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Onus of proof July 5, 2016


Keith v Gal [2016] NSWCA 152


1.   In 2001, the appellant, Mr Clifford Keith, was injured when the vehicle he was driving collided with the rear of a tow truck driven by the respondent, Mr Adrian Gal, which pulled abruptly into the lane in which Mr Keith was driving. Prior to the accident, the appellant was head teacher of painting and decorating at the TAFE Illawarra Institute. He had an extensive pre-accident medical history, including multiple injuries arising from: a circular saw severing his fingers, passing his left arm though a glass door, at least 30 – including one major (in 1991) – motorcycle accidents, and a previous motor vehicle accident, which had caused, amongst other issues, neck injuries. The appellant’s neck was also injured in the 2001 accident. He continued working until May 2004 and, in December 2004, moved to the Gold Coast to live with his partner, Ms Freilich, at around the same time that his employment at the TAFE Institute was terminated on the basis of his medical retirement.

2.   Since the 2001 accident, the appellant has suffered other injuries, including to his right wrist, had surgery on his hip and right foot, and, overall, experienced a “constellation of other problems”. In May 2007, he commenced proceedings in the District Court for recovery of damages. Liability was admitted and the only issue for determination was the assessment of damages. The appellant successfully appealed the damages awarded at the first trial and the issues of damages was remitted for retrial.

3.   On the retrial, the primary judge rejected the appellant’s medical evidence because the opinions expressed had been based on an incomplete medical history. His Honour found that the aggravation of the appellant’s pre-existing neck pain and radiation into his right arm which resulted from the 2001 accident had resolved by May 2004. The primary judge also made adverse credit findings in relation to the appellant’s true reason for leaving employment in 2004; found that he did not require domestic assistance; and determined that, in respect of future economic loss, the appellant could have sought work as a teacher or supervisor. His Honour rejected the appellant’s claims under all heads of damages and the appellant appealed.

4.   The issues on appeal included:

(1)   whether his Honour erred in entering a verdict in favour of the respondents because it was agreed that the appellant had sustained some past economic loss (ground 1);

(2)   whether his Honour erred in concluding that there was no aggravation of the appellant’s pre-existing problems and that the appellant was able to work as well after, as before, May 2004 and the 2001 accident (grounds 2, 5 and 7);

(3)   whether his Honour erred in his approach to the assessment of economic loss because he should have found that the appellant, as a result of the 2001 accident, was markedly worse off in terms of his capacity to work, to do domestic chores and was in need of medication (grounds 3, 6 and 10);

(4)   whether his Honour erred in rejecting the medical evidence relied upon by the appellant and failed to deal with the whole of the appellant’s case (grounds 8 and 9);

(5)   whether his Honour’s contingent approach that the benefit received by the appellant under his superannuation policy is to be offset against any future economic loss is correct (ground 4).

Held per Gleeson JA (Tobias AJA agreeing at [178])…[Meagher JA]:

In relation to the medical evidence

(1)   The primary judge’s finding that the appellant’s injuries from the 2001 accident had resolved by May 2004 should be set aside because it was based on a medical opinion inconsistent with a later opinion provided by the same doctor. The evidence established that the aggravation of the appellant’s 1991 neck injury and pre-existing right shoulder injury continued to, at least, January 2006, and that the aggravation of his right shoulder injury had not satisfactorily resolved until about mid-2008. The appellant experienced a diminished earning capacity after 2004 up until mid-2008 which was attributable to the 2001 injury. However, from mid-2008 onwards, the appellant’s diminished earning capacity was no longer attributable to the 2001 injury. [125]-[126]

In relation to the appellant’s superannuation policy

(2)   The primary judge did not find that the superannuation policy benefits received by the appellant should be taken into account in the reduction of any damages for diminished earning capacity. Payment of superannuation benefits to the appellant should be ignored when assessing any damages for loss of earning capacity. [132]-[133]

Referred to: Graham v Baker [1961] 106 CLR 340 at 343; National Insurance Co. of New Zealand Ltd v Espangne [1961] HCA 15; 105 CLR 569 at 573

The nature of the onus of proof

(3)   Section 5E of the Civil Liability Act 2002 (NSW) makes clear that the legal burden of proof, on the balance of probabilities, falls on the plaintiff. This is different from the evidential burden which is considered at different points in time during the trial as evidence is adduced. [144]

Referred to: Watts v Rake [1960] HCA 58; 108 CLR 158; Purkess v Crittenden [1965] HCA 34; 114 CLR 164; Varga v Galea [2011] NSWCA 76; Glen v Sullivan [2015] NSWCA 191; Woolworths v Strong [2010] NSWCA 282 at [59]; Zanner v Zanner [2010] NSWCA 343; 79 NSWLR 702 at [7]

In relation to past economic loss

(4)   The assessment of the appellant’s diminished earning capacity should be approached on the basis of the comparable earnings (agreed at trial) at the time the appellant’s employment was terminated in December 2004, with deductions for residual earning capacity and vicissitudes. Lost superannuation entitlements should be calculated on the conventional approach. [153]

In relation to future economic loss

(5)   In light of the conclusion that there is no diminished earning capacity attributable to the 2001 injury beyond mid-2008, the claim for future economic loss should be rejected. Any diminution in the appellant’s earning capacity after December 2014 was attributable to a combination of his injuries prior to the 2001 accident, superimposed degenerative changes that had developed since then, the re-injury of his right wrist in 2005, the pain experienced in his left arm in 2007 and 2008, the problems with his right foot, and the need for hip surgery in 2011. [156]

In relation to domestic assistance:

(6)   Ms Freilich’s provision of domestic assistance from October 2002 – December 2003 did not satisfy the temporal threshold requirements of s 141B(3). There should be a finding that the threshold requirements of s 141B(3) were satisfied during 2004. [167]

(7)   For the years 2005 to mid-2008, the appellant’s claim for domestic assistance must be limited to the period of the 2 years during which Ms Freilich lived with him at Lower Beechmont and the further period of about 9 months, from late 2007 (after 8 or 9 months’ separation in 2007) to mid-2008, when the appellant lived alone at Molendinar. In accordance with s 141(2) MACA, no claim for domestic assistance should be allowed post mid-2008 as assistance provided after that time would have been required by the appellant even if he had not been injured by the 2001 accident. [169]-[170]

Referred to: White v Benjamin [2015] NSWCA 75 at [62]; Hodges v Frost (1984) 53 ALR 373 at 380

Related Articles:

Challenges to non-economic loss awards

Medical negligence

Direct action against insurer

Allowing an appeal by consent




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