Jozef Titan v Tomislav Babic and John William Kelly [1992] ACTSC 61 (19 June 1992)

SUPREME COURT OF THE ACT

JOZEF TITAN v. TOMISLAV BABIC and JOHN WILLIAM KELLY
No. SCA 70 of 1991
Appeal from the Master - Appeal - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1) Gallop(1) and Higgins(1) JJ.

CATCHWORDS

Appeal from the Master - assessment of damages for personal injuries - general principles - interference with Master's findings of fact.

Appeal - procedural injustice - interference with discretion of Master - admission of fresh evidence.

Damages - measure of damages where pre-existing degenerative condition - loss of earning capacity - medical and hospital expenses - pain and suffering.

HEARING

CANBERRA
19:6:1992

Counsel for the appellant: Mr Jozef Titin (in person)

Counsel for the respondent: Mr L. Morris QC with Mr F.G. Parker

Solicitors for the respondent: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondents' costs of the appeal.
3. The cross-appeal be dismissed with no order as to costs.

DECISION

This is an appeal from a judgment of the Master handed down on 6 May 1991 in which the Master awarded the appellant the sum of $61,500 damages for personal injury sustained by the negligence of the firstnamed and secondnamed respondents in a motor vehicle collision. The appellant, who appeared for himself before the Master at the hearing on 20 March 1991 as well as on the appeal, relied on numerous grounds as set out in his notice of appeal dated 23 May 1991. Not all of them were pursued at the hearing of the appeal. They may be divided into two broad groups. In the first group are the various grounds which seek to establish that the Master erred in his evaluation and understanding of the evidence and in his findings of fact which provided the basis of his assessment of damages under the various conventional heads. In the second group are the various grounds which allege procedural error on the part of the Master in allowing or insisting on the matter being heard to finality when justice required that the hearing date be vacated or that the hearing be adjourned in order to enable the appellant to marshal witnesses and obtain evidence which was not available to be called at the hearing.

2. For the record, we note a cross-appeal was filed by the respondents. On the day of the hearing of the appeal, however, counsel for the respondents indicated to the Court that they would not be pursuing it. Accordingly, the cross-appeal will be dismissed.

3. The principles to be applied in such an appeal are well established. On matters of primary fact the appeal court will defer to the decision of the trial judge (in this case the Master) because of the advantage of seeing the witnesses and being in a better position to assess their credit. In matters of exercising a discretion, such as a refusal to grant an adjournment, the appellant must show that the discretion miscarried in that the trial judge misapplied the law or procedures upon a demonstrably wrong finding of fact or that the decision was so unjust that although error cannot be identified, it is to be implied.

4. The appellant was born on 12 February 1940, was aged 40 at the time of his injury on 9 April 1980 and aged 51 at the time of the hearing before the Master. A firm of solicitors issued a writ on his behalf on 23 December 1982. Thereafter from time to time he had solicitors acting for him. At other times he was acting for himself. He was acting for himself when the matter came before the Deputy Registrar at a listing conference on 15 November 1990 to which reference will be made later.

5. On the question of the appellant's injuries, symptoms and their relationship to the motor vehicle collision, the Master made the following findings of fact.

1. The appellant had had a condition of spondylosis in the lower
back and neck over a period of four years prior to his injury and
had received medical treatment for that condition.
2. In 1978 the appellant exhibited signs of being chronically affected
by alcohol for which he received medical and hospital treatment.
3. On 19 September 1978 the appellant was granted an invalid pension.
4. On 27 September 1978 Dr Tennant, a psychiatrist, found the appellant
to be suffering from various symptoms including anxiety, back pain
and alcoholism and that he was likely to be permanently unfit for
work as a result of the several conditions giving rise to the

symptons.

5. From 1976 to 1979 the appellant did not work because of the
incapacity arising from the factors referred to in paragraph 4
above.
6. For about twelve months prior to the motor vehicle collision the
appellant had ceased to suffer from alcoholism.
7. As a result of the motor vehicle collision on 9 April 1980, the
appellant suffered immediate pain and dizziness and pain and
bruising in various parts of the upper body and left arm. He came
under the treatment of Dr Danta. Symptoms continued associated with
headaches and pain in the back or neck or both.
8. As a result of the motor vehicle collision the appellant also
suffered injury to the jaw which led to treatment of the jaw and
removal of eight teeth in May 1984.
9. The motor vehicle collision exacerbated the condition of cervical
spondylosis for which the appellant submitted to operative treatment
at the C5/6 level by Dr Newcombe on 5 March 1984. After persisting
pain in the neck, shoulder and hands, also due to the motor vehicle
collision, Dr Newcombe operated to relieve pressure in the left
brachial plexus on 23 August 1984 with consequent relief of the neck
pain but re-emerging headaches.
10. Dr Chandran performed a further operation to the C6/7 level as a
result of which the appellant was left with a permanently rigid neck
and incapacity for heavy work.
11. The appellant was not suffering from any significant psychological
disturbance at the time of the hearing but the litigation may have
caused him to dwell on his symptoms, and to that extent his problems
would be expected to be resolved after hearing.
12. A fall whilst fishing on 23 April 1983 which resulted in treatment
in hospital for a broken leg and an admission to hospital for heart
trouble in 1988 were in no way attributable to the motor vehicle
collision.
13. In summary the Master said:
"In summary, he suffered a severe impact, which gave rise to a
long lasting post concussional syndrome. I think that on the
balance of probabilities a pre-existing spondylosis of his neck

was
exacerbated by the impact, and that the various operations were made

reasonable as a result. Those operations were painful and
distressing in themselves. I am not persuaded that he now has any
significant pain or discomfort as a result of the accident. His
neck, however, has been made permanently rigid, with attendant
discomfort."

6. The Master went on to deal with assessing the damages to be awarded under the conventional heads of damage. In relation to the loss of earning capacity, the Master rejected the appellant's claim that in December 1979 whilst he continued on an invalid pension he resumed work as a self-employed motor mechanic. No evidence was called to support the claim and the claim was contrary to what the appellant had told most of the doctors particularly in the early years after 1980. As the Master observed, the claim was made to doctors only in the later years when he was "determined to succeed in his court case" and as a result it would be dangerous for any great weight to be placed upon his unsupported claim for pre-accident work capacity. At most, so the Master decided, the appellant had an earning capacity prior to injury which might from time to time have enabled him to earn "a little bit of money by working on a motor car". That minimal capacity was also liable to be lost at any time because of a naturally degenerating condition of spondylosis. We think that the Master was in a much better position than we are having seen the appellant to assess the matters which went to determining the loss of earning capacity and the damages which flowed from any such loss. We would not interfere with the Master's award of $1,000 for such loss.

7. The appellant's claim for out-of-pocket expenses was neither admitted nor proved. All the Master had before him was a list of items set out in particulars which made up a total of over $15,000. The Master was bound as the tribunal of fact to include in the overall damages a factor which would compensate the appellant for the expenses he had incurred for medical and hospital treatment, which he had shown to have been reasonably incurred as a result of the injury for which he sued. Because of the absence of proof of payment of the particular items or the validity of the claims made by the doctors and hospitals against the appellant, the Master was entitled to fix a lump sum which was just and adequate but not overly generous to the appellant for this aspect of his damages. Indeed, no other approach was open to him. The Master considered that most of the doctor's bills should be included in the award and that some of the hospital expenses should not be awarded and concluded that a sum of $10,000 was a proper award as a matter of broad judgment. Again we are not convinced that the Master was incorrect in adopting that approach nor in awarding that sum.

8. For pain and suffering the Master awarded $35,000. That sum was also well within the bounds of sound judgment. For interest the Master awarded $15,500, which appears to be based on the whole of the award for pain and suffering and calculated at a rate of 4 per cent per annum. The Master reviewed the total award of $61,500 and after remarking on the unusually large component for interest, the Master concluded that the total was reasonable as a global figure. We cannot but agree.

9. In our view, the Master's findings of fact were open to him on the evidence and no ground has been established to justify our interference with those findings nor with the assessment of damages either in relation to any particular head nor in relation to the global figure. In relation to interest it may be that in awarding interest based on a rate of 4 per cent per annum on the whole of the component for pain and suffering, the Master erred on the side of generosity to the appellant and that the Master should have apportioned some of the $35,000 as to the future. However, the slight hesitation with which we would regard the calculation of interest does not assist the appellant in his appeal since if there was any error, it was at the expense of the respondents and not of the appellant.

10. The appellant submitted that the Master had placed insufficient weight on the history which he had given to Dr Danta and had placed too much weight on the views of Dr Tennant and other doctors such as Dr. Brook. None of the doctors gave evidence and the Master was left to act as best he could on the basis of the medical reports, unassisted by cross-examination of the makers of the reports. But it must be remembered that overall the reports had to be read in the light of the only sworn evidence in the case and that came from the appellant himself. It was the appellant who presented as a witness and as the person who was at the centre of the case. The weight to be given to much of what was written in the reports depended greatly on what the Master thought of the appellant as he presented in the witness box and that is the very area in which the Master was in a superior position to the members of this Court.

11. Dr Tennant, who chaired the Psychiatric Unit at the Woden Valley Hospital, as it was then, wrote in her report that the appellant had been treated extensively at the Hospital in the Neurological Unit, the Gastroenterology Unit and the Psychiatric Unit. She expressed a very firm view, which she was well qualified to express, that, as at 27 September 1978, "his severe continuing anxiety, his cirrhosis, emphysema, cervical spondylosis, combine to make it impossible for him to work in normal employment". She added that "his general health can only be expected to deteriorate". It is to be observed that the Master did not accept the appellant's expected deterioration as having been established as a certainty, but only as a contingency to which regard was to be had. That was a proper approach.

12. Dr Danta first saw the appellant on 1 October 1976. His first report is dated 8 February 1977 and merely informs Dr Brook, the rheumatologist, of a change of medication for reduced but continuing neck pain and continuing headaches. Dr Danta's only other report is dated 13 August 1982, a report to the appellant's then solicitors. Dr Danta recounts the presentation of the appellant as at October 1976 with a history over the previous year of developing headaches and pains in the upper left limb "attributable to cervical spondylosis". Dr Danta saw the appellant on several occasions in 1977 and then apparently not until 20 June 1980, post injury. There was passing reference then to backache, but the main problem remained the headaches of a muscle tension type with a vascular component. The appellant continued to be treated by Dr Danta up until the date of the report at which stage Dr Danta regarded him as suffering from post-concussion syndrome brought on by the injury in 1980 which aggravated a pre-existing tendency to similar headaches and which was likely to continue for a long time. The report, however, stopped short of saying that the aggravation was permanent and there was no evidence to support any conclusion that it was permanent.

13. The appellant in his submissions to us relied on the absence of any complaint by him to Dr Danta before the injury of pain in the cervical area. Although Dr Danta notes no such pain, he nevertheless attributes headaches and pain in the upper arm to cervical spondylosis. We take the appellant's argument into account, but it must be weighed against the other evidence in the case of pre-existing spondylosis, which is really quite overwhelming. In our view, that evidence is not displaced by the absence of complaint about cervical pain to Dr Danta in the period before the subject injury.

14. The other main point of the appeal is that the appellant was, in effect, wrongly forced to present his case to the Master when he was not ready for it and in particular did not have his witnesses ready and available. The appellant faces the difficulty at this stage that he did not ask for an adjournment of the hearing to put these matters right. We realise that in appearing for himself, the appellant did not have the knowledge and skills of a trained lawyer. If we thought that there was any possibility of an injustice resulting from procedural ignorance on the part of the appellant, then we would not hesitate to correct it. However, a reading of the whole of the transcript indicates that the Master himself brought a similar approach to the appellant's case and gave him every opportunity to present and develop that case without the Master himself acting as the appellant's advocate.

15. As far as we are able to see, there are one or two matters only arising from the appellant's complaints about which we think it appropriate to say something. At the end of his evidence-in-chief before the Master, the appellant was asked whether there was anything else he wished to tell the Court. He replied that he "would bring the witnesses" but that at the listing hearing the respondents objected to his using that evidence and so he had not made preparation to call it. He told the Master that on the previous Friday he had received a letter from the respondents' solicitors which he interpreted as a withdrawal of their objection but which did not leave him time to organize the witnesses to come to court for the hearing on the Wednesday (the Monday was a public holiday). The appellant did not then or since identify the witnesses or indicate what they were likely to say. The letter to which the appellant referred was dated 14 March 1991 and omitting formal parts is as follows:

"In answer to your query concerning the arrangements for your
medical practitioners we advise that it may be that your matter is
not the first to be heard by the Master on Wednesday, 20 March 1991.
It is possible that the Master may not have completed the matters
listed for hearing on Tuesday, 19 March and that another matter may
be listed for hearing prior to your matter on 20 March 1991.
The usual procedure is that you would give your evidence-in-chief
and then be cross-examined by our Counsel. After this you may wish
to give further evidence arising from questions which our Counsel
has asked you in cross-examination.
We do not know if you intend to call evidence from lay witnesses and
whether you intend to call such evidence prior to your medical
practitioners. This would obviously be relevant in your programme
for your medical witnesses.
At this time we are not able to assist you further."

16. Understandably the Master did not view this letter of 14 March 1991 as providing a basis for an order by the Master of his own motion adjourning the hearing in the interests of justice and despite the absence of any application for an adjournment by the appellant.

17. Later during the hearing and at the end of cross-examination, the appellant was asked if he had any other evidence, and again the appellant complained that he did not learn until the previous Friday that he was allowed to call evidence. He also tendered some documents and that was followed by the tendering of the respondents' documents and addresses. Thereafter the Master reserved his decision.

18. Since the hearing before the Master, the appellant, as part of the appeal, and as part of what may be regarded as an application to call fresh evidence, has sworn several affidavits to which are attached many documents. One of the documents is a copy of a letter written by the Deputy Registrar dated 27 February 1991 in reply to an enquiry by the appellant. The relevant part is as follows:

"On 15 November 1990 you attended a Listing Hearing before me.
The defendant's solicitor was also present at that hearing. I
explained to you that the purpose of the listing hearing was both to
explore settlement and to ensure that the matter was ready for
hearing. During the listing hearing we discussed the statement of
particulars filed by you and in particular the service of medical
reports, clarification of out-of-pocket expenses and your economic
loss claim. I made directions at the listing hearing that you serve
any further medical reports on which you intend to rely within 14
days and that you also provide the defendant's solicitor with copies
of accounts, particularised in your out-of-pocket expenses claim.
No other directions were sought by either party. At the conclusion
of the conference I formed the view that the matter was unlikely to
settle. I was also satisfied that the matter was ready for hearing
and apart from the above, no further directions were necessary. The
matter was accordingly fixed for hearing before the Master on 20
March 1990 (sic). This matter is listed to commence on that day and
will proceed until it is finalised."

19. We have no reason to doubt that the letter of the Deputy Registrar accurately records the course of events at the listing hearing. If the appellant was in any previous doubt about what had happened at the listing hearing and of its outcome, the letter provided ample opportunity for removal of the doubt. We are unable to see how the appellant could have been led to believe that he was not entitled to call witnesses at the hearing. Nothing of what had happened at the listing hearing or what the respondents' solicitors had written in their letter of 14 March 1991 or anything else in the case to which our attention has been drawn or of which we are aware would have given the appellant reason to believe that he was not so entitled. Furthermore, a consideration of the conduct of the matter prior to and at the hearing before the Master and of the way in which the appellant conducted the appeal, suggests that he has a good grasp of the procedure involved in a court hearing and in particular of the need to present adequate material upon which the Court is to act and decide. Accordingly, we do not think that there is any substance in the ground that there was procedural unfairness at the hearing before the Master which requires the interference of this Court.

20. For similar reasons we are not satisfied that the appellant should be granted leave to call fresh evidence. The evidence in question (and we are not sure of its precise nature) appears not to be fresh evidence because it was known to the appellant at the time of the hearing. Furthermore, the reasons for failure to call it have not been established as adequate.

21. The appeal is dismissed and the appellant is to pay the respondents' costs of the appeal. The cross-appeal is dismissed with no order as to costs.