Jironc, Jaroslav Karl v. Quodling, Tony Francis [1978] FCA 46

) ) AUSTRALIAN CAPTTAL 'TERRITORY DISTRICT REGISTRY ) )

On Appeal from the Supreme Court of the Anustraljan Capatal Territory

THE COURT ORDERS THAT the appeal be dismissed, wath costs.

On Appeal from the Supreme Court of the Australian Capital Territory

REASONS FOR JUDGMENT NIMMO J. 22 June 1978 ST.JOHN J. Canberra

On 12 October, 1976 Connor J. delivered judgment in proceedings No. S.C. 1424 of 1975 in the Supreme Court of The Australian Capital Territory in which the appellant was the plaintiff and the respondent was the defendant. Judgment was entered for

the plaintiff in the sum of $13,533.11. On 29 October, 1976 the appellant's solicitors lodged a notice of appeal in the High Court of Australia on the grounds that the damages awarded were inadequate. Certain discussions took place between the

appellant's legal advisexs and the High Court Registry.

No further step was taken to prosecute the appeal in the

High Court. Application was made to this Court, by notice

of motion dated 8 November, 1977, seeking orders that the appellant

have leave to file a notice of appeal from the judgment of Connor J. in this Court notwithstandirg that the time limited

by the rules of this Court for filing the notice had elapsed.

This application came on for hearing before St.John J., and on 6 Decembe1, 1977 that Judge ordered that the appellant have leave tc file a notice of appeal containing a request for time to he extended to the date of filing. Such a notice of appeal was filed; subsequently appeal books were filed and the matter came on for hearing before this Court in

Counsel for the appellant submitted that time for appeal should be extended to the date of filing of the notice of appeal

and counsel for the respondent informed the Court that the respondent did not oppose that application provided the Court

regarded itself as having jurisdiction to make such an order.

Section 24(4) of the Federal Court of Australia Act (the Act)

day, a person has a right to appeal (otherwise than in accordance with leave or special leave referred to in sub-section (2)), or to seek leave or special leave to appeal, to the High Court from a judgment of the Supreme Court of a Territory given before the commencing day, that right is, by force of this section, converted into a corresponding right to appeal, or to seek leave or special leave to appeal, to the Court,"

That Act was assented toandcame into operation on 9 December, 1976 (the commencing day). It is, of course, immediately apparent that at the time Connor J. delivered his judgment and during

the 21 days allowed by the High Court Rules for lodgment of a notice of appeal to the High Court, the Federal Court of

Australia was not in existence. The only other relevant section of that Act would appear to be s.38 where in sub-sec.(1) it

is provided that subject to any provision in that or any other

Act with respect to practice and procedure the practice and procedure of the Federal Court shall be in accordance with rules

Order 6 Rule 1 of the Rules of Court made under that Act

"1. - Appeals

1. The practice and procedure of the Court in its appellate jurisdiction under section 24 of the Act shall be in accordance with Order 70 of the High Court Rules as in force for the time being, which Order shall apply mutatis mutandis so far as ic 1s capable

of application and subject to any direction of the Court or a Judge."

These sections appear to us to preserve the distinction between the substantive legal right of appeal and the adjectival law

of practice and procedure embodied in rules of Court. It is to be noted that Sec.24(4) does not qualify the right of appeal

by stating that the right is limited in its exercise by a time

In the Colonial Sugar Refining Company Limited v Irving 1905 A.C. 369 the judicial committee of the Privy Council had

to consider whether a right of appeal to that tribunal given by Order in Council of 1860 had been removed by the Judiciary

Act 1903. In the advice given; Lord Macnaghten said at p.372:-~

"To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure."

The nature of a right of appeal was examined by Isaacs and Rich JJ. in The Commonwealth v Limerick Steamship Company Limited and Kidman and Others (1924) 35 C.L.R. 69. Implicit in that judgment, commencing at p.82, is the principle that a right of appeal is a matter of substance and not a matter

Immediately before the commencing day the appellant had a right to appeal to the High Court from the judgment of

Connor J. by virtue of the provisions of s.51 of the Australian Capital Territory Supreme Court Act 1933 and unless the filing of the notice of appeal in the High Court had the effect of exhausting or extinguishing that right it 1s,by force of s.24 of the Federal Court Act, converted into a corresponding right to appeal to this Court. The right of appeal must include the whole process whereby a judgment of

an inferior Court is considered by an appellate Court and a

decision reached by that appellate Court. In this instance,

rather than exhaust or extinguish the right of appeal the filing

of the notice of appeal in the High Court Registry had a preservative effect. It follows that in our view we have

Turning now to the present applicatior for an extension of the time for the filing of the notice of eppeal in this Court to

the date of the filing of the notice, Order 70 Rule 6 of the High Court Rules provides for the extension of time by a Justice on applicaticn made within the period of 21 days and further the Full Court for special reasons may at any time give special leave to appeal on any conditions wnich appear just. In addition Order 64 provides that non compliance with the rules does not render proceedings void unless the Court or a Justice Girects and the Court or a Justice may relieve a party of the

Having regard to the steps recited above which the appellant has taken to preserve his right of appeal we have no hesitation

Proceeding now to deal with the merits of that appeal the lear.ed trial Judge awarded damages under the following headings and

$ (a) Past loss of earnings 9,862.76 (b) Medical and 11ke expenses 940.35 ({c) Loss of earning capacity for the future 1,230.00 (dad) General damages 1,500.00

eae ene Mls aan ean: dite Ketan rte ine 'aha Ai, Pant ART th a aetna tit it shanties iene ne tat

The appellant was injured in a motor vehicle accident on

13 Pebruary, 1975. For some period thereafter, which, on the evidence, is not clear, he suffered from the effects of physical injuries which rendered him unfit for his pre-accident occupation. At the time of the hearing he was still not working and the difficult question for the learned trial Judge was whether

or not his failure to work was the result of the injuries sustained in the accident and their sequelae, or whether the neurosis and depression from which he suffered, was brought

on by factors which were no concern to the defendant. Approximately two months after the accident his wife left the appellant ana his Honour was presented with medical evidence,

some in oral form, which was the subject of cross-examinaticn,

and some in written form which was not. On one medical issue there was corplete clarity. By at least September, 1975 there was no detectable physical defect preventing the plaintiff

from working. It appears clear that mo-one concerned with

the medical management of the appellant up until the trial

had recommencied psychiatric treatment. Dr. Long, who described himself as a general physician, said that physically there was

no reason why the appellant could not return to work. Additionally he said that he had no psychiatric skills but it could be that with psychiatric treatment rapid cure of the appellant could be effected. Dr. Madew, whose specialty, if any, was not mentioned, gave evidence of the appellant's morbid disposition before the accident and chat a brain scan negated significant brain damage. That medical practitioner also expressed the op2nion that the appellant should return to his former state of health. Dr. J.

F. Hammett, who was apparently a specialist physician, gave

a written report on the Woden Valley Hospital notepaper dated

"The emotional component of his illness appears quite marked and he has had a number of social problems that have contributed to his stress. I note that he is not having eny psychiatric treatment and in my opinion he is well enough to be working."

A Dr. Andrews reported that the appellant's marriage was broken up about the time d the accident and his wife was on

a cruise overseas (apparently on her own) just prior to the accident. D1. Andrews' recommendations were in the following

"I recommend that he be seen by a psychiatrist and I feel that his present problems require psychiatric attention. If his depression 1s successfully treated I feel that he would be quite capable in the physical sense of returning to his previous employment."

A Dr. Robbie, whose letterhead would indicate he was a specialist psychiatrist, gave a report to the effect that the appellant

was depressed and anxious and that the anxiety "may well be

in part ascribed to his accident but the depression can be placed firmly at the door of his failed marriage". He also recommended psychiatric treatment.

The appellant's counsel submitted that the learned trial

Judge's finding that the appellant would return to work after

10 weeks treatment by a psychiatrist was too short. Bearing

in mind that the onus is on the appellant to prove his damage

and that the appellant adduced no evidence from expert

ee rt i le a RN Has Ante taints tin eet fle Mh tn em ee

psychiatrists as to the length of treatment necessary or any other psychiatric aspect of the appellant's condition we think

such a submission, in these circumstances, does not lack temerity.

It was clearly within the learned triel Judge's province to fix some time during which psychiatric treatment should suffice and there being no guidance afforded in the appellant's case, the fixing ten weeks cannot, we think, be successfully criticised on the basis that it is too short. It. could be asserted with equal force that the period was too long. His Honour had to

@o his best with a case which was not carefully presented so

far as prognosis of the appellant's condition was concerned.

It was submitted also that $1,500 was an inadequate award of general damages. The argument advanced was that, 1f the plaintiff was entitled to the total loss of wages for the

whole period he was off work the general damages merited a

More generous award. Ignoring whether it would be legitimate to endorse tris approach (an assumption of correctness in one item of damages used to attack another item) it 1s clear

that there wes abundant evidence that the appellant's loss of amenities was not attributable only to his accident injuries. Parts of that evidence have already been quoted. Further it would appear that the learned trial Judge in awarding a full loss of wages may well have taken the view that although

the plaintiff's failure to return to work (after a certain time) was not attributable to the accident 1t was reasonable of the plaintiff not to return as his failure so to do was attributable

We see no merit in the submissions made. The learned trial Judge had a difficult task. Nothing put to us indicates departure from legal principle or lack of care. The appeal

t mole 'Soe OO & & fae' | To Cau cituat besa. vs rrp bee. ' i cus aves NIMmo ded ST JOUA

Ou Appeal trom the supreme Court of dhe dustratirat Caprblabt Cerri1tory

BETWEEN JAROSLAV KARL J TRONC Appellant (Plaintitt) AND -

REASONS FOR JUDGMEN1 MoGREFGUR J. 22 June 1978 Canberra

JAROSLAV KARL JIRONC ("Appetlani™) sued TONY BRANCTS QUODL ING

("Respondent") tor damages tor persomel tayupLes settee lo lave been suffered in a motor vehicle aceident on the 13 February

Al the hearing en 11 October 1976 the only ass was as ta the

'the accident out of whach the action arises occurred im the

early morning of 13 February 197% when the vehicle tn which the

Appellant was riding was struck ly the vehicle for which the Respondent accepts laahility to pay damages. As a result the Appellant was then taken by ambulance to the Casualty section

Before considering the anjuries received by the Anpellant 1t is helpful to set out the very short hastory whach hus been accepted by the learned trial judge tm his judgment trom which

The Appellant was born in CzechoslovakiLa on the 15 November

1925, He married there in [948 by which mariiage he had three children. A more comprehensive account of this history is set out by Dr. Robbie in Exhzbit "CC", He came to Australia in

1954 then aged 31 and, as the Jndyeo has found, was in regular employment in various capacities up to the time ot the auccrdent, when he was working as a maintenance Lrttcr wath the

Commonwealth Department of Construction at Canberra,

The learned trial gudge found thal when taken to the hospital he was suffering From a sere chest, a sare back und «a sore head. Tt is to be noticed that in the evidence the Plaintrit' claims that stitches were inserted in the righthand side of his head

He was allowed to leave the hospital after a short period, returned by taxi to see the Supervisor ai his place of employment and was then taken to Dr. Madew an Queanbeyan.

Thereafter and up till the time of hearing the Appellant was

off work, except tor a fortnight or three weeks in July 1975, during which period His Honour reters to diagnustic procedures which have been carried out. hone of these, so His Honour found, demonstrated any physical basis, tor a continuing

The learned trial judge, after making reference to the medical evidence iuncluding a reference io the fact thal none of the fave doctors who eather gave evidence or whose reports were tendered could find any physical reason why the Plusuliff could nol work, quoted the evidence of a psychiatrist from which His Wonour apparently accepted that the Plaantitfr was anelined to

analety; and that the anxiety was in part due to the acerdent,

Wath these reports and evidence to assist him, an sa Lar as they could be said to do so, His Honour found atfirmatively thiat

since about three or four months after the accident the

lIlis Honour then considered this fitness so far as it might be

said to be effected by non-physical or psychiatric Tactors.

Iie came to the conclusion though, as he expressed isl "not without some doubt", that the Appellant was unfit tor work since the accident. Thereafter he proceeded to decide for how long he was in effect satistied by the evadence (which 1t mist be emphasised was part of the Appellant's cuse to point to) that

the Plaintiff's untitness continued; and he, in the final

result, awarded the Plaintiff a sum of money tor 1055 of earnings which included the admttad amount of $9,862.76, being the agreed sum of wages lost to date of hearing, plus a further amount whach represented ten weeks! net loss of pay. In this period His Honour envisaged that the Plaintiff would te able to have psychiatric treatment 1f necessary tuo assist lium ain

This area of His Honour's finding has been attacked upon the basis, as I understand the argument, thal if he was originally unable to work for the period up lo the hearing, 12t conled not be reasonably said that within such a short period as ten weeks he would be able to rehabilitate himself. The submisstom was that

The Appellant im this reasoning seems to me lo overlook that His Honour was barely satisfied, as appears From the terms 111 which he made the Landing, that the Appellant could gustify an award of wage loss even up to the date of the hearing; and an that state of lack of complete conviction, His Honour was nat disposed to consider any lengthy further period of tncapacrly as being supported by the evidence. Counsel for the Appellant who submitted that the period of ten weeks was too short cuuntered that a suggestion that a period of sax months should have been found as being a more appropriate representation oU the Appellant's continuing tncapacity; but was unable to point to any evidence which gustified that period in terms rather than the one chosen by His Honour. In the face of this ditficulty,

Counsel conceded, as T am satisfied he had to, that it was open

to the trial judge or at Least to thas Court to make the

Having regard to evidence from Dr. Madew who saw the Plaintiff farst on the day of the accident and thereafter, 411 seems to me there was ample material to support the approach of the learned trial judge, Tt 25 helpful to point out that some tine about when he sustained the accident, his wafe left him, This seems to have been a contributimg factor an the Plaantaff's condition and thus one not related to the ace1dent. The Respondent's Counsel submitted thet an an area where the evidence was imprecise, one conld infer that her departure was some three months after the accident, namely, in May of 19753 that this coincided with the Plaintiff's depressive state;

so that unfitness thereafter, so far as 1f was Incapa stating, was more likely related to this than to anything causcd by the accident, The Respondent's Counsel could have Lormed some support for the selection of the month of May ot at least April

Allowing for the force of this argument dhere were perhaps more obvious matters in the evidence upon which H1s Honourts finding could be yustiafied. For example, there was the evidetce of

Dr. Madew at p.33 of the transeript.,which IT quote =

Q. -..What sort of prognosis can you make tor his tuture?

A. Il can't fand anything physically wrong with him, 4 think that there are further investigatious that were done by Dr. Long which you would have. But these

have suggested that there's nothing serionsly wrong. aw & ) &

In the physical sense, He's had, in January 1976, he had bilateral carelid arteriopgrams which removed the Lakelihood of any brain tumours or such things.

What do you think the likely course t5 going to be once this case 45 aver?

I think he should return to work, £ think the problem 15 getting him to geo to work because ot hrs depressed state - the general depressed state.

Do you see that depressed state continuing o1 do you see that cleariny?

L think it should clear, Tl strikes me that his pre-morbid personaliiy ~- in other words, prior to the accident - has been = to me, or just Crom evidence

that the family have told me, he has never Leen a particularly cheerful serl of person, Lit lie should return to that state of health,

Further upon this subject the evidence whieehb appears at page 36

of the transeript 36 wn my respeetiul opinjiou compelling,

you did nol yourself feel comtortable in the assertion

that has menlal stale was caused by this aces+dentr, did you?

it could have been preerpatated by the ace ident. Could have heen?

Tt as certainly not enlirely attributable to the accident, but I think a certain amount of his present

mild depression, his diftfieulity an copriy: with thimpers,

Do you believe he could be using the accident to Justity an altitude towards late and work, wsing st as an excuse for not getting on with life?

And you therefore believe that when thas Litaeation 2s concluded one would antireapate a considerable

Q. And you see the fanaltsation of thas Litigation as beany a step in that direr lion?

Q. T think you said this of him, that the acerdenml may have caused this problem, That 15 bo say has anxiety ovr depression?

Q. You couldn't put it any hagher than that could you?

And later the doctor gave this evacence - Q. Dad they tell you thar as Long ago as Mareh he was

motivated to return to work and had delanite employment potential?

Q. Would you regard that as a proper otatement of his

condition in March? A. I think so, yes. Q. In March of this year?

A. I think he could have returned lo work if 2t had been necessary.

Q. Do you think he may nol have returned to work because he 1s awaiting the outcome of this case?

Without therefore dealing in more detail with the contLliects which might be thought to artse in the evidence it secms to me that Ilias Honour was perfectly yustified iu being, quite unsatisfied by the totality of the evidence of a continuatce of

unfitness for work beyond that for which he provided.

There has been a craiicism further vl the sum allowed Por pain,

sutfering and loss of amenities as beuny, totally snadequate.

This amount has to be considered in the light of the version of the Appellant's condition which was open to the Judge, My own fecling 35 that at 1s not as Tage as Lo mresht have expected but I am not persuaded that tt 15 Sv small as to warrant anterference by this Court. And af 1t 125 lower than one might have anticipated the award for wage loss seems to me to have been more generous than the Appellant could have reasonably expected. In the result I do not consider that there 1s shown to be any gustafication for interference with the awarded

Accordingly it 15 unnecessary to express any opinion as to the

I certify that this and tne Sever (7) preceding p os 9a eat: 3+ wef the Boasers fOr Jun laab due vad va eee LCHOUr