The Trial Judge rejected evidence of the Defendant's (Appellant's) expert witness as to accident investigation and re-construction Mr Johnston. Mr Johnston was retained for the Appellant's criminal trial. His hypothesis was that even a sober driver could not have avoided the accident. His Honour was of the view that the evidence that the expert gave and the cross-examination upon his reconstruction denied the validity of the theory advanced. This led His Honour to conclude that he preferred the analysis of the Plaintiff's expert, Mr Moir (Red, 61).
71 The Trial Judge stated that he was satisfied on the balance of probabilities that had the Appellant not been intoxicated he would have had ample notice of an emergency arising on the carriageway at the time and an ample opportunity to stop the car before the collision occurred. The Appellant's state of intoxication was such that he had fallen into a state of tunnel vision where he was not reacting to anything other than the colour of the traffic lights at the intersection (Red, 61).
72 In relation to the culpability of the Plaintiff the Trial Judge noted that in the period 5 to 10 minutes before the accident the Plaintiff had been to a medical centre on the corner of Bay St and the Princes Highway at the Sevenways intersection. While present at the medical centre the nurse attending to the Plaintiff, Nurse McLeod, was concerned about the Plaintiff's condition and called for an ambulance. Ambulance Officer Callum Dickson attended the medical centre to treat the Plaintiff. The Plaintiff had admitted at the medical centre to have taken Rohypnol that day. The nurse and ambulance officer described the Plaintiff as being in a somnolent state at the time. The ambulance officer suggested that the Plaintiff attend hospital. The Plaintiff became aggressive and refused to go with them (Red, 62).
73 The Trial Judge concluded that
"having studied the evidence presented by the Defendant, [he] was firmly of the view that it is speculative that the somnolent state that the Plaintiff was in whilst in the medical centre, caused as it may well have been by an adverse reaction to Rohypnol, was the cause of the error of judgment that the Plaintiff committed in assaying to cross the carriageway" (Red, 62-63).
74 The Trial Judge concluded that the Appellant had demonstrated that the Plaintiff, in essaying to cross at the time she did, was guilty of want of care for her own safety that amounted to contributory negligence in the circumstances. He assessed contributory negligence in the proportions earlier set out.
Appellant's challenge
75 The focus of the Appellant's challenge to the assessment of culpability is that the Trial Judge failed to take adequate account of the Respondent's departure from the standard of care imposed on the Respondent as a pedestrian, to take care for her own safety. The Appellant admits that he was in breach of his duty of care as a driver. I now consider in more detail the four bases or grounds of challenge, before turning to the two experts' reports.
First basis for challenging apportionment: Influence of a substance
76 The first challenge to the apportionment of contributory negligence is in relation to the Trial Judge's finding that the Respondent was not under the influence of any substance when she attempted to cross the road. Counsel for the Appellant contended that this finding was wrong and contrary to the evidence.
77 The Appellant points to a range of evidence which would support a contrary finding. In particular the Appellant submits that the behaviour of the Plaintiff in continuing to attempt to cross the road in the same manner following the heavy braking and swerving action of the unidentified vehicle was "extraordinary, unless the Respondent was so under the influence of a substance that she was substantially unaware of her surrounding" (Orange, 30).
78 Second, the evidence of Nurse Mcleod and her concern for the Respondent's well being (in calling the ambulance) was indicative that the Respondent was significantly affected by some substance (Orange, 31).
79 Third, the evidence of ambulance officer, Callum Dickson indicated that at the time he saw the Respondent, some 5-10 minutes before the accident, the Respondent was under the influence of some substance (Orange, 31). In addition the Respondent had told him that she had taken four Rohypnol tablets that day.
80 Fourth, there was evidence led from Dr Helen Daucey a pharmacologist, which set out the affects of Rohypnol and that the Respondent's alleged usage was well in excess of the amount recommended to treat insomnia (Orange, 31). The Appellant submits that the Trial Judge did not have regard to the fact that Rohypnol is a benzodiazepine, which the Respondent has had a history of abusing. The Appellant submits that in view of such compelling evidence, the Trial Judge's finding that it was mere speculation that the Respondent's adverse reaction to the Rohypnol was a causal factor in her decision to cross the road (Orange, 32) cannot stand.
Second basis for challenging apportionment: Appellant's driving ability
81 The second challenge made to the Trial Judge's apportionment was that the inferences that the Trial Judge drew from the facts about the Appellant's driving ability were not open on the evidence. In particular, the Appellant submits that on the evidence before the Court there was no basis for the finding that the Appellant was at fault because he had not seen or detected the Respondent commencing to cross the road (Orange, 35). It was submitted that this finding was based on an erroneous assumption that the Appellant would have had the same line of vision as the witness, Mr Tsipiras. The Appellant submits that there was no evidence to support such an assumption (Orange, 35).
Third basis for challenging apportionment: Adequacy of reasons
82 Then the Appellant submits that the Trial Judge did not give adequate reasons as to why he preferred the opinion of the expert retained by the Respondent, Mr Moir.
Fourth basis for challenging apportionment: Inconsistency in standard of care imposed
83 Finally, whilst adhering to the earlier submissions, the Appellant submits that the Trial Judge imposed too a high a standard of care on the driver and was too favourable to the Respondent. The Appellant in summary indicates that the Respondent failed to take reasonable care for her own safety and caused the emergency situation (Orange, 37-38). The Appellant submits that if there were liability, the apportionment should have been 65% to the Respondent and 35% to the Appellant (Orange, 38).
Respondent's submissions in response
84 The Respondent submits that the Trial Judge's assessment was not in error and that the Appellant has failed to establish that the Trial Judge did make an appellable error warranting this court to re-assess contributory negligence. The Respondent points to the fact that the Appellant has not sought to challenge what it regards as the central finding of the Trial Judge, that the Appellant was unfit to drive because of his state of intoxication. It was on this basis and after considering the experts' reports, that the Trial Judge concluded that the Defendant was more culpable for the accident than the Plaintiff. In addition, the Respondent submits that the Trial Judge's findings about the state of the Plaintiff at the time of the accident and her poor decision of crossing the road at that time were open to His Honour. The Respondent submits that the Trial Judge was entitled to consider that the causative potency of the Appellant's driving of the vehicle, in combination with the Appellant's significant breach of duty in driving at all in the state he was in, justified the apportionment of liability 75% against the driver and 25% against the pedestrian.
Resolution of argument - the competing Expert's reports
85 To successfully obtain a review of such a discretionary finding, an Appellant must show that the Trial Judge made an error because he or she acted on a wrong principle, acted on extraneous or irrelevant material, mistook facts or failed to take into account a relevant consideration or took into account an irrelevant one. The Trial Judge's assessment of a just and equitable apportionment of the respective liability of plaintiff and defendant is afforded considerable latitude. The first two challenges to the apportionment are based on arguments which seek to establish that, first, the Trial Judge did not take relevant material evidence into consideration and second that the judge acted on wrong principle in relation to the standard of care of a driver and that of a pedestrian.
86 In his judgement, the Trial Judge stated that he rejected the evidence of the expert retained by the Appellant as he believed that the evidence in the case disproved his hypothesis. Insofar as that conclusion is based on the evidence of witnesses, the challenge faces the conventional constraints on appellate review. While the statement of reasons for rejection are relatively brief and do not elaborate in any detail the grounds for finding that that theory was disproved, I conclude that an analysis of the evidence of the expert witnesses affords a sufficient basis for the finding made by the Trial Judge.
87 The Jamieson Foley Traffic Engineer's Report of 2 October 1996 written by Mr Grant Johnston was prepared for the Appellant's defence in relation to criminal charges arising from the accident (Blue, 912; Black, 621E-J). Mr Johnston prepared a letter in relation to his first report and in reply to Mr Moir's report dated 17 October 2001 in which he addresses some of the criticisms of his first report (Blue, 936). Mr Johnston reiterates the basic hypothesis of the first report and that the report had been prepared for the criminal matter.
88 The general hypothesis posed was that even a sober driver confronted with the same circumstances as the Appellant would have been unable to take any action to avoid the impact with the Respondent (Blue, 925; Black, 621H-J). The Report contends that the primary causal factor in the incident was the Respondent's action of crossing the roadway (Blue, 925). Mr Johnston considered that the Respondent was fortunate to have not been hit by the unidentified vehicle in lane 2 (Blue, 928). The unidentified vehicle formed a "view obstructor" in relation to "inter-visibility" between the Appellant and the pedestrian (Blue, 928; Black, 688U). In Mr Johnston's opinion, the Appellant was only able to see the Respondent when the unidentified vehicle broke and swerved and that the Appellant reacted in a reasonable amount of time, that is within 1.5 seconds of viewing the Respondent and commenced braking before impact (Blue, 924; Black, 667V-668O). In these circumstances, Mr Johnston was of the view that when the Appellant was first able to see the Respondent on the road, the impact and accident was imminent and unavoidable. Mr Johnston contended that the view of the Respondent was impeded by the unidentified car and that the accident was unavoidable irrespective of whether the Appellant was affected by alcohol (Blue, 936).
89 As there were limitations in the extent of the available evidence, analysis of the accident was predicated on various assumptions: that the vehicles in lane 2 and lane 3 were positioned in the centre of their respective lanes (Blue, 923); that the Appellant was travelling at approximately 55 km/h before the accident (Blue, 922; Black, 664N); that the braking of the car had slowed it to a speed of between 40 and 45 km/h at the time of impact with the Respondent (Blue, 922; Black, 661F); that the Respondent was crossing the road at a speed of 2.0 metres per second (Blue, 923; Black, 665T); and that the Respondent was crossing the road at a 90 degree angle (Blue, 936; Black, 692K-M).
90 In contrast, the report of Geoff Moir and Associates of 27 August 2001, written by Mr Geoff Moir, was prepared for the civil case for the Plaintiff (Blue, 762). Mr Moir presented a number of scenarios that sought to show that the pedestrian was within the Appellant's peripheral field of vision for a considerable time before the collision and that there were a number of options open to a driver in the Appellant's position to avoid the collision or at the very least to minimise the damage to the Respondent.
91 In an overview of the accident, Mr Moir noted that the impact between the car and the Respondent was severe and that the severity of the impact and the damage to the car indicated that the Appellant had not slowed his car by any significant margin before impact (Blue, 763). (That is supported by Mr Tsipiras' evidence earlier noted (Black, 489) and not inconsistent with the Appellant's account.) Mr Moir accepted that the Appellant had been travelling at a speed of 55 km/h (Blue, 764) before the accident. But he considered that the severity of damage could not support a conclusion that the emergency braking commenced by the Appellant when he actually sighted the pedestrian had slowed the car to a speed of 35 to 45 km/h (Blue, 767). Rather the evidence of the single skid mark and the damage to the Respondent and the car indicated an impact speed of 55 km/h (Blue, 767).
92 Another aspect of the Jamieson Foley report of which Mr Moir was critical, was the conclusion that the Respondent only became visible at a time when the collision was imminent and unavoidable. In contrast Mr Moir posited that the Respondent would have been visible to a driver in lane 3 as she was clearly within the peripheral vision range of a driver (see below for explanation). Then that, although the unidentified vehicle may have somewhat obstructed the view temporarily, the action of the unidentified driver in braking heavily and emergency swerving should have "pre-alerted" a driver in the Appellant's position to the impending emergency (Blue, 768).
93 The main hypothesis of this report was that a sober, normally cautious and responsive driver would have been capable of reasonably responding to this emergency in a way that would have avoided impact with the pedestrian. The Appellant had a number of options open to him to avoid the incident, including braking to bring the car to a halt, as well as the ability to brake and then swerve around the Respondent in the same way that the driver of the unidentified car had done. Mr Moir also considered the contention that the accident was unavoidable. He contended that had the Appellant braked conscientiously upon seeing the unidentified car brake and swerve, such braking would have dramatically slowed the speed of the car and that the drop in speed would have substantially reduced the impact energy and force responsible for injuring the Respondent (Blue, 775).
94 The assumptions underpinning this formulation include: that the half cone of vision of a normal driver is 37 degrees and that when the Respondent was at the kerb about to commence her crossing she would have been at an angle of 12 degrees (Blue, 769; Black, 757O-S); Mr Moir asserted that a normal cautious driver would have been pre-alerted by this activity and would have, if not commenced braking, removed his or her foot from the accelerator and covered the brake (Blue, 771; Black, 756W-757D). Mr Moir, thus asserted that a driver who had taken heed of the warnings given would have been able to react in a period of 0.3 to 0.5 seconds and thus could either have stopped the vehicle, or braked and then swerved to avoid impact (Blue, 771). It was also asserted that it was likely that the Appellant's concentration as a driver was diminished and that his field of vision may have been reduced because of the consumption of alcohol (Blue, 769). It was suggested that the Appellant may have succumbed to extended eye dwell such that his ability to detect and then to respond to activity at the side of the carriageway may have been below that of a normal driver (Blue, 769). It was also suggested that because of the level of his blood alcohol concentration, the Appellant's ability to make a correct decision as to the best course of evasive action and then to implement it may have been impaired (Blue, 769). Mr Moir was prepared to accept that the Respondent, as she crossed the road, may have been moving at a maximum speed of 2.0 m/s, but that more realistically, the range of speed was between 1.5 m/s and 2.0 m/s (Blue, 767). To support this view, Mr Moir pointed to the possibility that, although the Respondent may have appeared to be hurrying because of her possible state of intoxication, her gait may have been inefficient (Blue, 767).
95 The most significant points of difference between the accident reports led by the Respondent and the Appellant related to the amount of time in which the Appellant would have been able to detect the Respondent entering and moving across the laneways, the likely reaction time of the driver and what would have been an appropriate evasive response. Mr Johnston and Mr Moir pose altogether different views of the ability of the Appellant to detect the Respondent. Mr Johnston was of the view that the time of exposure was limited to immediately before the accident when the unidentified car swerved from lane 2. In contrast, Mr Moir's opinion was that the Respondent would have been visible to a driver in lane 3 when she was at the kerb because the angle that she would have been at would have been within the ordinary range of peripheral vision. Second he posited that she would have been visible through the unidentified car, even though there may have been instances in which visibility was obstructed and that she then again became visible when the unidentified car swerved (Blue, 768). Mr Johnston's report states that it would have been difficult for the Appellant in lane 3 to have seen the pedestrian at the kerb and that the drivers in lane 2 would have had a better view (Blue, 938). This issue of when the ordinary prudent driver would have first detected the pedestrian in the position of the Respondent is crucial. These scenarios are based on assumptions as to facts about the speed at which she was walking and the angle at which she crossed the road.
96 The reports also differ on what would be a reasonable reaction time in the circumstances. Mr Johnston posited 1.5 seconds as a reasonable reaction time from when the Appellant first detected the Respondent after the driver of the unidentified vehicle reacted (Black, 676M-R). Support for such a time was said to be found in various experimental test results and their application to the circumstances here, contending that the response required in this case was complex (Blue, 939). In contrast, Mr Moir adopted a reaction time of 0.3 to 0.5 seconds upon seeing the pedestrian. The reasoning behind the adoption of this reaction time can seemingly be found in one of Mr Moir's criticisms of Mr Johnston's time:
"The reaction time of … the Jamieson report … failed to allow for the very much shorter reaction time that was appropriate for a driver who was already braking or who had the foot on the brake pedal in readiness for braking. The 1.5 second reaction time was quite inappropriate for a driver mentally and physically prepared to respond to a possible emergency." [Blue, 771]
97 Thus underpinning Mr Moir's shorter reaction time is the conclusion that a prudent driver in the position of the Appellant would have sighted the pedestrian and have been aware of, or "pre-alerted" to, the possibility of the impending emergency (Black, 753M-P). In Mr Johnston's report the key assumption he makes in this regard is that the prudent driver was unaware of any impending emergency and had not detected the pedestrian until after the unidentified car had swerved.
98 The Respondent claims that Mr Johnston's reaction time of 1.5 seconds was inappropriate and not in conformity with the Olsen study quoted as support for this figure (Summary of Evidence of Geoff Moir prepared by Respondent). In contrast, Mr Johnston for the Appellant contended that the reaction time of 0.3 to 0.5 posited by Mr Moir was flawed for this case, as it was a reaction time for response to a simple stimulus and not for reaction to complex events (Blue, 939; Black, 674H).
99 The third point of departure in the reports is the likely responses that were available to avoid or at the very least minimise the danger. Mr Johnston contended that because of the circumstances created by the Respondent and that the driver's view of her movement across the road was obstructed, there was very little that could have been done to avoid the accident. Mr Johnston contended that the action of the driver in applying the brakes to slow the car was the only available response and that as the Appellant had done this he had taken all steps that were available to him at that point (Blue, 941). Important to this conclusion were the two previous points concerning a 1.5 second reaction time and that the Appellant could only have become aware of the Respondent after the unidentified car had braked heavily and then swerved (Black, 676M-R).
100 As Mr Moir's report is based on opposing assumptions, not shown to be unreasonable, about reaction times and when the driver should have been alerted to the Respondent's conduct, his conclusion greatly differs. He concludes that there were a number of alternate courses of action. He contended the options available could have easily avoided the accident or curtailed the damage to the Respondent. Mr Moir supposed that there would have been sufficient time for the Appellant to have safely brought the car to a halt or that he could have performed a manoeuvre where he braked and then swerved much in the same way that the driver of the unidentified vehicle had done. Finally he posed that even if the Appellant had only seen the pedestrian at the last moment, he should have been alerted to the danger by the action of the unidentified driver and should have been able to slow the car to a much slower speed thereby reducing the magnitude of the impact.
101 Based on this consideration of the evidence, it is clear that the Appellant has not shown that the finding reached by the Trial Judge accepting Mr Moir's conclusions over those of Mr Johnson was not open on the evidence. This does not settle the matter however. It is still necessary to consider whether the apportionment made by the Trial Judge is beyond challenge.
102 The Trial Judge was firmly of the view that it was mere speculation that the effects of an intoxicating substance were a cause of the Respondent's actions in crossing the road. However, I agree with the Appellant's submission that the mental condition of the Plaintiff and her ability to make a sensible and rational judgment were relevant to assessing whether she had departed from the standard of care expected of the reasonable pedestrian. The evidence of both Nurse McLeod and Ambulance Officer Callum Dickson was that the Respondent was intoxicated by some substance and that there was a considerable effect on her degree of mental alertness. Second, the fact that the Respondent had told the witnesses that she had consumed a number of Rohypnol tablets and her history of benzodiazepine abuse is indicative that it was more than mere speculation that the Respondent's intoxication contributed to her choosing to cross the road in the manner that she did. In making the assessment as to the Respondent's mental condition at the time of accident it was necessary to take into account the clear statements by witnesses as to the state of the Respondent immediately prior to the accident as well as her past history of benzodiazepine abuse. In failing explicitly to refer to this evidence the Trial Judge was in error.
103 However, to intervene, this Court must be of the view that the failure to advert to relevant evidence led to the Trial Judge's apportionment of liability falling into error of the kind warranting appellate intervention. To make such an assessment it is important to consider more closely the Trial Judge's apportionment.
104 Podrebersek (supra) holds that in making an assessment of contributory negligence it is necessary to consider, for both Plaintiff and Defendant, their respective shares of culpability by considering the relative culpability of each and the causal potency of the acts which caused the damage. Thus as a starting point the degree of departure from the standard of care of the reasonable driver and pedestrian must be considered. Then it is necessary to look to the relative importance of the acts of the parties in causing the damage.
105 In assessing the relative culpability of the Respondent, the starting point is that the Trial Judge found that the Respondent had been negligent is attempting to cross the road in the manner that she had. From the eye-witness evidence it is apparent that the Respondent acted in an unreasonable manner and that she acted without due regard for her own safety. The Respondent elected to cross the road in an area that was not marked for pedestrian crossings, she attempted to cross a major arterial road either by running or hurrying, she continued to cross the road even though another vehicle had to brake and swerve to avoid a collision and the Respondent should have seen the approaching vehicles. The Respondent's actions involved a clear departure from the standard of care expected of a reasonable pedestrian to take care for his or her own safety (Tuebner v Humble (1963) 108 CLR 491 at 502; Schieb v Abbott (1999) 27 MVR 285 at 288; Clarke v Freund 1999 (29) MVR 361).
106 However, as was correctly identified by the Trial Judge the Appellant's degree of departure from the standard of care expected of the reasonable driver was also significant. The Appellant elected to drive his car while in an intoxicated state which rendered him wholly unable to drive lawfully; the Appellant failed to detect the approaching pedestrian and he failed to take appropriate measures in reaction to the actions of other road drivers. It is well established that a driver is not expected to anticipate all irrational acts of other drivers and pedestrians. Yet in this case, that does not alter the fundamental finding that the Appellant's conduct was admitted to be negligent; that it involved serious departure from the standard of care expected of a reasonable driver as he drove his vehicle while heavily intoxicated, and that he could and should with reasonable care have avoided the accident.
107 The issue of causal potency is one which here raises significant questions. The causal potency of the Respondent hurrying on to the road should not be understated. The submission of the Appellant's counsel that the Respondent's action of crossing the road was the immediate cause of the action is undoubtedly true. However, the action of the Appellant in driving a motor vehicle while intoxicated and unable to comply with the standard of care expected of a driver at all, was no less a cause of the accident and the consequent damage. Counsel for the Appellant directed the Court's attention to a number of cases in which the pedestrian has been held to be more culpable than the driver. Noting the cautionary principle from Teubner v Humble (supra) at 503 concerning the inappropriateness of using other decisions on apportionment as a guide and that the cases referred to did not involve such consistent and serious departures from the standard of care by both the driver and the pedestrian, I do not consider they offer any real guidance for the present case.
108 However, I do consider that, the Trial Judge nevertheless erred significantly in his assessment of apportionment, even allowing the high degree of latitude which should properly be afforded to that determination, more especially in matters of apportionment. I consider in consequence that despite the strictures on appellate intervention in such a case, the apportionment does not reflect the substantial degree of culpability of the Respondent for the accident. The Respondent had been warned by Nurse McLeod and the ambulance officer that she was not able to properly look after herself, yet she nevertheless chose to cross the road and did so in a manner which showed that she had very little, if any, regard for her own safety. The Trial Judge failed to advert to this relevant evidence. This led him into error. That culpability of the Respondent however, does not remove the impact of the serious breach by the Appellant though it reduces it significantly. In the end, I consider that the proper apportionment is one of equal responsibility and that this is one of those rare cases where appellate intervention is justified in an apportionment case.
Conclusion
109 I consider that a proper apportionment of liability is 50% to the Appellant and 50% to the pedestrian.
DAMAGES
Introduction
110 The Appellant has attacked the damages part of the judgement on a number of bases. First, the Appellant submitted that the Trial Judge failed to give adequate reasons for his findings as to damages in favour of the Plaintiff and against the Defendant. Second, that the Trial Judge erred in not applying vicissitudes of life in relation to specific awards, owing to the fact that she has Hepatitis C. Third, the Appellant takes issue with the amounts awarded under specific heads of damages as being excessive, based on wrong principles or as not being supported by evidence. In the event that this Court decides that the Trial Judge did err in the assessment of damages, it is then necessary to consider whether there is sufficient material available for this Court to reassess damages, or whether a new trial should be ordered. The Appellant presses the former. The Respondent, while defending the original damages determination submits that if it is not to stand, then a new trial should be ordered. I will return to that issue later. This will be in light of the degree to which, if at all, the trial judge's assessment of damages must be disturbed and, if it is to be disturbed, the capacity of this Court to assess damages for itself and the desirability of doing so.
111 The Appellant contests the amount awarded by the Trial Judge under a number of heads of damages. These are: the Griffiths v Kerkemeyer (1977) 139 CLR 161 award in relation to past, future and vacation care; house modification; taxi transport; handyman assistance; economic loss for past and future years, superannuation and long service leave; future medicals; and the need for a case manager.
112 Before considering the Trial Judge's award and reasons and the submissions put by the Appellant and Respondent, it is necessary to consider the nature and scope of the duty of this Court to review factual findings made at first instance in the context of a damages award. It is trite law that an appellate court should act with restraint when considering whether to interfere with findings based on a Trial Judge's assessment of the credibility of a witness, more especially when it comes to damages. The mere reading of the transcript and the written reasons of the Trial Judge cannot replace the advantages enjoyed by the Trial Judge in assessing the witnesses during the course of a trial: Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; Jones v Hyde (1989) 63 ALJR 349; Rosenberg v Percival (2001) 205 CLR 434. An appellate court ought not interfere with credibility findings, here basing a damages award, unless satisfied that the Trial Judge palpably misused the advantage of seeing and hearing the witnesses or that the advantage could not be sufficient to explain the Trial Judge's conclusion: Abalos v Australian Postal Commission (supra) at 178-179; Devries v Australian National Railways Commission (supra). The Court may interfere if it determines that the Trial Judge's findings are inconsistent with, or are glaringly improbable having regard to, incontrovertible evidence: Agbaba v Witter (1977) 14 ALR 187. However, the appellate court is not excused from weighing conflicting evidence, while giving full weight to the advantages enjoyed by the trial judge and drawing its own inferences and conclusions; Warren v Coombes (1979) 142 CLR 531; State Rail Authority of NSW v Earthline Construction (1999) 73 ALJR 306, per Kirby J at 324.
113 In cases such as the present where the Court is asked to review the specific factual findings of the Trial Judge which underlie the discretionary determination of damages, the Court will not interfere with the primary factual findings if the findings made were reasonably open on the evidence: see for example Damberg v Damberg [2001] NSWCA 87; Williams v The Minister for Aboriginal Land Rights Act 1983 and the State of NSW [2000] NSWCA 255. In Williams v The Minister for Aboriginal Land Rights Act 1983 and the State of NSW (supra), Heydon JA delivering judgment for the court gave a detailed exposition of the law in this area. Many of his comments have particular application here, as the Appellant is seeking the Court to undertake a detailed review of all of the evidence in the case. Heydon JA held at [60] that the Appellant "bore the burden in the appeal not merely of showing that on the facts her contentions might be available or even correct, but of showing that the Trial Judge's conclusions ought to be reversed". Heydon JA then favourably referred to the Full Federal Court decision of Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 369 where it was held:
"... the court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the Trial Judge and do not support the judgment. The court must be satisfied that the judgment of the Trial Judge is erroneous and it may be so satisfied if it reaches the conclusion that the Trial Judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the Trial Judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made."
114 In dismissing the appeal in Williams v The Minister for Aboriginal Land Rights Act 1983 and the State of NSW, Heydon JA highlighted that the Appellant's approach was inadequate to warrant appellate court interference with the judgment at first instance. The impugned approach was characterised by His Honour as [61]:
"The Plaintiff's approach sometimes invited the court to survey for itself, afresh, all the evidence on particular points and arrive for itself at particular conclusions about them, without essaying the necessary task of positively demonstrating that the Trial Judge was wrong. The Plaintiff's approach also paid insufficient regard to the difference between, on the one hand, pointing to difficulties in the Defendants' path of establishing matters which they wished to contend for and, on the other, pointing to sufficient evidence to permit an inference to the contrary of the Defendants' contention".
115 Heydon JA then favourably quoted from Biogen Inc v Medeva plc [1997] RPC1 at 45 per Lord Hoffman:
"The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la [vérité] est dans une nuance ), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation. It would in my view be wrong to treat Benmax as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved."
116 Thus it is clear that for the Appellant to succeed it is necessary that the Appellant demonstrate more than that there were alternate findings (which this Court may or may not prefer) available. The appellant must demonstrate, positively, that the Trial Judge in making the findings that he did was wrong. Thus in the analysis of the grounds of appeal and the arguments put in support, it is important to bear in mind the need for the Appellant to establish error warranting appellate intervention and not merely that there was evidence which may support alternate findings.
117 Moreover it is important to emphasise that such a damages appeal is an appeal from an exercise of discretion by a judge, whose wrongful exercise must be shown, in accordance with well established principle in House v the King (1936) 55 CLR 499 at 504-5, Gamser v Nominal Defendant (1977) 136 CLR 145; 13 ALR 387; Wilson v Peisley (1975) 7 ALR 571; 50 ALJR 207; Miller v Jennings (1954) 92 CLR 190; Wilkes v Bradford Kendall Ltd (1962) 79 WN (NSW) 850 at 853; Moran v McMahon (1985) 3 NSWLR 700 at 716-21. Though Kirby P in Fuller v Galvin Incorporated, SCNSWCA, 7 April 1995, sought to qualify the latitude thereby afforded to the Trial Judge's assessment of damages, as merely akin to the review of an exercise of judicial discretion, his minority view was not reflected by either Mahoney JA or Powell JA. Indeed the latter emphasised:
"That such value judgments are involved to my mind dictates the approach which one must adopt to a case such as this, for, in making of such judgments, there is room for a great variation of approach, and the fact that one may differ from the judgment under appeal does not demonstrate error - error will only be demonstrated if the judgment under appeal is shown to contain one or other of the features referred to in the well-known Judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, 504-5 "
Whether reasons for damages findings adequate?
118 The most significant challenge to the damages judgment was that the Trial Judge did not give adequate reasons for his findings as to damages in favour of the Plaintiff and against the Defendant. From this central challenge most of the remaining grounds of appeal in relation to the damages award flow.
119 The Appellant submitted that His Honour accepted all of the submissions put on behalf of the Respondent, without qualification as to damages, except for two claims. The first rejection was in relation to the supposed need for a computer and the second the supposed need for future spinal surgery. The Appellant contends that the approach adopted by His Honour was in error in that he failed to analyse the evidence of expert opinions, in particular where there was conflict in the evidence of the experts. Then it was said that he gave insufficient reasons for the conclusions which were drawn. The Appellant characterised the approach adopted by the Trial Judge in the written submissions thus:
"41 His approach was to review some of the clinical records from the St George Hospital and the Liverpool Brain Injury Unit to set out the findings of Dr Drummond, the Respondent's treating orthopaedic surgeon, to refer to his own observations of the Respondent in court and to review the evidence of Messrs Sengos and Frost insofar as it related to the Respondent's behaviour. His Honour then accepted the opinion of the medical practitioners called on behalf of the Respondent and rejected those called on behalf of the Appellant. He made no analysis of the conflicting expert opinions. He made no analysis of the conflicting lay observations." [Orange, 39]
120 The Appellant submitted that there was no specific reference to any of the evidence, expert or lay or video, which the Appellant had called in his defence. The Appellant then goes on to list what it describes as the resulting deficiencies in the judgment: no attempt to reconcile the discrepancies in evidence of Messrs Sengos and Frost; no attempt to analyse the precise nature of the Respondent's brain damage and explain her consistently high scores in the neuropsychological testing (Orange, 40).
121 The Appellant submitted that the Trial Judge erred as the reasons given were not sufficient to indicate why only certain evidence was accepted and why the other evidence had been rejected.
122 In reply, the Respondent contends that the Trial Judge did give reasons for his rejection of the Appellant's case and in particular the rejection of the Appellant's experts. The Respondent submits that the Appellant's evidence was rejected because the Trial Judge found that the Respondent suffered and continues to suffer severe impairment. He based this on the lay witness evidence and his own observations of the Respondent during the course of the trial, concluding that this "clear picture" was at odds with the views presented by the Appellant's experts and in the Appellant's case. This interpretation of the judgment is based upon the finding in the judgement, where the Trial Judge held:
"In my judgment all of the opinions of the experts in this case have got to be evaluated against what I find to be a very clear picture of the Plaintiff's performance since the subject accident …The evidence of the Plaintiff's two male companions over the years since the accident is the touchstone that advises the court of the extent of her needs. In my judgment she cannot exist effectively without a companion…" [Red, 19]