Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 (12 August 1960)

HIGH COURT OF AUSTRALIA

WATTS v. RAKE [1960] HCA 58; (1960) 108 CLR 158

Damages

High Court of Australia
Dixon C.J.(1), Menzies(2) and Windeyer(3) JJ.

CATCHWORDS

Damages - General Quantum - Onus of Proof - Shifting presumptions of fact in relation to damages - Injured plaintiff apparently in good health before accident - Actually suffering from a disease &which in course of time would have incapacitated him in the same way as the injuries sustained in the accident did - General damages increased.

HEARING

Brisbane, 1960, July 4, 5;
Sydney, 1960, August 12. 12:8:1960
APPEAL from the Supreme Court of Queensland.

DECISION

August 12.
The following written judgments were delivered:-
DIXON C.J. I have had the advantage of reading the judgment prepared by contains a somewhat unusual problem in the shifting presumptions of fact in relation to proof of damage and on that subject I will add some observations of my own. The law of course places upon a plaintiff who sues in tort for unliquidated damages the burden of satisfying the tribunal of fact of the damages he has suffered both special and general and of the quantification in money that should be adopted in the sum awarded. That is the legal burden of proof which rests upon him throughout. Only in one respect is the burden of proof upon the defendant and this is when he sets up matter in mitigation of damages. If it appears satisfactorily that damage in a particular form or to a particular degree has been suffered by the plaintiff as a result of the wrong but the defendant maintains that the plaintiff might have avoided or mitigated that consequence by adopting some course which it was reasonable for him to take, it seems clear enough that the law places upon the defendant the burden of proof upon the question whether by the course suggested the damage could have so been mitigated and upon the reasonableness of pursuing that course. Probably in claims for damages for personal injuries a question of the burden of proof in mitigation of damages is unlikely to arise often in any serious form. But it may do so; for example if the plaintiff declines to submit himself to some surgical procedure or medical treatment. But while the foregoing are the burdens of proof which the law places upon the parties, states of fact may be proved by the evidence as the case advances or may appear as inferences which the evidence supports and those states of fact may authorize or even demand findings in favour of a party unless and until some further or other state of fact is made to appear by evidence. There are, in other words, presumptions of fact as well as presumptions of law. (at p159)

2. In the present case a proper application of the principles by which courts are guided in handling proof of facts of such a kind goes a long way to meet its difficulties. The plaintiff showed satisfactorily that, although not without disabilities, he was before the accident able to lead an active life in work and in physical recreation and that his enjoyment of life was not impaired much, if at all. He proved further that the physical injuries he sustained in the accident had been a cause of the crippled condition in which he finds himself, a condition described in the judgment of Menzies J. If no more appeared it needs no argument to show that he should receive a full award of damages assessed on the footing of what he has suffered and what he will endure in the future. But for the defendant it is answered, first that he was predisposed to many or at least some of the arthritic and other conditions which have so seriously and rapidly developed as a consequence of the accident considered at all events as a precipitating cause; second, that part of his present condition is traceable to causes other than the accident, and thirdly, that had there been no accident he would eventually and prematurely have been incapacitated by the seeds of disability within him. Now as to the first answer, it may at once be said that it is no answer. If the injury proves more serious in its incidents and its consequences because of the injured man's condition, that does nothing but increase the damages the defendant must pay. To sever the remaining leg of a one-legged man or put out the eye of a one-eyed man is to do a far more serious injury than it would have been had the injured man possessed two legs or two eyes. But for the seriousness of the injury the defendant must pay. As to the second and third of these answers, there is undoubtedly a presumptio hominis in the plaintiff's favour which any tribunal of fact should insist that the defendant should overcome. If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred. For myself I do not think that he has proved more than that at an earlier time than other men the plaintiff would have reached a stage of disability but not the same disability. (at p160)

3. I concur in fixing the general damages at 12,000 pounds but I do not regard that as a high figure in the circumstances. (at p160)

MENZIES J. In an action tried by Mansfield C.J., the appellant, who was plaintiff, obtained judgment for 12,669 pounds 5s. 10d. damages for injuries and loss which he suffered in a motor car collision which the respondent, who was defendant, did not contest was caused by his negligence. The damages awarded were made up as follows:

Loss of wages from the date of the accident
(24th December 1955) until trial (16th
July 1959) 4,583 pounds 0 0
Various out of pocket expenses 86 pounds 5 10
General damages 8,000 pounds 0 0
12,669 pounds 5 10. (at p161)

2. This appeal is concerned with the amount awarded by way of general damages, and the appellant's contention that having regard to the onus of proof and to the evidence as a whole, larger damages should have been awarded was put in two ways: first, that the learned trial judge was in error in assessing damages on the footing that the accident did no more than accelerate the appellant's complete disablement from a previously existing disease, namely, ankylosing spondylitis; secondly, that even on the footing that the appellant was suffering from a disease that would eventually completely incapacitate him, the evidence most adverse to him was that such incapacity would not take place until from ten to thirteen years after December 1955, so that 8,000 pounds general damages was inadequate having regard merely to loss of earnings during such a period, quite apart from compensation for pain, suffering and the virtual loss of a span of active and satisfactory living of up to thirteen years from the age of twenty-seven - the appellant's age when the collision occurred. (at p161)

3. There is, unfortunately, no doubt about the appellant's postaccident condition. The injuries he suffered included a fracture of the right femur just above the knee, a badly injured left leg and a gashed face. Hospital treatment extended over a period of almost two years. Two operations were performed upon the right leg and it was five times put in plaster - it is now shorter than the left leg. The appellant's left leg was put in traction several times and given several courses of physiotherapy. He developed uveitis choroiditis, and for this he was treated with cortisone, which caused him to become what is described as "moon faced". His left leg and his hips were manipulated under a general anaesthetic. His Honour summed up his present condition as follows: "His present condition is that he is very disabled and unable to move freely. He can hobble with crutches and cannot sit down properly. His spinal movement and flexion are free but the lower portion of his spine is stiff. His hips are stiff and he can move them from about the 70 degree angle to about the 140 degree angle. His right leg is wasted. He has a scar 10 inches long on his right thigh and a scar over the left iliac crest and the groin. His right knee is anklylosed at 40 degrees and his left knee moves from about 33 degrees to 110 degrees. His left knee is swollen and thickened and hot to touch and has crepitus. The right patella is not moveable and the left one slightly moveable. Both ankles are swollen and stiff. His right ankle moves from about 75 degrees to about 90 degrees. His left ankle moves from about 70 degrees to about 100 degrees and there is crepitus in the joint. Four toes of the right foot are ankylosed and the second toe of the left foot is stiff. He has blurred eyesight in his right eye due to uveitis choroiditis. He cannot sleep on his back and his knee and hip joints ache if he stays in the same position for any length of time. Owing to the stiffness of his hips, the plaintiff cannot sit properly on a chair. . . . He has a moon face resulting from cortisone treatment. His physical condition will not improve and will probably deteriorate and he will require treatment for the remainder of his life." When he was injured, he was a fully qualified engineer employed by the State Electricity Commission of Victoria in a field job at a salary of about 1,200 pounds per annum, net, and his Honour found: "He will never be fit for field work nor will he be able to carry on a regular job at designing and his condition will not improve and is likely to become worse. It has also been established that he will not be able to resume any employment with the State Electricity Commission". (at p162)

4. The state of his health before the accident is less certain. He had rheumatic fever in 1942 when he was fourteen years of age and three years later he had trouble in his right knee, which was diagnosed as osteoarthritis with some rheumatoid complications and chronic synovitis. Later his right knee was opened and a synovectomy performed. Thereafter the movement of the right knee was a little restricted and the right knee remained larger than the other. The plaintiff's own evidence was that prior to the accident he had lived an active life - working in the field, swimming, surfing, bush walking, skiing and dancing. (at p162)

5. The medical evidence was conflicting, even about the disease from which the appellant is presently suffering. Dr. Nelson, Dr. Gallagher and Dr. Hirschfeld consider that he is suffering from ankylosing spondylitis. Dr. Lahz and Dr. Neill think he is suffering from osteoarthritis and rheumatoid arthritis and that he is not suffering from ankylosing spondylitis. Dr. Lahz considers that the appellant's present condition is due to the violence done to the knees and hips in the accident which caused the appellant's osteoarthritis and rheumatoid arthritis to flare up. Dr. Neill is of the same opinion. Dr. Hirschfeld and Dr. Gallagher consider that as a result of the accident, there has been gross aggravation of the ankylosing spondylitis and the rheumatoid arthritis from which the appellant was suffering and consider that, had there been no accident, the appellant might not have reached his present condition. Dr. Nelson's evidence was that, even had there been no accident, it is probable that within a ten to thirteen years' period from December 1955 the appellant would have had further involvement from ankylosing spondylitis and the injuries did but accelerate the development of the disease which would in any event have brought the appellant to his present crippled condition. (at p163)

6. The Chief Justice, who had the advantage of seeing and hearing the medical evidence, was particularly impressed by Dr. Nelson's evidence, which it is apparent his Honour accepted. His Honour's findings, after a review of the medical evidence, were as follows: "I therefore am not satisfied on the balance of probabilities that all the plaintiff's present disabilities are due to the injuries which he received in the accident. It is clear that the injury and the operations performed on his right leg, with the associated pain and suffering and discomfort, are the direct result of the accident. My view is that the injuries which he received in the accident had the effect of accelerating the development of the disease some of the symptoms of which were showing at the time of the accident. I consider that the plaintiff in the ordinary course of events would have had some years of full active employment and that thereafter there would have been a deterioration in his physical condition." (at p163)

7. It was proved that the appellant was a satisfactory member of the staff of the State Electricity Commission of Victoria and that, had he remained in the employment of the Commission, he would probably by now be a Grade III Engineer on a salary ranging from 32 pounds 9s. 6d. per week to 35 pounds 14s. 6d. per week, gross. Had he progressed as he had started and continued in good health, further promotion would have been open to him through Grade IV to the Senior Officers' group, but even in the most favourable circumstances he would not have become a Senior Officer until he was forty years of age. (at p163)

8. It was for the appellant as plaintiff to prove his damages, and merely to prove his present condition and his incapacity to work would not prove that these things resulted from the accident. It was not, however, for the plaintiff to disprove that his pre-accident ill health would eventually cripple and incapacitate him. Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it, e.g., that the plaintiff has aggravated his condition by some unreasonable act or omission. Similarly, although it is of course material to ascertain what was the pre-accident condition of the plaintiff who alleges that his post-accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health. Such a case is not unlike that of a defendant in a defamation action proving in reduction of damages that the plaintiff had a bad reputation. It should also be observed that a negligent defendant must take his victim as he finds him and pay damages accordingly. The fact that the person injured was peculiarly susceptible to ensuing complications that would not in a normal person have followed from the injuries received, or that the person injured already had a disability which made the injury the more disabling - e.g., the loss of an only eye - does not mean that damages are not to be assessed according to the circumstances of the particular case. There are passages in the judgment here under consideration that are susceptible of meaning that the appellant had at the trial to establish not only that his present condition was due to the accident but, further, that he would never have reached that condition had it not been for the accident, whereas it was for the respondent to prove not only that the accident did no more than accelerate the occurrence of a condition that was inevitable, but also the extent of the acceleration. Thus, for instance, his Honour said: "On the whole of the evidence before me, I am not satisfied on the balance of probabilities that if the accident had not taken place, the plaintiff would have continued to live a normal healthy life free from any disability arising from the disease which there is evidence that he had prior to the accident." This passage seems to me to indicate that, in some measure at any rate, an onus which lay upon the defendant was given to the plaintiff, but in the circumstances that his Honour accepted the evidence of Dr. Nelson of acceleration by up to thirteen years of an existing condition, the question where the onus lay is not one that is important at this stage of the proceedings. (at p164)

9. The effect of the evidence of Drs. Lahz, Neill, Hirschfeld and Gallagher was that the accident caused the flaring up of the appellant's condition of osteoarthritis or rheumatoid arthritis or ankylosing spondylitis; but whereas they did not consider that without the accident the appellant would have become as he is, Dr. Nelson, whose evidence the learned Chief Justice preferred, considered that he would have done so within a period of thirteen years. Whatever nice questions might have arisen had the evidence of the other doctors been preferred to that of Dr. Nelson, they do not arise here, and I consider the first way in which the appeal was put - i.e., that the accident itself caused a condition that might not otherwise have occurred notwithstanding the appellant's susceptibility - fails because the learned trial judge accepted the evidence of Dr. Nelson, and there is not sufficient ground shown for this Court to revise that finding. (at p165)

10. Dealing with the appeal, therefore, on the basis of the evidence of Dr. Nelson, it is to be observed that although his opinion was that the appellant was suffering from ankylosing spondylitis and that this would eventually have brought him to be as he now is, his evidence is by no means precise as to when this would have occurred or whether it would have occurred suddenly or gradually. Dr. Nelson goes no further than saying that within a ten to thirteen years' period from December 1955 a further involvement in the disease would have taken place in any event. From this evidence it is, I think, fair to infer that the appellant might have had thirteen years from 1955 before he was disabled, and although incapacity after that period could be attributed to the disease itself, incapacity before that period can properly be attributed to the accident. In these circumstances, I think damages ought to have been assessed on the footing that the appellant's pre-accident condition was such that he had thirteen years of working life after 1955, and that the appellant lost the span of thirteen years between twenty seven and forty with its earnings, its interests and its pleasures - thirteen years that might be considered the more precious because his years of vitality were in any event to be so few. In their place the appellant is likely to have thirteen years empty of all but pain and frustration except to the extent that, with a crippled body, he may yet courageously fashion a new life for himself. (at p165)

11. The case is a difficult one, but it is one where the award of 8,000 pounds general damages, even when taken in conjunction with the 4,583 pounds awarded as special damages for loss of wages, does not, I think, give full effect to the evidence of the appellant's loss and injuries, and I consider that this Court should substitute a figure of 12,000 pounds for that adopted by the learned trial judge. (at p165)

12. In my opinion, this appeal should be allowed and judgment for 16,669 pounds 5s. 10d. substituted for that for 12,669 pounds 5s. 10d. (at p165)

WINDEYER J. I agree. (at p165)

ORDER

Appeal allowed with costs. Vary the order appealed from by substituting a judgment for 16,669 pounds 5s. 10d. for the judgment for 12,669 pounds 5s. 10d.