Mobasa Pty. Ltd v Stephen Nikic [NTR]

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: O'Leary C.J.,Kearney J.,Muirhead A.J.
• Judgment Date: 03 July 1987
• Docket Number: No. AP 13 of 1986
• Date: 03 July 1987

(1987) 47 NTR 48

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

O'Leary C.J., Kearney J. and Muirhead A.J.

No. AP 13 of 1986

Mobasa Pty. Ltd

and

Stephen Nikic

Counsel for Appellant: T.I. Pauling QC and C.R. McDonald

Counsel for Respondent: J.B. Waters

Cases referred to

Brittingham v Williams (1932) VLR 237

Carlson v King (1947) 64 WN (NSW) 65

Connell v Auckland City Council (1977) 1 NZLR 630

Gamser v Nominal Defendant (1977) 136 CLR 145

Hill v Arnold (1976) 9 ALR 350

Housing Commission of New South Wales v Tatman Pastoral Company Pty. Ltd. (1983) 3 NSWLR 378

King Ranch Australia Pty. Ltd. v Cardwell Shire Council (1985) 2 QD R 182

Lawson v Lee (1978) 19 SASR 442

Lock v Gordon (1966) VR 185

Perez v Transfield (Qld) Pty. Ltd. (1979) Qd R 444

Perritt v Dunkley (1971) 1 NSWLR 376

Public Service Board of New South Wales v Osmond (1986) 63 ALR 559

Purkess v Crittenden (1965) 114 CLR 164

Watts v Rake (1960) 180 CLR 158

Courts and Judges — Supreme Court (NT) — Action for damages for negligence — Trial by judge — No reasons for decision given — No findings of fact — Duty to give — Error of law — Appeal — Difficulties where duty not complied with.

Negligence — Damages — Personal injuries — Onus of proof — Onus of establishing case.

JUDGE1

1 This is an appeal from a judgment of the Court pronounced on 30 September last. The action is one in which the respondent (the plaintiff) sued the appellant (the defendant) for damages for injuries sustained by the respondent on 30 April 1984 in the course of his employment, and which, it was alleged,were the result of the appellant's negligence. The appellant, by its defence,denied negligence and pleaded contributory negligence.

2 The trial commenced on 24 September last, and continued on 25, 26, 29 and 30 September. During the course of the hearing, a substantial question arose as to the extent of the respondent's incapacity. It was common ground that, as a result of the accident, he suffered a fracture to the right side of the pelvis, involving the hip joint, and to the sacrum, with soft tissue injury to his back and pelvic area. It was also common ground that these injuries were clinically resolved. The particulars of the injuries, however, set out in paragraph 10 of the amended Statement of Claim, alleged ‘consequential depressive reaction with conversion phenomena’, continuing pain and other sequelae, some of a bizarre nature. These factors, it was alleged, resulted in the respondent's continuing total or partial incapacity for work, and were the subject of conflicting medical evidence. In the result, his Honour resolved the issue in favour of the respondent, and this factor constituted the major component of the damages awarded by him.

3 On the final day of the hearing, 30 September 1986, the trial judge directed a verdict for the respondent in the sum of $212,143 made up as follows:

Special damages	$ 9,143.00
General damages (for pain and suffering)	$ 10,000.00
Damages for loss of wages and economic loss	$ 193,000.00
	$ 212,143.00

4 In addition, interest was allowed on the sum of $10,000 awarded for general damages, and judgment was entered accordingly.

5 His Honour delivered neither written nor ex tempore reasons for his decision.

6 The appellant now appeals against the whole of the judgment, the most substantial grounds of appeal being that his Honour misdirected himself as to the onus of proof, and that he ‘failed to give adequate reasons for his judgment, findings and assessments’. We will deal, first of all, with the absence of reasons.

7 The difficulties created by the absence of reasons were manifest upon the hearing of the appeal. Thus, it was not possible to determine with any degree of accuracy or confidence what was the real basis of his Honour's decision, what were his exact findings of fact and as to the credibility of witnesses, and what was his approach in law to the onus of proof. The transcript of the proceedings (including copies of exhibits) occupies 412 pages. Counsels' addresses occupy 58 pages, much of which includes comments by the trial judge,and dialogue by him with counsel. Upon the hearing of the appeal, these comments came under scrutiny by counsel in their endeavours to establish the trial judge's reasons for his decision, and, indeed, it was on the basis of these comments and his dialogue with counsel that the challenge to his application of the onus of proof was mounted. We refer to this a little later in these reasons. The tenor of his Honour's remarks led him to make a number of observations as to the plaintiff which may be said to go to his credibility, and he spoke in varying terms as to the medical witnesses and, indeed, as to the medical profession as a whole. He spoke on several occasions as to his difficulty in applying the authorities and the processes of the assessment. Such difficulties clearly caused him concern. The assessment of the components of damages awarded, was in fact made in the course of counsels' addresses, and his Honour sought the assistance of counsel in the mathematical processes involved.

8 Discussions between judge and counsel in the course of argument are an everyday component of the trial process. They are generally initiated by the presiding judge's anxiety to comprehend the submissions put to him, and to indicate to counsel those issues which he thinks of importance, or in respect of which he may require assistance. The discussions in this case, however, went rather further than that, and, as we have noted, included many observations and comments by his Honour. Nevertheless, we take the view that it would be quite unsafe, for the purposes of this appeal, for us to regard his Honour's comments as part of his ratio decidendi. Many of his comments and statements had no application to his verdict. Some may have had, but we think it would be unsatisfactory and possibly unjust, for us to pore through the transcript in an effort to isolate his reasons.

9 It is true that the common law in other countries does not seem to have moved from the old position that judges are not bound to set out the reasons for their decision. That appears to be the case in the United States, Canada and England, though in the latter two countries it is the general practice for the superior courts to give reasoned decisions. The common law in Australia has, however, developed to the point where, at least in cases where there exists a right of appeal, judges are now, we consider, required by law to state their findings of fact and the reasons for their decision. This does not mean, though, that a failure to do so will always result in a successful appeal; it may be that the appellate court will be able to review the evidence and satisfy itself that the decision was properly reached. As Lord Denning put it, it is an elementary principle of fairness

‘… not only that a correct decision should be reached, but also that is should be based on reason; and that can only be seen, if the judge himself states his reasons.‘(The Road to Justice (1955) at p 29).

10 We take the view that following a trial such as this it is essential that a trial judge should give reasons for his decision, not necessarily written reasons, but reasons sufficient for the parties to understand the basis of the verdict.

11 Litigation itself is an expensive and worrying process. It goes to the roots of the judicial process that the parties should understand, or have the means of understanding, the ultimate verdict; it is indeed one of the processes of the just determination of issues. In Connell v Auckland City Council (1977) 1 NZLR 630 Chilwell J. said at p 634:—

‘There is all the world of difference between a disappointed litigant and a disturbed litigant. In the latter category come litigants who cannot understand why the decision went against him (sic)’.

12 In the present case, for instance, the defendant is entitled to know why he is required to pay in excess of $200,000 to the plaintiff. It is unsatisfactory that, in the processes of seeking that answer, he or his advisers must delve through the transcript seeking some determinative judicial pronouncement. A clear statement of the facts found, and the reasons for decision, establishes that the evidence has been considered and the arguments which have been advanced have been understood. In the course of seeking the components of the verdict in the present case, we were required to embark on this process, but we can take it no further and we cannot undertake (as suggested at one stage by the respondent's counsel) such a process in an endeavour to determine whether the verdict is manifestly excessive, as the appellant contends, or fair and reasonable, as the respondent maintains. We just do not know.

13 Furthermore, it is elemental to observe that parties involved in such litigation have statutory rights of appeal. The principles applicable to such appeal are the subject of much authority. The trial judge's findings of fact,by inference or otherwise, his assessment as to the weight he attaches to evidence, and his application of law to questions of onus and evidence, are separate questions which fall for consideration. The absence of reasons for judgment impedes the right of appeal, confuses the issues, make it difficult to decide whether any error occurred, tends to increase the costs of appeal and, above all, tends to protract litigation by the necessity of new trials.

14 Besides, it is, and always has been, the practice of Supreme Courts in Australia to pronounce reasons for their decisions in contested matters of importance, a practice which, if not perpetuated, will diminish confidence in the civil trial procedures. The fact that there is no statutory requirement for reasons in the Supreme Court Actor the Rules made thereunder is not to the point. Authorities...