Supreme Court of Tasmania|2008-10-15|Before: Porter JJ, Evans J, Blow J

Marlow v Walsh [2008] TASSC 58 (15 October 2008)

CITATION: Marlow v Walsh [2008] TASSC 58

TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Torts - Negligence - Contributory negligence - Particular cases - Road accident cases - Appellant riding unrestrained on unformed seat in back of open top vehicle - Whether contributorily negligent - Whether appellant's conduct in deciding to ride in the vehicle contributorily negligent in any event.

Guidera v Government Insurance Office (NSW) (1990) 11 MVR 423; Government Insurance Office (NSW) v Everson (1987) 6 MVR 15; Fitzgerald v Dansey [2001] NSWCA 339; (2001) 35 MVR 86; Hunter v Shelly [2005] QSC 289; (2005) 44 MVR 451, applied.

Appeal and New Trial - Interference with trial judge's findings of fact - Function of appellate court - Where findings based on credibility of witness - Necessity for findings to be clearly wrong - Findings as to credit - Reliance by trial judge on appellant's manner of giving evidence and surveillance videotapes - Correct approach.

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458, followed.

Appeal and New Trial - Excessive or inadequate damages - General principles - Personal injury or death cases - Whether award wholly erroneous estimate of damage suffered.

MAIB v Richards [1991] TASSC 98; (1991) 14 Tas R 221; Southern Regional Health Board v Grimsey (1998) 8 Tas R 166, followed.

Judgment Number: [2008] TASSC 58

4 Judgment for the appellant against the respondent in the sum of $99,000.

1 I agree with the reasons for judgment of Porter J and add the following as to my concurrence with his view that Abel Wash has failed to establish that Robert Marlow was contributorily negligent by reason of his acceptance of a lift in Mr Walsh's Mini Moke.

2 If Mr Marlow exposed himself to a risk of injury which might reasonably have been foreseen and avoided, and the injury he suffered was within the class of risk to which he exposed himself, then he was contributorily negligent: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611; Jones v Livox Quarries Ltd [1952] EWCA Civ 2; [1952] 2 QB 608 at 615; Froom v Butcher [1975] EWCA Civ 6; [1976] QB 286 at 291. The test of contributory negligence is an objective one. Mr Marlow is held to the standard of care expected of an ordinary reasonable person engaging in the conduct that caused his injury: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 pars32, 35 and 70.

3 In essence the issue in this case is whether an ordinary reasonable person in the circumstances of Mr Marlow would have declined to accept a lift from Fortescue Bay to Port Arthur in Abel Walsh's Mini Moke because of the risks associated with doing so. The circumstances that led to Mr Marlow's acceptance of that lift began on Friday 9 December 2004 when he travelled from Port Arthur to Fortescue Bay in a vehicle driven by his friend, Todd Dixon. They went to Fortescue Bay in order to participate in a social weekend involving volleyball. Mr Marlow camped at Fortescue Bay over the weekend. Mr Dixon left unexpectedly on Saturday 10 December. The volleyball was played between two teams on the first Sunday of each month during the summer. The members of one team lived at Port Arthur and the members of the other were described as "sort of locals" who had moved to Hobart. They usually played at Safety Cove. This was the first occasion on which they played at Fortescue Bay and the first occasion on which Mr Marlow had travelled there.

4 The evidence does not establish with any precision how many people or vehicles remained at Fortescue Bay when the volleyball came to an end on Sunday or the time when it ended. As to the number who attended that weekend, Mr Marlow said: "It varied, anywhere from 20 to possibly even 40 people". Vaughan Lynch, another participant, said that between twenty and thirty people had attended that weekend. Mr Marlow said the volleyball was usually played between about 10am and 5pm and that they left that Sunday "when the day was over". Mr Lynch said that everyone headed home that Sunday at "about three, four o'clock". As the traffic accident report records that the accident occurred at 6.45pm, I infer that it was not until late in the afternoon that the volleyball came to an end and those then involved departed. As the members of one team came from Hobart, I infer that only a portion of those remaining were travelling to Port Arthur.

5 When questioned on what he did about getting a lift to Port Arthur, Mr Marlow replied, "Flagged down the first vehicle which came past me which was Abel [Walsh]" and he added that his recall of this was vague. Abel Walsh was driving an open Mini Moke in which, on the evidence of Mr Marlow, there were already two passengers, Craig Wellard sitting in the front passenger seat, and Vaughan Lynch sitting in the back on a shelf-like bench across the rear of the vehicle. There were no formed seats or seatbelts in the back of the Moke. Mr Marlow sat on the bench in the back on the driver's side. In response to the proposition that he had plenty of opportunity to think about and work out how it was that he could get back to Port Arthur, Mr Marlow replied "No", and he was not tested further on that issue. It was not put to him that the risks of travelling in the Moke were so great as to warrant him declining to travel with Mr Walsh and taking the chance of finding a more suitable lift. He was not questioned about the number of people and vehicles that remained at Fortescue Bay when he accepted the lift with Mr Walsh. It was not put to him that other more suitable lifts were or might have been available. At one point in his evidence, Mr Marlow agreed that the distance from Fortescue Bay to Port Arthur was approximately 20 kilometres, and at a latter point he agreed that the distance was 12 kilometres. Whatever the distance, it was not put to him that he should have walked to Port Arthur rather than taken the lift offered by Mr Walsh.

6 The only other evidence that bears on the options available to Mr Marlow when he obtained the lift to Port Arthur was given by Vaughan Lynch. He said that he had no arrangement in place for his return to Port Arthur so he asked around to see if anyone had a spare seat and Abel Walsh offered him a lift. As to whether there were other options available, Mr Lynch said: "There was, but I think I would have preferred to go with Abel than a couple of other cars that I could have went in". When asked whether that was a decision he made at the time, he replied, "It certainly was", and he added that he knew at the time that Mr Walsh's vehicle was a Mini Moke. He said he could not recall Mr Marlow getting into the Moke, and as to himself getting into the vehicle, he said:

"... I just remember grabbing me bag ...and just jumping in and we was off, sort of thing, like I had to race up ... to the caretaker's hut and grab me bag ... so I think everyone might have been already in vehicle."

7 Mr Marlow accepted a lift in a vehicle that was not enclosed, in a position where there was no formed seat or seatbelt, for a distance of not less than 12 kilometres along a road that was gravel for a substantial distance and which was described by Mr Lynch as unpredictable and horrible. Whilst this exposed Mr Marlow to a risk of injury, the evidence does not establish that his acceptance of the lift breached the standard of care expected at that time of an ordinary reasonable person in his circumstances. On the evidence of Mr Lynch, there were a couple of other cars in which he could have obtained a lift and presumably those lifts would also have been available to Mr Marlow. However, Mr Lynch said that he preferred to go with Mr Walsh and he gave that answer immediately after being questioned about his assessment of the sobriety of Mr Walsh. An inference that might be drawn from Mr Lynch's preference for travelling with Mr Walsh is that Mr Lynch was concerned about the sobriety of the drivers of the other cars he was referring to. In the absence of more evidence than that to which I have referred, on what, if any, lift options were available to Mr Marlow when he accepted a lift with Mr Walsh, the evidence does not establish that the option of a safer lift to Port Arthur was available. That being so, should Mr Marlow have declined that lift and run the risk of being stranded at Fortescue Bay until such time as a more suitable lift turned up? There was no evidence as to whether it would be minutes, hours or days before Mr Marlow could reasonably hope for a more suitable lift. Whilst travelling in the Moke involved some risk, the evidence does not establish that the risk was such that, in Mr Marlow's circumstances, it was reasonable that he avoid the risk by refusing the lift offered by Mr Walsh. Expressing that conclusion in more objective terms, the evidence does not establish that an ordinary reasonable person in Mr Marlow's circumstances would have refused the lift.

8 I agree with the reasons for judgment of Porter J, and with the orders he proposes.

9 On the afternoon of 11 December 1994, the appellant was injured in a motor vehicle accident which occurred on Fortescue Bay Road, Fortescue Bay. It was a single vehicle accident.

10 At the time of the accident the vehicle was being driven by the respondent. There were three passengers including the appellant. Craig Wellard was seated next to the driver. The appellant was sitting in the rear of the vehicle behind the driver, with Vaughan Lynch beside him.

11 The group was travelling from Fortescue Bay to Port Arthur. The vehicle was an open top Mini Moke which did not have seats fitted for rear passengers. For the course of the journey up until the time of the accident, the appellant and Vaughan Lynch were sitting on a flat surface at the very rear of the vehicle. This surface was slightly raised above floor level and was between the two rear mudguards. These were square in shape. Neither seatbelts nor any other means of restraint were fitted to this part of the vehicle.

12 A roll bar of sorts had been fitted to the vehicle. This consisted of uprights fixed on either side of the vehicle at a point level with the back of the front seats, with a cross-bar at the top. There were supporting bars extending back from the top portion of this frame, then angling down rearwards and fixed to points on the mudguards above the rear wheels. These rear bars may have provided a means of support to those in the back by giving them something to hold on to. However, the whole structure seems to have been designed to protect those in the front seats.

13 At the time of the accident, Fortescue Bay Road was a narrow gravel road. It had areas of potholes and corrugations. The accident happened when the respondent was negotiating a left hand bend. The vehicle moved to the incorrect side of the road, drifted into a drainage ditch, and rolled onto its right side, with that side up against an embankment.

14 As a result of the impact, the appellant suffered a head injury. He sustained a moderately severe depressed compound fracture in the right fronto-parietal region. On the day of the accident, he underwent surgery to repair the fracture. This was done with a number of plates and screws.

15 The appellant sued the respondent for damages for personal injuries. In reasons for judgment [2007] TASSC 32, the trial judge held that:

•

the defendant was negligent in failing to properly control his vehicle so as to keep it on the correct side of the road and prevent it sliding off the road into the culvert;

•

the appellant did not voluntarily assume the relevant risk;

•

the appellant was guilty of contributory negligence to the extent of 25 per cent;

•

damages should be assessed in the sum of $102,788.05 which, allowing for the reduction of contributory negligence and expenses paid, gave a final figure of $73,302.

16 By his notice of appeal, the appellant challenges the finding of contributory negligence, or alternatively, the degree of contributory negligence which was determined, and the award of damages. In relation to damages, particular challenge is made to the general assessment of the appellant's level of disability and to the assessments of the trial judge under the heads of damage relating to pain and suffering, loss of amenities etc, to loss of earning capacity, and to future care.

17 The respondent has cross-appealed in respect of the allowances made by the trial judge in respect of loss of earning capacity and superannuation entitlements.

18 The two relevant particulars of contributory negligence alleged against the appellant were that he failed to exercise sufficient care for his own safety (which is not really a particular at all), and got into the rear of a vehicle where there were no seats or seatbelts fitted. (Knowledge of the respondent's intoxication was also alleged, but not established on the evidence.)

19 The finding of contributory negligence was made on the basis that the appellant got into the rear of the respondent's vehicle "with neither seat nor seatbelt, which afforded him little protection in the event of an accident involving impact to the driver's side of the vehicle".

20 The relevant ground of appeal complains that the trial judge erred in finding contributory negligence against the appellant, or alternatively in her finding of 25 per cent contributory negligence.

21 As argued, two issues were identified as subsumed in the first part of this ground. The first was whether or not the trial judge was correct in holding the appellant was, in the circumstances, in breach of the duty to take reasonable care for his own safety. The second was whether the act constituting the failure to take reasonable care was causative of the appellant's injury.

22 At the time of the accident the appellant was living at Port Arthur. On the Friday before the accident, he went to Fortescue Bay to join in what he described as a volleyball tournament which was held on the first Sunday of each month in summer. This was a social event involving two teams of local people. He travelled with a friend, and that person's girlfriend. That person left on the Saturday.

23 The evidence was equivocal as to the length of the trip. Initially, the appellant said that the Bay was approximately 20 kilometres from Port Arthur. In cross-examination he agreed that the trip was about 12 kilometres. That figure was thereafter adopted by the respondent's counsel.

24 The appellant was asked what he did "about getting a lift home" on the Sunday. He said, "I flagged down the first vehicle which came past me which was Abel". He said that he believed that before he got in the vehicle, he asked for a lift home, explaining that his friend had had a fight with his girlfriend and had gone home the day before.

25 He was not cross-examined as to how many vehicles, if any, had left before the respondent, nor as to what other choices of transport, if any, were available to him. The appellant agreed that the vehicle had no backseats "other than a shelf-like device". He did not agree that there were no hand holds in the rear, saying that the bar was very easy to hang on to.

26 Mr Lynch was asked as to how he came to be in the vehicle. He said that he asked around to see if anyone had a spare seat so that he could get a lift home. The respondent "piped up" and offered him a "spare seat" in his vehicle. He said that Mr Walsh did not appear intoxicated. When asked were there other options available to him he said, "There was, but I think I would have preferred to go with Abel than a couple of other cars that I could have went in" [sic].

27 He was not asked as to what he meant by that comment, nor was he cross-examined about the broader issue of what choices of alternate transport were available. An inference reasonably drawn from his evidence is that there were more than a couple of other cars there at the particular time, but that the "couple" involved a degree of risk, most likely from the drivers' alcohol consumption.

28 The evidence suggested that there was a total of about 20 to 30, possibly 40, people at the tournament. There was no evidence as to how many vehicles in total had been taken to Fortescue Bay by the group, nor of what type they were. Fortescue Bay Road ends at the Bay itself. As to the state of the road, photographs were tendered showing the scene of the accident and a number of other points along the road. They show what was essentially a single lane road, but with sufficient room for vehicles to pass with due care on the part of the drivers. Gravel and rubble had accumulated at the sides of the road and, at least at the area around the accident site, there were culverts running along each side. These have been formed in the earth but are irregular in shape and size.

29 The appellant's evidence was that he had not travelled on the road before going to Fortescue Bay on the Friday. Obviously however, prior to his return on the Sunday, he would generally have been aware, or ought to have been aware, of the state of the road.

30 Mr Lynch described the road in 1994 as being a really unpredictable road, not difficult to drive on, but just a "horrible" road. He said that for "100 metres it would be really good and the next 100 to 200 metres would be just corrugated or potholes".

31 The appellant's evidence as to the accident itself was that he recalled the vehicle coming over a rise and then ending up on the opposite side of the road "... and drifting into a drainage ditch, culvert, trench, or whatever it was called". He said that once the vehicle was in there, he could see that the vehicle was going to crash. He told the others to brace themselves, and braced himself. He said the vehicle hit the embankment at which he was looking, when the impact occurred. His next recollection was being woken up.

32 Mr Lynch's description of the accident was that they had come around a sharp left hand corner when the back of the vehicle "must have hit - oh well I say it must have hit corrugation or something, it's arse end got into the gutter, pulled the rest of the vehicle in, and it just must have hit a rock or a - or some sort of embankment and its come to a stop and flipped over on its side".

33 Immediately after the impact, the appellant was basically in the same position in the vehicle as before, save of course, that he was on his right side. No-one else in the vehicle suffered any injury.

34 The respondent was required to establish that the appellant failed to take reasonable care for his own safety in the sense of falling short of the standard of care attributable to a prudent and reasonable person in the appellant's position. The respondent was also required to prove that the appellant's lack of care materially contributed to his injury; in this case in the sense that but for the appellant's conduct, the damage caused to him would have been appreciably less.

35 In the course of determining the issue of the respondent's breach of duty of care, the trial judge examined one particular of negligence alleged against him. This was that he failed to install adequate restraints in his vehicle to prevent injuries to passengers.

36 As to this, the trial judge said that it was difficult, given the type of vehicle, to see what sort of restraints could have been fitted. Her Honour then noted that the failure could only be relevant if, had adequate restraints been fitted, they might have prevented the appellant being injured. It was further noted that the evidence showed that the appellant was not thrown from the vehicle and was still in it after the accident, where he had been sitting. Her Honour said "There was no evidence at all that any sort of restraints might have prevented the plaintiff's injury", and that accordingly the particular had not been made out.

37 In this appeal, the respondent contends that to the extent that it tells against a finding of contributory negligence, the implicit finding that any sort of restraint would not have prevented the injury, was not reasonably open. Assuming that there was a finding to that effect, I am not persuaded that this is so. There was no evidence as to precisely how it was that the head injury was sustained. It may have been that the appellant struck his head on the roll bar, or more likely perhaps, on the embankment, but no particular inference can be confidently drawn.

38 It is difficult to tell, but I suppose that at best, lap-type seatbelts might have been fitted to the rear area. However, having regard to the construction and layout of the vehicle, and the type of injuries sustained by the appellant, it was not shown to be probable that the injuries would have been prevented or lessened by the provision of such a type of restraint, nor any form of restraint that could conceivably have been fitted.

39 No doubt the respondent felt compelled to making this argument because of the apparently contradictory finding by the trial judge that the appellant was contributorily negligent by getting into the rear of the respondent's vehicle "with neither seat nor seatbelt". However, it will be recalled that the complete statement was (I will set it out again for convenience), that the appellant failed to take care for his own safety by getting into the rear of the respondent's vehicle "with neither seat nor seatbelt, which afforded him little protection in the event of an accident involving impact of the driver's side of the vehicle".

40 I do not think that the trial judge intended that the absence of a seatbelt assumed any particular significance. It seems to me that on a fair reading, the trial judge took the view that the negligence was in getting into the vehicle and sitting in a spot not intended for passengers, when the vehicle afforded him little protection in the event of a particular type of accident. The reference to the seat and the seatbelt can properly be taken as a reference to the rather vulnerable position which the trial judge thought the appellant occupied.

41 At trial, it was submitted by the appellant that he was in the confines of the vehicle, in the back on a bench or seat which was used for the conveyance of passengers, and for which it was being used in this case. It was submitted that there was no evidence to suggest passengers should not be transported in that way.

42 The respondent submitted that viewed objectively, the appellant ought to have known that the position in which he was seated was quite unsuitable for any journey, particularly one over 12 kilometres of winding, narrow, hilly road of varying widths and a changing gravel surface. The respondent also submitted that the appellant had flagged down the first car that came by, and that "there were clearly many other vehicles that he could have got into. His journey in the back of this moke was entirely unnecessary."

43 Before declaring herself satisfied that the appellant's injuries were in part suffered as a consequence of his own failure to take care for his own safety by getting into the rear of the vehicle where there was neither seat nor seatbelt, her Honour said:

"24 The vehicle itself was a Mini Moke. The vehicle was an open vehicle, that is, with no roof at all or sides above about hip height if a person were to be seated in the front seats. There were two front seats. ... There were no actual seats in the rear area of the vehicle. There was, instead, a flat area which appeared to be slightly raised above the floor level. From the evidence, that was where the plaintiff and the witness Lynch were seated. There were no seatbelts or any form of restraints in the rear area ...

25 The defendant's vehicle was clearly not designed to, as a matter of course, carry four seated passengers. Had it been so, there would have been at least four fixed seats. There was no evidence as to the age of the vehicle or whether it was manufactured at a time when seatbelts for all passengers in vehicles became compulsory. However, there were seatbelts for the front seats. The structure of the vehicle provided little or no protection for passengers generally. However, the existence of fixed seats with seatbelts and a roll bar provided a level of protection to those passengers occupying those seats, which was clearly not afforded to anyone seated in the rear, without the protection of either.

26 The plaintiff flagged the vehicle down. He chose to travel in this particular vehicle in the rear area where he did. There was no evidence he had to, and it can be inferred from the fact he flagged down the first vehicle that came, that there were others coming. It was clearly foreseeable that if the vehicle were involved in an accident, any passengers in the rear area of the vehicle were more at risk than those in fixed seats with seatbelts.

27 The plaintiff had travelled into Fortescue Bay along the same road two days before. He had to have had some idea of the state of the road which, in Lynch's words, was unpredictable and horrible."

44 The resolution of the contributory negligence issue involves the single question of whether, in the circumstances in which the appellant found himself, or in any event, a person of ordinary prudence would have set out on the journey in the particular vehicle. I will deal firstly with the issue of the vehicle itself, taken in isolation.

45 There are a number of authorities dealing with the issue of passengers riding unrestrained in the rear of utilities and vans. None of these was cited to the trial judge or to this Court. In Government Insurance Office (NSW) v Everson (1987) 6 MVR 15, the plaintiff had been sitting on the floor in the rear of a utility but was apparently standing up when the driver suddenly braked. The passenger was thrown out and suffered injury. They were travelling along a deserted suburban road late at night. Hope JA said that the driver of the utility owed a duty of care to a person travelling, with his knowledge, in its rear, which required him to drive in such a manner as to avoid reasonably foreseeable risk of injury. To suddenly apply the brakes was a breach of duty.

46 However, it was held that the act of travelling in the back of a utility, by itself, could not amount to contributory negligence, and that in the circumstances of the case, even travelling whilst standing up was not contributorily negligent. Mahoney and Clarke JJA agreed.

47 The New South Wales Court of Appeal again considered the issue in Guidera v Government Insurance Office (NSW) (1990) 11 MVR 423. In that case, three men were travelling in a van on a journey from Adelaide to the Northern Territory. There were three seats in the front, all fitted with seatbelts, but there was little room for the three to sit together. Whilst one drove, one of the others lay down on a mattress in the back of the van and whilst he was asleep, the van left the roadway, rolled over and hit a tree, injuring the plaintiff.

48 In a joint judgment, Gleeson CJ, Clarke and Handley JJA held that the plaintiff was not contributorily negligent in lying down in the rear of the van where there was no form of restraint available. At 425, their Honours said:

"We are quite unable to accept the submission that a person is guilty of lack of reasonable care for his own safety simply because he travels in a vehicle, or in a part of a vehicle, where no form of restraint is available."

49 Amongst a number of factors regarded as relevant, the Court said that:

•

the cases on the uses of available seatbelts and the wearing of crash helmets, provided no support for a finding of contributory negligence;

•

that there was no evidence that the plaintiff was in breach of any applicable regulation;

•

there was no evidence that the plaintiff had acted contrary to sensible practice generally accepted, such as the wearing of crash helmets by motor cyclists.

50 The Court concluded that generally there was "... nothing to suggest that the plaintiff's conduct at the time of the accident was contrary to any generally accepted standards in the community". This plainly suggests that rather than it being a case of the risk of injury or increased injury not being foreseeable, the determining point was that a person of ordinary prudence would not see such irrelevant conduct as unreasonable.

51 Both Government Insurance Office (NSW) v Everson and Guidera v Government Insurance Office (NSW) were followed by Demack J in Mathieson v Magee (1992) 16 MVR 255. A young passenger was injured whilst apparently lying down on the rear of a utility, which ran off the road and struck a tree. His Honour said that Guidera's case was sufficiently similar to support the view he took; holding that it was not contributorily negligent, by itself, to ride in the rear of a utility.

52 Guidera v Government Insurance Office (NSW) was also considered by the Full Court of the Supreme Court of Western Australian in Halliday v Halliday (1998) 27 MVR 479. The facts were that the plaintiff, with his wife and son, embarked on a long journey in a four wheel drive vehicle which was modified by taking out the right rear seat so as to create a makeshift bed. No form of restraint was fitted. In the course of the journey, the plaintiff was asleep when the vehicle left the roadway and rolled over several times. The plaintiff was held to have been contributorily negligent by deliberately choosing to lie unrestrained on the bed in a dangerous position.

53 A relevant factor in this determination was a traffic regulation in force at the time, requiring a person travelling in a passenger car with one or more seatbelts fitted not to "occupy a position" which was not fitted with a seatbelt unless every position for which a seatbelt was fitted was occupied by another person.

54 Guidera's case was distinguished on the basis that the passenger's conduct was in breach of the regulation, that some of the relevant factors were not analogous, and that the factual "position with a panel van was entirely different".

55 Owen J (with whom Pidgeon and White JJ agreed) said, at 482:

"In my opinion generally accepted standards in the Western Australian community in 1995 (and now) would regard the appellant's conduct in failing to wear a seatbelt and in sleeping unrestrained in the back of the moving vehicle as a departure from the standard of reasonable care for his own safety ...".

56 A further New South Wales Court of Appeal case of interest is Fitzgerald v Dansey [2001] NSWCA 339; (2001) 35 MVR 86, in which the plaintiff had been riding in the rear of a utility. Both he and the driver were significantly affected by alcohol. The plaintiff stood up in the course of a journey, unseen by the driver, and fell out in unexplained circumstances. The vehicle was being driven appropriately. The driver was held to have been negligent in allowing the plaintiff in the back of the vehicle knowing he was affected by alcohol, and the plaintiff was found negligent by riding in the back of the utility in a standing position, knowing that he was affected by alcohol. The apportionment was 50:50. Sperling J, with whom Powell JA and Fitzgerald AJA agreed, said that standing up while the vehicle was in motion was flagrantly negligent; "It was when the plaintiff stood up that the danger arose ...". Neither case of Everson nor Guidera was cited.

57 In Hunter v Shelly [2005] QSC 289; (2005) 44 MVR 451, there emerges a suggestion that the question of contributory negligence in riding unrestrained in the rear of a utility, might solely depend on the circumstances as to why the journey was being undertaken in that way. The facts were that the defendant was driving a utility along a straight flat bitumen roadway at 2am with two passengers in the front seat and two sitting in the rear with their backs to the cabin. The driver was speeding, failed to see a kangaroo close to the road, and swerved, causing one of the rear passengers to be thrown out and injured. The trip was to have been some 10 - 15 kilometres in length.

58 Cullinane J said that he was not persuaded that the plaintiff was negligent in travelling in the back of the vehicle in the circumstances in which he did, saying that on the evidence, there was no alternative for the plaintiff if he wished to get home that evening, or at least there was no evidence which would suggest any alternative means of getting home. The plaintiff was held to be contributorily negligent to the extent of 25 per cent on the basis that he was not holding on and would not otherwise have been thrown out. No decided cases were cited in the judgment.

59 There are also the cases of Pember v Smith (1988) 7 MVR 216 and Paget v Middleditch (1993) 17 MVR 206, in which cases the Full Court of the Supreme Court of Western Australia said that it was not inherently dangerous to merely drive a utility with a passenger in the open rear portion of it.

60 No doubt each case has to be determined on its own facts, but these cases provide authoritative guidance as to how the issue of the contributory negligence of a plaintiff riding unrestrained in the open rear of a vehicle, should be approached. The conduct of such a passenger is to be measured against prevailing generally accepted community standards or attitudes. Those attitudes or standards, in turn, would be fashioned to accord with any applicable traffic regulation or the like. Generally it would seem, however, that to ride unrestrained in the rear of a utility vehicle at least, is not of itself contributorily negligent.

61 The Moke-type vehicle in this case differs from the ordinary type of utility vehicle under discussion in the cases to which I have referred. It is smaller and closer to the ground. There was no evidence as to the height distance between the floor of the vehicle and the top of its sides, nor from the rear "seat" to the top of the sides. The appellant gave evidence that he was able to hold on firmly. The trial judge found that the sides were above about hip height if a person were to be seated in the front seats. Derived from that observation may be the proposition that the distance from the rear "seat" to the top of the sides was appreciably higher than that. I do not think, though, that the differences in vehicle type are sufficient to distinguish the line of authority which I have identified.

62 Accepted community standards have to be assessed as they applied in 1994. As a broad statement, it may be said that there has been an even greater emphasis on road safety issues since that time. When looking at the nature of the vehicle in question, I can take notice that open top vehicles are not at all uncommon and which involve, according to their age and type, varying degrees of exposure of the occupants. Whilst no doubt fitted with seatbelts, little protection is afforded to the head and upper body. It should also be borne in mind that the community has maintained an acceptance of pillion passengers riding on motor cycles with no protective clothing other than helmets, and of cyclists negotiating their way through heavy and often fast moving vehicular traffic, with even less protective clothing.

63 As to relevant regulations, in 1994 the Traffic (General and Local) Regulations 1956, reg8(1A) provided that no person should be seated in a motor vehicle that was in motion, in a seat for which a seatbelt was provided unless that person was wearing the seatbelt, properly adjusted and securely fastened. Regulation 8(1AB) provided that a person should not be seated as a passenger in a motor vehicle that was in motion in a seat which was not fitted with a seatbelt unless each seat for which a seatbelt was provided was occupied by another person. The term "seat" was not defined, but is no doubt to be given its ordinary meaning of a shaped seat specifically designed to be sat on.

64 The wording of those regulations can be contrasted with the regulation to which significance was attributed in Halliday v Halliday (above), and which proscribed the occupation of "a position" which was not fitted with a seatbelt unless every "position" for which a seatbelt was fitted was occupied by another person. In Mathieson v Magee (1992) 6 MVR 255, Demack J held that the rear of a utility did not contain a "seat position" as referred to in the Queensland equivalent of reg8(1A).

65 It follows from the foregoing that there was no regulation preventing or otherwise applying to the conduct in which the appellant was engaged. Indeed, no such regulation was pleaded or argued.

The circumstances in which the appellant found himself

66 The critical findings of the trial judge were that the appellant chose to travel in the particular vehicle in the rear where he did, and that it could be inferred from the fact that he flagged down the first vehicle that came, that there were others coming. In my respectful view, that inference cannot be properly drawn from the evidence relating to this issue. The appellant said that he flagged down the first vehicle which "came past" him.

67 I do not believe that it is reasonably open to infer from this statement that the respondent's vehicle was the first of the group to leave, or that there were other vehicles which, taken along with the respective drivers, presented alternative and preferable choices reasonably open to the appellant. The person with whom the appellant travelled to Fortescue Bay on the Friday, had left on the Saturday. It would not appear that Mr Lynch had travelled to the gathering with the respondent. On the Sunday he "asked around for a lift". The respondent offered him one, and it may be of some significance that he was in the vehicle leaving the area when the appellant flagged him down. The respondent did not give evidence, and the evidence about the group's departure from Fortescue Bay was sparse.

68 There was no evidence as to a range of factual issues which bear on the point of the reasonableness of the appellant's conduct. For instance, there was no evidence as to:

•

how many vehicles were actually there on the Sunday afternoon;

•

whether the group set off in their respective vehicles over a short period of time or otherwise;

•

how many vehicles had gone before the appellant flagged down the respondent;

•

whether prior to anybody leaving on that Sunday afternoon, all the vehicles had been parked in close proximity;

•

the number and nature of any vehicle or the sobriety of the driver which represented the choices which may have been available to the appellant at the time he was seeking a lift.

69 In my judgment, the respondent did not discharge the onus of establishing that there was a reasonable choice, in the sense of an ordinary type of motor vehicle, and driven by someone unaffected by alcohol, available to the appellant at the time he was seeking to leave the area.

70 On the basis of the authorities which I have examined and for the reasons which I have given, and ignoring for the moment the question of what choice may have been available to the appellant, I do not think that riding in the respondent's vehicle was negligent as such. When the respondent pulled up, the appellant had a decision to make as to whether or not to get in. Mr Lynch was already sitting in the rear. The journey was to be a short one on a "no through traffic", country road. The nature of the road was not ideal, but comparatively, it may have been more dangerous to travel in such a vehicle on an open highway where the speeds of that, and other vehicles, would have been significantly higher. It might be said in hindsight that the appellant was lacking a little in judgment, but in my judgment his conduct, viewed at the time it occurred, did not amount to a failure to take reasonable care for his own safety.

71 To the extent that as a matter of principle it might be a relevant consideration, or in any event, there is then the issue of whether the appellant acted unreasonably in the overall circumstances in which he found himself. To my mind, as I have just concluded, the respondent did not discharge the onus of establishing a reasonable, alternative means of getting home.

72 It follows that in my view this ground of appeal is made out.

73 The appellant gave evidence of a number of consequences of the head injury. Amongst them, apart from the physical consequences, was a change of personality. He felt withdrawn and was less social than before. He was largely not able to work or do much for himself.

74 He was reviewed by a number of medical practitioners for the purposes of the litigation process. There was some debate as to the cause of these difficulties experienced by the appellant. The alternative diagnoses were organic brain damage, clinical depression, and the effects of chronic marihuana use. Mr John Fourez, a clinical psychologist, carried out neuropsychological testing and encouraged the cessation of marihuana use in order to establish whether that could be excluded as a cause. Ultimately, with neuropsychological results not being indicative of significant cognitive deficits, he felt that the more likely diagnosis was one of clinical depression.

75 A report from Dr Rose dated 27 August 2001 was tendered on behalf of the appellant. He said that "there was no doubt" that the diagnosis was of a major depressive disorder and that with adequate treatment the depressive illness would significantly improve and may even completely resolve. On the other hand, Dr Sale, who was called to give evidence, said that the appellant appeared to have suffered a number of significant residual difficulties, which included changes to cognitive function (particularly memory) but that the major change had been to personality.

76 The trial judge found that the appellant suffered from a depressive illness, but that he had exaggerated the continuing effects of it upon him. It was also noted that the appellant had refused to accept medical advice as to treatment which, in Dr Rose's view, would probably be largely successful. These findings of course impacted on the assessment of appropriate compensation for the appellant's head injury and its consequences.

77 In the appellant's notice of appeal, there are grounds which specifically relate to the "exaggeration" finding, to particular assessments based on that finding, and to those assessments in any event. The impugned assessments relate to damages for pain and suffering, loss of amenities, etc, loss of earning capacity, and domestic care.

78 The first issue is the "exaggeration" finding based on the appellant's credibility. The reasons for that finding were explained by the trial judge as follows:

"30 The credit of the plaintiff is a matter which requires comment because the acceptance or otherwise of his evidence in relation to a number of matters impacts on the outcome of his claim. I had an opportunity to observe him in the witness box over an extended period as he gave his evidence. I formed the view from his manner of answering questions that his repeated reliance on a lack of memory was convenient and selective. When it suited him he gave responsive answers. When it did not, he said he could not recall. He was evasive and at times would not concede even the most obvious matters. For example, documents were put to him which he had clearly signed. However, when the contents did not suit him, he had an explanation as to why. For example, with his curriculum vitae he blamed someone else for carrying through information he said no longer applied, despite admitting it was prepared under his instructions. I do not accept that his memory was as faulty as he implied and take the view he regularly manipulated his answers to suit what he knew was required. I have looked, where possible, for evidence from documents and other witnesses to corroborate his evidence."

79 The trial judge went on to discuss part of the appellant's cross-examination when he was shown portions of three surveillance tapes. It was noted that in relation to the second tape, the appellant would not acknowledge that it was he who was shown on the tape dancing, that he responded by saying that he did not recognise it as himself and repeating twice that "it could be anybody", adding that he had no recollection of the incident and did not recognise the particular area.

80 As to the third tape, her Honour noted that the male shown was clearly the same male the appellant did not recognise as himself in the second tape, and concluded that "he was attempting to mislead the court by refusing to acknowledge the obvious, namely that he was the male shown to be doing a dance of sorts in tape two. That does not assist his credit".

"74 It further does not assist his credit that he is shown in tape two to be interacting quite animatedly in a group of five adults and a child without any apparent hesitation. This was contrary to his evidence about the limited level of his interaction with people.

82 These basic findings then crystallised into specific findings in relation to the consequences of the appellant's injuries. The trial judge said:

"76 I conclude the plaintiff, in his evidence generally, was attempting to minimise his capacity post-accident to interact with other people in social settings and that he was clearly able to do that without apparent difficulty, at least on the occasions shown on video surveillance. His attempt to distance himself from the activities shown in the tapes and to explain his animation by the consumption of alcohol suggests a deliberate attempt to misrepresent his situation.

77 The preponderance of expert evidence is that the plaintiff has suffered from a depressive illness since, and as a consequence of, the motor vehicle accident, as opposed to an organic problem. ... The difficulty with assessing the impact of this depressive illness on the plaintiff for the purpose of a damages award is, however, complicated by a number of factors. These are that the plaintiff has, in my view, exaggerated the continuing effects upon him of it and has refused to accept medical advice as to treatment which, in Dr Rose's view, would probably be largely successful." [Emphasis added]

83 The notice of appeal contains the following grounds:

"2 Her Honour erred in assessing the extent of the Plaintiff's injuries and their effect.

3 Her Honour failed to have regard to the severity of the Plaintiff's head injury and its effect on him when assessing his evidence and demeanor [sic] in giving evidence, in concluding that his repeated reliance on a lack of memory was convenient and selective.

4 Her Honour failed to provide reasons or adequate reasons in finding that she did 'not accept that his memory was as faulty as he implied and, he regularly manipulated his answers to suit what he knew was required'.

5 Her Honour failed to have regard to, and place appropriate weight on, evidence given by Leslie McIntyre, Vaughan Lynch and Sharon Thompson as to the effect of his injuries on him.

6 Her Honour placed undue weight on video evidence taken of the Plaintiff, making adverse findings when none was available."

84 In order to avoid confusion, I will refer to the findings in par[30] of the trial judge's reasons, set out in par[70] above, as "credit findings" to distinguish them from the consequential "exaggeration" finding, being a finding based on credibility. (I observe that it is not always clear what is being spoken of when the phrase "credibility findings" is used. It seems more often to mean credibility-based findings, but can be used to describe findings as to credit.)

85 Ground 2 is in general terms and relates to the exaggeration finding. As I understand the argument, grounds 2 - 6 relate exclusively to the credit findings. They go to the foundations on which the exaggeration finding was made. On these bases, and in any event, it is argued that the finding of exaggeration was an error, given the other evidence.

86 As argued, the matters raised in grounds 2 - 6 of the grounds of appeal came down to three points. They were that:

•

the trial judge erred in finding a "convenient and selective reliance on a lack of memory", given the medical and other "independent" evidence as to the appellant's memory loss;

•

as is shown by the transcript, the appellant was not evasive or selective in his approach when cross-examined about documents;

•

the trial judge erred in finding that the videotape evidence showed that the appellant was attempting to mislead the court.

87 The appellant submitted that the medical case made out by him, together with the uncontested testimony as to his personality, demonstrate that the trial judge's adverse findings as to his credit were erroneous and contrary to other compelling inferences to be drawn from the evidence, "namely that ... notwithstanding his deficit of memory, [the appellant] was endeavouring to do his best to assist the court". It was said that by failing to place appropriate weight on the evidence of key witnesses, the trial judge's findings as to the appellant's credit, based on his demeanour and asserted lack of memory has amounted to a misuse of a trial judge's advantage.

88 In this case, the trial judge took the view that the appellant's reliance on a lack of memory was convenient and selective. The express reasons for taking that view arose from his manner of answering questions. This was explained as a purported failure to recall matters when it did not suit him, being evasive at times and not conceding obvious matters, and providing explanations when the contents of documents signed by him did not suit. Much of what formed the basis of her Honour's adverse findings can thus be properly judged from the transcript. However, there undoubtedly remains an aspect of the appellant's demeanour as such, which underlies those findings. The transcript does not record relevant pauses, hesitations, and the like. This raises the role of this Court in disturbing credibility-based findings.

89 By the Supreme Court Civil Procedure Act 1932, s46, this appeal is by way of rehearing; the Court having, by virtue of s47, full power to review questions of fact. The role of an appellate court conducting such an appeal has been most recently explained by the High Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125 - 129, Pledge v Roads & Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572 at 581 - 582 and CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at 466.

90 What is to be derived from these authorities is as follows:

•

whilst the appellate court is obliged to give a judgment which, in its opinion, ought to have been given in the first instance, at the same time it must observe the natural limitations that exist in the case proceeding wholly or substantially on the record.

•

those limitations include the disadvantage the appellate court has, when compared with the trial judge, in respect of the evaluation of witnesses' credibility and the feeling of the case which an appellate court reading the transcript cannot always readily appreciate.

•

a real review of the trial is to be conducted, and appellate courts are not excused from the task of weighing conflicting evidence and drawing their own inferences and conclusions, though they should always bear in mind that they have neither seen nor heard the witnesses and should make due allowance in this respect.

•

the mere fact however, that the trial judge reached a conclusion favouring the witnesses of one party over those of another does not prevent the performance by an appeal court of its proper functions.

•

even in the case of expressed credibility findings, an appeal court may substitute its own conclusion where incontrovertible inferences, facts or uncontested testimony demonstrate the findings to be erroneous, or where they are glaringly improbable and contrary to compelling inferences, or where the trial judge has failed to use, or has palpably misused, the advantage in seeing and hearing the witnesses.

91 The general proposition that an appellate court is required to make due allowance for the advantage of the trial judge in seeing and hearing the witnesses was thus restated. However, there seems to be some remaining uncertainty as to what allowance may properly be due, where there is an express or implied reliance by the trial judge on the demeanour of a witness. In CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at 456 par[19] - 466 par[23] Kirby J made the following points:

•

"in Fox v Percy there was an important change in the statement by this Court of the jurisdiction and powers of intermediate appellate courts."

•

that change "involved a shift to some degree from the more extreme judicial statements commanding deference to the findings of primary judges said to be based on credibility assessments".

•

it would be a misfortune if "so soon after Fox v Percy corrected the non-statutory excesses of earlier appellate deference to erroneous fact-finding by primary judges, the old approach was restored, as, for example, by reversion to the previous formulae about the 'subtle influence of demeanour' that could have affected the primary judge's conclusion, even though no express reference was made to such consideration."

92 The uncertainty, or as Ipp JA said in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at 189, the lack of clarity as to "the degree to which the shift in emphasis has occurred" emerges from the joint judgment of Callinan and Heydon JJ in the Della Maddalena case. At 492 par[180], their Honours, whilst acknowledging that there were cases in which the advantages enjoyed by trial judges over appellate courts were exaggerated, recognised that there were cases in which the "subtle influence of demeanour" could not be overlooked.

93 At 492 par[179], their Honours referred to the reversal by the appellate court below, of the trial judge's findings on credibility adverse to the plaintiff in that case, and made references to the members of the appeal court watching video recordings of the plaintiff's activities. Their Honours said that the appeal court was in as good a position to make an assessment as the trial judge, including making a comparison between what the recordings showed and other evidentiary material.

94 That opportunity, it was said, was a substantial one, but it still fell far short of the advantage that the trial judge enjoyed of actually seeing and hearing the evidence of the witnesses, particularly the plaintiff "and of observing his reaction to each segment of the film as it was shown to him". The way in which the plaintiff physically responded to questions, any delays, evasions or reluctance in answering them, were all matters of a special relevance in a case of that kind.

95 As noted by Ipp JA in the Goodrich Aerospace case, the effect of their Honours' comments was described by Tobias JA in Walden v Black [2006] NSWCA 170 at par[83], as being that "reliance upon the 'subtle influence of demeanour' requires careful consideration in each case before it is permitted to trump appellate intervention".

96 The only evidence the appellant gave as to this alleged consequence of the head injury was that he said his memory was "erratic". That answer was not explored further, either in examination-in-chief or cross-examination. His main complaints were of headaches and "heaviness" on the right side of his head, concentration and attention difficulties, and partial deafness and continuing tinnitus in his right ear.

97 In a report dated 23 August 2002, Mr Fourez noted that the appellant's verbal memory capacity was average to above average for his age and that his neuropsychological results were not indicative of significant cognitive deficits, aside from mild reduction in attention. Significantly, Mr Fourez said that he questioned the appellant about his memory. The appellant said he had considerable difficulties in terms of remembering people's names since the accident but no other deficits. The appellant felt that his memory for conversation was intact as long as he was interested in the subject matter. He admitted to mild inefficiency in his memory for day to day events, but said that this was restricted to less significant events only.

98 In a report of 17 December 2005, Mr Fourez again said that the appellant's performance on memory tests was relatively normal "in spite of slightly inefficient attention ... His intellectual functions ... and his verbal visual memory were all largely spared."

99 In evidence-in-chief Mr Fourez said that the cognitive testing results in 2005 were very similar to those obtained in 2002 "with the exception of a slight improvement in some aspect of his verbal recall, his verbal memory". There was no cross-examination specifically directed to the point.

100 Ground 5 of the appeal specifically complains of a failure to have regard to, and place appropriate weight on, the evidence of three witnesses who were friends or acquaintances of the appellant. The complaint not only relates to the specific memory issue, but to the asserted error in assessing the total extent and consequences of the appellant's injuries, as raised in ground 2.

101 Those parts of Mrs McIntyre's evidence relied on are as follows:

•

Before the accident, the appellant was "a good bloke, a good friend, bright, happy, outgoing". He wanted to have a block of land and build a house - generally lead a happy working life and pursue landscaping as an occupation.

•

Immediately after the accident, the appellant looked badly injured - he was "quite fragile at first, very sore head, very quiet just different actually than what he was beforehand".

•

In the first few months after the accident, he was complaining of having very bad headaches with dizziness, loss of balance and inability to hear out of one ear. "His head was feeling heavy all the time".

•

By way of general comparison before and after the accident, the appellant was very different, quiet, morose - she had to make sure that he was fed.

•

More recently the appellant suffered from headaches, became dizzy and tired. His concentration was not good and he "hangs his head and holds his head because it feels heavy".

•

The appellant was outgoing and gregarious and bright before the accident, whilst now he is dark and morbid and morose.

102 The second witness relied on was Mr Lynch but an examination of his evidence shows that in his evidence he was not taken past the immediate aftermath of the accident. He said the appellant appeared to be a lot quieter, with some slurring of his words "and probably just a little bit vaguer".

103 Ms Thompson gave similar evidence to Mrs McIntyre in terms of the pre- and post-accident comparisons, describing the appellant as outgoing, very popular with lots of friends beforehand, but "almost unrecognisable" afterwards and he was very withdrawn, not good at holding conversations and not as outgoing as he used to be.

104 In particular, she said that the appellant "s_eemed to have - memory loss, he couldn't remember things that - because before he could talk about anything and remember just about anything and now he has a lot of difficulty trying to remember things ... he spends a lot of time trying to recall different events of times gone by, when we talk about old times_".

105 In all of this Ms Thompson is the only one who makes mention of memory difficulties. That evidence must be put along with unchallenged evidence of Mr Fourez as to what the appellant said to him as to his memory difficulties. As to the general effect of the evidence of these three persons, the trial judge, when dealing with the accident consequences and the medical opinions, referred to the body of evidence, saying that a consistent theme "was that the plaintiff was social and outgoing before the accident and had become withdrawn after it". Her Honour had said that she would look to other evidence to corroborate that of the appellant. Plainly, this evidence has been taken into account to that effect.

106 There are three further issues which arise in this context, and which were debated at trial and raised in argument before this Court. Although they are not mentioned in the trial judge's reasons, the appellant said that they might have been erroneously used as a basis for the adverse credit findings. I am not sure that it is really necessary to resolve them, but in deference to the time spent on them in this appeal, I will do so. The issues are:

•

a conversation the appellant is said to have had in October 2004 with a person, unknown to the appellant as an insurance investigator;

•

the appellant's discussion of his cannabis use during a consultation with Mr Fourez in November 2005;

•

the appellant's admission to a Hobart hospital after going to a concert at the nearby City Hall, in July 1995.

107 The October 2004 conversation. In cross-examination, the appellant was asked about a discussion he had had with a person named Doug and a "third person" on 14 October 2004 in a particular butcher shop; ("Doug" seems to be Mr McIntyre, the husband of Mrs McIntyre previously mentioned). The third person was an insurance investigator who gave evidence in the respondent's case. Particular statements alleged to have been made by the appellant were put to him. It is true to say, as argued by the appellant's counsel, that at the commencement of the particular part of the cross-examination, the questioner and the appellant seemed to be at cross-purposes as to the identity of the person to whom the statements were made; ie, Doug or the investigator.

108 However, the appellant was specifically asked if he remembered a third person being present. The appellant said that he did not really remember the day "to tell you if there was any - I mean if there was anyone else there". The appellant was asked whether he remembered speaking about his lawyers; that he had two of them, one who dealt specifically in head trauma cases. The appellant said "I don't know about that". It was put that the proposition was correct, the appellant said "I can't say, I can't - don't even know who I'm talking to, don't even know who you - what you're who you're talking about that I said this to".

109 It was put to the appellant that he had said he would be glad when it was all over. The appellant said "Oh I don't recall saying that. I don't recall this whole incident". Immediately thereafter though, it was suggested that in the discussion, the appellant had said that he wanted to purchase a small block of land and build a small residence on it. The appellant said that he was referring to his intentions when he came to Tasmania.

110 After dealing with other topics, the cross-examiner returned to the point, specifically reminding the appellant of the details of the incident "when you and Doug and the third person were sitting down at [the butcher shop] on the 14th of October 2004". It was put that the appellant had said he had always been a recluse even prior to the accident. This was denied on two occasions. The following exchange occurred:

"You can remember you didn't say it, is that what you're putting?..........I can't, I can't remember saying anything like that to anybody.

But it's the truth, isn't it?..........Not as far as I know, I can't remember saying it to anybody so how can it be the truth."

111 Two other particular statements said to have been made by the appellant in this conversation were put to him. He said that he did not recall saying anything along those lines. The investigator later gave unchallenged evidence that the appellant had in fact made the comments which had been put to him in cross-examination. None of this can have assisted the appellant's case.

112 What the appellant told Mr Fourez about his cannabis use. As previously noted, the alternative diagnoses as to the appellant's condition were organic brain damage, clinical depression, and the effects of chronic marihuana use. The appellant had been encouraged to stop using marihuana for a period of time prior to further testing, in order to establish whether that could be excluded as a cause.

113 The further testing was carried out by Mr Fourez on 29 November 2005. On the same day the appellant provided a blood sample which was later analysed. That showed a level of the active ingredient of cannabis significantly above the detection point, and which indicated marihuana use in the previous 15 days.

114 The appellant was asked in cross-examination whether he had told Mr Fourez the truth about his cannabis use. The appellant responded with a question "that I wasn't using cannabis?" After a confirmatory "Mm" from the cross-examiner, the appellant said "If that's what I told him, that's what I told him", but went on to say that the statement was true. It was specifically put to him that he was lying, which he denied - and that he had lied for the purpose of financial gain, which was also denied.

115 Mr Fourez gave evidence that the appellant had told him that he had stopped using marihuana in February "except for an instance - a recent funeral of one of his friends, who had died, obviously. That was a few weeks ago, about a month ago, he said". In cross-examination Mr Fourez said that the appellant admitted to smoking marihuana "some weeks prior to the assessment". Mr Fourez regarded this as insignificant because of the time lapse. In all of this, I do not think that there is anything of great importance one way or the other.

116 The hospital admission. Royal Hobart Hospital records showed that the appellant was seen on 16 July 1995 in the early hours of the morning. Part of the notes show "? fit at concert this evening", and note the appellant's statement that he was pushed by someone "and ? hit head". Another note in a different hand records "Was at concert tonight. Taking alcohol and uppers. Involved in fracas with police."

117 When cross-examined about this, the appellant said "It's a record of someone's admission?........Yes. And it says my name, but I don't recall. I don't recall being admitted to any hospital for anything like this." He said he did not remember any incident at all, he did not recall being at a concert or being in a fight with police or going to hospital. Again, this is a matter which cannot have assisted the appellant.

118 Whilst the appellant gave evidence as to his erratic memory and there was some lay evidence as to this, it must be said that this asserted consequence of the head injury did not assume great significance in the array of symptoms complained of. It was not suggested that any memory difficulties were sufficiently found to explain the apparent lapses in the witness box. Moreover, Mr Fourez's neuropsychological testing showed little to no real deficit in this respect.

119 It is true that there were many occasions during his evidence when the appellant said that he "could not recall" specific events or conversations. Many of these incidences were benign; for example, the appellant did not recall in what year he worked for a particular employer in the ACT. On the other hand, there were instances as to which the appellant's professed lack of recall would be cause for no little concern about his credibility.

120 The inability to remember the hospital attendance in July 1995 and whatever led up to that, is perhaps the best example. The appellant's counsel at trial accepted in closing before the trial judge that it was "extraordinary evidence" but sought to attribute it to the fact that the incident was close in time to the injury suffered. It must be considered unlikely that such an incident would not be recalled.

121 One further instance might be mentioned. The appellant said he could not recall answering interrogatories on oath. When shown the document, he said he could see his signature there but "this looks totally alien to me, this piece of paper". As was demonstrated, some of the answers were not entirely consistent with the evidence-in-chief.

122 It is remembered that the trial judge said that she took the view from the appellant's "manner of answering questions that his repeated reliance on lack of memory was convenient" and that her Honour took the view that he regularly manipulated his answers to suit what he knew was required.

123 An objective examination of the transcript reveals some instances which could give rise to these conclusions. However, as earlier noted, the trial judge's comments suggest that demeanour played a not insignificant role. Irrespective of the extent of the "shift in instruction" established by Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, this is a case where the allowance to be made for the advantages of the trial judge must be more than nominal.

124 In my view it has not been shown that the trial judge palpably misused her advantage, or that other evidence establishes the credit findings as to memory to be erroneous.

The appellant's "evasion" - cross-examination on documents

125 The appellant was said by the trial judge to be evasive and at times not conceding even the most obvious matters. The example given was documents put to him which he had clearly signed - when the contents did not suit, he had an explanation. A particular example of this which was given was the curriculum vitae.

126 This document was undated, but the employment history ended at 1998. The appellant said the document was drawn up for him. He was asked whether it was drawn up at his instruction, and he replied "No, at their's actually". That answer was not clarified; whether it was an employment agency or the like, it remains a matter of speculation. The appellant agreed though that he provided the information.

127 Some of the entries under the head of employment history showed a level of activity a little inconsistent with that put forward in the appellant's evidence. Under the heading "Interests", there appears a list of activities including social cricket, football and surfing, which would also be inconsistent with the level of disability alleged. The appellant said they were actually interests from his schooldays, but that he was not engaging in those interests in 1998, saying "that list of interests was taken off an old CV".

128 A further document upon which the appellant was cross-examined and which might fall into the relevant category is his driver's licence application for 2003. The form provides for "Yes/No" answers in relation to a number of ailments, one of which was "giddy attacks". The appellant had answered "No" to that question. Of course, a matter said to arise from the injury was dizziness. The cross-examination proceeded as follows:

"And you don't suffer from any giddy attacks, do you?......Not that I've been diagnosed fully as, no.

You didn't suffer from any giddy attacks at the time that this document was completed, did you?......No, just according to that, no.

...

And in June 2003, it was true to say you were not suffering from any giddy attacks, wasn't it?......That's what it says there.

And that was true, wasn't it?......As far as I'd been diagnosed.

Mr Marlow, you were asked nothing about being diagnosed, you were asked: do you suffer from giddy attacks, you said, 'no,' and that was the truth, wasn't it?......I obviously didn't read the question properly, but there you go."

129 This issue illustrates the limitations of an appeal court as spoken of in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. I have set out the transcript as it appears. However, in closing submissions at trial, counsel for the respondent invited the trial judge to recall "a mental impression of the witness with that document, sitting for a long period of time. How can I get out of this, he must have been saying to himself, what can I say to get out of this one." That comment obviously suggests that somewhere in the relevant questioning, the appellant paused at length before answering. This is a matter of demeanour and the impressions of the trial judge. On the material before this Court such an occurrence cannot be detected, let alone assessed.

130 Having studied the cross-examination, I am satisfied that there are instances where objectively it could be said the appellant was not responding to the questions, and his answers appeared evasive. I take the same view of her Honour's comments in this respect, as I do in relation to those relating to the appellant's reliance on a lack of memory. That is, objectively there is a proper basis for those findings and due weight must be given to what arises from the trial judge's opportunity to hear and see the appellant give evidence.

131 As noted above, three separate videotapes of surveillance of the appellant were shown and tendered. As to these, in summary the trial judge said:

•

the appellant would not acknowledge that it was he who was shown on the tape, dancing with a female, saying that he did not recognise it as him;

•

the appellant repeated twice that "it could be anybody" and he had no recollection of the incident and he did not recognise the area;

•

the third tape (acknowledged by the appellant as showing him) was clearly the same male person shown in the second tape;

•

from that, it should be concluded that the appellant was attempting to mislead the Court by refusing to acknowledge that he was the male shown to be dancing in tape two;

•

tape two showed the appellant interacting "quite animatedly" in a group of five adults and a child, which was contrary to his evidence about the limited level of his interaction with people.

132 The appellant argues that the finding as to exaggeration "to the extent that it relies on the video evidence, is also inconsistent with both medical evidence and the third party evidence". It was also submitted that the videotape evidence did not support a finding that the appellant had made a "deliberate attempt to misrepresent his situation". I have looked at the videotapes and have considered the whole of the evidence. As noted by Callinan and Heydon JJ in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at 466, the trial judge had the advantage of observing the plaintiff whilst the videotapes were played and of listening to the subsequent cross-examination. In any event, what the tapes show is self-evident. Plainly it is the appellant on the second tape and his activity is self-evident. The same can be said of the third tape. The appellant's refusal or failure to acknowledge that it was he who was the dancing male on the second tape must tell against him. No explanation was offered. There was no explanation reasonably open other than that his refusal or failure was deliberate.

133 In those circumstances, and on those bases, in my view no error has been shown in the trial judge's treatment of this evidence.

134 I have dealt with all of the complaints made as to the foundations upon which the exaggeration finding was made. The evidence of the three "independent" witnesses was relied on to show that the exaggeration finding was an error, irrespective of those foundational matters. I have previously shown where the trial judge noted the effect of this evidence. The evidence is not inconsistent at all with a level of exaggeration on the part of the appellant, particularly given what the videotape evidence reveals. The evidence of the three witnesses is not of sufficient weight or import to justify interference.

135 It follows that the appellant has not established that the finding that he exaggerated the continuing effects of the injury upon him was in error, having regard to incontrovertible facts or uncontested testimony, nor glaringly improbable or contrary to compelling inferences. Neither has it been shown to be a result of a palpable misuse of the trial judge's advantages. These grounds of appeal must fail.

136 The breakdown of the total figure awarded for damages of $102,788.05 (before the reduction for contributory negligence) is as follows:

137 The following summary of the principles to be applied is taken from MAIB v Richards [1991] TASSC 98; (1991) 14 Tas R 221 per Underwood J at 224 - 229, 235; per Zeeman J at 244 - 245, and Southern Regional Health Board v Grimsey (1998) 8 Tas R 166 at 188:

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Before an appellate court interferes with an award of damages it should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered.

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In the absence of a wrong principle of law or misapprehension of fact, appellate intervention is warranted only if the final award is shown to be wholly erroneous in the sense of being manifestly excessive or inadequate.

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In determining whether the final award is wholly erroneous, it is permissible to examine amounts attributed to individual heads of damage, but the disproportion of those amounts must appear in the total sum awarded; that is, all other matters in the case being equal, the conclusion that the total award is disproportionate cannot be reached unless that same conclusion is reached in relation to the ingredients of the total award sought to be challenged.

138 The grounds of appeal which relate to the assessment process are as follows:

"8 Her Honour erred in her reasoning assessment process when assessing damages for the Plaintiff.

9 Her Honour erred in assessing the extent of the Plaintiff's injuries when assessing the Plaintiff's income earning capacity, his disabilities and damages.

10 Her Honour erred in failing to award any amount for Home Care or assistance to the Plaintiff.

11 Her Honour failed to take into account adequately or at all independent evidence of the Plaintiff's incapacity.

12 Her Honour failed to place weight on the Plaintiff's income earning capacity and attempts to find employment prior to the accident when assessing damages."

139 These grounds again raise the issue of the extent of the appellant's injuries and their consequences. That issue has been dealt with, as has the suggestion that the trial judge failed to take into account the independent evidence as to the appellant's incapacity. As argued, the appellant submitted that in any event, notwithstanding the "exaggeration" finding, the trial judge's assessment of three individual heads of damage was so unreasonable and unjust as to suggest material error. I will deal with pain and suffering, loss of earning capacity and domestic care in that order, but will firstly set out some background.

140 Prior to the assessment process in the reasons for judgment, the trial judge set out the appellant's physical injuries and their immediate treatment. This evidence was, in the main, taken from the Royal Hobart Hospital records. They documented the depressed fracture of the right parietal temporal bones, and the subsequent uncomplicated treatment of that injury, with discharge five days later.

141 The trial judge went on to detail the physical consequences of the accident as detailed by the appellant in his evidence and then turned to "other accident consequences". The trial judge noted the significant dispute at trial as to just what the consequences of the accident were for the appellant and noted the claimed consequences as follows:

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a claim by the appellant to have suffered a significant change in his personality and to be largely unable to work or look after himself;

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depression and feelings of being inferior and worthless;

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an inability to talk to strangers, and a lack of relationships with females since the accident with no sexual arousal;

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continuing problems with balance;

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a lack of concentration and a feeling of heaviness on the right side of his head;

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tinnitus;

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an inability to use a computer;

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the cessation of physical recreational activities such as cricket, volleyball, surfing and swimming;

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a belief that the appellant could not now work "because he did not know if he would get out of bed in the morning to go to work";

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an inability to do any work which involved climbing or heights because of dizziness;

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the absence of friends;

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an erratic memory.

142 After dealing with the medical evidence and the "independent" witnesses, the trial judge then went on to deal with the video surveillance tapes. I have previously set out the relevant parts of the reasons, the ultimate conclusion being of course that the appellant had exaggerated the continuing effects of the depressive illness. The trial judge accepted that the appellant's head injury had impacted upon him in a number of other ways. This was detailed in the following manner:

"78 ... He has the scar on his head which is covered by hair. There is no evidence of pain associated with this, but some ongoing discomfort. As to the headaches complained of, while common sense dictates the plaintiff is likely to have suffered from headaches for a period after the accident, there was no complaint to his general practitioner of any persistent headaches 12 months after the accident and no evidence of any organic cause. Further, despite his complaints in his evidence, the plaintiff takes no medication and has sought no advice about them. I cannot accept, in those circumstances, that any headaches from which the plaintiff might suffer now are necessarily related to the accident.

79 I accept that the plaintiff has suffered a mild loss of hearing in his right ear and tinnitus in that ear. However there was no evidence either condition impacted to any significant degree upon the plaintiff. He takes no medication for the tinnitus. As to the sense of heaviness on the right side of his head and a burning or tingling sensation on the right side of his head during some physical activity (particularly in hot weather), these are both matters which have been raised with medical practitioners but for which no organic cause appears to have been found. It was never suggested he did not suffer from these symptoms.

80 As to problems with dizziness and one referred to with the plaintiff's right eye, there was no evidence of a complaint about either to any medical practitioner over the years since the accident. The plaintiff's application for renewal of his licence in 2003, already referred to, suggested there was no problem with dizziness (or indeed for that matter with depression).

81 There was evidence of some reduced capacity to concentrate on activities.

82 While the accepted difficulties have all impacted upon, and continue to impact on, the plaintiff's life since the accident, medical opinion suggests that treatment, at least for the depressive disorder, is available and likely to be helpful but which the plaintiff simply refuses to have. Indeed the plaintiff will not see a doctor for advice only apparently when sent for assessment by his solicitors, and will take no medication or treatment."

143 The award under this head of damage was $25,000. The particular matters which the trial judge took into account were:

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the appellant was 28 at the time of the accident and that what employment he had prior to that time involved outside physical activity; he was also involved in local sport;

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he suffered a head injury which required surgery but he was discharged within five days and appeared to have suffered no other significant direct physical injury;

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there were issues of headaches and tinnitus but otherwise a relatively quick physical recovery;

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a depressive disorder which had been suffered for some years, but for which the appellant refused to seek treatment, and which depression had an adverse effect on the appellant's sex life.

144 The trial judge referred to the nature of the injury, the level of disability which had flowed from it and the lack of treatment between the date of the accident and the date of trial, and the lack of any need for treatment in the future. Her Honour then said that she accepted that a head injury was not a trivial matter, but said that the mere fact of such an injury does not justify the level of damages sought [$150,000] without regard to its consequences.

145 Ignoring the exaggeration finding, the appellant did not expressly challenge the facts upon which the trial judge based the assessment. The factual issue is and was the consequences of the depression.

146 It is plain enough that the trial judge accepted that whilst the appellant was guilty of exaggeration in this respect, there remained some consequences which had impacted on and "continue to impact on, the plaintiff's life since the accident". However, it was the appellant's refusal to accept treatment for the depressive illness which had influenced the trial judge's thinking.

147 In August 2001, Dr Rose said that the appellant's depressive illness would significantly improve with the use of antidepressants and may even resolve, and recommended that the appellant should also undergo cognitive behavioural therapy. The appellant said he would not take medication on "philosophical" grounds, but no explanation was offered for the failure to undergo cognitive therapy.

148 I think the view can be properly taken that the appellant has failed to take reasonable steps to alleviate his suffering and that it was appropriate for this consideration to be reflected in the award under this head of damage.

149 In terms of the purely physical injury, the appellant was a relatively young man when he was injured. He will have the numerous plates and screws in his skull for the rest of his life. There was no evidence as to what, if anything, might happen with these as age encroaches. Regard must be had to the length of time for which the appellant has to carry the physical injuries, and to the possibility of some ongoing depressive symptoms notwithstanding treatment. But I am not able to say that the amount assessed is a wholly erroneous estimate, bearing in mind that moderation under this head of damages is required; Motor Accidents Insurance Board v Pulford [1983] Aust Torts Reports 81-235, per Cox J at 62,422.

150 The appellant was awarded the total sum of $71,000 for loss of his earning capacity, $31,000 of which was referable to the pre-trial period, the balance to the future over a potential working life of 25 years, discounted at 15 per cent.

151 The trial judge extensively reviewed the appellant's background, including his employment history, as follows:

Marlow v Walsh [2008] TASSC 58

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (241 paragraphs)

Marlow v Walsh [2008] TASSC 58 (15 October 2008)

Marlow v Walsh [2008] TASSC 58 (15 October 2008)

Parties

Cases Cited (20)