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[2014] NSWCA 311
Court of Appeal (NSW)
2014-08-13
McColl JA, Meagher JA, Adamson J, Coll JA
Original judgment source is linked above.
The application of Watts v Rake 32The appellant relied on the following extract from Menzies J's judgment in Watts v Rake at 163-164: "It was for the appellant as plaintiff to prove his damages, and merely to prove his present condition and his incapacity to work would not prove that these things resulted from the accident. It was not, however, for the plaintiff to disprove that his pre-accident ill health would eventually cripple and incapacitate him. Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it, eg, that the plaintiff has aggravated his condition by some unreasonable act or omission. Similarly, although it is of course material to ascertain what was the pre-accident condition of the plaintiff who alleges that his post-accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health." 33The appellant relied on the following finding of the trial judge as revealing error in applying the principle in Watts v Rake: "I accept the submission from counsel for the defendant that Ms Appleton has not shown that any ongoing issues with anxiety or depression are now related to the outcome of the operation. I am satisfied that any intermittent manifestations of these conditions are consistent with Ms Appleton's condition before the operation." 34Her Honour's finding was based in part on the evidence of Dr Parmegiani, who accepted that from late 2010 or early 2011 any issues the appellant had with work related to her underlying condition (anxiety and depression) and not the adjustment disorder she had developed consequent upon the breast surgery. It was also based on the content of the consultations with Ms Bilbio, which are referred to below in the context of the first ground. 35In my view, if the principle set out in Watts v Rake was attracted in the present case, the respondent did, in fact, discharge his evidentiary onus. The trial judge found, quite permissibly, that the post-surgery adjustment disorder (which could be regarded as an exacerbation of pre-existing anxiety) had ceased by the end of 2010 and that any ongoing issues of anxiety and depression were consistent with her pre-surgery state. In light of these findings any question raised by Watts v Rake was resolved in favour of the respondent.
Ground 1: non-economic loss 36The trial judge assessed non-economic loss at 30% of a most extreme case: Civil Liability Act 2002 (NSW), s 16. The appellant contended that the award was so manifestly inadequate as to disclose error and that this Court, when re-exercising the discretion to make an award, should allow 40%. The percentage for which the appellant contended at trial was 39%. 37In assessing non-economic loss, her Honour took into account the prospects of future surgery, the appellant's willingness to undergo such surgery and its likely effect. Her Honour also considered the effect on the appellant's psychological health of the surgery the subject of the proceedings. Her Honour accepted the opinion of Dr Parmegiani, a psychiatrist who assessed the appellant at the request of her solicitors for the purposes of the proceedings, that the adjustment disorder with mixed anxiety and depressed mood, from which she had suffered as a result of the surgery, had resolved about a year after the surgery. 38The trial judge also considered whether the appellant's mood and behaviour continued to be affected by the consequences of the surgery, notwithstanding the resolution of the psychiatric disorder. Her Honour was satisfied that the anxiety and depression from which the appellant continued to suffer was, after about a year after the surgery, due to factors unrelated to the operation. The trial judge considered that the matters which the appellant had discussed with Ms Bilibio, a psychologist whom she had first consulted on 13 July 2010 and continued to see until 23 August 2011 (her sixteenth consultation), ought be taken to be the sources of the appellant's concerns at the time of the consultations. Although there was a reference to the operation in the first two consultations, there was no further mention of it in subsequent visits. The topics of discussion thereafter included the appellant's relationships with her respective partners (Mark and Justin) and her parents and her concern about being a good mother. 39The assessment of non-economic loss is an evaluative assessment made by a trial judge: Dell v Dalton (1991) 23 NSWLR 528 at 533 - 534 per Handley JA. The appellant submitted before the trial judge that the percentage ought be 39%. She submitted in this Court that it ought be 40%. The respondent at trial submitted that the award for non-economic loss ought be 25-28% of a most extreme case. It is not appropriate for this Court to engage in relatively minor alterations of such percentages or to take account of the monetary consequences of such adjustments: Clifton v Lewis [2012] NSWCA 229 at [56] - [57] per Basten JA. No error in the trial judge's evaluative assessment has been shown.
Ground 2: past out-of-pocket expenses 40Ground 2 as it appears in the notice of appeal (extracted above) appears to have been abandoned. The appellant in her written submissions contended that the amount awarded for past out-of-pocket expenses was inadequate because it did not allow for the full amount of the sixteen consultations with Ms Bilibio. This substituted ground has been addressed above in the context of Watts v Rake. No error has been shown in the approach of the trial judge, which was to regard the majority of counselling sessions with Ms Bilibio as the result of matters extraneous to the surgery.
Grounds 3 and 4: past domestic assistance 41Her Honour's finding that the appellant did not meet the statutory threshold of six hours a week for at least six months defeated her claim under that head: s 15 of the Civil Liability Act; Hill v Forrester [2010] NSWCA 170; 79 NSWLR 470. Her Honour's finding was based, in part, on the appellant's concession in cross-examination that for some weeks during the relevant period she only received a couple of hours care. However, the finding was also based on a rejection of the evidence of the appellant, her mother and her sister having regard to the inconsistency between their oral evidence as to the appellant's need for care and the statements the appellant made to nurses who questioned her about her need for care. The respect for the trial judge's findings when they are influenced by seeing and hearing witnesses means that this Court ought refrain from coming to a contrary finding. Further, the appellant has not provided any plausible reason why the appellant's self-serving oral evidence ought be preferred to the answers (which amounted to admissions) she gave to nurses who were seeking to establish her need for care. 42In ground 3, the appellant asserted that the trial judge did not give adequate reasons for finding that she had not attained the threshold. Her Honour's reasons for the finding arose from her assessment of the appellant's credibility and that of her mother and sister. Ample reasons were given for preferring the contemporaneous business records to their oral evidence. The appellant bore the onus of establishing that she met the threshold. She failed to do so.
Grounds 5 and 6: past and future economic loss 43Her Honour ultimately found that whatever difficulties the appellant encountered with loss of confidence following the surgery, it was the appellant's need to look after her daughter which caused her financial loss after January 2011. In light of her Honour's findings on causation which have been considered above, this finding was both open and correct. 44As to future economic loss, her Honour was obliged by s 13 of the Civil Liability Act to satisfy herself as to the appellant's most likely future circumstances but for the surgery. No error has been shown in her Honour's finding that it is probable that, but for the surgery, the appellant would have returned to work as a beauty therapist when her daughter is of an age to go to kindergarten and that this avenue is still available to her. The award for future loss of income while the appellant undergoes further surgery is consistent with these findings. 45The respondent has conceded that her Honour made an arithmetical error in the assessment of past economic loss which this Court ought correct. There is no suggestion that it could not have been corrected by her Honour under the slip rule. As it has not already been corrected, it is appropriate that this Court do so in the orders it makes to determine the appeal.
Proposed orders 46The orders I propose are: (1)Vary the judgment of the Court below by substituting for the figure of $191,943.55, the figure of $195,060.43. (2)Otherwise dismiss the appeal. (3)Order the appellant pay the respondent's costs of the appeal.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 September 2014
Appleton
Norris
The conduct of the appeal 17A notice of appeal was filed on behalf of the appellant on 13 November 2013. The appellant's written submissions were filed on 7 April 2014 by counsel who had not appeared at trial. These submissions addressed the six grounds in the notice of appeal. 18At the hearing of the appeal on 13 August 2014, different counsel appeared on behalf of the appellant. Although Mr Hatcher SC, who appeared on behalf of the appellant at the hearing of the appeal, formally relied on the written submissions as filed, he raised further matters that were neither apparent from the notice of appeal, nor from the written submissions. These matters reveal a misapprehension of this Court's powers under s 75A of the Supreme Court Act and the weight to be given to a trial judge's assessment of the credibility of witnesses. 19Mr Hatcher sought to challenge the trial judge's findings on the credibility of the applicant generally and also of her mother and her sister about the appellant's need for care in the months following the surgery. He made several submissions to the effect that her Honour was "wrong" or that such findings were "not open" to her Honour. He submitted that her Honour's assessment of the credibility of these three witnesses affected each of the heads of damage challenged and, accordingly, each of the grounds of appeal. 20Mr Hatcher also submitted that it was not open to her Honour to find that the appellant's pregnancy was not caused by the surgery in circumstances where she was, he contended, vulnerable as a result of the surgery and sought comfort from Justin, who was the father of their daughter, born in January 2011. He contended that the surgery caused her to close her business and she was unable to work because of her child and also because she no longer had her own business which would have permitted her to work and look after her child simultaneously. 21The appellant also contended that it was not open for her Honour to make the following finding as the proposition had not been put to the appellant specifically: "There was a suggestion that if she had her own business she could take her child with her to work. This seems unrealistic and unlikely." 22Mr Hatcher also submitted that her Honour had failed to apply Watts v Rake [1960] HCA 58; 108 CLR 158 in finding that she was not satisfied that the appellant's ongoing psychological issues were a result of the surgery. He contended that it was for the respondent to establish that these issues did not continue to be a result of the surgery and that the respondent had failed to do so. Mr Hatcher also submitted that her Honour had failed to apply Watts v Rake more generally. 23I propose to address these matters before turning to the grounds of appeal in the notice of appeal.
The trial judge's findings as to the credibility of the appellant, her mother and her sister 24The extent to which an appellate court ought respect the advantages enjoyed by trial judges, particularly where their decisions might be affected by assessments of the credibility of witnesses, was considered in Fox v Percy [2003] HCA 22; 214 CLR 118. The plurality considered the extent to which this Court's statutory obligation under s 75A of the Supreme Court Act to conduct the appeal "by way of rehearing" is affected by appropriate appellate respect for the fact that the trial judge has seen and heard the witnesses. How the balance is to be struck was addressed in the following passages from the reasons of Gleeson CJ, Gummow and Kirby JJ: "[28] Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. [29] That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. (footnotes omitted)" 25The appellant was unable to identify any error in her Honour's conclusions or any respect in which her decision could be regarded as either glaringly improbable or contrary to compelling inferences. Mr Hatcher simply submitted that the trial judge's findings were contrary to the appellant's own evidence. In those circumstances, there is no reason for this Court to refrain from paying due respect to the trial judge's findings, in so far as they were based on her assessment of the appellant, her mother and her sister: see also the recent statement of this Court in Commonwealth Financial Planning Ltd v Couper [2013] NSWCA 444 at [67]. Her Honour's assessment affected, as Mr Hatcher accepted, the awards for non-economic loss, domestic care and economic loss.
(1991) 23 NSWLR 528