that the appellant look at the document, and it was not subsequently mentioned in examination in chief.
38. In cross-examination the appellant agreed that he travelled to Mexico in the later part of 2011 with his girlfriend, where they stayed for about 6 weeks. When they returned they went to live with his parents in Tathra. He said he and his girlfriend had plans to leave Canberra even before they went to Mexico, but these were not settled plans. When the opportunity arose to move to Melbourne, they decided to take it. The appellant agreed that employment opportunities were better for both himself and his girlfriend in Melbourne compared to Canberra. The following exchange then occurred:
And then you resigned from Dowse Norwood and moved to Canberra in the back end of last year?
HER HONOUR: To Melbourne?
Sorry, moved from Canberra to Melbourne in around September of last year? --- Yes, that is correct.
39. In cross-examination, the appellant was questioned about his ability to perform his duties at Dowse Norwood as at December 2009 based on a report of an exercise physiotherapist, Melissa Vincent:
Do you recall telling Ms Vincent that you’d commenced new employment at Dowse Norwood Architects in late October 2009? --- Yes.
I’m just going to read you something from Ms Vincent’s report, so as to save some time, Mr Stafford, and can you tell me whether this accords with your memory and if you agree with it? --- Yes.
“He reports commencement of this new position and new duties has assisted him in management of his pain/symptoms and does not report any difficulty in completing his new work hours or duties.” You indicated that to Ms Vincent? --- I do not recall specifically but I would not have lied to her.
Did you also indicate to Ms Vincent that you had a flexible working environment, as you’ve just told us about, and you were able to take regular breaks, for example, every hour, and that you’re conscious of your work base posture? --- Yes, that is correct.
Did you indicate to Ms Vincent that you had effective office ergonomics? --- Yes.
And I think you told her that your duties were primarily desk based or computer based but other things including meetings that sometimes ran to about 30 minutes and some local or short distance travelling? --- Yes, that would be correct.
And you were coping with all of these duties? – At that time, yes, I was.
40. In re-examination the appellant sought to introduce the email and attached letter dated 29 November 2011 to Dowse Norwood. The following then occurred:
MR NOLAN: Your Honour, I object on the basis that, again, this is re-examination and this is a letter that appears to be dated 29/11/2011, so it’s a year and some months old, and the plaintiff has given his examination-in-chief. All of this, that’s within the contents of this letter, could have come from him in chief. And on that basis, your Honour, we would object that the plaintiff really shouldn’t be allowed to plug up, so to speak, any shortcomings in their evidence by way of an email that was within the custody of their client and of which he could have given oral evidence of and been cross-examined on if need be.
MR STRETTON: It goes to another issue, your Honour, and that was the cross-examination which went to the suggestion that the plaintiff was in good condition or good health at that time and could have managed, as I understand it was put, working with those architects. So it goes to that issue to answer that evidence, with respect.
MR NOLAN: He was cross-examined on that, your Honour, because that was his evidence, as I understood it, and I’ve challenged him on that. But for the plaintiff to now come forward and say, well, here’s further corroborating evidence in the form of an email that we’ve had for well over a year that has surfaced now at the 11th hour and to seek to tender it to fill any gaps or to bolster a claim, your Honour, we’d simply suggest that it shouldn’t be allowed.
HER HONOUR: I can’t see that I can allow it, Mr Stretton. It should have been – it should have gone in in evidence-in-chief, and I don’t see that there’s any issue to be clarified.
41. A potential ambiguity arose from the questions in cross-examination at [38] above, namely whether the appellant resigned his employment in late 2012 and moved to Melbourne, or whether he had, consistent with his evidence in chief, resigned in late 2011, and then moved to Melbourne in late 2012. The letter would have been admissible in re-examination for this limited purpose. The purpose of the proposed tender, however, was quite different. The purpose was to bolster the appellant’s case that he had resigned from his employment for health reasons associated with the accident. In our opinion, the tender was, with respect, correctly rejected by the primary judge. It was apparently the appellant’s case that he resigned from his employment with Dowse Norwood due, at least in part, to his injuries sustained in the accident. He had an obligation to lead all available evidence in support of that proposition in the course of evidence in chief. There is no suggestion that the letter could not have been tendered in the course of evidence in chief. A deliberate decision was apparently made not to adduce that evidence at that time. To allow the appellant to adduce it during re-examination would have been unfair to the respondents, who would have had no opportunity to cross-examine the appellant on its contents. The appellant’s counsel could have sought leave to re-open his examination of the appellant to tender the documents, as he did with respect to other documents, but he did not do so. By the time he wrote the letter to Dowse Norwood, the appellant had commenced proceedings against the first respondent. The description of his disabilities in the letter does not appear to be reflected in the medical evidence, and there was no medical evidence to the effect that the appellant was unfit to work as at November 2011. It is likely that significant issues with the credibility of the statements made by the appellant in the letter would have arisen had it been tendered during evidence in chief, a fact that may have influenced counsel’s decision not to tender it, or to seek leave to re-open examination in chief. In any event, the primary judge was correct in finding that the appellant’s answers to questions in cross-examination did not call for clarification in the manner put by counsel, since the letter in question did not distinguish between the effects of his compensable head injury, and the effects of the non-compensable neck condition.
42. This ground of appeal also fails.
Ground of appeal F: Failure to award damages for future loss of earnings capacity:
43. The appellant claimed damages for future loss of earning capacity based, as we understand it, on a delay in his completion of his undergraduate studies by reason of his injuries, and by reason of his ongoing neck symptoms which were said to restrict his ability to work. The second of the propositions is untenable due to the finding of the primary judge that the appellant’s neck symptoms were not demonstrated to be causally related to the accident. With respect to the first proposition, the primary judge allowed $20,321.93 to compensate the appellant for a 12 month delay in completing his undergraduate degree, and also allowed a buffer of $15,000.00 to compensate for the “compounding effect of a 12 month delay” in completing his masters degree. The medical evidence did not support any other approach.
44. This ground of appeal also fails.
Ground of appeal G: The award for gratuitous services
45. The evidence concerning the appellant’s need for gratuitous services following the accident was, as the primary judge described it, unsatisfactory. In large measure this was because his needs varied considerably from time to time. The primary judge allowed an average of 4 hours of assistance a week for 52 weeks, finding that by October 2009 the appellant “no longer required assistance with domestic care as a result of the brain injury”.
46. This approach was open to the primary judge and does not reveal error. It was not possible for the primary judge to differentiate between domestic assistance required by reason of the appellant’s compensable brain injury, and that required by reason of the non-compensable neck condition. On the basis of the medical evidence her Honour was entitled to conclude that the symptoms of his mild traumatic brain injury had abated by the end of 2009.
47. The appellant complained that the primary judge made no specific reference to the evidence of the appellant’s mother, father and girlfriend in determining this aspect of the appellant’s claim. This complaint is not entirely accurate, as the primary judge did refer to the evidence of the appellant’s mother. To the extent that she did not refer to the evidence of the appellant’s father and girlfriend, there was little point in doing so as that evidence failed to make the case any clearer concerning the appellant’s needs arising from his brain injury.
48. This ground of appeal fails.
Conclusion
49. The appeal is dismissed, with costs.
| I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal. Associate: Date: 27 August 2014 |
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