Aoki Tsueneaki v Rod Stewart [ACTCA]

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Higgins CJ,Burns,Gilmour JJ
• Judgment Date: 19 August 2013
• Docket Number: No. ACTCA 43 – 2012
• Date: 19 August 2013

Between:

Aoki Tsueneaki

Appellant

and

Rod Stewart

Respondent

[2013] ACTCA 34

Judges:

Higgins CJ, Burns and Gilmour JJ

No. ACTCA 43 – 2012

No. SC 187 of 2009

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEAL AND NEW TRIAL — practice and procedure — application to admit new or late evidence — inevitable delay — considered Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 — prejudice of substantial delay and wasted costs to parties and other litigants — evidence rightly rejected — appeal dismissed

APPEAL AND NEW TRIAL — delay in delivering judgment — no indication of loss of advantage of seeing and hearing witness — no deprivation to defendant of forensic advantage otherwise enjoyed — appeal dismissed

APPEAL AND NEW TRIAL — alleged error in determining economic loss — ‘possibility’ not certainty of early retirement enforced by future disability — submitted that ‘buffer’ value excessive — award deemed reasonable in circumstances — appeal dismissed

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009); (2009) 239 CLR 175

Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 (6 November 2009)

Medlin v State Government Insurance Commission [1995] HCA 5 ; (1995) 182 CLR 1

Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99

O'Brien v Noble [2012] ACTCA 13

Malec v J C Hutton Pty Ltd [1990] HCA 20 ; (1990) 169 CLR 638

Court Procedure Rules 2006 (ACT)

Counsel for the Appellant: Mr M Inglis

Counsel for the Respondent: Mr K Rewell SC with Mr R Clynes

ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a decision of Master Harper handed down on 24 August 2012. His Honour ordered the entry of judgment for the plaintiff, Rod Stewart, the current respondent, in the sum of $336,646.00.

2 The grounds of appeal as amended on 17 October 2012 are stated to be:

1.3 the grounds of appeal are:

• (a) the court below erred in law by denying procedural fairness in that it failed to give proper, genuine and realistic consideration of the evidence in assessing damages for general damages, interest on general damages, loss of earning capacity, loss of superannuation benefits and deprived itself of the advantage it had enjoyed in seeing and hearing the witnesses and assessing the evidence by unduly delaying the delivery of reasons.

• (b) the award for general damages, interest on general damages, loss of earning capacity and loss of superannuation benefits were excessive and could not reasonably be arrived at upon the evidence.

1.4 His Honour, the Master, failed to take into account relevant evidence or to draw reasonable inferences from that evidence as to the severity of the motor accident in which the plaintiff claimed to have been injured.

1.5 His Honour, the Master, erred in rejecting the appellant's application to rely upon the report of Dr John Korber dated 9 December 2010 which opined that the disc degeneration would almost certainly have preceded the injury in 2007. In doing so, the appellant/defendant has been denied procedural fairness, given that His Honour, the Master, accepted the opinion of the plaintiff's/respondent's doctors that the pathology and symptoms noted in the lumbar and cervical spines were accident-related.

1.7[sic] His Honour, the Master, fell into error in that he allowed an arbitrary sum of $150,000.00 by way of “ broad rounded figure for loss of earning capacity”, contrary to the decision in Medlin v State Insurance Commission (1995) 182 CLR 1, and contrary to the evidence that the plaintiff was engaged in full-time employment, and noting there was no claim for past economic loss.

1.8 His Honour, the Master's allowance for general damages was excessive and failed to reflect the proper discount of the plaintiff's claimed disabilities, having regard to the whole of the evidence.

Ground 1.5

3 This complains of a rejection of the appellant's application to rely upon a report, dated 9 December 2010, of Dr John Korber.

Background

4 Judgment in the matter was delivered on 24 August 2012. The matter had been concluded otherwise and judgment reserved on 15 December 2010. The subject of the claim at first instance was injury caused to the plaintiff respondent in a motor vehicle collision of 10 February 2007. Liability was contested only to the extent that the defendant/appellant alleged contributory negligence on the part of the complainant. The defendant failed on that issue and does not seek to challenge that finding.

5 As at the date of judgment the plaintiff was a 41 year old man. He had been an army officer up to 1996 and then was an information technology consultant.

6 His major complaint was of low back pain with episodes of neck pain and accompanying headaches.

7 The role of the motor vehicle accident in his post-accident position was seriously in contention.

8 The plaintiff had in 1991 experienced back pain in the course of an army exercise. An x-ray on 1 March 1991 reported no bone or disc lesion. There was an MRI scan in March 1991. The films could not thereafter be located but the report of it noted only ‘minimal posterior disc bulging at the L5-S1 level’. However, in August 1991, Dr McNicol, an orthopaedic surgeon recorded ongoing back pain and concluded that there had been a disrupted lumbo-sacral disc with irritative sciatica.

9 That ongoing disability led to the plaintiff's discharge from the army in 1996. Despite ongoing episodes of back pain, he continued with normal sporting and other activities. He continued some strenuous activities after leaving the army. Even after the accident he continued some strenuous activities more particularly noted by the Master in his 36 page judgment. The plaintiff stated that he had needed to take painkillers in order to do so.

10 There was no clinical evidence of any significant disability from back pain between 1991 and the accident. Following the accident there was in 2008, an MRI scan. There is reference in the report of it to an annular tear at L4–5.

11 At issue was whether the changes observable in 2008 had been present before the accident. Dr Searle, an orthopaedic surgeon, thought that unlikely on the information he had. The plaintiff's medical evidence otherwise supported that opinion.

12 Dr Pascall, however, upon whom the defendant relied, had a different view. She considered that an annular tear may well have occurred at L4–5 in 1991 and was aggravated by the accident but not caused by it.

13 The defendant also relied on a Dr Bodel and other medical opinion reviewed by the Master in his judgment. It suffices to note that well before Dr Korber had been engaged, the issue of the damage, if any, caused to the plaintiff's spine was well and truly highlighted as an issue.

14 Mr Rewell, for the plaintiff, pointed out to the Master that Dr Korber was simply reinterpreting the 2008 scan, expressing a different opinion about it than had been expressed by another radiologist. He could have been asked to consider that other opinion much earlier.

15 Mr Inglis, for the defendant, submitted that the new report did not raise new evidence. It was simply late evidence.

16 However, he had to concede that, at least, the plaintiff's relevant experts would need to be referred to Dr Korber's opinions and have the opportunity to comment further. It was apparent too that the plaintiff might wish to qualify a further opinion from an expert independent of those experts who had expressed a view different from that expressed by Dr Korber.

17 His Honour noted that if the application to admit Dr Korber's report was granted an adjournment a delay of up to a year would be inevitable. This, his Honour noted would clearly engage the kind of deleterious consequence highlighted by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27(5 August 2009); (2009) 239 CLR 175 ( Aon). Although the cause for the amendment, in that case, sought at a late stage, was to add a new cause of action, the relevant prejudice identified was substantial delay and wasted costs not only affecting the immediate parties but other litigants awaiting hearing. That prejudice was clearly engaged in this case. Indeed, the fact that the application in this case raised no radical new issue itself tells against the application. If, for example, it had been recently discovered evidence of fraud, the application to admit the evidence would have been a stronger one.

18 The Master was also referred to Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 (6 November 2009). That was a personal injury claim. Leave was sought to rely on additional expert reports which had not been served within the time required by the Court Procedure Rules 2006 (ACT). However, that case, whilst acknowledging the importance of prejudice resulting from a late application to receive expert reports, does not otherwise assist.

19 His Honour, in our view, correctly and appropriately noted and applied the Rules in accordance with the approach mandated by the Aon case and we agree with his conclusion. The submission that an adjournment of only a ‘short time’ would have been required was disingenuous, to say the least, and ignores the effect on other cases.

20 There is no substance in this ground of appeal. The evidence was rightly rejected.

Grounds 1.3(a) and (b) and 1.4

21 These grounds complain, effectively, that the Master took too long to deliver judgment so that the advantage of seeing and hearing the witnesses was lost to him. That assumes that the Master's finding that he found the plaintiff a truthful and accurate witness should be...