Williams v McFarlane

[1996] HCATrans 286

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S21 of 1996

B e t w e e n -

SCOTT PAUL WILLIAMS

Applicant

and

GORDON ANGUS McFARLANE

Respondent

Application for special leave to appeal

TOOHEY J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 SEPTEMBER 1996, AT 10.28 AM

Copyright in the High Court of Australia

MR B.M.J. TOOMEY, QC:   If your Honours please, I appear for the applicant.  (instructed by Marriott & Oliver)

MR B.H.K. DONOVAN, QC:   If it please the Court, I appear for the respondent with MR H.M. di SUVERO.  (instructed by R.J. Walters, NSW Insurance Ministerial Corporation)

TOOHEY J:   Mr Toomey.

MR TOOMEY:   Your Honours, this was a curious case in which a plaintiff sought to prove that he was injured in an accident by being run down by a motorcycle and the defendant sought to disprove his entitlement to damages by proving, we would submit, that indeed he was injured by reason not of the negligence he alleged but some other negligence, that is, that indeed he was injured in the motorcycle accident but not as a pedestrian being run down by the motorcycle but as a pillion passenger, injured by reason of the affectation by liquor of the rider of the motorcycle of which it was said he knew or ought to have known.,

TOOHEY J:   You are not saying, are you, that the respondent proceeded on the footing that he was negligent?

MR TOOMEY:   No.

TOOHEY J:   The contributory negligence plea presumably only arose in the event of a finding of negligence.

MR TOOMEY:   Indeed, your Honour, but can I point out to your Honours that because the defence of volenti non fit injuria was abolished in New South Wales so as to affect this action, no defence of volenti could have been raised on those facts and, absent explanation, it would be our submission that it ought to have resulted - if those facts were proved in the case and relied upon, that ought to have resulted in a verdict for the plaintiff.

TOOHEY J:   By “those facts” you mean that the respondent was driving so under the influence of alcohol as to be unable to properly control the vehicle, whatever the standard - - -

MR TOOMEY:   That, combined with the objective facts, your Honour, which were that the motorcycle in a 60 kilometre an hour zone left 72 metres of scuff and burn marks along the road, tipping off, if it be the fact, the plaintiff and the defendant.  So that on those facts, that is the defendant’s case, it would be our respectful submission that, prima facie, the plaintiff ought to have been entitled to succeed.

The complication was that at the trial, for whatever reason, counsel for the plaintiff declined to put an alternative case.  In other words, although his client, having given evidence that he was a pedestrian who was struck by a motorcycle, was then cross-examined with the intent of proving that, indeed, he was a pillion passenger, that he had made statements to that effect and a large amount of documentary evidence was put to him and put into evidence which suggested that, indeed, he was a pillion passenger.  Counsel for the plaintiff did not seek an alternative verdict on the basis that he was not a pedestrian but a pillion passenger.

The learned trial judge then said, “I don’t accept the evidence of the plaintiff that he was a pedestrian” which, if I may say so, was not surprising in the light of the strength of the material which suggested that he was a pillion passenger, and entered a verdict - - -

GUMMOW J:   His Honour disbelieved your client.

MR TOOMEY:   Yes, he did, and his Honour entered a verdict for the defendant.  The position was, in our submission, that there was no third alternative and that was the basis on which the parties conducted the litigation.  He was a pedestrian or he was a pillion passenger.  The motorcycle was the motorcycle of the defendant/respondent and the case for the respondent was conducted on the basis that the motorcycle was ridden by the defendant/respondent.  So, in circumstances where there was no dispute that the injuries of the plaintiff arose out of an injury with the motorcycle, there were two possibilities:  one, that the plaintiff was a pedestrian who was run down by the motorcycle or, two, he was a pillion passenger who was thrown from the motorcycle.

It is our respectful submission that those facts being proved before his Honour and absent explanation, and there was no explanation from the defendant/respondent because he was not called to give evidence, that his Honour ought to have entered a verdict for the plaintiff.

TOOHEY J:   It would be very difficult for him to do so in the absence of an amendment to the statement of claim which set up an alternative plea of negligence.  He would be doing it right in the face of the case, not only as pleaded but as presented on behalf of the plaintiff.

MR TOOMEY:   Yes, we appreciate that, your Honour, and that is our primary submission.  Our second submission is that the Court of Appeal ought, on appeal, have entered judgment for the plaintiff/appellant but ordered the costs of the appeal against it.  Can I point out to your Honours that the case for a defendant who takes a verdict point on appeal is that if it is a verdict point it will always be allowed no matter when taken and Hampton Court v Crooks is authority for that proposition, but the other party will have the costs up until the time the point is taken.  In our respectful submission, this is analogous.  If the facts were there, there would be no reason why the plaintiff ought not have his verdict.

GAUDRON J:   Is not Moustakas against you on that?

MR TOOMEY:   Your Honour, the difference between this case and Moustakas is that in this case what the plaintiff seeks to rely upon was the case of the defendant. 

GAUDRON J:   Was not Moustakas analogous though in this respect:  the evidence, as it came out, regardless of where it came from, permitted only of two considerations or two possible breaches of duty and that is what you say is here?

MR TOOMEY:   With great respect, I think the difference in Moustakas is, your Honour, that what was suggested in Moustakas was a failure to guard against the plaintiff moving into the lane where he was struck by the bus.  The defendant never said that that was the case.  The defendant never said, “Yes, it happened there in that lane and he was able to get there because we didn’t guard.”  The extraordinary distinction in this case, your Honours, is that the very case the plaintiff seeks to rely upon is the case that is made by the defendant.

TOOHEY J:   I can see a distinction between the case in which the defendant says, “That’s not the case I came here to meet”, and particularly in the case of negligence on the part of a servant, it might be said, “It’s now said that X rather than Y was negligent and that employee is no longer with me and it’s just impossible to meet that case.”  You say the defendant not only knew the case he had to meet but, in a sense, knew what the real situation was?

MR TOOMEY:   Not only that.  With respect, your Honour, it goes further:  the defendant made that case.

TOOHEY J:   But that does not really quite go far enough, does it, because what you are seeking to say is that the trial judge was wrong.  Absent an application to amend the statement of claim, that the trial judge was wrong in dismissing the plaintiff’s claim when he simply disbelieved what the plaintiff said regarding the accident.  It is difficult to see how he could do anything more in the absence of an application of some sort.

MR TOOMEY:   Your Honour, Maloney’s Case is authority for the proposition that a jury may consider something which has not been pleaded.  Pleadings in this day do not bind the court in the way they used.

TOOHEY J:   No, it is not really just a matter of pleading but it would be an odd sort of judgment which read, “The plaintiff claims negligence on the footing that he was crossing the road when he was run down.  I reject that account entirely.  Nevertheless, I find the defendant negligent” and some other reason.

MR TOOMEY:   Your Honour, it would be odd but it was an odd situation.  Can I pose a set of facts to your Honour.  Supposing - and, indeed, I have been in such a case - in a factory a person is injured by mechanism of a forklift.  The plaintiff’s case is, “I was walking in the factory and I was struck by the forklift as I walked down one of the aisles in a storage area”, and the negligence was that the forklift driver failed to keep a proper lookout.  The facts proved by the defendant established in fact that the plaintiff had been travelling on the tines of the forklift with the concurrence of the driver and the driver had negligently driven the forklift into a pillar causing the plaintiff to lose his leg.  Now, the plaintiff amended to take advantage under the principle in Leotta, the facts being in, sought the leave of the court, and was granted the leave to amend to take advantage of the facts established and succeeded on that basis.

Supposing, your Honours, that the plaintiff had not sought leave to amend and the learned trial judge in that case had been faced with a factual situation where the plaintiff was negligently injured either having been run down or having been driven against a pillar.  It would be, in our respectful submission, a curious deficit in the law if, in the state of those facts, absent amendment, the result was a verdict for the defendant.

TOOHEY J:   The trial judge could probably do that in that situation by saying, in effect, “I do not accept the plaintiff’s evidence in its entirety but so much as I do accept of the plaintiff’s evidence, coupled with the other evidence that I’ve heard, warrants a verdict for the plaintiff”.  But here you have a situation in which the trial judge rejects completely the plaintiff’s account of what happened.  It is very difficult to mould that into a successful claim.

MR TOOMEY:   Your Honour, that difficulty, we would submit, is met in this way:  if there were only two ways the accident could have happened - and on our submission on any examination of the facts that must be so - and if either of them would justify a verdict in negligence, then the plaintiff has proved his case.  Doonan v Beacham was not the same case but it was a case in which a plaintiff failed in the Supreme Court of Victoria because no one of her particulars of negligence was proved, but the Full Court of the Supreme Court of Victorian and then this Court said, “That doesn’t matter.  If you are satisfied there was negligence, the fact that it does not meet any one of the particulars  - - -”

TOOHEY J:   But that is a long haul from this one, is it not, because you have an area of particulars which, by and large, do not stand in the way of the outcome of the case.

MR TOOMEY:   It is certainly not this case, your Honour, but the extraordinary features of this case are such that a plaintiff is left without redress because, of course, the decision made by his counsel is probably protected by Giannarelli v Wraith. 

TOOHEY J:   He may have made that decision on what seemed to him or her to be a reasonable footing.

MR TOOMEY:   But, your Honour, the decision he made was not to put an argument that he was entitled to succeed even if his case were disbelieved and if the defendant’s case were believed.  In our respectful submission, there does not appear, on the face of it, to be any justification for such a failure by counsel.

TOOHEY J:   But you really have to come back to say that the trial judge, in a situation in which there was no application to amend, should have taken the initiative and entered a verdict for the plaintiff.

MR TOOMEY:   Your Honour, that is our first argument but, in fact, there are three alternatives.  The trial judge, we say, should have found for the plaintiff on the facts because, there being two possible mechanisms of the accident, both of them bespeaking negligence, the plaintiff was entitled to a verdict.  Alternatively, if his Honour was entitled not to do that by reason of the failure of the plaintiff to put the argument, when the argument was taken in the Court of Appeal it ought to have been allowed subject to the penalty of costs because no injustice was done to the defendant if the Court of Appeal merely did what should have been done in a properly conducted trial at first instance and if its costs lost and thrown away were ordered to be paid by the plaintiff.

It is a direct analogy , in our respectful submission, with the case of a defendant who does not take the verdict point and yet is allowed to take it on appeal at any time provided the costs are paid up to the time the point is taken.  The alternative, your Honours, is the extraordinary jurisdiction in the court to allow a point which has not been fully litigated to be the subject of a successful appeal in what was described in Maloney by Mr Justice Jacobs as “the very exceptional cases where the interests of justice may require a new trial on an issue of fact not litigated at the trial.”

TOOHEY J:   You are not looking for a new trial here, are you, or are you?

MR TOOMEY:   Your Honour, we are not, but we recognise that there is a view available that, if by reason of the failure of the plaintiff’s counsel the matter was not properly litigated, there could be an argument for a new trial.

TOOHEY J:   It is almost a matter of new submissions.  It would be rather bizarre to send it back for a rehearing on the facts.

MR TOOMEY:   Yes.

TOOHEY J:   Thank you, Mr Toohey.

MR TOOMEY:   May it please your Honour.

TOOHEY J:   Mr Donovan.

MR DONOVAN:   May it please your Honours.  There really are, I suppose, two issues which come to be considered within the application.  The first is the question of whether a new ground should be allowed to be added which was never pleaded and, indeed, never argued at the trial.  Not just that, it is a ground which is completely inconsistent, not just with the technicalities of the pleading but also with the sworn evidence provided to the court in support of the plaintiff’s case.

TOOHEY J:   Are you speaking now of the case at the trial level or before the Court of Appeal, or both, when you make that submission?

MR DONOVAN:   The case at the trial level; the sworn evidence before the trial judge.  I am talking at that level.  The case was presented in that way on three occasions:  first of all, in the pleadings; secondly, in the sworn evidence that was led - what is really being asked is that the plaintiff have a judgment or a verdict absolutely contrary to the sworn evidence given by the plaintiff - and the third time when that same case was presented was in the initial grounds of appeal in the notice of appeal to the Court of Appeal.  This change only occurred within a short time before the hearing of the appeal.

TOOHEY J:   On what grounds was the appeal originally launched?

MR DONOVAN:   There were a number of grounds.  I will just have to go back to them.

TOOHEY J:   I do not know that we need to have it in detail but - - -

MR TOOMEY:   They were factual grounds, your Honour.

MR DONOVAN:   If I can just have a quick look, I can - - -

GUMMOW J:   But it was conceded, was it not, when the appeal came on that it could not succeed?

MR DONOVAN:   That is right.

GUMMOW J:   It was, in effect, abandoned.  Other than by such resuscitation that was available by this new point.

MR DONOVAN:   That would be true, yes, your Honour.  It was a general ground essentially that there was an error of law because his Honour did not find a verdict for the plaintiff or, rather, an error of law that his Honour found a verdict for the defendant.  They are very general grounds:  on the balance of probabilities, that the defendant was guilty of negligence, things of that type.

TOOHEY J:   You could perhaps guess that that was not going to get very far.

MR DONOVAN:   Indeed, yes.  But I say that because on those three occasions this particular applicant chose to present his case in that way and this is not a mere decision by counsel, perhaps contrary to the applicant’s wishes or contrary even to his understanding.  This is a case where the applicant himself clearly wanted the case presented this way.  That was the evidence which he gave on oath.  It would have been, we would submit, quite impossible to suggest - for counsel to suggest, contrary to instructions and contrary to the sworn evidence, that there could be some other form of claim open.  In cases such as Moustakas, we would submit that the difference between the case as pleaded and presented and the point that was taken for the alternative way of looking at it were much closer together than the case as originally presented here before the trial judge and the case as is sought to be made out now.

TOOHEY J:   Perhaps a real question, Mr Donovan, is whether, granted all those matters adverse to the applicant, when the matter did get before the Court of Appeal, did the Court of Appeal err in its refusal of the appeal, given the factual situation as it appeared before them.

MR DONOVAN:   That really embraces two aspects, I suppose:  first of all, the question of whether the Court of Appeal was wrong to allow the new - I will not even call it a point, but the total - - -

GUMMOW J:   It is really in page 3 of your written submissions under “Special Leave Issues”, is it not?

MR DONOVAN:   Yes.

GAUDRON J:   It would either have had to allow an amendment to the pleadings or exercise the exceptional jurisdiction.

MR DONOVAN:   Yes, indeed.

GAUDRON J:   Both of which involve discretionary considerations, I would have thought.

MR DONOVAN:   That is correct.

GAUDRON J:   You say, I suppose, that there is nothing to suggest that the discretion in either case miscarried?

MR DONOVAN:   That is correct.  Indeed, even taking the approach which your Honour took in Moustakas, your Honour made reference there to the situation where Moustakas, the appellant, had not disavowed the alternative method of arguing the case.  In this particular case the applicant here has expressly disavowed that particular way of arguing the case.  It does come back, we would submit, to the discretion, as your Honour has pointed out, in the Court of Appeal to allow the new point or not.  We would submit that there is no reason to conclude that the discretion miscarried.  On the contrary, it seems to be in accordance with all the authorities; cases such as Moustakas and Maloney.

Could I go to page 4, your Honours.  One of the points that has been put forward is that this is an “either/or” case.  We submit that it is not an “either/or” case in that clear way that would be required even to make this a

possibility.  You see, his Honour was faced with one particular case.  He, on the facts, declined to find on the evidence that the case, as presented, was made out and he, as a finding of fact, declined to find the alternative.  It was not pleaded in absolute terms as an “either/or” case.  If I could just take your Honours to page 34 of the book.

TOOHEY J:   Mr Donovan, I do not think we need hear from you any further on this matter.

MR DONOVAN:   All right, may it please your Honours. 

TOOHEY J:   Mr Toomey, anything by way of reply?

MR TOOMEY:   Well, I will try, your Honour.  Your Honours, the point in Moustakas was that the majority of the Court held that the facts had not been litigated and so it was not fair to the defendant to allow a new trial.  The distinction between this case and Moustakas is that the facts were litigated by the respondent which now resists a finding being made on the facts which this party litigated.  That is the fundamental distinction between this case and Moustakas.

In Moustakas, the Court said the defendant never had a chance to meet this.  In this case the defendant raised this.  It is the defendant’s case.  That is why this case is different, your Honours and, in our respectful submission, is distinguishable from Moustakas.  One has the curious situation of a defendant saying, “We now wish to prove, in answer to your case, that you were injured in a way which involves negligence on the part of the defendant” and then saying, when it is sought to have that matter determined on the basis of those facts it ought not to be allowed to be done.  In our respectful submission, despite the about-face on the part of the plaintiff, that is dealt with by President Kirby, as he then was, in his judgment where he points out that this is not a punitive jurisdiction, this was a case which was entirely compensatory.  The fact that the plaintiff who was a young man, ill-educated, as his Honour noted, may have determined that perhaps he did not remember.  He was shockingly injured.  Perhaps he decided that it was in his interests to say what was false.  But as the President pointed out, that is not to the point.  The point is whether justice in this case demands that the case which was available to him on the defendant’s own evidence ought to have been tried, and it never was.

May we put this to your Honours, sit finis litem is a fine motto, but it is a more important one, let there be a just end to litigation.  May it please your Honours.

TOOHEY J:   Thank you, Mr Toomey.

This application does not raise any question of general principle but rather the application by the Court of Appeal of well established principle to the unusual circumstances of the case.  In some such circumstances the administration of justice might warrant a grant of special leave to appeal but that is not so when the applicant has consistently maintained an account of his injuries which was rejected by the trial judge.  The absence of any alternative claim was no doubt a decision on the part of his legal advisers by reason of the applicant’s account.  No error of principle has been demonstrated on the part of the Court of Appeal.  Despite everything that has been said by Mr Toomey, QC on behalf of the applicant, the application is refused.

MR DONOVAN:   We ask for costs, your Honour.

MR TOOMEY:   Nothing I can say, your Honour.

TOOHEY J:   The application is refused with costs.

AT 10.58 AM THE MATTER WAS CONCLUDED