Titan v Babic

[1994] FCA 273

JOZEF TITAN v. TOMISLAV BABIC, JOHN WILLIAM KELLY and N.R.M.A. INSURANCE
LIMITED
No. ACT G31 of 1992
FED No. 273/94
Number of pages - 9
Practice and Procedure
(1994) 49 FCR 546
(1994) 126 ALR 455

COURT

IN THE FULL COURT OF THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
NORTHROP, NEAVES, RYAN, FRENCH AND O'LOUGHLIN JJ

CATCHWORDS

Practice and Procedure - assessment of damages - personal injuries - unrepresented plaintiff - misconception of rules and practice directions of Court - failure to tender all requisite medical reports - failure to call medical and other witnesses - inexplicable misunderstanding - no procedural error disclosed - fresh evidence - no occasion for admission of fresh evidence.

HEARING

CANBERRA, 23 June 1993
#DATE 11:5:1994

Mr J. Titan appeared on his own behalf.

No appearance for the First Respondent.

Counsel for the Second and Third Respondents: Mr L.M. Morris QC

and Mr Parker

Solicitors for the Second and Third Respondents:

Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT: 1. The appeal be dismissed.

2. The appellant pay the respondents' costs of the appeal.
NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

History of the Proceedings
NORTHROP, NEAVES, RYAN, FRENCH AND O'LOUGHLIN JJ On 9 April 1980, Jozef Titan was a passenger in a motor vehicle driv en by Tomislav Babic, which was involved in a collision with another motor vehicle driven by John Kelly. The collision took place at the intersection of Brisbane Avenue and Macquarie Street, Barton in the Australian Capital Territory. As a result of the collision Mr Titan suffered personal injuries. On 23 December 1982 he issued a writ out of the Supreme Court of the Australian Capital Territory claiming damages for personal injuries against the two drivers. On 30 May 1984 he obtained an interlocutory judgment in default of defence which entitled him to damages to be assessed against the defendants. A long and convoluted process followed which it is not necessary to set out here. In the event, the assessment of damages proceeded on 20 March 1991 before the Master of the Supreme Court. Mr Titan represented himself in those proceedings.

1. In a judgment delivered on 6 May 1991 the Master awarded Mr Titan damages of $61,500 comprising the following elements:
   

1. Pain and suffering $35,000

2. Interest $15,500

3. Loss of earning capacity $ 1,000

4. Out of pocket expenses $10,000

The Master found that Mr Titan had suffered a severe impact which gave rise to a long standing post-concussional syndrome. He concluded that pre-existing neck spondylosis was exacerbated by the impact and that various operations which Mr Titan underwent subsequently were reasonable consequences of that exacerbation. He also held that Mr Titan's neck had been made permanently rigid with attendant discomfort.

1. The Master referred, in the course of his reasons for judgment, to a fall suffered by Mr Titan in April 1983 which resulted in a fracture to his right ankle and multiple grazes. Mr Titan had claimed that the fall was related to the accident in 1980 on the basis that it resulted from "a blackout" caused by delay in his treatment and unnecessary suffering upon the refusal of the defendants' insurer to accept responsibility. As to that, the Master noted that there was no mention of a blackout in the notes from the Moruya Hospital where Mr Titan went following the fall and there was no medical evidence to link the fall with the 1980 accident. On that issue, he was not satisfied that there was any connection between the accident and the fall.

2. The Master's reasons for decision in relation to loss of earning capacity are of importance for the present appeal. He referred to evidence relating to Mr Titan's medical condition from 1976, some four years prior to the accident. He found that early in that year Mr Titan was working as a leading hand pipelayer for a construction firm when he fell into a pit as a result of a scaffolding collapse. He had not sought immediate medical attention but continued working for some months after that accident. It was his evidence that he had consulted a doctor about lower back pain, stiff neck and headaches, that medicine was prescribed which did not improve his situation and that he was unable to continue working after 20 July 1976. There was evidence that at the time he was depressed and had an alcohol problem. A rheumatologist at Woden Valley Hospital found x-ray evidence of marked degenerative vertebral change and concluded that Mr Titan's headaches were induced by tension and aggravated by cervical spondylosis and depression. Mr Titan was referred to Dr Danta, a neurologist, who also diagnosed cervical spondylosis and sinusitis. Doctor Danta was consulted again in December 1976 when the neck was improved but headaches were still bad. The Master found that by 28 January 1977 the neck pain had completely settled but Mr Titan still had daily severe headaches. The evidence did not disclose the course of his condition during the rest of 1977 but the Master understood Mr Titan to say that he did not work between 1976 and December 1979. In March 1978 he was on unemployment benefits and suffering gastric problems. The Master found that on 22 June 1978 he was admitted to Woden Valley Hospital under the care of a Dr Tennant for alcoholism and was discharged on 10 July 1978 with followup day care. He was admitted again on 9 August 1978 and discharged on 1 September 1978. During this period he was also suffering from lower back pain. On 19 September 1978, Mr Titan was assessed by a Commonwealth Medical Officer and granted an invalid pension. Dr Tennant reported to the Commonwealth Medical Officer on 27 September 1978 that Mr Titan's disabilities then combined to make it impossible for him to work in normal employment. The disabilities she then reported included severe anxiety, alcoholism, gastric problems, emphysema, cervical spondylosis, chronic back pain and severe continuing headaches.

3. In December 1979 the Commonwealth Medical Officer authorised the continuance of invalid pension for a further year. The Master accepted that Mr Titan had discontinued alcohol abuse by early 1979. He also accepted that Mr Titan was not suffering any symptoms of alcoholism at the time of the accident in April 1980 and that he had not done so for about a year before that time.

4. In relation to his pre-accident earning capacity, the Master noted that Mr Titan had claimed, in evidence, to have resumed employment in December 1979 as a self employed motor mechanic, charging $10 per hour, in which occupation he had continued until the accident in April 1980. He had claimed to have had 36 customers able to provide him with about 40 hours of work each week so that he could earn $350 weekly. Importantly, the Master observed:
   

"He was given notice to produce any records relating to that work, but did not produce any. There is no evidence from any person for whom he did any such work. He did not disclose any such income at that time, either to the taxation or to the pension authorities. He claimed that he has since disclosed to the pension authorities the fact of his undisclosed income, and arranged to repay any pension moneys to which he was not entitled. There is no evidence of any amount agreed upon by him with those authorities. He did not disclose that income earning capacity to the occupational therapist at Royal Canberra Hospital in August 1980."

The Master made reference to histories given to various of Mr Titan's medical practitioners about his employment prior to the accident. In July 1983, a Dr Andrews had noted that the last time Mr Titan worked was in 1976 as a leading hand. A Dr Newcombe noted in December 1984, that he had not been working since 1976 because of peptic ulcer problems. In April 1987, however, Mr Titan told Dr Chandran that after 1976 he had become a self-employed mechanic working from home. Similar information had been given to Dr Mann in December 1989 and Dr Rosenman in July 1990.

1. After referring to this evidence the Master said:
   

"I think it is significant that by this time he was indeed determined to succeed in his court case. In his earlier statements to doctors he may well have been unwilling to claim any capacity for work lest his pension entitlement be affected. The net result is that it would be dangerous for me to place any great weight upon his unsupported claim for pre accident work capacity.

I certainly do not accept that he was earning, or was capable of earning, anything like $350.00 a week. At the most, the medical evidence may enable an inference to be drawn that he might, from time to time, be capable of earning a little bit of money by working on a motor car. I do not think that, if he did, he ever earned enough at it for his earnings to have affected his pension rights."

The Master concluded that had the accident not happened, Mr Titan's earning capacity, minimal as it was, would have been liable to be lost at any time because of the progression of his spondylosis and the general condition of his health. He accepted that Mr Titan had no income earning capacity after the accident and said that justice could be done between the parties by awarding $1,000 for loss of income earning capacity.

1. It turned out that there had been a series of payments into Court culminating in a payment of $15,000 on 12 September 1990 which brought the total to $65,000. For reasons which were published on 30 May 1991, the Master ordered the defendants to pay Mr Titan's costs of the action up to and including the date of the last payment into Court. Mr Titan appealed from the judgments of the Master as to quantum and costs. The Full Court of the Supreme Court of the Australian Capital Territory dismissed the appeal on quantum on 19 June 1992. A cross-appeal, which was not pursued, was also dismissed.

2. In their reasons for judgment the members of the Full Court classif ied the numerous grounds of appeal into two broad groups. In the first group Mr Titan sought to establish that the Master had erred in his evaluation and understanding of the evidence and in the findings of fact which formed the basis of the assessment of damages. In the second group were grounds alleging procedural error on the part of the Master in allowing or insisting upon the matter being heard to finality when justice required that the hearing be vacated or adjourned to enable Mr Titan to marshall witnesses and obtain evidence which was not able to be adduced at the hearing. As to the Master's findings of fact, the Full Court held they were open on the evidence and that no ground had been established to justify interference with them nor with the assessment of damages either in relation to any particular head or in relation to the global figure.

3. On the question of procedural error, Mr Titan contended in the Full Court that he had been wrongly forced to present his case to the Master when he was not ready for it and, in particular, did not have his witnesses ready and available. As to this their Honours said:
   

"The appellant faces the difficulty at this stage that he did not ask for an adjournment of the hearing to put these matters right. We realise that in appearing for himself, the appellant did not have the knowledge and skills of a trained lawyer. If we thought that there was any possibility of an injustice resulting from procedural ignorance on the part of the appellant, then we would not hesitate to correct it. However, a reading of the whole of the transcript indicates that the Master himself brought a similar approach to the appellant's case and gave him every opportunity to present and develop that case without the Master himself acting as the appellant's advocate."

1. The factual background to this aspect of the appeal to the Full Court appears in part from the transcript of proceedings before the Master on 20 March 1991. When Mr Titan had finished presenting his oral evidence-in-chief the following exchange took place between him and the Master:
   

"Master - Now, can I just mention one thing before Mr Morris starts to ask you some questions?

Mr Titan: Yes.

Master: When he has finished asking you some questions, and that might be some time this afternoon, then will be the opportunity for you to call any witnesses that you want to call?

Mr Titan: Yes.

Master: And you would need to have them here if you wanted them to get in the witness box and give evidence?

Mr Titan: Yes, as I explained, your Worship, I cannot arrange...in such a short time.

Master: I see.

Mr Titan: Or anybody.

Master: That, I am afraid I must say is a problem for you? Mr Titan: Yes, I understand it, your Worship. It's not my fault because I have been... on 15 November."

As appears from this transcript certain portions of Mr Titan's responses were inaudible to the court transcriber.

1. Mr Titan put before the Full Court correspondence, including a letter written to him by the Deputy Registrar of the Court dated 27 February 1991 in which it was said:
   

"On 15 November 1990 you attended a Listing Hearing before me. The defendant's solicitor was also present at that hearing. I explained to you that the purpose of the listing hearing was both to explore settlement and to ensure that the matter was ready for hearing. During the listing hearing we discussed the statement of particulars filed by you and in particular the service of medical reports, clarification of out-of-pocket expenses and your economic loss claim. I made directions at the listing hearing that you serve any further medical reports on which you intend to rely within 14 days and that you also provide the defendant's solicitor with copies of accounts, particularised in your out-of-pocket expenses claim. No other directions were sought by either party. At the conclusion of the conference I formed the view that the matter was unlikely to settle. I was also satisfied that the matter was ready for hearing and apart from the above, no further directions were necessary. The matter was accordingly fixed for hearing before the Master on 20 March 1990

(sic). This matter is listed to commence on that day and will proceed until it is finalised."

This was in response to a letter of 22 February 1991 in which Mr Titan had asked for "clarification and direction" in relation to certain aspects of the Supreme Court Practice Directions relating to Setting Down and Preparation for Trial. One of those practice directions indicated that at a directions hearing consideration would be given to the limitation of the number of witnesses or the issues covered by their evidence (5.02(e)). On the Friday prior to the hearing before the Master a letter dated 14 March 1991 was sent to Mr Titan by the respondents' solicitors. In the relevant parts it read as follows:

"In answer to your query concerning the arrangements for your medical practitioners we advise that it may be that your matter is not the first to be heard by the Master on Wednesday, 20 March 1991. It is possible that the Master may not have completed the matters listed for hearing on Tuesday, 19 March and that another matter may be listed for hearing prior to your matter on 20 March 1991.

The usual procedure is that you would give your evidence-in-chief and then be cross-examined by our Counsel. After this you may wish to give further evidence arising from questions which our Counsel has asked you in cross-examination.

We do not know if you intend to call evidence from lay witnesses and whether you intend to call such evidence prior to your medical practitioners. This would obviously be relevant in your programme for your medical witnesses.

At this time we are not able to assist you further."

The Full Court said that it had no reason to doubt that the letter of the Deputy Registrar accurately recorded events at the listing hearing. The Court said:

"We are unable to see how the appellant could have been led to believe that he was not entitled to call witnesses at the hearing. Nothing of what happened at the listing hearing or what the respondents' solicitors had written in their letter of 14 March 1991 or anything else in the case to which our attention has been drawn or of which we are aware would have given the appellant reason to believe that he was not so entitled. Furthermore, a consideration of the conduct of the matter prior to and at the hearing before the Master and of the way in which the appellant conducted the appeal, suggests that he has a good grasp of the procedure involved in a court hearing and in particular of the need to present adequate material upon which the Court is to act and decide. Accordingly, we do not think that there is any substance in the ground that there was procedural unfairness at the hearing before the Master which requires the interference of this Court."

The Grounds of Appeal
13. Various grounds were relied upon by Mr Titan in his notice of appeal against the decision of the Full Court of the Supreme Court. His written outline of argument, however, followed some nine grounds set out in an affidavit sworn 19 April 1993 and filed in these proceedings. These were expressed somewhat more coherently than the grounds in the notice of appeal. They were in the following terms:

"a) On 20th March 1991 at the hearing in Canberra of proceedings before the Master in the Supreme Court of the Australian Capital Territory the learned Master failed to direct me on principles of law in conduct of proceedings in relation to the weight and condition in reception and admissibility of the evidence where there is no raising of defence by the defendant (respondent) in this appeal. b) The learned Master misdirected me in calling for certain but not all medical reports to be handed to the Master without making the order for the weight and condition under which the records called for would be admitted.

c) The learned Master wrongly prevented me from calling medical experts to attend to give evidence and be cross-examined whereas there is utmost importance in calling such evidence in cases such as this to assist the Court to draw proper inferences and conclusions consistent with justice as common law practice requires.

d) The learned Master failed to adjourn the Court upon my explanation of reasons why my witnesses were unable to attend the Court on the day of the hearing of proceedings and failed to direct me so that a proper judgement could be obtained and justice done. e) I was taken by surprise when the defendant (respondent) to this appeal produced in Court evidence not disclosed prior to the hearing of proceedings. No application was made for an order for leave of the Court to receive further evidence as is required by law. f) The full Court of the Supreme Court of the Australian Capital Territory failed to intervene with the Master's admissibility of evidence not disclosed by the defendant (respondent) without raising of defence or application for leave of the Court to receive that evidence.

g) The full Court of the Supreme Court of the Australian Capital Territory refused to hear my application on appeal for an order for leave of the Court to receive further evidence of witnesses in support of claim for loss of earnings, stating that I was calling that evidence only because I was determined to succeed in my Court case. h) In my appeal by way of re-hearing conducted pursuant to Supreme Court Act 1970 of New South Wales S.75 or S.45, 46, 47, 48, 49 Supreme Court Civil Procedure Act 1932 of Tasmania, the Supreme Court has the power to accept further evidence.

i) The Master was wrong on principles of law in drawing his conclusions in reaching his decision and the Full Court of the Supreme Court was wrong in agreeing with the Master's decision and following his directions where error of fact and principle of law is so easily identifiable."

1. As appears from Mr Titan's oral submissions to this Court, there were two principal areas of complaint. The first was that the Master had prevented him from calling medical witnesses to give evidence on his behalf by failing to grant him an adjournment for that purpose on the day of the hearing of the assessment of damages. The second was that the Full Court of the Supreme Court had declined to accede to an application to call further evidence from witnesses who could support a claim for loss of earning capacity.

Fresh Evidence Application before this Court
15. In his affidavit sworn on 19 April 1993, Mr Titan sought leave to adduce evidence in these proceedings which he identified as two affidavits sworn by him on 31 July 1991 and 11 December 1991 and the annexures thereto which had been filed in the appeal to the Full Court of the Supreme Court. In the affidavit of 31 July 1991, he had applied to the Full Court of the Supreme Court for leave to adduce fresh evidence on the appeal against the Master's decision. The fresh evidence he had sought to adduce was not expressly identified in that affidavit. The affidavit did, however, contain a number of complaints about the proceedings before the Master. The Master, it was said, had refused to hear evidence from witnesses who could testify that Mr Titan was working as a self employed motor mechanic at the time of the accident. Implicit, though not express in his affidavit, was the contention that he had not realised until he received the letter of 14 March 1991 from the respondents' solicitors that he could call the witnesses he wanted to. He referred to some objection taken at a listing conference to the calling of witnesses and to a failure on the part of the Deputy Registrar who presided at the conference to give him any direction. The letter which made him aware that he could call the relevant witnesses had come too late to make arrangements for them to attend at the hearing before the Master. Mr Titan's affidavit of 31 July 1991 went on to explain the absence of any business record of his pre-accident activities as a motor mechanic and the fact that no income tax had been paid in respect of his alleged earnings from that occupation. In the affidavit he contended that the Master should have granted him an adjournment to enable him to call evidence in support of the claim for loss of earnings. Other matters of complaint raised in the affidavit related to the Master's approach to medical and other evidence. A large number of medical reports was exhibited. The second affidavit which Mr Titan sought to put before this Court as fresh evidence was sworn on 11 December 1991 and filed in the Full Court proceedings. He referred there to his affidavit of 31 July 1991 and an earlier affidavit of 23 May 1991. By his affidavit of 11 December, he sought leave to adduce further fresh evidence comprising letters between himself and officers of the Supreme Court and between himself and solicitors for the respondents, as well as other documents and medical records which it is not necessary to set out in any detail here. In his affidavit of 19 April 1993 filed in this Court, which exhibited the two affidavits filed in the Full Court, Mr Titan set out the basis upon which he sought to have those affidavits filed in these proceedings. These were the grounds which were, in effect, put forward to this Court as the grounds of the appeal and which have already been set out.

1. In addition to the affidavit of 19 April 1993, Mr Titan had filed four affidavits of other witnesses in relation to his claim that he had been working as a motor mechanic at the time of the accident. Each of the witnesses had said that he was present and available to give evidence at the Full Court hearing. The substance of the evidence provided in the affidavits was that prior to his accident Mr Titan had carried out repair works on motor vehicles for various people in a garage rented from the Barton Co-Operative Housing Society Ltd for that purpose. A further affidavit of 26 May 1993, sworn by Mr Titan, was also mentioned. It complained of alleged failure by the Master to compensate him for various disbursements. Numerous accounts and particulars of a bill of costs were exhibited.

2. A ruling on the question of the admissibility of the various affidavits in the present proceedings was deferred. In the circumstances of this case, the affidavits which Mr Titan seeks to bring into evidence in this Court can only be admitted if they relate to some procedural error on the part of the Master or the Full Court. Although in part they make reference to the proceedings at first instance and before the Full Court, they do not disclose evidence which is fresh in the sense of evidence which was not reasonably available at the time of the hearing before the Master. If the record were to disclose some procedural error, then they might be resorted to in order to show that the error could have made a difference to the outcome of the case. So far as the conduct of the proceedings before the Master and the Full Court is concerned however, the record appears to be complete and it is not necessary to refer to the affidavits to supplement it. If Mr Titan's complaints about the conduct of the hearing before the Master and the Full Court cannot be made out on the record of the proceedings to date, then there will be no occasion for receiving the additional evidence.

The Principal Contentions
18. In his submissions to this Court, Mr Titan first contended that the Master had accepted only certain of the medical reports tendered in relation to his condition. Reference was made to the transcript of proceedings before the Master at p.16 of the appeal book. However, as appears from the record, the Master invited Mr Titan to tender whatever medical records he wanted to. At p.17 of the appeal book the following exchange appears:

"Q. Are they all the medical reports that you wanted to pass me to look at?

A. Yes, your Worship, I hope so."

In this, and the exchange that followed, it is clear that Mr Titan was given ample opportunity to tender all relevant records.

1. It appears from his oral submissions to this Court that Mr Titan now says he did not tender all available medical reports because he was of the view that in tendering a written report he would be prevented, by the operation of O.39 r.49(2) of the Rules of the Supreme Court, from calling oral evidence from the author of the report. Order 39 r.49(2) prohibits the tender of a written report from an expert where the attendance of the expert for cross-examination is required under O.39 r.49(1)(a) unless the expert attends or is dead or the Court grants leave to use it. Mr Titan's perception of the effect of O.39 r.49(2) was misconceived. That misconception was not apparent from anything he said to the Master. There is no substance in this aspect of his argument.

2. In relation to Mr Titan's failure to call all necessary witnesses at the hearing before the Master, he told this Court that that failure flowed from his own misunderstanding of what he could do at the hearing. The Full Court concluded that it was unable to see how Mr Titan could have been led to believe that he was not entitled to call witnesses at the hearing. Mr Titan submitted that the letter of 27 February 1991 from the Deputy Registrar had not given him any indication of how many witnesses he could call. But the relevant practice direction, to which he had referred in his letter to the Registrar of 22 February 1991, only allowed for the possibility of a direction limiting the number of witnesses. No such direction had been made at the listing hearing. There is no logical basis for the conclusion which Mr Titan says he drew. Indeed, there does not seem to be any understandable process of erroneous reasoning which could have led him to that position. The Full Court was plainly correct in its conclusions on this aspect of the appeal.

3. The question remains whether the Master should have allowed Mr Titan an adjournment to call witnesses. Where it is apparent that a party who does not have legal representation has misunderstood procedural requirements so that he or she is not in a position to complete the presentation of evidence, an adjournment might be considered in the interests of justice provided that no irreparable substantive or procedural injustice is done to the other party involved. In any such case the granting of an adjournment will be a matter of discretion. In this case there was no application for an adjournment nor does there seem to have been any intelligible explanation to the Master of Mr Titan's failure to arrange his witnesses. It may be that in some cases a tribunal should, to avoid possible injustice, inquire of an unrepresented person the reason for the failure properly to prepare his or her case. Again, that is a matter of discretion limited by the necessity that the tribunal be, and appear to be, impartial as between the parties. This was not a case in which the Master was obliged to undertake such an inquiry. On the face of the record there was no procedural error on his part and the Full Court was correct in the way that it dealt with this issue. It follows that there was no occasion before the Full Court and none before this Court to receive the additional evidence which Mr Titan sought to tender.

4. In relation to the other grounds of appeal, it is sufficient to say that there is no error disclosed in the reasoning of the Full Court. This relates in particular to the findings of the Master in relation to the medical and other evidence concerned with the damages suffered by Mr Titan. The appeal is dismissed with costs.