Kessey v Golledge

At p.533 his Honour said that in that case "it was fair and just" that such leave be granted. Mr Poulos did not dispute that the tests applied by the Master and his Honour were the proper ones. 25 His Honour was of the view that the Master's decision was correct. He said:- "In my view the Master, in the exercise of his discretion, demonstrated no error and nothing has been shown before me to establish that this Court should interfere with the exercise of the Master's judgment." 26 He ordered that the appeal be dismissed, but, before doing so, noted that the decision of this Court in Ramton v Cassin (1995) 38 NSWLR 88 had been raised. I shall return to it in a moment. 27 The proceedings were remitted to the District Court and heard by his Honour Judge Sinclair QC commencing on 3 March 1998. Mr Sewell appeared for the plaintiff and Mr Ronzani appeared for the defendant. Liability was not in issue, the hearing being concerned with the quantum of damages to which the plaintiff was entitled, although this was complicated by several factors, one being an allegation that the occurrence of 16 July 1996 constituted a novus actus interveniens for which the defendant was not causally responsible. His Honour reserved his decision on 4 March 1998 and, on 3 April 1998, delivered judgment in which he found that the plaintiff was entitled to $412,046.

The Appeals 28 The defendant has appealed against the decisions of the Master, Dowd J and Sinclair DCJ. The appeals were heard together. 29 It is convenient, in the first instance, to deal with the appeal from the Master's discretionary decision. Mr Poulos' only submission as to why the Master's discretion miscarried was that he failed to assess correctly the impact of the 1993 incident and the subsequent surgery. In my opinion this is not correct. The Master obviously had regard to those matters, to which he referred specifically, and weighed them, together with other matters properly to be considered, in determining whether, in all the circumstances, it was fair and just that leave should be granted. I am unable to discern any error in the Master's exercise of discretion and, as with Dowd J, I would uphold it. It was not suggested that if this Court found that the Master's decision was correct, that that of Dowd J was not. Even if it had been, I am completely satisfied that Dowd J's decision was correct for the reasons he gave, which I respectfully adopt. 30 Mr Poulos conceded, as I understood him, that the only prejudice he could suggest was that the proceedings were being brought out of time, and that the defendant had not had the opportunity to follow through the medical condition since declining liability in late 1992. He also conceded that there was no evidence of what the defendant would have done, or did do, up until the time that the limitation period expired from which the conclusion could be drawn that the expiration of the time had led to some form of prejudice. The proper inference is that having declined liability the defendant would have done nothing further. 31 On the question of the approach to be taken to limitation provisions, Mr Poulos referred to the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Whilst his Honour's judgment dealt with the basic philosophy underlying such provisions and held that the appeal from the decision extending the limitation period should be allowed, the joint judgment of Toohey and Gummow JJ, who came to the same conclusion, at p.547, stated the essential test:- "The discretion conferred by the sub-section is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the Court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the Court that time should be extended remains on the applicant." 32 After considering the decision of the Queensland Court of Appeal, their Honours said, p.548:- "A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired."

This approach is consistent with that stated by Gleeson CJ in Salido , although that decision does not seem to have been referred to in the High Court.

33 In all the circumstances I am not persuaded that the Master's exercise of discretion miscarried, nor that Dowd J was in error in dismissing the appeal. In my opinion each was correct in the conclusions to which he came and the appeals from both must be dismissed.

Ramton v Cassin 34 Ramton v Cassin was an application to this Court for leave to appeal from leave granted by a District Court Judge to the opponent to proceed against the claimant, pursuant to s.52(4). When the application came before this Court, it did not have before it all the material which was before the District Court Judge and, more significantly, her Honour's reasons. An adjournment, which was opposed, was sought to obtain them. Kirby P, who considered an adjournment should be granted but was in the minority, said, at p.89:- "The claimant has a right in law to challenge that decision. However, he needs the leave of the Court to bring an appeal against the decision. That leave is required for obvious reasons. Interlocutory decisions are many. They involve discretionary considerations. This Court needs to be protected against unnecessary appeals against such decisions. That is why the barrier of the requirement of leave is provided. However, it is a barrier that can be lifted. From time to time it is, when the Court is convinced that an error of principle has been made by the primary Judge or some other error is shown which warrants the grant of leave." 35 After that statement of the general principles, his Honour noted the ways in which it was alleged by the claimant that her Honour was in error and the absence of her reasons. He recorded, p.91, that whilst it was difficult to conceive that the claimant had a strong case, the Court is required to retain an open mind "until the very end of evidence and argument" which, in the circumstances, had not taken place. His Honour then gave consideration to the requirement to consider cases on their merits and with the benefit of the reasons from which leave to appeal was sought. He considered that the Summons should be adjourned to enable the Court to have before it those reasons. 36 The majority, Cole JA with whom Meagher JA agreed, were of the view that the adjournment should be refused, and that the Summons should be dismissed "but that it should be noted that that is done without prejudice to the right of the claimant .. if he is so advised on any substantive appeal to raise the question whether Judge Sides properly exercised her discretion to extend the time ..": p.93. An earlier portion of his Honour's reasons made it clear that he considered that the application was premature. At pp.92-93, he said:- "The question to my mind, however, is when is the appropriate time that this Court should consider that matter? In my opinion when there are interlocutory matters of this nature the appropriate time for them to be considered by this Court is at the time of any substantive appeal. The President has set forth the practical reasons why that is so. In particular, this Court should not become a regular venue for reviewing interlocutory steps preliminary to or during the course of a trial. It is for those reasons that I think that this application is premature. The claimant has a substantive right if he is dissatisfied with the ultimate decision after trial in this matter to appeal and then to seek the order of the Court granting leave to appeal from the decision of Judge Sides granting the leave to commence the proceedings pursuant to s.52(4). Thus the appellant is not denied any substantive right, nor is the prospective appellant denied any due process. The only issue is at what time those rights should be exercised and in my opinion it should be after the conclusion of the totality of the proceedings." 37 It was of that decision that Dowd J said in the present case:- "In my view the decision in Ramton v Cassin , harsh though its effect is, would oblige the Court, even if it had found that there was error on the part of the Master and that the appellant's grant of leave was wrongly made, to preclude the bringing of these appellate proceedings until the culmination of the suit." 38 An application was made to the High Court for special leave to appeal: Ramton v Cassin (1996) 70 ALJR 558. The judgment of the Court, Dawson, Toohey and Gummow JJ, was delivered by Dawson J. His Honour said, p.559, that Kirby P was "plainly correct in his minority view that an adjournment should have been granted". He then considered the principal submission of the applicant that it would not be open to raise the issue of leave after a substantive hearing, and stated that in the light of the possible construction of the Court of Appeal's orders, it was premature for the High Court to consider it. His Honour also considered the issue of procedural fairness and concluded that as the reasons of Sides DCJ did not indicate any failure to exercise her discretion properly there had, in the circumstances of the case, been no miscarriage of justice. 39 On the same day their Honours refused special leave to appeal in Oldfields Pty Limited v Alfar (1996) 70 ALJR 560. The judgment was delivered by Dawson J. His Honour referred to "expressions of view that as a general rule interlocutory appeals are to be discouraged where they concern steps preliminary to or in the course of a trial" in Ramton v Cassin and in the transcript of the argument in Oldfields. He noted two matters, viz:- (a) an application for leave must be considered on its particular merits and the implementation of any policy or practice for general application runs the risk of denying procedural fairness in the individual case; and (b) if there is any debate as to the subsuming of preliminary steps into the action, which goes to trial, and thence to substantive appeal, the safer course is to stand over the leave application until any appeal after trial is instituted. 40 The general considerations in relation to the granting of leave to appeal against interlocutory decisions, to which Kirby P and Cole JA referred, are not really in dispute. However, as the two decisions of the High Court make clear, as does that of Kirby P, all such applications must be treated on their merits to decide when it is appropriate to determine them. Nor can it be in issue that the decision of the Master was interlocutory in nature, but depending on the result it is one which can bring litigation to an end without a hearing on the merits. Accordingly, if leave had not been granted the plaintiff would not have been able to pursue the proceedings. The effect of the Court's decision in Ramton v Cassin was that even if leave in the present case is granted, a final determination as to whether that involved a proper exercise of discretion is not to be made until after the substantive hearing, by which time the costs and time of the parties and the time of the Court in hearing the substantive proceedings will have been expended. This creates a very real burden for parties, particularly those in the position of many plaintiffs, and a potential waste of precious judicial time. Thus a very real issue is raised, in my opinion, whether a refusal by this Court, in the exercise of its discretion, to hear such an application prior to the substantive hearing is an appropriate approach and leads to an efficient expenditure of the Court's judicial resources and time and the parties' time and money. In my respectful opinion, this Court should decide whether leave under s.52(4) should or should not be granted before the substantive proceedings are heard. 41 The general principles dealing with the grant of leave to appeal against interlocutory decisions would not be offended by a final determination of such an application in advance of a final hearing, where a conclusion adverse to the plaintiff could mean that the substantive hearing is rendered otiose, with all the consequences to which I have referred. I would also add that the emotional drain of the parties being required to go through the substantive hearing, without knowing whether the ultimate entitlement to the fruits of a judgment will be lost not because of an error in those proceedings but because the time limitation should not have been expanded, should be avoided. A successful plaintiff may find that there is no entitlement to the judgment and be required to pay all the costs of the proceedings because of failure on the limitation point. 42 The decisions in Salido, Brisbane South Regional Health Authority v Taylor and The State of Queensland & Anor v J.L. Holdings Pty Limited (1997) 189 CLR 146 show that the general rule that interlocutory decisions will not be dealt with in advance of the substantive hearing is by no means inflexible and, in the first two cases, the limitation point was determined before the substantive proceedings. 43 In my respectful opinion, Ramton v Cassin should no longer be regarded as requiring that appeals in relation limitation points should be decided after the substantive hearing. I consider that conclusion flows from what was said by the High Court in that case and Oldfields. Arguably, Ramton v Cassin is now only authority for the proposition that an adjournment should have been granted. Further, strictly speaking the majority decision was obiter dictum, the point in issue being whether an adjournment should be granted. In addition their Honours did not follow the approach applied in Salido, and the decision is at odds with the procedure followed in Brisbane South Regional Health Authority v Taylor. 44 The matters to which I have just referred do not, in any way, impact upon the results of the appeals from Master Greenwood and Dowd J. I have come to my conclusion in relation to them for the reasons I have given. However, as Ramton v Cassin was raised by Dowd J, and as I consider that it should not be regarded as determinative of when such issues are determined, it seemed to me appropriate to express my view on it.

Causation 45 The next issue was the extent to which the plaintiff was injured in consequence of the motor vehicle accident. Mr Poulos submitted that prior to it she was suffering from the underlying constitutional condition of spondylolisthesis, which had caused her some minor problems prior to the accident. So much was not in issue. However, he stated that he did not propose to argue, and he did not argue, that there was no causal link between that accident and what he described as the first episode, namely the onset of pain after the 1992 accident leading to the operation on 20 November 1992. He did not seem to argue, and if he did I would reject the submission, that the subsequent operation on 30 March 1994 was also a consequence of the motor vehicle accident. His principal submission was that when the plaintiff fell at her place of employment and twisted her back in July 1996 that constituted a novus actus interveniens for which the defendant was not responsible, the submission being that whatever problems were caused by the motor vehicle accident had resolved prior to July 1996, with the consequence that it was the effect of the incident on 16 July 1996 operating on the constitutional condition of spondylolisthesis, which brought about all problems as from that date. 46 There are two substantial difficulties with this submission. The first is that there was an abundance of evidence, which the learned trial Judge accepted, that there was a causal connection between the condition created by the motor vehicle accident and its aggravation by the incident on 16 July 1996 and, secondly, there was an absence of evidence to show that there was no causal connection, on which issue the defendant bore the onus. 47 The plaintiff's treating doctor, Dr M. Neil, expressed the following view in a report he wrote on 28 January 1997:- "In the absence of any gross objective pathology, it appears that she simply aggravated her previously operated spinal fusion area with a fall in July. Hopefully this will return her to her pre-injury level of comfort with time alone. I have encouraged her to take regular paracetamol in large doses and we are looking at a graduated return to work as of 3/2/97. She will be reviewed in two months with progress films." 48 On 7 April 1997 Dr Neil reported:- "She underwent an L5-S1 pedicle screw spinal fusion on 20.11.92 for an isthmic spondylolisthesis with right L5 radiculopathy. Although initially successful with a good relief of right L5 radicular pain by February 1993 she had developed low grade somatic pain and then refractory left leg pain a year later. Progress x-rays showed a progressive slip at L5-S1 indicating that her fusion was not sound. She underwent a revision decompression and pedicle screw fusion of 30.3.94. At operation she did in fact have pseudoarthrosis and a regraft was carried out. She was quite good in June 1994 and then developed sudden recurrence of right leg pain which basically has been problematic since. Her spinal fusion is solid both clinically and radiolographically and on bone scan. An epidural injection in December 1996 if anything aggravated her right leg pain." 49 At p.11 of his reasons the learned trial Judge noted that Dr Neil attributed her present condition to "the aggravation of her pre-existing L5/S1 spondilolysis (sic)". 50 In his report of 21 October 1997, Professor Ehrlich, after recounting a history, referred to the incident in July 1996. After noting her present complaints and his findings on examination, he expressed the view that whilst the plaintiff had pre-existing spondylolisthesis, which was a constitutional condition in the structure of the spine, "this was asymptomatic until provoked by the destabilising injury in the car accident. This is a well recognised sequence of events which can have permanent effects such as has been the case here". 51 Mr Poulos criticised this opinion on the basis that Professor Ehrlich did not have a history which showed that there had been some problems prior to the motor vehicle accident. However, there was no challenge to Professor Ehrlich's report and, in any event, a fair reading of it makes clear that he considered that the injuries in the motor vehicle accident, at the least, exacerbated the condition and that that had permanent effects. 52 Associate Professor Yeo, in his report of 22 August 1997, traced the relevant medical history, including the incident in July 1996. He carried out a physical examination and viewed a number of x-rays. He concluded:- "Mrs Golledge has had a pre-existing bilateral pars defect with persistent low back pain associated with further shift of the L5/S1 vertebrae following her accident and having as well disturbance of the adjacent ligaments and muscles. The initial surgery on the 20.11.92 was followed by repeat fusion on 30.3.94 because of demonstrable further shift that had occurred after the first surgical procedure. Since the 30.3.94 the radiological studies have confirmed stability and adequate fusion at the L5/S1 levels."

Earlier Associate Professor Yeo noted that the incident in July 1996 caused an exacerbation of low back pain. 53 On 12 August 1996 Dr Neil, obviously referring to the incident in July 1996 as he saw the plaintiff on 12 August 1996, stated that she "certainly has aggravated her fusion area". By 10 September 1996 Dr Neil was of the view that the aggravation of her back appeared "to have settled enormously over the past month" and:- "I think Mrs Golledge's fusion is solid and that she has suffered an aggravation of low back pain with her injury in early July. I would expect her symptoms to fully settle, but this may take another three months or so." 54 On 4 October 1996 Dr Neil gave a detailed report in which he confirmed that as a consequence of the incident in July 1996 it appeared she had aggravated her fusion area. He was of the opinion that the fusion was solid and that she had suffered an aggravation of her low back pain with her injury in early July. He continued:- "Following her revision procedure, she has done exceptionally well and she has gone on to a solid fusion with minimal spinal discomfort. She did aggravate it in a fall in 1996 but her symptoms appear to be resolving .. In summary, Kathryn Golledge had a pre-existing bilateral L5 pars defect (spondylolisthesis) which was rendered symptomatic following her motor vehicle accident. This required surgical decompression and stabilisation which was complicated by a pseudoarthrosis requiring revision spinal fusion. Since her revision procedure she has done well and has minimal back trouble." 55 On 3 December 1996 Dr Neil repeated that the plaintiff appeared to have suffered an aggravation in July 1996. I have referred to his later reports. 56 Mr Poulos relied upon a medical certificate obtained on behalf of the plaintiff from Dr K.M. Fuller, who examined her on 17 November 1997. He traced her history, including the incident in July 1996, catalogued her present complaints, described the result of his physical examination and examination of the x-rays, and expressed the opinion that as a result of the motor vehicle accident a previously asymptomatic condition was rendered symptomatic with the consequent subsequent surgery. He was of the view that whilst much of her low back and right lower limb complaints and disabilities would have to be attributed to the motor vehicle accident in 1992 "some of her back and right lower limb problems, I believe, relate to the more recent work accident of July 1996". He continued:- "Although investigation following the work accident in July 1996 revealed the fusion to be solid I believe it is consistent that she has suffered some permanent aggravation of her low back and right lower limb problems and I think given the time that has now elapsed since that injury the probability is that present low back and right lower limb complaints and disabilities are permanent." 57 Dr Fuller concluded:- "When I saw Mrs Golledge it was my opinion that she had a 45% permanent impairment of the back. I consider that one third (1/3) of this permanent impairment related to the more recent work injury of July 1996 and the balance to the earlier motor vehicle accident which occurred in 1992. In other words I believe Mrs Golledge has a 15% permanent back impairment as a consequence of work injury in 1996. Mrs Golledge, I thought, had a 15% permanent loss of efficient use of the right leg at or above the knee and once again I thought that one third (1/3) of this figure related to the more recent work accident of July 1996 with the balance relating to the earlier motor vehicle accident in 1992." 58 Whilst Mr Poulos relied on this evidence as showing that Dr Fuller did not have a full history and related part of the plaintiff's problems to the July 1996 injury, it makes it clear that in Dr Fuller's opinion the plaintiff was still suffering from the continuing effects of the motor vehicle accident. This case involves no claim for contribution between tortfeasors and, therefore, the relevance of the evidence is to establish the continuing causal connection with the motor vehicle accident. 59 Mr Poulos relied also on the evidence of Dr Johnn Olsen, who did not examine the plaintiff. None-the-less, he formed the opinion that the collision would be unlikely to have any significant effect on her. He noted that she had not been entirely asymptomatic prior to the accident, although the history was one of only minor previous reports of pain with none in the few years immediately before the 1992 accident. He continued:- "When there is a correlation between the onset of symptoms and a certain event it is of course possible that there can be a biomechanical correlation and therefore a causative correlation between the event and the outcome. Such however is not necessarily the case as indeed events and outcomes also overlap in a random pattern. I tend to the view that in the event that the plaintiff was not aware of an injury as such, it is not likely that the motor vehicle accident was causally related to the aggravation of the plaintiff's spondylolisthesis. I cannot be adamant in that, although I consider it extremely unlikely, it is not impossible not withstanding the low level of severity of the accident." 60 Dr Olsen ventured the opinion that spondylolisthesis almost invariably becomes symptomatic by the fourth decade of a person's life, and opined that her present condition was a constitutional disorder "and that on the balance of probabilities the effects of the motor vehicle accident are not significant". Thus, he was neither prepared to rule out the possibility that the accident may have had the causal effect for which the plaintiff contended, nor that it may have had such an effect, although "not significant". 61 Dr Olsen was called to give oral evidence and he agreed that he did not think the fusion would have helped her symptoms, because "generally speaking with a spondylolisthesis, a spinal fusion doesn't reduce the symptoms". In my opinion, Dr Olsen's evidence fell far short of negating a causal connection between the 1992 motor vehicle accident and the aggravation suffered by the July 1996 incident. 62 After a consideration of all the medical evidence his Honour considered whether the incident in July 1996 was a "novus actus", or was merely an illustration of the degree of her disability and vulnerability to further exacerbation of symptoms caused by a relatively minor movement with which her back, as affected by the motor vehicle accident and following surgery, could not cope: p.16. He noted the submissions made and, at p.18, said:- "I find that her continuing disability is all as a consequence of the original injury and the plaintiff's ability thereafter to cope with the vicissitudes of life and accordingly I do not accept the submissions of the defendant. In short as a result of the injuries suffered in the motor vehicle accident I am satisfied that the plaintiff's back was vulnerable to exacerbations of pain and disability from time to time from minor unguarded movement and that her problems are a consequence of the motor vehicle accident. I have come to the conclusion that the incident of July 1996 should not be treated as a separate subsequential injury for the following reasons."

His Honour elaborated on that. 63 In my respectful opinion his Honour's conclusion must be correct on the totality of the evidence. Certainly the evidence did not enable the defendant to establish that the plaintiff's condition after July 1996 was solely referable to what occurred on that date. The defendant has failed to discharge the persuasive burden of untangling the impact of the July 1996 incident from what resulted from the 1992 accident: Watts v Rake (1960) 108 CLR 158 at p.160, and Purkess v Crittenden (1965) 114 CLR 164 at p.171. 64 Mr Poulos relied upon the decision in McKew v Holland & Hannen & Cubitts (Scotland) Limited [1969] 3 All ER 1621. In that case the appellant sustained injury in the course of his employment for which the respondents were liable. As a result, on occasions, he unexpectedly lost control of his left leg which gave way beneath him. He would have recovered within a week or two but for a second injury, which he suffered. On leaving a flat his leg collapsed as he descended some steep stairs where there was no handrail. On landing he suffered a severe fracture of the ankle. The question was whether the respondents were liable for the injury caused by the second accident. It was held that the appellant's act in attempting to descend a steep staircase without a handrail in the normal manner and without adult assistance, when his leg had previously given way on occasions, was unreasonable and, accordingly, the chain of causation was broken and the respondents were not liable in damages for the second injury. 65 At p.1623 Lord Reid said:- "In my view the law is clear. If a man is injured in such a way that his leg may give way at any moment he must act reasonably and carefully. It is quite possible that in spite of all reasonable care his leg may give way in circumstances such that as a result he sustains further injury. Then that second injury was caused by his disability which in turn was caused by the defender's fault. But if the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is the novus actus interveniens . The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender's fault or the disability caused by it. Or one may say that unreasonable conduct of the pursuer and what follows from it is not the natural and probable result of the original fault of the defender or of the ensuing disability. I do not think that foreseeability comes into this." 66 The position posed by his Lordship was that the person must act "reasonably and carefully". In the present case there is no evidence that when the plaintiff fell she was not acting in that way or, to put it the other way to which his Lordship referred, there is no evidence that the injury was caused by her own "unreasonable conduct". Mr Murray submitted that the circumstances in which she fell were hardly examined on the hearing, but, in so far as they were, it was reasonably clear that the plaintiff tripped over some books which had been left on the floor in circumstances where she was not acting carelessly or unreasonably. This finding was certainly open and in all these circumstances the defendant failed to satisfy the test propounded by his Lordship to show that the July 1996 incident was a novus actus interveniens.

The Thackham Point 67 In Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 a worker suffered a work-related injury in 1981 with the first employer, which gave rise to a claim at common law for damages, and another work-related injury in 1988 with a second employer, which did not give rise to any common law rights. The worker sued the first employer at common law and recovered damages in respect of both injuries from which the trial Judge deducted amounts paid by both employers in respect of workers compensation, but not all future entitlements potentially payable by the second employer under the Workers Compensation Act 1987. The first employer appealed and the worker cross-appealed. 68 It was held that s.151Z(1) of the Workers Compensation Act 1987 did not apply to work out the respective rights and liabilities of the parties, because the injury for which compensation was payable was not caused under circumstances creating a liability in some person, other than the worker's employer, to pay damages in respect of the injury. As Mason P, with whom Sheller JA and Cole AJA agreed, said in Franklins Self Serve Pty Limited v Wyber (1999) NSWCA 390, at para 73:- "The 1981 employer was responsible for the later damage by the principles of common law because the events of 1988 at the Hastings District Hospital were found not to constitute a new intervening event so as to absolve the former employer of responsibility for the worker's condition at the time of trial."

Accordingly, compensation actually paid by the second employer and that payable in the future was to be deducted from the plaintiff's damages consistently with the principles to which his Honour referred. In Wyber the Court dealt with the problem at length and all the relevant authorities. It is thus unnecessary to repeat what was there said. Suffice to say that, in my opinion, this is a Thackham type case and s.151Z(1) does not apply. Mr Poulos and Mr Murray conceded this. Mr Poulos' complaint was that the learned trial Judge did not make the deductions required by that decision. In the way in which the case was conducted before him that is hardly surprising, and the attack now made by the defendant on his Honour's failure to do so, in circumstances where at trial no submissions on this point were made by the defendant, is wholly without merit. 69 The parties were advised during the hearing of the appeal that judgment in Wyber would be delivered on 5 November 1999, and invited to make written submissions, if they wished, in the light of that decision. I shall refer to the oral submissions made before considering the additional ones made in the light of Wyber. 70 Mr Murray conceded that there should be deducted from the award of damages, firstly, a total amount of $32,057.51 comprising $24,577.51 for workers compensation payments for periodic payments and $7,480.00 for medical expenses and, secondly, that there should be some increase in the percentage to be applied to cover the vicissitudes in respect of future loss of earning capacity to cover the possibility that the plaintiff may, in the future, be unable to work but, by virtue of her entitlement to workers compensation, receive some part of her lost earning capacity. Although the evidence is that the prospects of this are very slight, Mr Murray conceded that the amount in respect of vicissitudes should be increased from 15 per cent to 25 per cent. Mr Poulos had contended for a higher figure in the order of 30 per cent to 35 per cent. In my opinion, the evidence established that the prospect of the plaintiff's being entitled to further workers compensation payments is quite small and, in those circumstances, I am content to accept Mr Murray's conceded figure of 25 per cent. In my opinion, it must be applied also to future medical and out-of-pocket expenses, for which a workers compensation insurer would be liable. Mr Murray did not make this concession. 71 Mr Murray's written submissions, in the light of Wyber, were that he should have leave to amend his oral submissions to submit that:- (a) the only deduction that should be made was the amount of workers' compensation payments to the date of trial, viz $32,057.51; (b) the learned trial Judge's decision that the cause of the ultimate disability to the plaintiff was the subject of the motor vehicle accident equated the case to Wyber , in which Sheller JA had said that any adjustments for further payments was not a matter with which the Court, on appeal, should be concerned; and (c) the deduction for "adverse vicissitudes", given the learned trial Judge's decision on the cause of the plaintiff's ongoing disabilities, was in the amount his Honour had allowed, viz 15 per cent. 72 Mr Poulos responded that the leave sought should be refused; that the defendant reserved its position in relation to Wyber "and respectfully submits that it was incorrectly decided"; and that the plaintiff's amended submission in relation to a 15 per cent discount did not take account of the underlying developmental spinal abnormality and the likelihood "of a lifetime of aggravations". Certain oral submissions were repeated. 73 Mr Murray's further written submissions have not caused me to alter the views to which I have come. The conclusions to which Sheller JA came in Wyber, on which Mr Murray relied, appear in paragraph 123 of his Honour's judgment. That paragraph makes clear, in my opinion, that his Honour was dealing with the particular factual situation in that case, and the concluding sentence is the conclusion to which he came in that case. I do not read it as a statement of general application. 74 Nextly, on the facts of this case, it is appropriate that deductions for the future should be made for the reasons I have given. I do not see any reason to deviate from the percentage amount Mr Murray conceded in his oral submissions. It obviously reflected a considered figure by a most experienced practitioner in this area of the law. 75 Although at one stage in the course of the hearing reference was made to the necessity to make this deduction, it seemed to be common ground, and the Court was not advised to the contrary notwithstanding that the point was specifically raised, that, save for a general reference to the requirement for a deduction of the first two amounts to which I have referred, Counsel, who appeared at the hearing, and, in particular Counsel for the defendant, did not take the matter further at the trial, nor offer any assistance to his Honour as to why or how any deductions should be calculated. I find that extraordinary in view of the fact that this was, in effect, an available defence. I do not regard the failure to argue the matter and to provide his Honour with appropriate assistance as satisfactorily answered by Mr Poulos' general submission that his Honour should be taken "to know the law". 76 His Honour's task was to decide the issues raised on the pleadings or fought by the parties. He had no obligation to go beyond the issues fought and he may well have been open to valid criticism had he done so. In my view there is, at least arguably, a case for saying that as the defendant had decided to conduct the litigation in this manner, it should not now be allowed to raise a point upon which it placed no reliance before his Honour either in its pleadings or by way of submission. The concession made by Mr Murray acquits me of the necessity to examine that point further, but I do not propose to pass from this appeal without saying that, in my opinion, save in exceptional circumstances, the parties should be bound by a decision founded upon the way in which they have elected to fight the factual case below, such that they should generally be precluded from raising in this Court points not litigated below, particularly where factual issues are involved. It is totally unfair to the other party to have such points raised on appeal, and there is, in my view, no reason why a litigant, which has elected to present a case in a particular way, should be allowed to change that stance on appeal. That is especially so when the litigant is represented by legal advisers well aware of the points involved. 77 I would also add that when reasons for judgment were handed down it was obvious that his Honour had not taken this deduction into account, no doubt because save for the faintest of side winds he had not been asked to. Before judgment was entered application should have been made to him to have the judgment amended and, having regard to Mr Murray's attitude on the hearing of the appeal, there can be little doubt that there would have been consent to that course. That would have obviated a ground of appeal. 78 However, the point has now been resolved. But I would add to what I have said that quite apart from all the problems created by the failure to argue the point, it means that a trial Judge is left in the unenviable position of having a carefully constructed judgment criticised and, in this case, the appeal allowed in part to take account of a matter which was never really argued before him. That, in my opinion, is a situation in which a trial Judge should not be placed. Particularly is that so when the point was one of which the defendant was well aware at all times and should have drawn to his Honour's attention with appropriate submissions. 79 I am, of course, aware that the appeal is by way of re-hearing and that the Court has the powers and duties of the Court from which the appeal is brought, including those in respect of the assessment of damages and other money sums: s.75A(5) and (6) of the Supreme Court Act 1970. However, for the reasons I have sought to express, it seems to me that there is much to be said for the view that, generally speaking, the re-hearing should be confined to the issues litigated below. 80 The views I have expressed are, in my respectful opinion, consistent with those stated by this Court in Multicon Engineering Pty Limited v Federal Airports Corporation (Court of Appeal - 26 August 1997 - unreported) in which, on appeal, a totally new issue was sought to be argued. At p.23 Mason P, with whom Gleeson CJ and Priestley JA agreed, referred to the principles stated in cases such as Suttor v Gundowda Pty Limited (1950) 81 CLR 418 and Coulton v Holcombe (1986) 162 CLR 1, and said:- "However there is another principle of more direct relevance. A party does not have a right to insist that a new point be decided on appeal simply because all of the facts have been established beyond controversy or the point is one of construction of law, even constitutional law. This is because it remains a question of whether the appellate court 'may find it expedient and in the interests of justice to entertain the point'. The rule is an absolute one, as evidenced by this Court's decision in Della Patrona v Director of Public Prosecutions (Cth) (No 1) . However: 'it is a sound general principle, leading not only to the maintenance of fair play, but also to the repression of unnecessary litigation, that parties must be bound by the course they deliberately adopted at the trial'. In Coulton Gibbs CJ, Wilson, Brennan and Dawson JJ said that: 'It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.'"

The Amount Of Damages 81 His Honour awarded $31,349 for loss of earnings to the date of the hearing. That should be reduced by $24,577 to $6,772. 82 His Honour awarded $44,010 for out of pocket expenses to the date of the hearing. That should be reduced by $7,480 to $36,530. 83 His Honour awarded $12,447 and $10,000 for future pharmaceutical expenses and a buffer for possible rehabilitation and medical expenses in respect of further exacerbations. His Honour made no reduction for vicissitudes in respect of these amounts. Each of these amounts should, in my opinion, be reduced and I propose to apply the amount Mr Murray conceded of 25 per cent. The first amount will be reduced to $9,335.25 and the second to $7,500. 84 His Honour awarded $150,000 for future loss of earning capacity. He appears to have taken the loss at $261.30 per week, which he allowed for a further 15 years and, after applying the appropriate multiplier of $555, this provided $142,021.50. His Honour reduced this by 15 per cent. A 25 per cent reduction would have reduced the amount to $108,766.12. The increase from the result of a 15 per cent discount of $123,268 to $150,000 of $26,732 was stated to be an additional buffer in case of future exacerbations and the possibility of total incapacity. That amount should be reduced by 25 per cent, it not being apparent that it has been reduced, to $20,049. The total is, therefore, $128,815 rounded down. 85 I also consider that the amount for future domestic assistance should be reduced for the vicissitudes, but, as workers compensation is not involved, by 15 per cent to $46,002. 86 The defendant submitted that the various amounts awarded for these and other heads of damage were appellably excessive. I do not agree. When regard is had to the injuries suffered by the plaintiff and the substantial adverse effect of them upon her, I consider that the awards were well within the proper exercise of his Honour's discretion. 87 The adjusted figures will be:- Economic Loss to Date $ 6,772 . 00 Out-of-pocket expenses to Date $ 36,530 . 00 Future Pharmaceutical Expenses $ 9,335 . 25 Buffer $ 7,500 . 00 Loss of future earning capacity $ 128,815 . 00 Domestic Assistance $ 15,120 . 00 Future Domestic Assistance $ 46,002 . 00 Non economic loss $ 95,000 . 00 $ 345,074 . 25

Costs 88 Mr Poulos submitted that as the defendant had enjoyed a substantial measure of success on the figures, it should either receive its costs of the appeal or there should be no order as to costs. In my opinion, this submission should be rejected. The point, which has led to the reduction, should have been raised before his Honour in one of the ways to which I have referred. It was the failure to do that which led to such success as the defendant has enjoyed, it being reasonably apparent that the plaintiff would have agreed to appropriate reductions at the trial. In my opinion, the proper exercise of discretion demands an order that the defendant pay all the costs of the appeals.

Proposed Orders 89 (a) Appeal from the decision of Master Greenwood dismissed. (b) Appeal from the decision of Dowd J dismissed. (c) Appeal from decision of Sinclair DCJ upheld in part. (d) In lieu of judgment for the respondent in the sum of $412,046 there be judgment for the respondent in the sum of $345,074.25. (e) The appellant pay the respondent's costs of each appeal. **********

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