New South Wales Court of Appeal CITATION: Wallbank v Fisher [2008] NSWCA 27 HEARING DATE(S): 28 February 2008 JUDGMENT OF: McColl JA at 1,16; Fullerton J at 15 EX TEMPORE JUDGMENT DATE: 28 February 2008 DECISION: 1. Appeal dismissed. Appellant to pay the respondent's costs including on an indemnity basis from 27 February 2008 to and including 28 February 2008. CATCHWORDS: APPEAL – appellant seeks to depart from approach it took at trial to an issue of damages – no exceptional circumstances which would warrant permitting that course. LEGISLATION CITED: Civil Procedure Act 2005 CASES CITED: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481 PARTIES: Michelle Wallbank - Appellant Gabrielle Fisher - Respondent FILE NUMBER(S): CA 40157 of 2007 Mr M B Williams SC with Mr S Hickey for the Appellant COUNSEL: Mr D E Baran for the Respondent SOLICITORS: Lyons Barnett Kennedy - Appellant Attwood Marshall - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 41 of 2004 LOWER COURT JUDICIAL OFFICER: Blanch CJ LOWER COURT DATE OF DECISION: 22 February 2007 - 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40157/07 DC 41/04 McCOLL JA FULLERTON J Thursday 28 February 2008 Michelle Wallbank v Gabrielle Fisher Judgment Ex Tempore 1 McCOLL JA: The appellant appeals from a decision of his Honour Judge Blanch, the Chief Judge of the District Court which concerned the appropriate award of damages in a personal injury action. Although a number of grounds of appeal were advanced in the notice of appeal and in the proposed amended notice of appeal, the appellant has only pursued ground 4. That ground complained that the primary judge erred in making an allowance for the cost of future transport in that he failed to take into account savings in respect of motor vehicle running costs ordinarily incurred. 2 In order to understand the background, it is necessary briefly to explain the circumstances in which his Honour was awarding damages. 3 The respondent was injured in a motor vehicle accident on 10 May 1994 when she was seven years of age. Before the primary judge she established, through the evidence of a consultant neurologist, Professor Corbett, that she had suffered a severe head injury, including a brain injury, and that, as a result, there was a high probability of her suffering epilepsy. Because of the brain injury and Professor Corbett's diagnosis of epilepsy, she was taking a medication called Tegretol to control the possible manifestation of symptoms of epilepsy. 4 Professor Corbett gave evidence that in the circumstances the respondent was unlikely ever to obtain a driver's licence. The respondent claimed in her Amended Statement of Particulars the sum of $126,942.48 representing the costs of her transportation for life, having regard to her having to travel in either public transport or taxis instead of having her own motor vehicle. 5 At trial, the respondent called evidence to the effect that she was using taxis to travel to and from work, although the number of times she did so was not clearly established. She also gave evidence that on other occasions her mother drove her to work. Her mother gave evidence corroborative of that fact, but again, the number of occasions on which her assistance was brought to bear was not clearly established. 6 In written submissions handed to the primary judge prior to his Honour delivering an ex tempore decision, the respondent submitted that she should be awarded an amount of $257,675 under the head of damages relating to the costs of future transport. His Honour also noted a submission from counsel for the appellant that that matter should be dealt with by way of a cushion of $60,000. In oral submissions Mr Baran, who appeared for the respondent at trial and on appeal, reduced the claim for $257,000 for this head of damages to $100,000. His Honour accepted that that was an appropriate figure and awarded the respondent that amount. 7 In its written submissions on appeal the appellant submitted that the primary judge ought to have taken into consideration, and offset against the amount he awarded under this head of damages, the costs to which the respondent would have been exposed in any event in running a motor vehicle, insuring it, registering it and so on throughout the course of her life. The appellant submitted that an allowance of $50,000 would have been appropriate for the costs of such transport. 8 Mr Williams of Senior Counsel, who has appeared for the appellant on appeal but not at trial with Mr S Hickey, now submits that the proper approach to this head of damages was to take into account a report from actuaries, Furzer Crestani, which the appellant tendered at trial. That report purported to demonstrate that if one calculated the present value of the future motor vehicle operating costs the respondent would have incurred had she not been injured, those sums exceeded the amount actually claimed by the appellant, even if it was the sum of $257,000 in Mr Baran's written submissions below. Accordingly, he argued no amount should have been awarded to the respondent under this head of damage. 9 When confronted with the proposition that this approach departed from the agreed approach before the primary judge, Mr Williams sought to argue that the case was an exceptional one within the terms of Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 and that the evidence having been available to the court below and not contested at trial, the Court ought to consider the Furzer Crestani approach. Mr Williams's alternative position was that if the Court was not prepared to approach the matter on the basis of the Furzer Crestani report, the most which should have been awarded was the $60,000, the figure the appellant had relied upon before the primary judge. He argued that should be the figure awarded for that head of damages, and that the injustice caused to the respondent in the circumstances would be appropriately compensated by ordering the appellant to pay the respondent's costs in any event. 10 In Coulton v Holcombe Gibbs CJ and Wilson, Brennan and Dawson JJ said (at 7): "It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so, the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish." 11 The Court drew attention to its decision in University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481 (at 483) where six justices said: "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to reuse a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had the opportunity to do so." 12 Mr Baran does not suggest that there was evidence which the respondent could have called which would have resisted that embodied in the Furzer Crestani report. Nevertheless that does not, in my view, detract from the proposition that, consistently with Coulton v Holcombe, it would only be an exceptional case in which this Court would allow a party to depart from a path deliberately followed at trial. 13 It is important too, to have regard, in my view, to the dictates of the Civil Procedure Act 2005 and, in particular, the overriding purpose embodied in s 56 requiring that litigation be conducted in a manner which is just, quick and cheap. That provision also reinforces the obligation of legal practitioners to ensure that litigation is approached on that basis. While s 58 dictates that the Court should not fail to have regard to the interests of justice when giving effect to the overriding purpose, nevertheless in this case, in my view, nothing in what Mr Williams has advanced should allow the appellant to depart from the course it pursued at trial of accepting that this head of damages warranted some sum to be awarded as a cushion. That was a course which was maintained in the appellant's written submissions. There is nothing exceptional about the case which warrants permitting counsel to depart from that approach when the matter is called on for hearing in the Court of Appeal. 14 In my view, the appellant has not demonstrated any error by the primary judge in determining the figure of $100,000. The appeal should be dismissed with costs. 15 FULLERTON: I agree that the appeal should be dismissed and that the appellant pay the respondent's costs of the appeal for the reasons given by Justice McColl. BARAN : Your Honour, there's an application for costs. A proposal was put in terms of settlement on 27 February 2008 pursuant to Calderbank. I hand up a letter if I may. MCCOLL JA : Thank you. Has Mr Williams-- WILLIAMS : We don't resist this application. BARAN : The order that's sought is that the appellant pay the respondent's costs on an indemnity basis from 27 February 2008 up to-- MCCOLL JA : Very well. From which date, Mr Baran? BARAN : From 27 February, so from yesterday. So in other words all of today's costs in the event there's any party/party issue, and yesterday's costs if there's any party/party issue, the indemnity. 16 MCCOLL JA: The order of costs is varied to order the appellant to pay the respondent's costs on an indemnity basis from 27 February to and including today. ********** 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.