Allan v Fletcher No. Scciv-00-906

ALLAN v FLETCHER
[2001] SASC 167
Full Court: Doyle CJ, Williams and Martin JJ

DOYLE CJ. I would allow the appeal, set aside the award of damages made by the trial Judge, and substitute an award of $32 931.38. I agree with the reasons given by Martin J for so ordering.
WILLIAMS J. I agree.
MARTIN J. The plaintiff sought damages for injuries sustained in a road accident on 5 August 1996. After a trial the learned trial Judge apportioned responsibility for the accident equally between the plaintiff and the defendant who was the driver of the other vehicle. The plaintiff appeals against that apportionment and against aspects of the award of damages.
The plaintiff was driving a Sigma station sedan. Immediately prior to the accident she was parked on the western side of Prospect Road at Blair Athol, facing in a northerly direction. From that position the plaintiff commenced executing a U-turn. She intended to travel to the eastern kerb, stop and look to see if it was safe to proceed in a southerly direction on Prospect Road. The trial Judge accepted the plaintiff’s evidence that immediately prior to commencing a U-turn she checked her rear view mirrors, put on her traffic indicator and checked the traffic coming towards her from the north. The plaintiff saw headlights approximately 100 to 150 metres away and commenced the U-turn. The headlights were those of a Ford Falcon station sedan driven by the defendant. His vehicle collided with the left rear corner of the plaintiff’s vehicle before the plaintiff completed the U-turn.
The trial Judge found that the left rear portion of the plaintiff’s vehicle was at least 2.7 metres from the eastern kerb at the time of the collision. The point of impact was found to be 3.4 metres west of the eastern kerb. The width of the eastern carriageway in that section of the road was 6.5 metres.
The defendant had been travelling south at a speed in the order of 90 to 95 k/ph. At that time the defendant’s blood alcohol level was slightly higher than 0.154 gms per cent. The trial Judge found that the defendant was so intoxicated by alcohol that he would inevitably have had difficulty in coping with the merest irregularity in behaviour of a pedestrian or motor vehicle.
The defendant applied his brakes heavily prior to the impact. The trial Judge accepted that prior to applying the brakes the defendant had slowed the vehicle, though not significantly, because he had realised that a narrower section of road was ahead of him. It was agreed that when the defendant applied the brakes his vehicle was travelling at 87 k/ph. One of the off-side tyres of the defendant’s vehicle skidded for a distance of 29 metres prior to impact.
The trial Judge found that the defendant had to “bear the major blame” for the collision. She also found that the plaintiff was negligent in undertaking the U-turn manoeuvre in the circumstances that faced her. Her Honour observed that conditions were fine and traffic was light, but it was becoming dark and the lighting made it difficult to correctly judge the movements of traffic. In undertaking her manoeuvre, the plaintiff planned to create an obstacle for southbound traffic by placing her vehicle next to the eastern kerb and she intended to rely on the good judgment of the southbound traffic to avoid her. The trial Judge found that the plaintiff was “significantly blameworthy”.
In determining the extent to which the damages recoverable by the plaintiff were to be reduced pursuant to s 27A(3) of the Wrongs Act 1936 (“the Act”), the trial Judge was required to reduce the damages recoverable by the plaintiff to the extent that her Honour thought “just and equitable having regard to the claimant’s share in the responsibility for the damage”. The task of the court in this regard was explained by the Full Court in Hooker v Grinham (SASC, 5 November 1997, No. S6424, unreported). Doyle CJ, with whom Lander and Bleby JJ agreed, said:
“Apportioning liability involves a comparison of two things in particular. First, culpability, which is the degree of departure from the standard of care of the reasonable driver. Secondly, the relative importance of the acts of the parties in causing the damage but it is “... the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination”, see Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 311.”
The task of the trial Judge pursuant to s 27A(3) was complicated by the plaintiff’s failure to wear a seat belt. At the time of the accident, the relevance of the failure to wear the seat belt was governed by the following parts of s 35A of the Act:
“(1)Notwithstanding any other law, where damages are to be assessed for or in respect of an injury arising from a motor accident, the following provisions apply:
...
(i) if the injured person (not being a person under the age of 16 years) was, contrary to the requirements of the Road Traffic Act 1961, not wearing a seat belt at the time of the accident, the damages to be awarded shall, on account of that contravention, be reduced by 15 per cent or such greater percentage as the courts thinks just and equitable having regard to the extent to which the proper use of the seat belt would have reduced or lessened the severity of the injury;
...”
The trial Judge referred to the evidence of three orthopaedic surgeons concerning the significance of the plaintiff’s failure to wear the seat belt. Her conclusions were as follows:
“The clear thrust of both the evidence of Mr Lipert and that of Mr Cornish, which I accept, was that the plaintiff’s injuries would have been reduced or lessened in severity had she been wearing a seat belt. Mr Michael Ward, for the plaintiff, argued that this question was clouded by the fact that the driver’s seat in the plaintiff’s vehicle broke at the base of its upright part during the collision. I accept Mr Cornish’s evidence that this was not a significant factor. Accordingly I find that it is appropriate to reduce the award of damages by something more than 15%.
The approach to this question of a reduction to a damages award by reason of contributory negligence, including the failure to wear a seat belt, was discussed at some length by Justice Lander (with whose judgment Justices Prior and Wicks agreed) in Barnard v Towill and Others (1998) 72 SASR 27, particularly at pages 41 to 44. Having established that the plaintiff’s manner of driving did contribute to the collision, and having further found that her failure to wear a seat belt resulted in her suffering greater injury than she otherwise would have, it is necessary for me to consider both those particulars of contributory negligence as part of an overall assessment. In this connection I have regard to all the evidence bearing on the incident, its causes and its results. Having undertaken this exercise I have determined that it is appropriate to reduce the damages which I shall award to the plaintiff by 50% to reflect her contributory negligence.”
Counsel for the plaintiff argued that the trial Judge erred in finding that it was appropriate to reduce the award of damages by something more than 15 per cent by reason of the failure to wear the seat belt. He contended that this error led her Honour into reducing the award of damages pursuant to s 27A(3) by an excessive percentage.
The initial impact between the vehicles propelled the plaintiff’s vehicle forward and into a bus shelter on the eastern footpath. That movement involved a small degree of rotation. The secondary impact with the bus shelter was responsible for the plaintiff’s major injury.
In essence, counsel for the plaintiff contended that the rear end nature of the initial impact caused the plaintiff’s body to move backwards with sufficient force to break the seat. As a consequence, the plaintiff was effectively lying in the rear of the car at the time of the secondary impact which propelled her forward. Counsel argued that in these circumstances the wearing of a seat belt would have had minimal effect and that the plaintiff’s damages should only be reduced by the mandatory minimum of 15 per cent.
The difficulty facing the plaintiff’s submission is the absence of any expert evidence to support it. Notwithstanding an understandable appeal by counsel to a process of reasoning that he urged accorded with commonsense and logic, the scenario he painted amounted to speculation without any foundation in the evidence. A number of different forces were applied to the plaintiff’s body and different speculative views based on apparently sound logic could reasonably be propounded. It would be dangerous and inappropriate for this Court to speculate in the manner suggested in the absence of expert evidence to support the conclusions for which counsel contended.
The trial Judge relied upon expert evidence in reaching her conclusion. Counsel submitted that her Honour was in error in relying upon the view of Mr Cornish which he argued was a view initially expressed without a full appreciation of the relevant facts. However, when the evidence of Mr Cornish is considered in its entirety, in my opinion it was open to the trial Judge to conclude that, given a full appreciation of the facts, Mr Cornish nevertheless maintained his view that the plaintiff’s injuries would have been reduced or lessened in severity if she had been wearing a seat belt. It was open to her Honour to accept the thrust of the evidence of Mr Lipert and Mr Cornish in that regard. In those circumstances, it was open to her Honour to conclude that it was appropriate to reduce the award of damages “by something more than 15 per cent”.
The plaintiff has not challenged any other finding of fact made by the trial Judge. No error of principle or approach by the trial Judge has been identified. In these circumstances the plaintiff must persuade this Court that it can infer that there has been a failure to exercise the discretion properly because the reduction of the damages by 50 per cent is unreasonable or plainly unjust: House v R (1936) 55 CLR 499 at 505.
The starting point of the trial Judge was that the defendant must bear the “major blame” for the collision. He was driving in an intoxicated condition and at a dangerous speed. With the exercise of reasonable care, the defendant could have easily avoided the collision. While the plaintiff should be aware that drivers regularly exceed the speed limit, travelling at a speed of 90 to 95 k/ph on a road such as Prospect Road is not a common occurrence. However, the plaintiff knowingly took a risk in commencing her U-turn in the face of oncoming traffic. She failed to appreciate the speed of the defendant’s vehicle through a lack of sufficient care and attention.
After making allowance for the plaintiff’s failure to wear a seat belt, I would not have reduced the plaintiff’s damages by as much as 50 per cent. However, that is not the test. After careful consideration of the evidence and the findings of the trial Judge, I am unable to conclude that her Honour’s apportionment was so unreasonable or so plainly unjust as to demonstrate appealable error.
As to damages, the trial Judge declined to award any damages for pre-trial economic loss and assessed the plaintiff’s future loss of earning capacity at $25 000. The plaintiff complains that those decisions were against the weight of the evidence and that the award for future loss of earning capacity was manifestly inadequate.
The trial Judge summarised the circumstances of the plaintiff and her working history as follows:
“She was born on the 13th March, 1968 and so is now 32 years of age. She was not working at the time of the collision but since leaving school had undertaken several different jobs consisting of general hand in a supermarket, cleaning, including industrial cleaning, cook’s assistant, bar work and later snack-bar work. Not all these jobs were full time. Indeed some entailed shift work. The plaintiff’s evidence about her hours of work in these positions and as to the rate of pay she enjoyed was extremely vague and she did not have the benefit of any documentary material to assist her.
The last employment which the plaintiff had prior to the collision was in Adelaide at a snack-bar in Pirie Street. She worked there for almost a year for four hours a day on each weekday as an assistant. Again her rate of remuneration was not proved. She was effectively retrenched from that position in about March 1994. At the end of that year she fell pregnant and in May 1995 her son Jesse was born. At the time of the collision she was caring for Jesse on a full time basis. The plaintiff’s evidence was that on one occasion subsequent to the accident she applied for a casual position as a waitress at a restaurant in Moree. She was told by the employer that he would not give her the work on account of her previous injuries. The plaintiff said she considered that she would then have been able to fulfil waitressing duties, and likewise would now be able to perform the type of work she did in the Adelaide snack-bar. However, she said that she would not now be able to do the work she previously performed in a supermarket, nor a commercial kitchen, on account of the lifting involved. Nor would she be fit for the heavy work entailed in commercial cleaning. Broadly speaking, the medical evidence supported the plaintiff in the distinction she drew between these various types of employment.
The casual employment sought by the plaintiff in Moree was something she heard about from a neighbour. Her application for that work did not come about as part of a concerted effort to find work. In those circumstances it is not surprising that she did not pursue other employment. Indeed her evidence was that not very long after that unsuccessful attempt she and her de-facto husband, Nathan, had to leave Moree and, although the periods have not been identified, she and her de-facto spent long stints travelling in Australia. During a period which she spent in Adelaide in early 1998 she met a man called Kevin to whom she became pregnant, and her second son Trey was born on the 6th of March, 1999. The upshot of this sequence of events since the stay in Moree is that the plaintiff was not looking for work and there is no material before me as to what difficulties she might have encountered had she been seeking employment. The demonstration of the plaintiff’s claim for loss of earning capacity prior to trial devolves then to her one attempt to secure casual employment in Moree in 1997. Since the position was to be casual and the hours determined on a needs basis, it is impossible to estimate what this job would have been worth to her. In addition it is not established exactly when the application was made and how much time she could have devoted to the work prior to her and her de-facto husband having to leave Moree. In the circumstances I am not prepared to allow anything by way of past loss of earning capacity.”
As to the past loss of earning capacity, counsel submitted that the trial Judge failed to take into account the evidence of the appellant that, between suffering the injuries and trial, she had sought a job in Moree, but had been unsuccessful because of her injuries. He argued that the evidence thereby established that the plaintiff’s injuries deprived her of the chance of gaining employment. As it was proved that some loss had been suffered before trial, a reasonable allowance must be made even though the quantity of the loss might be uncertain and difficult to quantify.
The appellant explained in evidence that when she applied for the job in Moree she answered a question on the application form concerning her claim for personal injuries. She said that during the interview she was told by the prospective employer that, acting “with caution”, because she had been involved in an accident, he could not employ her. The hearsay quality of the evidence concerning the conversation is obvious and it is not surprising that the trial Judge placed little weight upon it. During cross-examination, the appellant said that she and her partner stayed at Moree for approximately eight months. She did not immediately apply for a job upon arrival at Moree and her application was probably towards the end of their period in Moree. They left Moree because it was an Aboriginal community and, because her partner was very racist, they were victimised and the windows of their house were smashed. The job she sought was only a casual waitressing position in a Chinese restaurant that was not very busy. She said there was not a lot of money in the community and the restaurant relied upon travellers going through the town.
The trial Judge specifically referred to the plaintiff’s evidence that she was told by the prospective employer in Moree that he would not give her employment because of her previous injury. Her Honour also referred to the plaintiff’s evidence that not long after that unsuccessful attempt, the plaintiff and her partner left Moree. As her Honour concluded, the claim for loss of earning capacity prior to trial was based upon one attempt to secure casual employment in Moree in 1997.
Having considered the evidence of the plaintiff, in my opinion the trial Judge was justified in concluding that the plaintiff had not made out a case of any past economic loss.
As to future economic loss, after the remarks which I have earlier cited, her Honour had this to say:
“I turn to the loss of future earning capacity. In my opinion the plaintiff will be permanently precluded from pursuing employment necessitating heavy lifting, management of heavy cleaning machinery and the like. I accept her evidence that she would now not be able to perform some of the employment which she had in the years after she left school. For a person with limited education that is a significant detriment. Of course there are many jobs for which she is fitted which she would still be able to undertake. I accept that in pursuing them she will be competing with fully fit applicants. Consequently periods between securing jobs might be longer than they would otherwise have been. In addition she may consider that her level of residual pain dictates something less than full-time work.
The extent of this future loss is not easy to predict. It is apparent from the account of the plaintiff’s work history, insofar as I have set it out, that in the five or so years leading up to the accident, the plaintiff did not choose to work in full-time employment. Indeed there were lengthy periods when she was not working at all and that may be attributed to her rather peripatetic lifestyle, her relationship with the man Nathan and the birth of her first son. The way in which the litigant should be compensated for loss of earning capacity where that person would have only ever exploited a part of that earning capacity was discussed in Mann v Ellbourn (1973) 8 SASR 298. In those circumstances there is to be compensation for the extent to which the earning capacity would probably have been used, and compensation for the loss of the chance to exploit the balance of the earning capacity. Since the accident the plaintiff’s future plans have not become any clearer. Indeed she has ahead of her a custody battle with the father of her second son. Moreover at the time of the trial Nathan was in jail and the future of that relationship and his interaction with Jesse was unclear. All those factors make the determination of an appropriate level of compensation a difficult exercise. Of course, the plaintiff has a long working life ahead of her, and even if she does not return to full time employment, or even part time employment, for a number of years for the reasons I have mentioned, there may well be periods when her residual disability will – in the ways I have touched upon – have an impact. On the other hand the level of that residual disability is not a high one. In an attempt to provide a rough guide to a quantification of the loss I have undertaken the following exercise.
Let it be assumed that, but for the residual injury, the plaintiff would have worked full-time and continuously until aged 65. On this basis one could attempt to calculate the plaintiff’s earning capacity and the reduction to it by reason of the residual injury. Such an exercise was undertaken in Murray v Dawson Judgement No. S5620 delivered 5 June, 1996, by Justice Lander, with whose approach to the question of damages Justice Cox agreed. Using the current retail industry rates (which are in evidence) the plaintiff could, but for her residual injury, at present, expect to earn $444 gross and $369 net per week. The capital sum which would roughly represent her earning capacity to age 65 using Table 4B in the Appendix of Luntz Assessment of Damages (Third Edition) at the prescribed discount rate of 5% is $309,222.
It seems to me that the plaintiff has lost somewhere between 10% and 15% of her earning capacity. If the rate of 12.5% is used, that brings the capitalised sum to $38,653. That figure then has to be reduced on account of the various matters which I have enumerated which demonstrate that the plaintiff would not have exercised that capacity fully in any event either in terms of continuity of work to age 65 or in terms of working full-time. But there must be allowance for the loss of the chance to do so.
Taking all the matters I have mentioned into account I am prepared to find that fair compensation for the loss of future earning capacity would be $25,000.”

The trial Judge faced a difficult exercise. The plaintiff was aged 32 years at the time of the judgment and was caring full time for two young children. As the trial Judge observed, the plaintiff’s plans for the future were not clear and the future of her relationship with her partner and his relationship with his child were uncertain. Counsel for the plaintiff correctly pointed out that the plaintiff had proved that she possessed the capacity to work hard. Her lengthy period of unemployment during her relationship with her partner and the birth of her children was as a consequence of her desire to attempt to keep the family together. For that reason she travelled with her partner in what the trial Judge described as a “rather peripatetic lifestyle”. However, there was no suggestion in the evidence that her past lifestyle and the existence of children meant that she would not in the future attempt to exploit at least part of her earning capacity.
Counsel was particularly critical of her Honour’s finding that the plaintiff has lost somewhere between 10 and 15 per cent of her earning capacity. In my opinion, there is force in the criticism of this finding. The trial Judge summarised the injuries and continuing disabilities as follows:
“The plaintiff sustained serious injuries in the accident. They included a compression fracture of T8, a comminuted fracture of the left proximal fibula shaft, a haemarthosis to the left elbow and bilateral plural effusions and lung contusions. She was admitted to the Royal Adelaide Hospital under the care of Mr David Hall, Orthopaedic and Spinal Surgeon, and she remained there for five days. The fractures were managed non-operatively. The plaintiff was initially unable to walk at all, but, before she left hospital, she was able to walk with assistance. Her various injuries caused her great pain and discomfort during her stay in hospital and she was still extremely disabled in the ensuing weeks. She discarded a walking stick about two and half months after the injury and, at about that time, gradually began to take up household duties. By the time the plaintiff left her sister’s home and lived independently, approximately seven or eight months after the accident, she was basically self-sufficient. Her evidence was that the injuries to her left leg and left elbow have now resolved completely. She said though, that she continues to suffer back pain between her shoulder blades and that she notices this when she undertakes household duties and in her play with her young son. She said that she no longer takes part in swimming or skiing sports because she feels unable. The plaintiff’s assertion of residual disability was supported by the medical evidence. There is nothing of any moment in the variances among the medical opinion. It seems that Ms Allan is left with a loss of function of her thoracic spine to the extent of about 15%. No future treatment is indicated. Whilst there might be some slow improvement in the future that is not to be expected.”
The trial Judge appreciated that the plaintiff has a long working life ahead of her in which she will not be able to pursue some of the types of employment in which she has had experience. As her Honour said, for a person with limited education her inability to pursue such employment is a significant impediment to her capacity to find employment.
Notwithstanding that her Honour recognised these matters, I have reached the view that her Honour failed to give sufficient weight to the considerable impact of the nature and extent of the plaintiff’s residual disabilities upon her capacity to obtain employment for which she is suited. Given her limited education, the plaintiff made herself attractive as a prospective employee through her ability to work hard over long hours. Her injuries have deprived her of that potential advantage. They have left her at a very significant disadvantage in that section of the labour market to which she is confined. I have reached the view that the trial Judge erred in only allowing for her disability at the rate of 12.5 per cent.
In my opinion an appropriate allowance is 20 per cent which results in a capitalised sum of $61 844. After allowance for various contingencies, including the likelihood that the plaintiff would not have fully utilised her working capacity and the fact that the loss is likely to accrue in the medium to long term, in my view an amount of $47 000 should be awarded for the plaintiff’s loss of future earning capacity.
I would allow the appeal and set aside the judgment of the trial Judge. In substitution I would assess the plaintiff’s damages as follows:
Non-economic loss  $15,200.00
Future loss of earning capacity  $47,000.00
Special damages  $ 3,662.75
Total  $65,862.75
Pursuant to s 27A(3) of the Act, the amount of $65 862.75 should be reduced by 50 per cent. I would enter judgment for the plaintiff in the amount of $32 931.38.

[2001] SASC 167

25 May 2001