Tan v Mitchell

LEGISLATION CITED: Motor Accidents Act 1988 (NSW), s 70A

CASES CITED: McCann v Parsons (1954) 93 CLR 418 Van Eeden v Henry (2005) 62 NSWLR 301

PARTIES: Joy Al-Ling Tan (Appellant/Claimant) Justin Lee Mitchell (Respondent/Opponent)

CA 40417/05 L M Morris QC/D M Wilson (Appellant) COUNSEL: P Maiden SC/R Foord (Respondent) CA 40409/05 B Conti SC/G Giurtalis (Claimant) K Rewell SC/J Gracie (Opponent/Insurer)

CA 40417/05 Abbott Tout (Appellant) SOLICITORS: Mark Brown & Associates (Respondent) CA 40409/05 McClellands (Claimant) Vardanega Roberts (Opponent)

LOWER COURT FILE NUMBER(S): DC 11420/01; DC 2345/03

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40417/05 CA 40409/05 DC 11420/01

MASON P IPP JA BRYSON JA

Wednesday 12 July 2006 JOY AL-LING TAN v JUSTIN LEE MITCHELL Judgment 1 MASON P: I agree with Ipp JA. 2 IPP JA: On 18 November 1998, at approximately 5.45 pm, a Mitsubishi Magna driven by Ms Joy Al-Ling Tan collided with a motorcycle driven by Mr Justin Lee Mitchell in Hickson Road, The Rocks. Both Ms Tan and Mr Mitchell were injured in the collision. Each sued the other for damages for personal injuries. Ms Tan's damages were agreed at $75,000 but Mr Mitchell's damages were in dispute. Hughes DCJ found that the sole cause of the collision was the negligence of Ms Tan. He dismissed her claim against Mr Mitchell and upheld Mr Mitchell's claim. He assessed Mr Mitchell's damages at $929,928.60. 3 Ms Tan appeals against the judgment handed down in favour of Mr Mitchell (CA 40417 of 2005). She also sought leave to appeal against the judgment dismissing her claim (CA 40409 of 2005). During the course of argument, leave was granted. The two appeals were thereupon heard together. 4 Mr D Conti SC appeared with Mr Giurtalis for Ms Tan in the application for leave to appeal and appeal in CA 40409 of 2005. Mr L M Morris QC appeared with Mr Wilson for Ms Tan in the appeal in CA 40417 of 2005, having been instructed by Ms Tan's compulsory third party insurer. Mr K Rewell SC appeared with Mr Gracie for Mr Mitchell in CA 40409 of 2005, having been instructed by Mr Mitchell's compulsory third party insurer. Mr P Maiden SC appeared with Mr Foord for Mr Mitchell in CA 40417 of 2005. 5 Queries were raised from the bench as to the need for the double representation of the parties: see Van Eeden v Henry (2005) 62 NSWLR 301 where Spigelman CJ said at 304, [39] that double representation was "not a practice which this Court should encourage". It was common ground between the parties, however, that double representation in this matter was reasonable and, indeed, desirable. The Court was informed that, by arrangement between counsel, there would be no duplication in submissions. In the light of this consensus the Court accepted, without further argument, that the appeal should proceed with each party being doubly represented. 6 In consequence of the injuries Mr Mitchell received, he had no memory of the collision and the events leading to it. Although he testified, he could throw no light on what had occurred. 7 Ms Tan testified that she was parked in a parking space on her left hand side of Hickson Road. She intended to make a U-turn after coming out of the parking space. She switched on the engine of her vehicle and looked in her rear view mirror. She saw no vehicles coming from her rear. She had parked "in a fairly tight spot" and had to reverse before driving forwards so as to leave the parking place. She said that, having reversed, she turned on her right hand indicator and then again looked in her rear and side mirrors but saw no vehicles coming towards her. She moved forwards, "maybe 2 metres," sufficient to clear the car in front of her and was at an angle of about 70 degrees to the kerbside. She looked out of the window to her right and noticed a motorcycle approximately 100 metres away travelling in her direction. She stopped her vehicle immediately. When the motorcycle was about 50 metres from her it suddenly veered to its left, headed directly towards her vehicle and drove into the side of her car. Her car had been in a stationary position for at least 5 to 10 seconds before the impact occurred. 8 Hughes DCJ was not impressed with the credibility of Ms Tan and did not accept her version. He said: "I did not regard Ms Tan as a reliable witness. There are many quite important areas, in her medical case and in her claim for economic damages, where Ms Tan altered her history when confronted in cross-examination. And as I said, I did not accept Ms Tan and I don't accept her version of the collision." 9 Some facts were common ground or incontrovertible. Ms Tan's vehicle was 4.746 metres in length. At the point of collision Hickson Road was approximately 24.5 metres wide. There was a parking lane on each side of the road. Two traffic lanes ran in each direction and there was a wide central lane in which trucks and other vehicles could park. A truck was indeed parked in this lane near the point of impact. Vehicles were parked in a long line in the left hand parking lane. Visibility was good. There were no skid marks on the roadway that could be attributed to Mr Mitchell's motorcycle. After the collision, glass and other debris from the vehicles were found on the roadway near the driver's door of Ms Tan's vehicle. Mr Mitchell and his motorcycle had fallen on the roadway, also near the driver's door of Ms Tan's vehicle, more or less in line with the point of impact. 10 Mr Conti said that he did not seek "to set aside the judge's finding as to [Ms Tan's] credibility … in relation to her medical case and the claim for economic damages". Mr Conti said: "[W]e challenge his finding that she was not a reliable witness on the basis of her evidence given as to the collision." 11 After the collision, the front wheel of the motorcycle was found jammed in a position bending to the left by between 10 to 15 degrees. Mr Conti submitted that this established, incontrovertibly, that prior to the collision Mr Mitchell was veering to the left as Ms Tan had testified. He argued that the jammed wheel indicated that Ms Tan's version was correct. 12 Mr Conti also referred to the fact that the right side of the fuel tank of the motorcycle was damaged. He submitted that this damage, also, indicated that the motorcycle was not travelling parallel to the side of Hickson Road immediately prior to the collision but was veering to the left. He submitted that Hughes DCJ had erred in not paying due regard to this testimony. 13 These submissions are not, however, persuasive. As I have observed, Ms Tan testified that Mr Mitchell veered to the left when he was about 50 metres away from her and then travelled directly towards her. On her testimony, Mr Mitchell was not turning at the moment of impact but was travelling in a straight line - having so travelled for about 50 metres. Accordingly, the jammed wheel does not support Ms Tan's version. Had the motorcycle's wheel been in the turned position (in which it was found jammed) for 50 metres, the motorcycle would have come close to completing a full circle by the time the impact occurred. At the very least, it would not have travelled directly, for that distance, into Ms Tan's vehicle. 14 The damage to the fuel tank may well have been caused by the motorcycle bouncing off the car and crashing to the road. The argument based on this damage is mere speculation. 15 On Ms Tan's version, Mr Mitchell's conduct was out of the ordinary and, indeed, bizarre. There was no apparent reason for him suddenly to veer to the left and drive directly, for 50 metres, into the side of her car. While it might be possible for a motorcyclist to drive in this way, it is not an inherently probable scenario. 16 It was conceded that the judge was entitled to find that Ms Tan's evidence in regard to her damages was not reliable. It was open to his Honour to find, as he did, that that evidence tainted her reliability, generally. 17 There was evidence that, at the time of the impact, Ms Tan's vehicle was moving forward. This evidence was in the form of an ambulance report. Two ambulances attended the scene. The driver of one of the ambulances gave oral testimony. The two officers in the other ambulance did not testify orally, but a report signed by them was tendered without objection. The report recorded: "P/T states was pulling out of car space at approx 5 km/hr when M/C hit driver's side of car. P/T states M/C was going in excess of 60 km/hr."

"P/T" is an abbreviation for "patient" and is a reference to Ms Tan. 18 When cross-examined about the quoted passage in the ambulance report, Ms Tan accepted that she had said "something to that effect" to the ambulance driver. She later said that she told the ambulance driver that she had stopped before the motorcycle hit the door. The ambulance report, however, contained no mention of such a statement. As I have said, the report was tendered without objection and the officers who signed the report were not cross-examined. 19 Hughes DCJ described the statement in the report, attributed to Ms Tan, that she was "pulling out of car space at approx 5 km/hr when M/C hit driver's side of car" as an "important" piece of evidence. He was entitled to make this finding. 20 The judge rejected Ms Tan's version and found that she swung out of her parked position "and into the incoming path of Mr Mitchell who had no opportunity to avoid, brake or swerve to forestall a collision". These findings were open to his Honour. 21 Eventually, in the course of argument, Mr Conti conceded "there is negligence in relation to Ms Tan having moved her car out into the passageway where the cyclist was travelling". He argued that there was contributory negligence on the part of Mr Mitchell "for not picking up on Ms Tan's intentions which were signalled of moving out from the kerb position where she was". He also suggested, faintly, that Mr Mitchell might have been travelling too fast. He argued that Mr Mitchell was negligent in not avoiding the collision. 22 There is a difficulty in the submission that Ms Tan had signalled her intention to move out of the parking space. She did testify to this effect but no finding was made in this respect by the judge and he did not believe her evidence, generally. 23 Even if it is accepted that Ms Tan did signal her intention to move to the right before leaving the parking space, it does not follow that Mr Mitchell was negligent. It would have taken about two seconds for Ms Tan to move the short distance of two or three metres that she said she did before coming to a stop. It is not at all clear at what stage Ms Tan's indicator lights would have been visible to Mr Mitchell. The cars in the parking lane may have obscured the indicator lights until a brief period before the impact. Even if they had not been obscured, Mr Mitchell would have been entitled to assume that, having signalled her intention to turn right, Ms Tan would remain in the parking space and not move out in front of his path. 24 It is undoubtedly the case that there was space for Mr Mitchell to have passed safely in front of Ms Tan's vehicle, had he been able to manoeuvre in a timely way. Ms Tan, however, did not establish that Mr Mitchell could have seen her moving out of the parking space in sufficient time to take avoiding action. 25 As regards the speed of the motorcycle, Ms Tan's own expert estimated Mr Mitchell's speed as being between 40 and 50 kilometres per hour at the moment of impact. The judge found that the evidence "[did] not lead to a conclusion that Mr Mitchell was speeding". He was entitled to make this finding. The position in which Mr Mitchell and his motorcycle were found after the collision was consistent with him not having travelled at a fast speed. 26 In my opinion, Ms Tan did not discharge the burden of proving contributory negligence on the part of Mr Mitchell. I am not persuaded that the judge has made any appealable error in regard to his findings as to liability. 27 I would dismiss, with costs, Ms Tan's appeal in CA 40417 of 2005 against the dismissal of her claim. I would also dismiss Ms Tan's appeal against the finding in CA 40409 of 2005 that she was liable to pay damages to Mr Mitchell. 28 I now turn to Ms Tan's appeal in CA 40409 of 2005 against the assessment of damages. 29 Ms Tan challenged the awards in respect of the following heads of damage:

(e) Future commercial assistance $94,721. 30 Hughes DCJ rightly described Mr Mitchell's injuries as "very extensive". They were recorded as follows: "[H]ead injuries with reduced GCS, bruising and swelling of the left side of the neck, bony crepitus over T5 and T6, bilateral pneumothoraces, lung contusions, multiple rib fractures, fractures of the left transverse process of C4 to C7, fracture of the left transverse processes of T1 to T8, crush fracture of the T7 with retro pulsed fragments causing narrowing of the spinal canal by 20 per cent with cord contusion, F brachial plexus injury and fractured left and middle ring fingers." 31 The judge found that Mr Mitchell suffered significant pain and disability "and continued so to do". He said: "[Mr Mitchell has] back pain that prevents him [from] sitting for long periods, neck pain and some problems with his legs; his left knee gave way resulting in [a] fall which resulted in the breaking of his right scaphoid. Eventually, and fortunately, his right wrist has returned to pretty much normal, but nevertheless, he did suffer from and still suffers from significant disabilities." 32 The judge also observed: "There is a significant chance of him being rendered a paraplegic and the medical term for that condition is 'syringomelia'. The parties have agreed that compensation for the risk of paraplegia should sound in damages of $100,000." 33 Mr Mitchell was born on 7 December 1974. He finished school in 1992 at the end of year 12. He was employed as a waiter thereafter until he was injured in the collision. It was common ground that, at the relevant time, the average earning capacity of a waiter was $360 net per week ($18,720 per annum) and that, had Mr Mitchell remained working as a waiter, he would have earned $122,600 from the date of the accident until the date of the trial. 34 The judge's findings in relation to past economic loss were as follows: "It is agreed between the parties that had the plaintiff remained working as a waiter he would have earned something in the order of $122,600. The plaintiff at the time of the accident was hoping to study for a qualification in interior design. I accept the plaintiff's submission that it is more likely than not that the plaintiff would have had to work, without the benefit of the workers compensation payments, four days a week to provide for himself. The plaintiff submits that 80 per cent of the $122,600, that is $98,080 would be a likely figure that the plaintiff would have earned but for the accident. He actually did do some work and was paid $25,000 which leaves a balance of $73,080. In my opinion that is a reasonable submission and I accept the plaintiff's submission on that score." 35 In cross-examination, Mr Mitchell agreed that, prior to the collision, it had been his ambition to stop working as a waiter and he had no intention of pursuing a waiting career for the rest of his life. A couple of years after he left school he became interested in interior design. At that time he was not "really sure" whether he wanted to become an interior designer but agreed that he "had an inclination to do that". 36 After the collision, during the period January 2001 to December 2001, Mr Mitchell undertook a preliminary interior design course. During this period he worked part-time at a video store and earned $240 net per week. From January 2002 to December 2004 he undertook the design course on a full-time basis. He did well in the course and decided to make interior design his permanent career. 37 Mr Morris submitted that the probabilities were that Mr Mitchell would have undertaken the four-year interior design course even had the accident not happened. He submitted that the accident may have caused Mr Mitchell to take the course earlier than he otherwise would have done (as he was able to support himself while he took the course through his workers compensation payments) but, objectively speaking, that was to Mr Mitchell's financial benefit. 38 In my opinion these submissions should be accepted. The way in which the trial judge calculated past economic loss made no allowance for the fact that, prior to the collision, Mr Mitchell intended to undertake some means of qualifying himself so that he could pursue an occupation other than that of being a waiter. Mr Mitchell found that he enjoyed interior design and was well suited to it. By undertaking the interior-decorating course he substantially improved his earning capacity. The probabilities are that Mr Mitchell would have taken the interior design course even had the collision not occurred. 39 During the period 18 November 1998 to December 2000 Mr Mitchell - by reason of his injuries - did not work at all. He should be allowed his loss of earnings as a waiter of $360 per week for this period. It is common ground that this amounts to $38,160. 40 During the period January 2001 to December 2001 Mr Mitchell undertook the preliminary interior design course. He worked part-time during this period at a video store at a salary of $240 net per week. For this period Mr Mitchell should be allowed the difference between his notional earnings of $360 net per week as a waiter and the $240 net per week that he actually earned at the video store. The difference is $6,240. 41 During the period January 2002 to December 2004, Mr Mitchell undertook the full time interior design course and was unable to work. Even had the collision not occurred, it is likely that he would have spent three years on a full time basis obtaining new occupational qualifications. Had he studied part-time, his period of study would have been longer. 42 It is not possible to find that Mr Mitchell would have been in a more advantageous financial position had he taken a part-time course and worked when not studying. The benefit that Mr Mitchell received from obtaining his interior design qualification after studying for three years only - and being able to earn a higher income thereafter - may well have cancelled out the benefit he would have received from doing part-time work while taking a longer period to qualify. 43 Accordingly, I accept Mr Morris's submissions that Mr Mitchell suffered no loss during the period January 2002 to December 2004. 44 In my opinion, Mr Mitchell's past economic loss should be reduced from $73,080 to $44,400 made up as follows: Loss during the period 18 November 1998 to December 2000: $38,160.00 Loss during the period January 2001 to December 2001: $ 6,240.00 $44,400.00

45 The Fox v Wood component must be adjusted. Mr Morris submitted that, were his submissions to be accepted, the Fox v Wood component should be reduced to $5,467 (instead of the $9,000 awarded). Mr Maiden did not dispute this. I would, therefore, assess the Fox v Wood component at $5,467. 46 Mr Morris submitted, as a preliminary argument, that s 70A of the Motor Accidents Act 1988 (NSW) precluded an award of future economic loss to Mr Mitchell. This section provides: "A Court shall not award damages for future economic loss or damages for diminution of future economic capacity unless the claimant first satisfies the Court that there is at least a 25 per cent likelihood that the claimant will sustain a future economic loss or that there is at least a 25 per cent likelihood that the claimant will sustain a diminution of future economic capacity, as the case requires." 47 It is likely that Mr Mitchell will suffer from pain to varying degrees throughout his working life. He has difficulty in sitting and bending over for long periods. The lifting of heavy articles will aggravate his back pain. He is not able to undertake hard physical work. It will be difficult for Mr Mitchell to undertake sustained uninterrupted work of any kind. He tires easily and has headaches about twice a week lasting from three to seven hours. According to Dr Rawling, a clinical neuro-psychologist, Mr Mitchell's pain and disability associated with his injuries limit his work tolerance and productivity, reduce his concentration span, and leave him prone to carelessness and error, and lapses in memory. 48 Mr Mitchell has sustained very serious injuries. His capacity to work has undoubtedly been affected. The disability to his neck and his spine will be permanent. In my view, the likelihood that Mr Mitchell will sustain some future economic loss exceeds 25 per cent. In addition I am satisfied that there is at least a 25 per cent likelihood that he has sustained diminution of future economic capacity. 49 Hughes DCJ, in assessing loss of future earning capacity at $324,898, appears to have accepted the following argument advanced on Mr Mitchell's behalf: "If for example, Mitchell were unable to obtain employment as an interior [decorator] or his business 'plans' with his fellow students did not come to fruition or did and failed one option that would be available to him were he not injured would be to return to the work of a waiter. That is no longer available to him and the current agreed earnings for a waiter are $432.00 net per week. That could be used as a measure or as a guide to determining Mitchell's loss of earning capacity. Allowing that figure, after discounting by 15% for vicissitudes, would allow $324,898.00. It should not be thought that $432.00 per week is a high or excessive figure. It would not represent a significant slab of time for a professional of the type that the plaintiff would be upon qualification." 50 In my opinion, this reasoning is erroneous. Mr Mitchell's loss of earning capacity cannot be measured by reference to the fact that he is no longer able to work as a waiter. He now has the capacity to work as an interior designer and has increased his earning capacity by a considerable amount. The average total remuneration of an interior designer in New South Wales is $53,810 per annum compared to $18,720 being the annual income of a waiter. Regard must be had to the degree to which Mr Mitchell's capacity to earn as an interior designer has been reduced by his injury. 51 Interior design work requires carrying samples of tiles, carpets, fabrics and paints as well as a computer. Mr Mitchell thought that he would be able to do this. The work also involves bending, measuring, going up and down ladders, sitting at a computer for prolonged periods, computer modelling and preparing reports. 52 Mr Mitchell said that doing modelling work sometimes required him to work on a computer for long periods of about eight hours at a time. He said he would also have to spend four to five hours in one "stretch" working on a bench or on a floor constructing scale models. He said that, when working in this way, his pain levels were increased and he has to stop regularly, lie on the floor and walk about. 53 Ms Karen Stephens, a physiotherapist, expressed the following opinion: "[Mr Mitchell] is currently enrolled full-time in an interior design course. The prolonged sitting and bent over activities such as model making involved with this study is proving to exacerbate his pain. In future in this profession certain activities would not be able to be performed by Mr Mitchell, but would need to be done by others (eg in his own business he could contract out the more physical parts of the work)." 54 Professor Jones, a consultant physician of rehabilitation medicine, said that Mr Mitchell had "potential for entering his chosen career as an interior designer, although there will be issues regarding intermittent pain and its management". 55 Mr Mitchell has contemplated going into the interior design business with some of the persons with whom he has been studying. Should he do this, and have a business that he managed or partially managed, he might be able to regulate his work. There is, of course, a possibility that he would not be able to have his own business and would have to obtain work as an employee. Were Mr Mitchell to find it difficult to be employed as an interior decorator, his injuries would hamper him in finding alternative employment. 56 In my opinion, the appropriate way of assessing Mr Mitchell's future economic loss is to commence with the income Mr Mitchell would probably have earned as an interior decorator, had the accident not occurred. An appropriate deduction should then be made to allow for the extent to which his capacity to earn that income has been lost. 57 I have noted that the average total remuneration of an interior designer in New South Wales is $53,810 per annum. Allowing 15 per cent for contingencies, one arrives at a figure of $45,739. I would assess Mr Mitchell's loss of future earning capacity as being 30 per cent of $45,739 per annum calculated over his working life. Thirty per cent of $45,739 equals $13,772. Mr Mitchell was 29 years of age at the time of the trial. The trial judge accepted that Mr Mitchell would work until age 65 and there has been no challenge to this finding. $13,722 per annum represents $264 per week. Using the multiplier of 884.8, used by the judge, an amount of $233,588 is arrived at. In my view this would be an appropriate amount to award for loss of future earning capacity. 58 I turn now to the future loss of superannuation. Hughes DCJ allowed 11.5 per cent of the net amount allowed for future economic loss. Mr Morris did not submit that this method of calculating loss of superannuation was incorrect. He submitted, firstly, that the loss of superannuation should be reduced concomitantly with the reduction in loss of future economic capacity. He submitted, secondly, that the probabilities were that Mr Mitchell would work for himself and would not have an employer whose contributions to superannuation he would lose; thus, no loss had been incurred under this head. 59 Mr Morris's first submission is undoubtedly correct. As regards his second submission, I do not think that there is much of a possibility that Mr Mitchell will work as an interior designer on his own account. Common sense would indicate that if Mr Mitchell does go into business with others they would probably form a company to regulate their respective interests and limit their liability. Even if Mr Mitchell does not go into business with others, common sense would again indicate that he would probably carry on business through a company and have the benefits of limited liability (and superannuation payments). I would, however, make a small allowance for the contingency suggested by Mr Morris. 60 Taking into account the method employed by the judge in calculating loss of superannuation (namely 11.5 per cent of the net amount allowed for future economic loss), I would calculate the loss of superannuation by deducting 1 per cent for the contingency that Mr Mitchell would be self-employed and allow 10.5 per cent of the amount of $233,588 that I have assessed. I thereby arrive at an amount of $24,527 for loss of superannuation. 61 I turn finally to what the judge described as "future commercial assistance" but which was, in fact, future assistance with domestic tasks. Dealing with this head of damage the judge said: "Now as to the commercial assistance component. The defendant believes it should be nil. Dr Buckley allows 8 hours a week, Professor Jones allows three hours a week. It is argued and it seems to me, that although Dr Buckley allows 8 hours a week, three hours a week seems reasonable for the condition this man is in, especially the obvious permanent impairment of his back. … The total is $94,721.00." 62 Mr Morris submitted that this reasoning afforded Mr Mitchell compensation for the consequences of the risk of paraplegia. This was contrary to an agreement between the parties that $100,000 would be awarded for the risk of paraplegia and its effects. 63 Mr Morris pointed to the fact that Prof Jones, in a report, said that were Mr Mitchell to develop paraplegia he would need three hours a week of domestic assistance and three hours per month of home handyman assistance. Mr Morris submitted that Hughes DCJ had wrongly taken this evidence into account as the three hours per month assistance that Prof Jones had in mind was predicated on Mr Mitchell becoming paraplegic. This submission is correct, although, elsewhere in his report, Prof Jones said that, were Mr Mitchell not to develop paraplegia, he would need domestic assistance for heavy activities. 64 Dr Buckley, on the other hand, did not qualify his opinion as to the domestic assistance required by reference to paraplegia. He expressed the view that Mr Mitchell would need the services of a handyman for three hours per week. He also said: "In view of Mr Mitchell's difficulty in carrying out heavy domestic tasks such as ironing, cleaning and heavy washing, I believe that assistance should be provided for him to the extent of five hours per week of housekeeping assistance." 65 Thus, while the judge erred by relying on Professor Jones, he did not err in basing his finding on the opinions of Dr Buckley. Dr Buckley, as I have indicated, thought that Mr Mitchell would require eight hours of domestic assistance. Thus, there was evidence on which his Honour was entitled to rely for his finding that Mr Mitchell was entitled to domestic assistance for three hours per week during his lifetime. Accordingly, I would not uphold the challenge to this head of damage. 66 In summary, I would uphold Ms Tan's appeal in CA 40417 of 2005 by setting aside the awards made in respect of past economic loss, the Fox v Wood component, future economic loss, and future superannuation. 67 The awards made by the judge under these heads and the awards that I propose are set out in the table below. Head of Damage Amount awarded by trial judge Amount proposed Past economic loss: $ 73,080.00 $ 44,400.00 Fox v Wood: $ 9,000.00 $ 5,467.00 Future economic loss: $324,898.00 $233,588.00 Future superannuation: $ 37,904.00 $ 24,527.00 $444,882.00 $307,982.00

68 The amounts assessed by the trial judge under the four heads of damage total $444,882.00. The total of the amounts that I propose should be awarded under these heads is $307,982.00. The difference is $136,900.00. Accordingly, I propose that the total amount of damages assessed by the judge, namely, $929,928.60 should be reduced by $136,900.00 to $793,029.00. 69 I would therefore set aside the verdict and judgment ordered by Hughes DCJ in CA 40417 of 2005 and in lieu thereof order a verdict and judgment in the sum of $793,029.00. Ms Tan should pay the costs of the appeal in CA 40417 of 2005. 70 I repeat that I would dismiss Ms Tan's appeal in CA 40409 of 2005 with costs. 71 BRYSON JA: I agree with the judgment of Ipp JA. 72 In the appeal and at the trial there was double representation in that legal representatives appeared for the insurers and other legal representatives appeared for the litigants themselves. This did not lead to any contest or argument upon which the Court is to adjudicate. In the present appeal double representation placed a heavy additional burden of costs on the controversy. It had a justification in form in that there were two actions and two appeals, and in all strictness counsel appeared only in the case which concerned the interest they represented: those conducting the claims for damages appeared in the actions and appeals in which their respective clients were plaintiffs, and those conducting defences to the claims appeared in the actions and appeals in which their respective clients were defendants. Formal justification is not enough. Double representation is not a practice which the Court encourages, or should encourage: See Van Eeden v Henry (2005) 62 NSWLR 301 at 304 [39] (Spigelman C.J.). So far as I am aware it arose after McCann v Parsons (1954) 93 CLR 418 recognised that where motor insurance is compulsory, an insurer, appearing in the name of a litigant, could rely on its own state of knowledge when seeking a new trial on the ground of fresh evidence of facts, although the facts were known to the litigant at all times but were concealed from the insurer by deception. See the judgment of Dixon CJ, Fullagar, Kitto and Taylor JJ particularly at 430-431. The compulsory insurer obtained a new trial by advancing a case that its own insured had practised a deception as to the events in which the plaintiff was injured. The liability of the compulsory insurer, indisputable and automatically enforced, was central to the High Court's consideration. The approach taken by the High Court in that case can justify double representation only when there is a similarly extreme conflict of interest between insurer and insured, disabling counsel from representing both interests. The present case at trial was an example: each motorist claimed damages for personal injuries, and each insurer's economic interest and forensic choices related to the need to resist its opponent's claim, but were indifferent to the success of the claim made by its own insured. If both motorists have the same insurer the conflict is still more acute. Circumstances which justified double representation at trial may have been resolved and may no longer obtain on appeal. In the present case I make no adverse comment, and only say that the practice is not encouraged, and should be accepted only when legal representatives would be in such a situation of conflict that they cannot do otherwise. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.