Wanless v Sarkisjan
[2001] WASCA 332
•2 NOVEMBER 2001
WANLESS -v- SARKISJAN [2001] WASCA 332
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 332 | |
| THE FULL COURT (WA) | 02/11/2001 | ||
| Case No: | FUL:60/2001 | 4 SEPTEMBER 2001 | |
| Coram: | MALCOLM CJ TEMPLEMAN J McKECHNIE J | 4/09/01 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BRENDAN LEA WANLESS HOVSEP SARKISJAN |
Catchwords: | Motor vehicles Damages Assessment of witnesses Duty of appellate court No new principles |
Legislation: | Nil |
Case References: | Abalos v Australian Postal Commission (1991) 171 CLR 167 Browne v Dunn (1894) R (HL) 67 Devries v Australian National Railways Commission (1993) 177 CLR 472 Jones v Hyde (1989) 63 ALJR 349 Rosenberg v Percival (2000) 75 ALJR 734 Sarkisjan v Wanless [2001] WADC 76 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 Bowen v Tuttle (1989) Aust Torts Reports 810430 Chambers v Jobling (1986) 7 NSWLR 1 Lawson v Flavel [2001] WASCA 272 Sela v EPT Pty Ltd, unreported; FCt SCt of WA; Library No 950686; 14 December 1995 Taylor v Johnson (1983) 151 CLR 422 Thomas v O'Shea (1989) Aust Torts Rep 80251 Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193 Voulis v Kozary (1975) 180 CLR 177 Warren v Coombes (1979) 142 CLR 531 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : WANLESS -v- SARKISJAN [2001] WASCA 332 CORAM : MALCOLM CJ
- TEMPLEMAN J
McKECHNIE J
- Appellant (Defendant)
AND
HOVSEP SARKISJAN
Respondent (Plaintiff)
Catchwords:
Motor vehicles - Damages - Assessment of witnesses - Duty of appellate court - No new principles
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant (Defendant) : Mr J R Brooksby
Respondent (Plaintiff) : Mr E M Heenan QC & Mr G Droppert
Solicitors:
Appellant (Defendant) : Greenland Brooksby
Respondent (Plaintiff) : James McManus & Associates
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission (1991) 171 CLR 167
Browne v Dunn (1894) R (HL) 67
Devries v Australian National Railways Commission (1993) 177 CLR 472
Jones v Hyde (1989) 63 ALJR 349
Rosenberg v Percival (2000) 75 ALJR 734
Sarkisjan v Wanless [2001] WADC 76
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306
Case(s) also cited:
Bowen v Tuttle (1989) Aust Torts Reports 810430
Chambers v Jobling (1986) 7 NSWLR 1
Lawson v Flavel [2001] WASCA 272
Sela v EPT Pty Ltd, unreported; FCt SCt of WA; Library No 950686; 14 December 1995
Taylor v Johnson (1983) 151 CLR 422
Thomas v O'Shea (1989) Aust Torts Rep 80251
Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193
Voulis v Kozary (1975) 180 CLR 177
Warren v Coombes (1979) 142 CLR 531
(Page 3)
- JUDGMENT OF THE COURT:
Introduction
1 On 4 September 2001 the Court unanimously dismissed this appeal and indicated it would publish its reasons later. These are the reasons.
2 On 14 August 1999, Mr Sarkisjan, the respondent, was the driver of a Suzuki motor car waiting to enter Ocean Reef Road from a slip road off Wanneroo Road, when he was hit from behind by a Hyundai motor car driven by Mr Wanless, the appellant.
3 The respondent alleged that he suffered significant injury to his neck and is no longer able to work at his previous employment as a diesel mechanic. He issued proceedings in the District Court. Liability was admitted.
4 The matter in due course came for trial on the assessment of damages before her Honour Judge Yeats between 5-9 February 2001. On 28 March 2001 the trial Judge delivered her reasons for decision in Sarkisjan v Wanless [2001] WADC 76. She carefully detailed the evidence, both as to the witnesses, the accident, and the medical evidence, setting out her reasons for accepting and not accepting various parts of the testimony of witnesses. One important matter which had to be resolved was the speed of the appellant's vehicle at the time of the rear end collision. This was an issue about which there was conflicting evidence. The Judge found the speed of the appellant's car at the time of impact was 15 to 20 kms per hour.
The role of the Full Court
5 The duties and limitations on an appeal court in respect of findings of fact have been the subject of a number of decisions of the High Court: Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; Jones v Hyde (1989) 63 ALJR 349; Abalos v Australian Postal Commission (1991) 171 CLR 167; Rosenberg v Percival (2000) 75 ALJR 734. In the latter case, McHugh J said at par 41 (Gummow J agreeing):
"One of the consequences of the 'advantage' of seeing and hearing the witnesses is that the trial judge is in a far better position than an appellate court to know what individual weight
(Page 4)
- should be assigned to the various factors - credibility, matters for and matters against - that must be evaluated in making the ultimate findings of fact in the case. Where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript, the trial judge gave insufficient weight or consideration to other facts and circumstances in the case. The common law tradition is an oral tradition. Trial by transcript can seldom be an adequate representation of an oral trial before a judge or an oral trial before a judge and jury."
6 These remarks are especially relevant to appeals in relation to findings of fact in cases such as the present.
7 The grounds of appeal are lengthy and assert, in essence, errors in fact in not accepting the evidence of certain witnesses, in failing to accept the evidence of other witnesses, and in failing to accord sufficient weight to the evidence of a Mr Robinson who gave evidence relevant to the respondent's work history.
The issue of speed
8 The issue of speed was central to the case because of the effect which the speed at the time of impact had on the issue as to how significantly the respondent was injured in the accident.
9 The Judge rejected the evidence of the appellant that the respondent's vehicle was still in the slip-lane at the time of the collision because she accepted the evidence of other witnesses, including two independent witnesses, called by the appellant. It was open for her to do so. She did not, however, accept the evidence of the appellant, or witnesses called on his behalf, that the collision was just a nudge or a bump and that the speed was only 3 kms per hour. Her reason for rejection of their evidence was, as she expressed it in par 21:
"… All of their evidence is tainted by the fact that they met together on the morning of the trial and agreed about the speed."
10 The evidence as to speed was supported by two expert witnesses as to the extent of the damage on the vehicle.
(Page 5)
The evidence of the respondent
11 Mr Stojanovski, and Mrs Mijoski, also supported the respondent's contention as to speed. Mrs Mijoski was a passenger in the vehicle in the front seat and gave evidence:
"We stopped at a give-way sign waiting for traffic to clear and I just felt a big bang from the back, and I jolt myself inside and there was a white car in the back hit us in the front." [Which she clarified as hit in the back].
- She was jolted and the radio cassette player ended up in her lap.
12 So there was positive evidence as to a speed greater than that contended for by the appellant. It was open for the Judge to accept this evidence and in fact she did so.
13 The grounds of appeal attack the Judge's rejection of the independent evidence of Mr and Mrs Mulcahy who were called by the appellant.
14 Mr and Mrs Mulcahy were travelling west along Ocean Reef Road in a motor car about 100 metres east of the intersection and observed the collision. Mr Mulcahy judged the speed as very slow, under 5 kms per hour, a speed which conformed with the evidence of the appellant that the vehicle was travelling at "nothing over 3 kms an hour". In cross-examination the appellant gave evidence as follows:
"This morning did you have occasion with Mrs Mulcahy to tell her that you thought the speed of the collision was 2 or 3 kilometres per hour?---We discussed it this morning and she had the same story as me.
So you told her that you thought it was 2 or 3 kilometres and she agreed with you?---Yeah. She said it was - - -
Did you speak with Mr Mulcahy about the speed that you thought the car was going at this morning?---Yeah, we all had a talk this morning together and all our - we were all pretty much the same and we agreed, yes.
…
It was the speed, was it?---Yeah, mainly, just. Yeah, and how he pulled out and then stopped. That was just the main information.
(Page 6)
- So you discussed that between yourselves and agreed that was the case?---Yeah."
15 Mr Mulcahy gave evidence that he saw the appellant on the morning of their giving evidence (8 February) and was asked as follows:
"Didn't you have some discussion about how fast the cars were going?---I think the discussion came, if there was any discussion at all, it was just basically, 'How fast?' '10 kilometres an hour.' You were correct, we did mention that part of it, 10 kilometres an hour. That was it."
16 The position in relation to Mrs Mulcahy was different. In cross-examination she was asked what would she say if she had to estimate the speed of the vehicle, and her reply was "3 K's an hour."
17 In cross-examination she conceded that was not the figure she used shortly after the accident when she thought 10 kms an hour. She was asked to amplify that and she said:
"I think you have agreed your initial estimate of speed was 10 kilometres, although you now say 3?---Yes. I have had described to me what walking pace is since then.
Has someone suggested to you that a better way to describe it would be to say it was walking pace and then put a figure on it?---Well, I guess what confuses me is that when you're just cruising - you know, when you first start off a car doesn't give you any reading until it gets to about 8 K's, sort of thing, so, you know, first off I sort of said, 'Yeah, somewhere between 5 and 10. I don't really know what that measurement is, 'sort of thing. So when the man took the statement from the insurance, he sort of said, 'Oh, would you say 10?' and I said, 'Oh, probably.' So that's where the 10 came from. It wasn't really my - it was just my not knowing what speeds were.
Would it be fair to say now that you don't really know that it was 3 kilometres any more than you now say that you know that it's 10?---I could say that I - knowing how far they were apart and taking off, they hadn't had time to build up any speed. You know, the guy had left the intersection and then stopped and the other guy had, you know, followed on. There wasn't time to build up speed between the gap that they had between them."
(Page 7)
18 Ground 2 of the appeal stated:
"2. That finding was not open to Her Honour and by reason of the following:
(a) the respondent (plaintiff) at all material times had copies of the proofs of the witnesses Mr and Mrs Mulcahy which were taken on 29 October 1999 and were made available on discovery during the course of the proceedings;
(b) the proof of the evidence of the witness Rogan dated August 2000 was, by order of the Court, discovered to the respondent (plaintiff) on the first morning of the trial.
(c) the learned Judge was aware at all times both of the disclosure of the statements and as to what the proofs contained;
(d) there was no basis of dismissing their evidence as being of recent invention, as their evidence was consistent with the proofs;
(e) further, there was no evidence that the parties had any discussion about the damage to the vehicles prior to trial."
(Page 8)
- was affirmatively satisfied as to speed by her positive acceptance of the evidence of certain witnesses, including experts.
The work history
20 Ground 4 of the notice of appeal relates to the evidence of Mr Robinson:
"4. The trial Judge erred in failing to accord sufficient weight to the evidence of Robinson who testified that at the conclusion of the respondent's (plaintiff) probationary period he (Robinson) would not have recommended that the respondent (plaintiff) be retained as an employee.
PARTICULARS
- (a) The evidence was rejected on the basis of the rule in Browne v Dunn;
(b) the evidence is not evidence which was susceptible to the principle in Browne v Dunn as the respondent (plaintiff) would not necessarily know of the tenuous nature of his continued employment."
"… Michael Robinson, the workshop foreman from Brian Gardner Motors, gave evidence that the plaintiff had been on three months probation at the time of the accident and said it would have been recommended that the plaintiff would not have been kept on because of productivity and performance factors. This evidence was not put to the plaintiff in cross-examination and therefore breached the rule in Browne v Dunn(1894) R (HL) 67. In these circumstances I will accord it less weight than it otherwise might have. I will accept that the plaintiff was on three months probation at the time of the accident but I will not give much weight to the rest of Mr Robinson's evidence because I believe it would be unfair to do so. (Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1.) I am prepared to find on the evidence that the plaintiff did not have a good work record in Western Australia having been
(Page 9)
- employed for only two months and one week of the 10 months he had been in this State at the time of the accident and being on probation at Brian Gardner's. I consider it likely that he would have experienced periods of unemployment during his working life. I consider the chances of the plaintiff gaining higher paid employment working in the north west of the State were minimal. On the other hand the degenerative condition of his cervical spine may well have incapacitated him for heavy work as a diesel mechanic in the future irrespective of this accident. In that event he would be unlikely to find alternative lighter duties because of his lack of skills or training."
22 The reference to the rule in Browne v Dunn (1894) R (HL) 67 is an error, because it is difficult to see how Mr Robinson's assertions, in effect his opinion, could have been put to the respondent in cross-examination. However, the error seems to have been harmless because of her subsequent conclusions about a poor work record in Western Australia and the likelihood of periods of unemployment. The error has not led to any miscarriage of justice.
The exaggeration of symptoms
23 The balance of the grounds of appeal attack the Judge's finding that the respondent was a credible witness because it is inconsistent with her finding that he exaggerated his symptoms. In essence, it is asserted that his exaggeration made a true assessment of the respondent's damages impossible.
24 An examination of the whole of the judgment reveals that the Judge was very careful in her assessment of the respondent's credibility in relation to various issues and, in particular, her finding that he was exaggerating did not mean either the respondent had failed to prove damage, nor that she was unable to find that he had established damage. In respect of both the future earning capacity and the respondent's exaggeration of his symptoms it is to be observed that the Judge applied a considerable discount for contingencies, namely 35 per cent.
25 Furthermore, the Judge used the advantage she enjoyed as the trial Judge to make observations of the respondent over the course of the trial as par 95 of her reasons demonstrates:
"The defence also relies on the plaintiff wrongly moving in hospital after being told not to and suggests that that evidence
(Page 10)
- shows that he was not badly injured and he well knew he was not badly injured. I do not accept that submission. The plaintiff's language difficulties provide ample explanation for him failing to properly comply with directions. It also must be remembered that he was to hold his head rigid because they suspected a spinal cord injury and of course he did not have a spinal cord injury. In this regard I am persuaded by the evidence of Mr Hardcastle who observed and began treating the plaintiff in hospital that he was a man complaining of severe pain who has had consistent symptoms involving stiffness and pain in his neck and neurological signs in his left limb. It is persuasive that Mr Hardcastle prescribed pain killers including not only Panadeine Forte but also Ketorolac and morphine. Both Mr Hardcastle and Professor Mastaglia saw the plaintiff within a month of the motor vehicle accident and each of those specialists accepted that he was complaining of severe pain and had severe pain. From his demeanour in the court room I accept that the plaintiff consistently demonstrated severe pain and stiffness in his cervical spine. It was telling to me to watch the plaintiff when asked by cross-examining counsel to turn his head further to the side than he had indicated he was able to do. The plaintiff did that but it was apparent from the look in his eyes and the tears on his face that it caused him considerable pain to do it."
The medical evidence
26 Ground 8 of the appeal reads:
"The Judge did not accept the evidence of Mr Stewart Brash on the grounds that it was based on the proposition that the accident occurred at 5kph but failed to consider the alternative of Mr Brash that little or no damage could be sustained at an impact speed of less than 20kph."
27 The trial Judge dealt with the medical evidence in considerable detail. Mr Brash's evidence in some respects differed from that of other medical specialists called at the trial. She rejected Mr Brash's review of a CT scan for reasons which were open to her. Mr Brash's medical opinion was to an extent influenced by his instructions as to the relative speed of the vehicles at the time of the collision. The speed he accepted for his opinion was considerably less than the speed which the Judge found to be
(Page 11)
- the speed of the appellant's vehicle at trial. Her other reasons for rejecting the evidence of Mr Brash are also open.
28 The appellant failed to make good any ground of appeal and for these reasons the Court ordered the appeal be dismissed.
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