Rossi v Westbrook & Anor [2013] QCA 102

SUPREME COURT OF QUEENSLAND

CITATION: Rossi v Westbrook & Anor [2013] QCA 102

PARTIES: TENILLE BIANCA ROSSI (appellant) v MARGARET SOMERVILLE WESTBROOK (first respondent) RACQ INSURANCE LIMITED (second respondent)

FILE NO/S: Appeal No 10601 of 2011 SC No 551 of 2008

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 10 May 2013

DELIVERED AT: Brisbane

HEARING DATE: 4 May 2012

JUDGE: Fraser and Gotterson JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal dismissed with costs to be assessed.

CATCHWORDS: DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where the appellant suffered injury to her cervical spine as the result of a motor vehicle accident – where the appellant claimed damages for past and future care and assistance and for past and future loss of earning capacity arising from ongoing symptoms of injury – where the trial judge took account of evidence of two physiotherapists who each reported inconsistencies between the appellant’s alleged symptoms and their observations upon examination of the appellant – where the trial judge took account of evidence of the appellant’s former fiancé and his mother who did not support the appellant’s evidence that she had required care and assistance – whether the trial judge erred in finding that the appellant’s symptoms were not serious enough to require care and assistance or to affect her earning capacity – whether the trial judge erred in not awarding damages as claimed by the appellant / EVIDENCE – BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE – GENERALLY – CREDIBILITY AND WEIGHT – PARTY’S FAILURE TO GIVE OR CALL EVIDENCE – where the appellant did not call her husband to give evidence regarding her need for care and assistance and earning capacity – where the appellant was the party expected to call her husband – where the appellant’s omission to call her husband was unexplained – whether the trial judge erred in applying the principles in Jones v Dunkel (1959) 101 CLR 298 / Australian Securities and Investments Commission v Hellicar (2012) 286 ALR 501; [2012] HCA 17, considered / Blatch v Archer (1774) 1 Cowp 63; [1774] EngR 2, considered / Browne v Dunn (1893) 6 R 67, cited / Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, applied / Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17, considered / Rossi v Westbrook and Anor [2011] QSC 311, affirmed

COUNSEL: R Morton for the appellant GC O'Driscoll for the respondents

SOLICITORS: Morton & Morton for the appellant Quinlan Miller & Treston for the respondents

FRASER JA: I agree with the reasons for judgment of Fryberg J and the order proposed by his Honour.

GOTTERSON JA: I agree with the order proposed by Fryberg J and with the reasons given by his Honour.

FRYBERG J: The issues in this appeal were concisely summarised in the outline of submissions of the appellant, Mrs Rossi:

“1.The Appellant claimed damages for personal injuries suffered in a motor vehicle accident on 4 September 2003. As His Honour recorded it was admitted that the Appellant suffered an injury to her cervical spine and that she developed a traffic phobia. The traffic phobia is not relevant to this appeal.

His Honour found that the Appellant had suffered an injury to her neck (as was admitted) and that there were symptoms of the kind which the Appellant described. His Honour accepted that there were ongoing symptoms.

However, His Honour was not persuaded that the symptoms were serious enough for the Appellant to require domestic assistance or to affect her earning capacity.” (footnotes omitted)

The grounds of appeal

Mrs Rossi’s grounds of appeal were:

“1.His Honour erred:

(i)in relying on the evidence of the witnesses Hayter and Mitchell as to their observations of the Plaintiff; and

(ii)in finding that the evidence of the witnesses Hayter and Mitchell was inconsistent with the Appellant’s evidence as to her symptoms and capabilities.

His Honour erred in finding that the opinion of the occupational therapist, Ms Aitken, as to the Appellant’s capacity for work was the result of what the Appellant told Ms Aitken.

His Honour erred in finding that:

(ii)the Appellant had not required care and assistance for a period of at least six hours per week for at least six months when there was evidence to support such a finding; and

(iii)the evidence of the witnesses Westlake and Banfield supported a contrary finding when their evidence was simply equivocal and, in the case of the witness Banfield, the product of animosity towards the Appellant.

His Honour erred in finding that there should be no award for past or future loss of earning capacity when his Honour’s findings were that the injuries had in past, and would in the future, afflict the Plaintiff.

His Honour erred in failing to assess:

(i)damages for past and future care and assistance;

(ii)past and future loss of earning capacity.

His Honour erred in finding that:

(i)the principles in Jones v Dunkel (1959) 101 CLR 298 were applicable; or

(ii)that any adverse inference should be drawn by reason of the appellant’s husband not being called as a witness.”

The facts

The circumstances giving rise to Mrs Rossi’s claim appear in the extensive summary of her evidence made by McMurdo J at first instance.¹ Mrs Rossi did not challenge the accuracy of the summary, and it is convenient to set it out in full:

“[2]… The dispute is as to the severity of the injury to her cervical spine. Mrs Rossi says that from shortly after the accident, she has suffered symptoms of stiffness in the shoulders, a burning sensation from her shoulders up through her neck and a feeling that the neck is tightening up which then leads to headaches. She says that this gives rise to a need for domestic assistance and affects her earning capacity. The defendants say that she has no significant impairment in either of those respects, and that she is misrepresenting the existence or extent of her symptoms. As I will discuss, the proof of her case is effectively dependent upon her own evidence.

[3]Mrs Rossi was aged 18 at the time of this accident. She had left high school in year 11 and had worked in two shops in Gympie. She was not employed in the month or so prior to the accident, but she had accepted an offer of employment at a jewellery store. She was living with her then boyfriend, Mr Westlake, in a house occupied also by Mr Westlake’s mother and her husband.

[4]Mr Westlake was driving the car in which she was a passenger when it was hit by the first defendant’s car which had been driven through a red light. She remembers being flung back and forth in the impact and being pulled out of the driver’s side door. An ambulance arrived but its crew attended to the occupants of the other car. Mrs Rossi went home without any treatment.

[5]On the following day she had symptoms of stiffness along her shoulders and up towards her neck and a pain along her back. She went to a general practitioner, who noted complaints of neck and upper back pain. She was referred to a physiotherapist but she did not undertake physiotherapy. She explained that this was because she could not afford it. To this day she has had no physiotherapy.

[6]She says that she began to take brufen for her pain but stopped doing so because it made her feel ill. Instead, she said, she took panadol and nurofen. She said that she has tried brufen a couple of times over the years but again it caused her to feel sick.

[7]She began work at the jewellery store within a couple of weeks of the accident. She said that this work, which required her to be on her feet most of the day, caused her to quickly develop headaches and affected ‘the extent of the pain and tightness’. She said that a sympathetic manager allowed her to have extra breaks during the course of the day so that she could sit down. She says there was also a stool on which she could sometimes sit behind the counter.

[8]In 2004, the ownership of the jewellery store changed. It was purchased by Mrs Rossi’s now husband and his then wife. When Mr Rossi and his then wife separated, their division of assets resulted in the jewellery store being owned by her. This left Mr Rossi with a service station in Gympie, which had a small residence attached to it. The plaintiff and Mr Rossi went to live there. She left her employment at the jewellery store and did some work behind the counter at the service station. She said she found the work in the service station difficult because she was having to stand up, as well as lifting things such as drink cartons. She described that this would make her pain worse and she would end up with a migraine from the tightening of her shoulders. She said that had she not been injured, she would have sought another job in a shop after leaving the jewellery store. Before long she stopped working behind the counter at the service station and confined herself to doing the accounts, which involved her working 15 to 20 minutes each night. She said that this was because of the problem she was experiencing with her neck. At no time did she receive any payment for work at the service station. Her tax returns for the 2003 and 2004 years are in evidence, but not any return for the 2005 year.

[9]Mr Rossi acquired another service station, this time in Maryborough. They moved to a house at the back of that business and she began to manage the Maryborough service station, with Mr Rossi managing the one at Gympie. But within a matter of weeks, she says, she found that the work load was too much and that it aggravated her neck and back pain. Consequently, Mr Rossi managed the Maryborough service station and employed other people at Gympie. She then performed the daily accounting work as she had done at Gympie. At some time in 2005, the Gympie service station was sold. The Maryborough service station was sold in February 2006.

[10]In early 2006, the couple began a signwriting business. The signs were designed by Mrs Rossi using particular software, and they were printed on stickers by a device called a cutter. Mr Rossi applied these to a wood or metal base and installed the completed signs. They acquired the cutter on eBay and she taught herself to use the software. Mrs Rossi’s evidence was that the couple went into this business essentially because she needed some occupation in which she could work from home and, by being self-employed, she could limit her hours of work so as not to exacerbate her neck pain and headaches.

[11]Whilst she was learning to use the software, Mr Rossi was employed at a newspaper in Maryborough. When she began to build up a list of customers, he left that employment to work in the business. She said that the business was commenced shortly before the sale of the service station in Maryborough. I have the impression that Mr Rossi was not employed at the newspaper for long. She does not suggest that at any time it was intended that she alone would conduct this business. Nor did she refer to any other occupation of Mr Rossi after he left the newspaper until very recently. The apparent intention was that they would each be involved from the time that the necessary software and equipment were acquired and there was work to be done. It appears then that the business was not acquired in order to provide Mrs Rossi with something to do which would not exacerbate her symptoms. The more likely position is that the couple decided to undertake this new venture having decided to leave the service station business.

[12]Mrs Rossi says that she began to work about four hours per day, five days a week. She says the business was not successful in its trading. Remarkably, she said that it was for this reason that the couple decided to grant franchises, firstly in Australia and later in New Zealand, for the conduct of such a business. About 10 franchises were granted, with the franchisees paying amounts ranging from $30,000 to $40,000, for which the franchisee obtained not only the right to conduct the business but also the necessary training, equipment and software. In this way the Rossis’ undertaking was profitable, it would appear, because Mrs Rossi conceded that ‘[t]here was a certain amount [from moneys paid by franchisees] that I did use for groceries and that sort of thing …’.

[13]As the franchise network grew, so did her workload. Her hours increased to about 10 to 12 hours per day which, she said, made her symptoms worse. Before long, an agreement was reached with the franchisees at the Gold Coast and in Melbourne that they would assist with the training of and ongoing support for further franchisees. She said that this reduced her workload to about four hours per day.

[14]Mrs Rossi was involved in training of new franchisees. From about February to September of this year, she and Mr Rossi were working in New Zealand, with new and prospective franchisees there. At one stage this year, she was working about six hours per day. But she claimed that upon her return to Australia in September, she said to her husband that she could no longer work this hard. She claimed that the couple then decided not to continue the business and had closed it down. However, the web page for their business still exists and it represents that the business is alive and well. She says that Mr Rossi has found other work as a car salesman and she has not looked for other employment. Just what has been agreed with, or arranged for, the franchisees is not explained.

[15]The couple have one child, who was born in May 2007. During her pregnancy, Mrs Rossi was able to continue her work, but the medication for what she says were her symptoms was limited to panadol. She said that this meant that she could not manage her symptoms as well as when she could take nurofen. She said that this additional pain meant that she required further help in the house and that a girl who lived next door was paid to help her for about eight months. There is no evidence, documentary or otherwise, to support that statement. She said that the child was breastfed for about 14 months and that again during this time she was unable to use nurofen.

[16]Mrs Rossi says that she now uses panafen, to the extent of two to four tablets a day, and that her pain varies from day to day but sometimes it is so bad that she must stay in bed. Even on a good day, she still experiences ‘a mild tightening or stiffness’.

[17]On this evidence, Mrs Rossi has been in constant pain, very often seriously enough to confine her to bed, since September 2003. Her symptoms have confined her work opportunities, limiting her to an unprofitable business to which she was unable to apply herself on a full time basis. Yet she has sought very little professional assistance. I mentioned that she saw a general practitioner on the day after the accident. According to what was tendered without objection as the relevant medical records, she next saw a general practitioner in May 2004 when she reported neck pain. She went to the same practice in July, August and October 2004 and also in March 2005. But in no case did the notes of those visits refer to any relevant pain. However, on 11 April 2005 she went to that practice complaining of a sore neck, headaches and vomiting. An examination revealed a general tenderness and she was referred for an x-ray and prescribed nurofen and paracetamol. On the following day she went to the Gympie Hospital complaining of pain over the head and neck and of a migraine over the past two days.

[18]The next relevant entry in the records is for 1 November 2005, when she saw a general practitioner in Maryborough. Symptoms of pain in her neck, shoulder and lower back were recorded. On the following day, she returned to that practice with the same complaints. That is the most recent of any record of treatment for the symptoms of which she has given evidence. There are a number of notes of consultations with a general practitioner during her pregnancy, but in no case was this pain noted. The same can be said about her visits to a general practitioner in June, September and October 2007.”

The ultimate findings at first instance

On the matters now in issue, McMurdo J made the following findings:

“[46]Taking all these matters together, I am not persuaded to accept the substance of her evidence. It must be accepted that she suffered an injury to her neck and that there were some symptoms of the kind which she has described. I accept that there are some ongoing symptoms, but not nearly to the extent related by Mrs Rossi’s evidence. I am not persuaded that, at any time, her symptoms would have been serious enough to require domestic assistance as she now claims or to affect her earning capacity. Upon those premises, I turn to the quantification of her damages.

[47]… .

[48]Section 59 of the Civil Liability Act provides that damages for gratuitous services provided to an injured person are not to be awarded unless the services are necessary, the need for them arose solely out of the injury in question and the services were provided or are to be provided for at least six hours per week and for at least six months. Accordingly, the plaintiff must establish not only the need for such services but the fact of their provision. In this case, if the threshold level of services has not been provided to date, it could not be said it will be met in the future. I accept that her symptoms at some points may have created a need for some assistance. I would also accept that it is likely that she was provided with that assistance. However, I am not persuaded that there was a period of at least six months where they were provided to the extent of at least six hours per week. The evidence of Mr Westlake and Mrs Banfield indicates otherwise.

[49]As should be clear from the above, I am not persuaded to award any component for economic loss. Mrs Rossi’s income when she was employed at the jewellery store was unaffected by her injuries. It is not demonstrated that her work history after that point resulted in less income for her than would have been the case absent her injuries. Her claim is made upon the basis that she would have continued to work in some employment in a shop. She was able to do that during a period of most of the year from the accident, when her symptoms would be expected to have been most significant.”

The extent of Mrs Rossi’s disability

Mrs Rossi submitted that McMurdo J’s assessment of the evidence relating to the extent of her disability was adversely affected by two matters. The first was a misunderstanding of her evidence about the frequency of her confinement to bed with pain. The second was an incorrect analysis of the evidence of the physiotherapists, Mr Hayter and Mr Mitchell.

Mrs Rossi’s confinement to bed

Mrs Rossi testified in evidence in chief:

“Well, what’s a bad day like? Tell his Honour about that?—A bad day is I wake up and I’ve already got the tightness and the migraine and I’ll take the pain medication to try and knock it on the head. If the headache - if the migraine is bad, I stay in bed.

And how often does that happen?-- Generally I can still get it, you know, once a week, where-----

How often do you have to spend the day in bed?-- About after lunchtime, and it sort of depends on how much medication I take, too, to kill the migraine, because the migraine makes me feel ill.

Mmm-hmm?-- Yeah.”

Mrs Rossi submitted that this evidence did not support his Honour’s finding that she claimed she was in pain “very often seriously enough to confine her to bed”². I suppose that that depends to some extent upon whether one assesses “very often” in this context as encompassing once a week. In the context of many years of alleged pain, I would have thought the description was justified. In any event, his Honour made it clear a little later in the judgment that he was aware that her evidence was “that on bad days she is confined to bed”.³

The submission fails.

The evidence of the physiotherapists

Mr Mitchell was the first of the physiotherapists to examine Mrs Rossi. He saw her on behalf of RACQ Insurance in April 2008. He reported that her alleged symptoms were not consistent with his objective findings, and that symptom exaggeration therefore appeared to be present. The methodology underlying that report, the so-called Blankenship paradigm, was ruled inadmissible by the trial judge, as were parts of the report. It is not altogether easy to identify what was finally covered by the ruling of inadmissibility, but it seems that the assertion of inconsistency between observed functional performance and subjective description of pain, both before and after testing, was admitted and was the subject of cross-examination.

Although it is necessary to use care in drawing from the suspect aspects of Mr Mitchell’s report, no criticism was directed during the appeal to his Honour’s summary of Mr Mitchell’s evidence. I therefore adopt it:

“[22]Mr Mitchell assessed not only her range of movements, but also other things such as her strength. None of these measurements support her case. But he noted also her own assessments of her pain, described as a number out of 10. Overall the numbers were relatively high, often seven out of 10. This caused Mr Mitchell to write in his report that the amount of actual movement which Mrs Rossi was able to achieve in the exercises did not correlate with the high level of pain which she said she was experiencing. He explained this as follows:

‘[I]t’s based on looking at normal movement, range of motion, normal speed, end range stretch, that’s where the person kind of bounces into the end of the movement, which you wouldn’t expect someone to do if they were in a lot of pain, and a symmetrical movement pattern, and normal behaviour, no grimacing, no, you know, exclamation of pain or anything of that nature, and, yeah, there’s a report of very strong or seven out of 10 pain as defined in our very first questionnaire that we filled in together. Seven out of 10 is a very strong pain. I don’t think that correlates. Normal movement, normal speed, bouncing into the end of the range of the motion, a symmetrical movement, no outward sign of any pain, the report of seven out of 10, that’s all.’

Mr Mitchell said that Mrs Rossi reported typically sitting for seven hours a day in her work and that he observed her to sit for about an hour during his assessment without any apparent discomfort.”

Mrs Rossi submitted that essentially, this evidence amounted to no more than that she did not carry on with histrionics. It demonstrated nothing. She submitted that Mr Mitchell thought her claimed level of pain was too high. Pain was something which would vary from day to day, and it was subjective.

That submission does not in my judgment go far enough. The onus lay on Mrs Rossi to demonstrate that her cervical injury caused her disabling pain if she were to recover damages for economic loss. She testified that doing work did cause her pain. On the other hand she told Mr Mitchell that on a scale of 10 her pain level before she did any tests was seven. After testing it was nine. Mr Mitchell’s opinion was that these levels of complaint were inconsistent with her actual performance in functional testing. In effect he would not accept the increase which she asserted as valid because if her injury was indeed causing disabling pain of the magnitude she described, she could not have performed as she did. That was the view which McMurdo J accepted. In my judgment it was open to his Honour to do so.

Mr Hayter also tested Mrs Rossi on behalf of RACQ Insurance. He saw her in May 2010. He used the same paradigm and software as Mr Mitchell, and unsurprisingly, he got a similar result. Again it is necessary to use care in drawing directly from his report. Again, it was not submitted that McMurdo J had misunderstood the evidence, so I rely on his Honour’s summary:

“[23]Similarly, Mr Hayter wrote that Mrs Rossi ‘reported moderate levels of pain’ and ‘moderate levels of disability’, ‘which correlated poorly with her demonstration of full functional range of motion’. His testing indicated to him that Mrs Rossi was able to work an eight hour day in an occupation of light-medium physical demand. In his opinion, she did not require assistance around the home, now or in the future and that ‘[s]he would benefit from increasing her physical activity around the house to assist with increasing her overall conditioning’.

[24]Mr Hayter, who saw her in May 2010, noted that she was then working in her own business, 50-60 hours per week as she had done from about October 2009. In her evidence, she explained that these were the hours during which the phone might ring for business, rather than the number of hours of constant work. But that explanation is difficult to reconcile with what she said to Mr Hayter, when it is seen in context. He wrote:

‘Ms Rossi reported that she initially worked approximately 12 hours per week on her own business when it began in February 2006. She stated that her hours have gradually increased since May 2007. She reported that she has worked 50-60 hours per week on her own business since about October 2009.’

Mr Hayter also recorded that ‘Ms Rossi reported that she has missed only four days of work when her daughter was born, since the motor vehicle accident’. Mrs Rossi explained that as the business was conducted from home she was effectively always at work. Again, this is not a persuasive explanation and is difficult to reconcile with her evidence that on bad days, she is confined to bed.”

Mrs Rossi submitted that she had never claimed that she was not capable of performing movements; merely that they aggravated her pain. Her case was that repetitive, constant movements led to a gradual increase in pain which built up by the end of the day. She submitted that this was not inconsistent with the evidence of the two physiotherapists. Their testimony, distilled to its essence, was that the level of pain which she claimed to have ought to have manifested itself in gestures (such as wincing or grimacing) or restricted movement when performing the set tasks; yet both conceded that pain was subjective and could be reported differently by different people. It followed, continued the submission, that the judge erred in using their evidence as a ground for not accepting her evidence as to the extent of her disability.

McMurdo J accepted the evidence of the physiotherapists:

“[42]I accept the opinions of the physiotherapists as I have set about above. There is a poor correlation between what Mrs Rossi was able to do in the various tests (and her appearance in doing so) with what she claimed was the pain which she was then experiencing. Perhaps Mrs Rossi has a remarkable degree of fortitude in coping with the symptoms which she describes. Nevertheless, the evidence of the physiotherapists provides a significant indication that her symptoms are exaggerated.”

In my judgment, Mrs Rossi’s criticisms of that conclusion are misplaced. It is beside the point to observe that she had never claimed she was incapable of performing movements. His Honour did not suggest that she had. He found that her pain and the extent of her disability were exaggerated by her. That finding was open on the evidence referred to. He was not satisfied that they were productive of economic loss. On the basis of the evidence which he accepted, that conclusion followed.

Care and assistance

Mrs Rossi submitted that his Honour's rejection of the claim for care turned upon his misappreciation of her evidence and his failure to appreciate the true effect of the evidence of her former fiancé, Mr Westlake and his mother, Mrs Banfield. The misappreciation asserted seems principally to be a failure to accept Mrs Rossi’s evidence regarding the effect of pain upon her. That is really a criticism of a conclusion, not a misappreciation of the true effect of evidence. The criticism seems to be no more than the obverse of the asserted failure to appreciate the true effect of the evidence of Mr Westlake and his mother.

On that aspect of the case Mrs Rossi submitted that his Honour should not have concluded that the evidence of the two witnesses was adverse to her. His Honour’s findings were:

“[27]In evidence in chief, Mr Westlake had no recollection of assisting Mrs Rossi with domestic activities after the accident or of seeing his mother do so. Nor did he recall any other person providing such assistance to her. The weight of this evidence is affected to an extent by the fact that Mr Westlake was asked only about a year ago to recall these circumstances. I accept that his recollection would be limited. Nevertheless, it is likely that he would recall providing substantial assistance, of the order of some hours per week, had that happened. He gave no indication of any hostility towards Mrs Rossi and I accept his evidence.

[28]Mrs Banfield professed a clearer recollection. She said she did not provide the plaintiff with any domestic assistance. She said that her son did things for Mrs Rossi around the house, but no more than he had done prior to the accident. She described Mrs Rossi as 'just always lazy in the house'. Clearly, Mrs Banfield does not have a high opinion of Mrs Rossi.

[29]Possibly, Mrs Rossi needed some care after the accident, and that it was effectively for things which Mr Westlake had always done for her. The evidence of these two witnesses does not of itself disprove Mrs Rossi’s case.”

Mr Westlake conceded that he would have provided assistance to Mrs Rossi if asked “without thinking much about it”. He did not give positive evidence that there were no symptoms suffered by Mrs Rossi, nor that he did not render assistance. His position was that he simply did not recall those things. Therefore, Mrs Rossi submitted, his evidence did not support the proposition that no assistance was rendered.

That may be so, but the trial judge did not decide otherwise. His Honour took account of the lapse of time and of Mr Westlake’s limited recollection, and concluded that had Mr Westlake provided assistance for some hours per week, he would have recalled doing so. This is an inference which was open to his Honour based on his knowledge and experience of human nature in such circumstances. His Honour was not obliged to confine his findings to facts which were the subject of direct evidence.

His Honour made no explicit finding of credibility in relation to Mrs Banfield, but it seems that he accepted her evidence. His Honour was conscious of the need to assess it in light of her attitude to Mrs Rossi, and he did that. Mrs Rossi submitted that it was improbable that Mrs Banfield would accurately remember whether Mrs Rossi’s failure to do things around the house occurred before or after the accident. There is, however, no reason to think that his Honour erred in his assessment of Mrs Banfield’s attitude, memory and evidence.

In my judgment McMurdo J’s findings were open on the evidence. They depended in part upon an assessment of the credibility of the two witnesses, and there is no reason to think that his Honour erred in making that assessment.

Jones v Dunkel**: Earning capacity and care and assistance**

Mrs Rossi did not call her husband to give evidence regarding care provided to her and her employment history and needs. The omission was unexplained. As McMurdo J observed, “After Mr Westlake, it would be Mr Rossi who was the person likely to provide at least much of the care which is said to have been required.”⁴ His Honour described the omission to call Mr Rossi as remarkable. One would expect that he would have been able to give evidence of what he did for her and her need for help, as well as evidence relevant to her capacity for work. His Honour wrote:

“[31]Mr Rossi has lived and worked with the plaintiff for at least seven years. According to her evidence, he has had to restructure businesses by engaging other people to do the work which she was unable to do. On her evidence, the decision to go into this signwriting business was made because of her impaired capacity to work. He was a party to that decision. And plainly, he would be able to give relevant evidence as to her need for domestic assistance. There is no explanation for the absence of this evidence. For example, there is no suggestion of some recent discord between them.”

Mrs Rossi submitted that his Honour was prepared to draw an adverse inference against her case by reason of the failure to call her husband. With the utmost respect, that submission misstates his Honour’s reasons. What his Honour held was:

“[34]In my view, the defendants’ submission based on Jones v Dunkel must be accepted. I infer that Mr Rossi’s evidence would not have assisted her case. Of course, it is not to be inferred that his evidence would have been adverse to it. …

[35]The failure to call Mr Rossi is not, of itself, determinative of the plaintiff’s case. It does not mean that her evidence should be rejected. But the fact that his evidence would not have assisted her case is relevant to that question.”

The submission must therefore fail.

Mrs Rossi submitted that the challenge made to her evidence and her credibility did not go so far as to permit any detrimental inference to be drawn from her unexplained failure to call her husband. It was submitted that her evidence was unequivocal and sufficient to satisfy the onus of proof.

The issues in respect of which McMurdo J applied Jones v Dunkel were whether Mr Rossi had had to restructure businesses by engaging other people to do work which Mrs Rossi was unable to do; whether the decision to go into the signwriting business was made because of her impaired capacity to work; and the extent of her need for domestic assistance. On the first of those her evidence necessarily included an element of hearsay. On the second, her evidence was that her tasks in the business were work she could do from home on a computer, but again, anything she said (and it was very little) of Mr Rossi’s position (his Honour found that he was a party to the decision) was hearsay. The third and ultimate question of the level of her need for care and assistance was a matter of inference from the evidence which she gave. These were not issues on which there was direct evidence which logically was incapable of being weakened by a failure to call a witness. The evidence in relation to them was neither unequivocal nor compelling.

At a broader level of generality, McMurdo J wrote:

“[33]In this case, the plaintiff must prove her alleged incapacities to work and to care for herself. These issues are at the heart of her case and she must explain why she is unable to do these things, although she has a full range of movement and, more generally, no objective signs to support her evidence of her symptoms.”

His Honour was correct.

In Minister for Immigration and Multicultural Affairs v Jia Legeng⁵, Callinan J wrote:

“317.[T]he statement of principle in Jones v Dunkel is no more than a particular instance of the old rule stated by Lord Mansfield in Blatch v Archer [(1774) 1 Cowp 63 at p 65; 98 ER 969 at p 970] and cited recently by this Court in Vetter v Lake Macquarie City Council [(2001) 202 CLR 439], that evidence has to be weighed according to the circumstances of, as well as the capacity of, a party to adduce it*.*”

That was confirmed by the majority judgment in Australian Securities and Investments Commission v Hellicar⁶. After referring to Lord Mansfield’s dictum in Blatch v Archer, the majority wrote:

“167.This Court’s decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used.”

The majority also wrote:

“165.Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles ... .” (Emphasis added)

The High Court held that the New South Wales Court of Appeal had wrongly applied Blatch v Archer in the circumstances of the case. The issue was whether a draft ASX announcement had been tabled and approved at a directors’ meeting. ASIC had tendered admissible evidence that, if accepted, showed that the draft announcement had been tabled and approved. The Court of Appeal had held that ASIC’s failure to call a witness diminished the cogency of that evidence. The majority held:

“170.The fact that ASIC did not call Mr Robb did not affect (in the sense of diminish) the cogency of the proof which ASIC advanced. Yet that is the conclusion the Court of Appeal reached: that the cogency of ASIC’s proof was diminished because Mr Robb was not called to say no more than ‘I do not recall’.” (Emphasis in original)

As already observed, the quality of Mrs Rossi’s evidence was quite different. In relation to the issues in question, it involved matters of hearsay and inference.

Some idea of the sorts of cases which, conformably with Hellicar, may attract the general principle in Blatch v Archer can be gained from the cases which the High Court distinguished:

“169.… This was not a case where ASIC’s case depended on inference, let alone on ‘uncertain inferences’⁷, or where there was a question about whether ‘limited material is an appropriate basis on which to reach a reasonable decision’⁸. It was not a case where ‘the missing witness would be expected to be called by one party rather than the other’ or where it was known that ‘his evidence would elucidate a particular matter’⁹.” (Emphasis in original)

In my judgment this was a case where, in accordance with accepted principles, Mrs Rossi’s failure to call Mr Rossi could “properly [have been] taken into account in determining whether [Mrs Rossi had] proved [her] case to the requisite standard”. It was a case where there was a genuine question about whether her testimony standing alone was an appropriate basis on which to reach a reasonable decision and it was a case where she would be the party expected to call him.

There are in my judgment at least three results which flow from the application of the general principle in Blatch v Archer. First, as is said in Cross On Evidence, the rule:

“permits an inference that the untendered evidence would not have helped the party who failed to tender it. It entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken.”¹⁰

McMurdo J quoted that passage and seems to have used the evidence in that way. It is uncontroversial.

Second, inferences available on the evidence which has been given against the party not tendering the other evidence, or which favours that party’s opponent, may more confidently be drawn. Again I apprehend that proposition to be uncontroversial.

Third, it seems to follow from Hellicar that inferences proposed by the party not tendering the other evidence may more readily be rejected.

It is unnecessary to discuss these matters further. Mrs Rossi has not demonstrated any error in the trial judge’s approach.

Other matters

McMurdo J’s conclusions were not based solely on the matters referred to above. His Honour also referred to her work history generally¹¹ and that in the signwriting business in particular¹², her failure to see a doctor about her symptoms after November 2005, her failure to take up the suggestion of physiotherapy and the absence of any corroborative evidence of her use of medication.¹³ His Honour expressed doubt about her credibility and gave reasons for that doubt¹⁴ which are not now challenged. His Honour discounted an opinion of Ms Aitken, an occupational therapist called in Mrs Rossi’s case on the basis that it depended upon a factual premise, namely that Mrs Rossi had accurately reported her symptoms and related her experiences and difficulties in work and at home to Ms Aitken.

Mrs Rossi submitted that some allowance should have been made for both past and future economic loss, even if the evidence was not susceptible of precise calculation. It may be accepted that the absence of evidence enabling a precise calculation to be made does not generally disqualify an injured plaintiff from recovering a notional amount (subject, of course, to s 55 of the Civil Liability Act 2003). However no such allowance may be made when the court is not satisfied that loss has been sustained. That is the position here. Mrs Rossi’s evidence that her ongoing pain was sufficient to produce such a loss was rejected. She has demonstrated no error in that conclusion.

Mrs Rossi submitted that there was no reason to reject her evidence that she commenced work in the signwriting business in order to be self-employed and not have to meet the demands of employment. She submitted that the contrary had not been suggested to her during the trial. That submission appears to be correct. The omission would seem to have breached the rule in Browne v Dunn¹⁵. In part the omission may have resulted from the production of some of the franchise documents to the defendants only on the morning of the trial. None of the quite substantial income from the sale of franchises¹⁶ was disclosed in Mrs Rossi’s updated statement of loss and damage signed by her on 9 October 2011. On the contrary, the signwriting business was described as a “Hobbie Business [sic]” of which she was the “Owner Operator”. On balance I am persuaded that the breach, if such it was, did not cause a miscarriage of justice.

Finally, Mrs Rossi orally submitted that there was no evidence to support his Honour’s “adverse finding about her commercial honesty, so to speak”. That submission related to the first three sentences of the paragraph earlier referred to:

“[12]Mrs Rossi says that she began to work about four hours per day, five days a week. She says the business was not successful in its trading. Remarkably, she said that it was for this reason that the couple decided to grant franchises … .”

It was submitted that no one said that she decided to grant franchises because the business was not successful.

It appears to be correct that there was no such evidence. It also appears difficult to understand why his Honour thought the decision to grant franchises was remarkable if made for the reason that the business was unsuccessful, unless he felt that somehow the matter reflected on credibility. However the point was not referred to again in the reasons for judgment. It was not among the reasons given for the credibility finding which his Honour made, a finding which was supported by other evidence. I am satisfied that if this was a slip, it was inconsequential.

Conclusion

Mrs Rossi has not demonstrated any appellable error. The appeal should be dismissed with costs.

Footnotes

1. Rossi v Westbrook and Anor [2011] QSC 311. ↩

2. Ibid, at [17]; quoted above in para [5]. ↩

3. Ibid, at [24]. ↩

4. Ibid, at [30]. ↩

5. (2001) 205 CLR 507; [2001] HCA 17. ↩

6. (2012) 286 ALR 501; [2012] HCA 17. ↩

7. Whitlam v Australian Securities and Investments Commission (2003) 57 NSWLR 559 at [119]. ↩

8. Ho v Powell (2001) 51 NSWLR 572 at [14]. At [15], Hodgson JA (with Beazley JA agreeing) wrote: “In considering [whether the limited material which the court has is an appropriate basis on which to reach a reasonable decision], it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so.” ↩

9. Payne v Parker [1976] 1 NSWLR 191 at p 201. ↩

10. J D Heydon, LexisNexis, Cross on Evidence, vol 1, [1215], (referring to the rule in Jones v Dunkel). ↩

11. [2011] QSC 311 at [43]. ↩