Smith v Gibson P34/1997 [1998] HCATrans 242 (19 June 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P34 of 1997

B e t w e e n -

CHRISTOPHER ERNEST SMITH

Applicant

and

WILLIAM LUKE GIBSON

Respondent

Application for special leave to appeal

GAUDRON

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 JUNE 1998, AT 11.05 AM

Copyright in the High Court of Australia

MR E.M. HEENAN, QC: May it please your Honours, I appear with my learned friend, MR C.T. GOLLOW, for the applicant. (instructed by Ilbery Barblett)

MR G.P. MILLER, QC: May it please your Honours, I appear with my learned friend, MR J.G. STAUDE, for the respondent. (instructed by K.N. Allan)

GAUDRON J: Thank you, Mr Heenan.

MR HEENAN: Your Honours, this is the case where the applicant was awarded $2.4 million for injuries sustained in a motor vehicle accident resulting in a tetraplegia from a spinal lesion at the C6 T1 level. It went on appeal on the issue of damages to the Full Court of the Supreme Court of Western Australia and the appeal was allowed, in part, by setting aside the allowance of $934,500-odd for future care and remitted the case to the District Court for retrial on the issue of damages for future care before a different judge. That order is in the application book at pages 134 and 135.

GAUDRON J: Before a different judge, yes.

MR HEENAN: Before a different judge. Your Honours, in short, of the many grounds of appeal which were raised by the respondent in the Full Court, the only one which succeeded was part of ground 5, and that is at application book page 110. Ground 5 challenged the finding for the cost of future care for a variety of reasons, including sufficiency of evidence and excessiveness, but it was only ground 3 that was upheld, namely, that the learned trial judge failed to make any, or any adequate assessment, of the plaintiff's need for future care or the costs of such care. Now, your Honours, that this is both the intention and the effect of the Full Court's reasons and decision emerges from the reasons given by Justice Kennedy, page 117 of the papers. At about line 40, his Honour writes:

It was not disputed by the appellant that the respondent did require a carer. The issue between the parties on this aspect of the matter related to whether a full-time carer was required or whether the provisions of a less than full-time carer would sufficiently meet the respondent's needs. In the end, I have concluded that the reasons expressed by the learned trial Judge do not sufficiently expose the findings of fact upon which his conclusion must necessarily have been based.

Similar expressions were given by Justice Ipp at page 122 at line 21:

The finding that the respondent required a full-time carer was a secondary finding of fact; that is to say, it depended on inferences to be drawn from findings of primary fact. The findings of primary fact that needed to be made involved the number of hours per day of assistance in fact required. However, no relevant findings of that kind were made.

His Honour Justice Ipp made observations to the same effect at page 127 at lines 8 to 20, but I shall not trouble the Court to read those. Now, not only is it these reasons which express this effect of the decision of the Full Court but the terms of the order remitting the issue for damages for retrial alone before another judge indicates, in our respectful submission, that ground 5(a) of the notice of appeal, which is at back of page 110, must have failed. That was the ground which challenged the excessiveness of this particular component of the award. Similarly, ground 5(a)(ii) - - -

GAUDRON J: Does that necessarily follow, that it failed rather than that this was the primary issue and thereafter other matters depended on it?

MR HEENAN: Well, your Honours, we submit, with respect, that if there had been a finding that the amount awarded was disproportionately excessive, the appropriate course would have been to allow the appeal and reduce the damages, either for the whole of the $950,000-odd, or something less, and we make the same - - -

GAUDRON J: But the court said, "Well, a proper exposition of the facts may lead to the same result, but we cannot ascertain what the proper result is because there has been no exposition of the basic facts", is that not right?

MR HEENAN: That is one reading of Justice Ipp's reasons for decision, your Honour, but it is not - - -

GAUDRON J: Well, one of their Honours says it in terms, does he not, that the result may be the same?

MR HEENAN: Justice Ipp certainly says that, your Honour. The particular passage is at page 127 between lines 8 and 20. After referring to the issue, his Honour says:

It seems to me to be readily arguable (if their testimony is accepted) that the hours involved could well be more than 34 per week. This Court.....not having seen and heard the witnesses, is not in a position to assess the credibility of their evidence.

But, your Honour, our submission is that this is a view which is singular to Justice Ipp and Justice White, who agreed with that, and it is not the view expressed by Justice Kennedy. May I move on to the other inference that we draw from the order, namely, that ground 5(a)(ii) of the grounds of appeal at page 110 must also have been rejected. That was the allegation that there was no evidence to support the finding because had that been the conclusion, the appeal should have succeeded and the damages been reduced.

Now, if it be accepted that there was evidence capable of supporting the finding, then the real gravamen of the Full Court's decision is that the reasons expressed by the learned trial judge, on this particular issue, were inadequate. His Honours reasons are at page - - -

GUMMOW J: Where is there any question of general public importance in this, Mr Heenan?

MR HEENAN: Well, your Honour, in our respectful submission, the special leave issues are two. First of all, that the court has neglected to apply what we call the proportionality principle, for which we rely on Gamser's Case, and the passage cited in our written submissions, and without determining whether the award is grossly excessive, has exercised the appellate function of interfering, setting aside and ordering a retrial. Now, the important issue emerging from this, your Honour, is that, in one respect, the proportionality principle, the orthodox view, controlling the jurisdiction of an appeal court when reviewing damages, indicates that an appeal court should not interfere with an award unless satisfied that it is excessive or, perhaps one might say, unless there are good grounds to consider that it may be excessive, although that latter proposition is something of a gloss.

On the other hand, the line of authority relied on by the Full Court, stressing the need for the adequacy of findings by a judge at first instance, and interfering because of lack of adequacy, notwithstanding the possible correctness of the result, points in the other direction. It is the tension between these two principles and the role of an examining Full Court which, we say, is sufficiently important to attract the need of special leave. In our respectful submission, your Honours, if it is possible to upset an otherwise regular judgment simply because of some minor inadequacy in the reasons for decision, that is an inroad - - -

GAUDRON J: You say it is a minor inadequacy and you talk about proportionality, but this is the major component of the damages award, is it not?

MR HEENAN: Well, it is certainly a very significant - yes, your Honours.

GAUDRON J: It is more than a third and how can one - I mean, in one sense, there is some merit in talking about proportionality but that is a question that itself cannot be determined, really, unless one is satisfied that this part of the award was a proper part, was properly assessed?

MR HEENAN: Well, your Honours, there does not seem to be very much doubt about the view taken by the learned trial judge, because if we go to pages 37 and 38 of his reasons, which are those pages in the application book, at the foot of page 37 the matter of future care is introduced, the issue really being whether the applicant needs care around the clock, because of the potential for harm that sudden and unexpected misfortune might cause, or whether one has to tally up the hours which a carer might actually spend in providing services. His Honour comes to the conclusion at page 38 line 25 and following, that independent care is reasonable and that he should have this care. He also makes a comparison, between lines 5 and 25, of the comparative cost of institutional care in the quadriplegic centre where, of course, there is comprehensive care available all the time. So, implicit in the reference to the quadriplegic centre, is the acceptance that round the clock care, or care on call, is needed.

His Honour refers to the evidence of Dr Ker and Mr Griffiths, and approves method 3 of the assessment of damages to support the $934,000. That method 3 is referred to in the schedules, which are annexed to the judgment, and the particular calculations are all set out at page 48. So, your Honours, there is, indeed, quite a comprehensive set of findings to support his Honour's conclusion, and the reasoning of the Full Court therefore raises the question of just how - to what degree a trial judge must descend to particularity when he has clearly expressed a view that round the clock care is needed.

His Honour Justice Ipp seems to have taken the view that to discharge the responsibility of making adequate findings of fact, it was necessary to tally up the hours that a carer should spend. Justice Kennedy did not take that view, and the trial judge and the contest at trial seems to be more preoccupied with the question of whether it was needed to have the carer on call. So, within the contest between proportionality on the one hand, and particularity of reasons on the other, is this approach as to whether or not it is necessary to tally up the hours.

But, your Honours, if it is possible to circumvent the proportionality principle by advertence to the sufficiency of reasons, that, in our respectful submission, would make a novel inroad on the principle. Even if the inroad is justified, it would be sufficiently important, in our respectful submission, from the grant of special leave, to examine when and in what circumstances there should be an exception to the proportionality principle.

Now, your Honours, the second special leave question is very much a subsidiary one, and it is that if there is to be a retrial, it would be inappropriate for it to be confined to the issue of the cost of future care or for the original trial judge to be restricted from dealing with the case. After all, the only criticism of the reasons are the adequacy of his reasons.

Now, why we say it is inappropriate is that this is not a truly severable issue. It is considered by the Full Court that it was, but the question of the adequacy of future care will have implications for the quality of life; the amenities with which the applicant can continue his life; it may possibly reflect on the life expectancy; and in a judgment of this magnitude, it is the overall dimension and cohesiveness of the judgment as a global figure which has traditionally attracted scrutiny. So, any judge making a disposition of this case would need to be satisfied with the global figure rather than its components, and this will cause great practical difficulties for any retrial.

Furthermore, as we say in our written submissions, what is to happen if one of the parties is aggrieved with the decision at the retrial? Can that party appeal, and if so, is the appeal restricted to the issue which was retried or to the gross award? It is very rare, as we have said in our written submissions, for a retrial to be restricted to discrete aspects of damages. There are some examples when this has occurred. We have referred to them in our written submissions and the authorities are the Commonwealth of Australia v Connell, where the Appeal Court itself reassessed the component for pain and suffering following a jury verdict which, on that issue, was considered to be perverse and reduced that component.

This Court, on appeal in Medlin, the case of the university professor who retired prematurely, sent the matter back for retrial on the issue of future economic loss, but that was a very obvious and discrete issue because the whole question turned on whether Medlin's retirement at age 61, rather than the conventional age of 65, meant that the consequent loss was recoverable. The learned trial judge had denied recovery. This Court affirmed it, and that being the only issue, sent that matter back for retrial. But the principle relating to retrials has been discussed comprehensively by this Court in Pateman v Higgin (1957) 97 CLR, and the passages which we have referred to in our written submissions, at pages 527 and 528, and again 530 and 533, affirm the principle that, generally speaking, if there is to be a retrial, it should be a retrial on all issues, so that even a retrial restricted to damages is, from a historical viewpoint, exceptional. We would not suggest that there should be a retrial on everything - - -

GAUDRON J: That was a jury verdict, was it not, in issue in that case?

MR HEENAN: Yes, it was, your Honour.

GAUDRON J: Well, are there not slightly different considerations where, as here, there is itemisation of each head of damages?

MR HEENAN: Well, your Honour, it all depends, in our respectful submission, on whether the issue is truly severable, because if the issue is isolated and unrelated to all others, then the implication of your Honour's question should obviously be followed. However, if there is an interrelationship or a potential interrelationship between the head of damages being considered and the overall award, then, in our respectful submission, it would not be appropriate to have a limited retrial, and here, as your Honour has observed, where this head of damages forms such a large component of the overall award, it must obviously have an effect in the final balance of proportionality of the judgment. Not only are the factors which I have already mentioned implicit in this, but questions of overlap and contingency also have their role.

So, your Honours, for those two reasons we suggest that special leave could be attracted in this case and that the grant of special leave would have a positive outcome because, if leave was to be granted and the appeal was to succeed, my client would retain his original verdict and the litigation would be over. If special leave were to be granted and the appeal was to succeed to the limited extent of ordering a retrial on all issues of damages, that would simplify the retrial and avoid further complications if there were to be subsequent appeals. If there was to be an appeal and my client failed absolutely, well then, no benefit would have been occurred and that would be an unfavourable outcome to us, and if that is likely, we would not deserve the grant of special leave. May it please your Honours.

GAUDRON J: Thank you, Mr Heenan. The Court need not trouble you, Mr Miller.

In the special circumstances of this case, the approach adopted by the Full Court was one that was fairly open. Accordingly, special leave is refused.

Do you have any application to make?

MR MILLER: Yes. May it please the Court, I move for an order for costs of the respondent.

GAUDRON J: What do you say to that, Mr Heenan?

MR HEENAN: There is no reason why an order for costs should not be made, your Honour.

GAUDRON J: Thank you. The application is refused with costs.

AT 11.26 AM THE MATTER WAS CONCLUDED