Barberien v Hardy and Hardy No. Scciv-03-515

[2003] SASC 353

BARBERIEN v HARDY

[2003] SASC 353

Full Court: Doyle CJ, Prior and Vanstone JJ

1. DOYLE CJ:  I would allow the appeal for the purpose of reducing the amount awarded on account of interest, but would otherwise reject the criticisms of the amount awarded by the trial judge.  I agree with the orders proposed by Prior J and with the reasons that he gives for making those orders.

2. PRIOR J:              The appellant was found liable in damages to the respondents.  In this appeal he complains that the trial judge should have reduced the respondents’ damages by more than 20 per cent because of the contributory negligence of the first respondent.  There is a further complaint about the award for interest and future economic loss.

3. On 24 May 1997, a collision occurred between a vehicle driven by the appellant and one driven by the first respondent, when the first respondent turned onto the Main North Road, on the outskirts of Gladstone, proceeded north a short distance and then, having indicated, commenced turning right onto another side road. 

4. The appellant had been driving north along the Main North Road.  He saw the first respondent’s vehicle turn into his path.  The collision occurred when the appellant sought to overtake the first respondent’s vehicle as she commenced to turn right into the side road.  The appellant was said to have driven at an excessive speed and to have overtaken when it was dangerous to do so.  The appellant said that the first respondent had failed to obey a give way sign, when it was unsafe to do so. 

5. Both drivers were familiar with the approach of the Main North Road into Gladstone.  The first respondent was driving from Crystal Brook to visit her sister, in the town.  The road from Crystal Brook joined the Main North Road on the outskirts of Gladstone.  Some 60 metres south of the junction of that road with the Main North Road was a speed sign.  It fixed the limit beyond that point into the area where the collision occurred at 80 kph.  Before then, the speed limit was 110 kph.  Line markings on the Main North Road, south of the road from Crystal Brook permitted northbound vehicles to move across to the eastern carriageway to overtake.  However, beyond that junction the road markings prohibited such a manoeuvre over the 50 metres from the first junction to the second. 

6. The first respondent’s recollection of the accident was less than complete.  There were two eyewitnesses to the collision.  One was driving behind the appellant.  The other was at the back verandah of a house close to the south-western corner of the Main North Road junction with the road from Crystal Brook.  The trial judge found the witness, watching things from his verandah, to be “a truly independent witness who was both credible and reliable”.  His Honour was not inclined to rely upon the detail of the evidence of the driver following behind the appellant.  His Honour’s view was that much of what that witness said was “unreliable guess work”.  The trial judge also said that he rejected the appellant’s evidence, where he claimed that he believed that he had but two options open to him, “namely overtake or collide”.

7. The trial judge’s finding was that the first respondent, “without stopping at the give way sign turned out onto Main North Road at about 20 to 30 kph and would have accelerated slightly as she drove the 50 metres to Port Street”.  His Honour also found that at that time the appellant’s vehicle, “was no less than 35 to 40 metres south of the 80 kph sign” and “travelling at about the speed limit of 110 kph”.  His Honour also found that the appellant’s vehicle “probably slowed a little in deference to the speed restriction sign but not to 80 kph”.  His Honour considered that the first respondent’s vehicle, “only in a technical sense” failed to give way.  His Honour found that the appellant “had ample time and distance to comfortably slow down, but rather he determined to overtake (the first respondent’s car)”.  His Honour continued:

   “In doing so, (the appellant) quite carelessly assumed that the (first respondent) was intending to proceed northward.  He was familiar with the area and was no doubt aware of not only the road markings but also the proximity of the junction of Port Street.  In any event, those road features were obvious.  (The appellant) failed to acknowledge the very real possibility that (the first respondent’s vehicle) might have been turning into Port Street.  Rather, he pressed on failing to notice the flashing right indicator light, which must have been operating at some stage in the journey of the (first respondent’s vehicle) on Main North Road before the impact.”

8. His Honour found the first respondent negligent in emerging onto Main North Road, into the path of the appellant’s vehicle.  His Honour said:

   “It may be that the (appellant’s vehicle) was some distance off but nonetheless (the first respondent) disobeyed a give way sign and drove onto Main North Road at a relatively slow speed at a place where the speed limit was the moderately high speed of 80 kph.  Further, (the first respondent) should also have anticipated the prospect that northbound vehicles such as the (appellant’s vehicle) approaching the township may not immediately comply with the speed restriction sign.  Also, the (first respondent) should have consulted her rear vision mirror before engaging her right turn indicator.  If she had done so, no doubt she would have abandoned the turn when she became aware of the (appellant’s vehicle) looming down on her.”

9. As for the appellant, the trial judge described him as “negligent and seriously so”.  His Honour said that, on his findings, the appellant

   “had ample time to slow and accommodate the first (respondent’s) vehicle.  A moderate amount of braking would have avoided the collision.  Instead, he made an incorrect assumption about her intent and committed himself to overtaking.  It is evident from the lack of skid marks other than near the point of impact that, on the journey to the point of impact there was no emergency application of brakes.  To overtake between the junctions, as the (appellant) did was fraught with risks and the road markings prohibited that.  As I have previously indicated, this was a busy entrance to a township and a reasonable response by a northbound motorist in the (appellant’s) position would have been to wait back”.

10. His Honour said that in the circumstances of the collision he considered it superficial to simply look at the collision in terms of a failure to give way.  In His Honour’s view, “the situation requiring a ‘giving way’ had all but passed”.  On that basis, His Honour indicated that the appellant was much more culpable than the first respondent.  His Honour said the appellant,

    “…had it in his hands to make a minimal adjustment to his driving, to avoid conflict with the first (respondent’s) vehicle.  Rather, he pressed on and overtook in a place where it was quite dangerous to do so”.

11. On that basis, the trial judge spoke of apportioning liability 80 per cent, 20 per cent in favour of the first respondent or finding that the appellant was 80 per cent at fault.  After assessing damages, the trial judge awarded those assessed reduced by 20 per cent being the extent that the court thought just and equitable having regard to the first respondent’s share in the responsibility for the damage[1].

    [1]        Wrongs Act 1936, s 27A(3)

12. In this appeal it is said that the first respondent ought to have borne the major portion of the blame for the collision due to her failure to recognise the danger of the presence of the appellant’s vehicle and in attempting to thereafter execute a right-hand turn into what was described as a “back street”.  It was submitted that the first respondent’s negligence was more serious than that of the appellant.  It was said that the first respondent, having entered into a major highway from a back road compounded her negligence by then attempting to turn right into another back road a short distance further on.  It was submitted that the trial judge had treated the appellant as having caused the emergency, when in fact he was the party who had to react to the situation created by the first respondent.

13. The first respondent submitted that the apportionment represented a sound exercise of discretion or judgment and that there was no proper basis upon which this Court could interfere.  In this case the appellant’s decision to overtake as they both proceeded towards the visible side road, when the appellant could and should have slowed down and stayed behind the car ahead, was plainly more culpable than the fault of the first respondent.

14. I think the trial judge’s assessment of responsibility should prevail.  It has not been shown to be clearly wrong.  Only in rare cases should an appellate court interfere with the wide discretion to apportion liability in a way which is just and equitable[2].  I think the apportionment actually made was not inappropriate on the findings made by the trial judge.

    [2]        Pennington v Norris (1956) 96 CLR 10; Evers v Bennett (1982) 31 SASR 228 at 229

15. Before reducing the award of $55000 damages for past economic loss by 20 per cent for the first respondent’s fault, the trial judge added interest of $11137.50, calculated over the whole period of loss from accident to trial.  The respondents concede that this was erroneous given that most of the loss assessed was in the period from January 1999 to the date of trial, in April 2003.  The appellant contends that the award of interest at the rate 6.75 per cent should have been $82011.79 if the interest rate of 6.75 per cent used by the trial judge prevailed.  However, it was submitted that an interest rate of 5 per cent was more appropriate and would result in an award of $6082.52.  I am not persuaded that this Court should give the appellant the benefit of the lower interest rate.  The award of interest should be set aside and a lump sum in lieu of interest with respect to past economic loss of $8000 substituted.

16. The appellant contended that the award of $70000 for future economic loss was manifestly excessive.  In particular, it was submitted that the trial judge erred in averaging annuities relevant to the first respondent upon attaining the ages of 60, 65 and at death.  It was said that this was particularly erroneous when there was no evidence led by the first respondent in relation to her retirement plans. 

17. The trial judge found that the first respondent continues to suffer from pain and discomfort in her neck and occasional headaches.  A right shoulder bursitis was found likely to be a permanent source of pain, discomfort and restriction.  The combined effect of the injuries suffered by the first respondent impair her capacity to work in the future.  The trial judge said that, in his view, the first respondent’s earning capacity had been impaired to the extent of 25 per cent.  In making his assessment, the trial judge did say that the permutations and combinations of the first respondent’s future circumstances did not easily lend themselves to evaluation by reference to a flat percentage.  The arithmetical evaluation was said to be “but an indicator of the appropriate allowance” for future economic loss.  In awarding $70000 as a reasonable allowance for the present value of the first respondent’s future loss of earning capacity, the trial judge said he took into account “the outer parameter set by the percentage or arithmetical evaluation”. 

18. In summarising the first respondent’s general condition for the future the trial judge said:

    “The (first respondent) is a 42 year old female with permanent musculo-skeletal problems focussed on her neck and back, together with some psychological problems which in time will abate.  The neck and shoulder injuries are permanent and will continue to impair her working capacity in at least two senses.  First, for the clerical work for which she has experience and training she will need special consideration such as the ability to move about.  Secondly, there are a range of employments from which she is now precluded by reason of her injuries and for which she had some experience, such as waitressing work and working in some retail industry jobs where lifting and carrying is necessary.  She will be competing with fitter candidates.  Because of her disabilities, she may take some time to break into the employment market.  I take into account also that she has always assumed the role of the major breadwinner in the family and continuing to be so was her intention prior to this accident.”

    Before this, His Honour said:

    “In my view, the consequences of the collision have impaired the (first respondent’s) earning capacity to the extent of 25 per cent.  Accepting that the net dollar value of her pre-accident earning capacity is approximately $433, the net weekly loss is $108.20.  In this case the weekly loss would be higher in the earlier years when she is searching for work and perhaps working part-time and lower in the later years when she has settled.  The Australian Life Tables 1997 - 1991 published at p695 of Luntz Assessment of Damages 4^th Ed shows that the average of the annuities producing $1 a week for a female aged 42 years using the prescribed discount rate of 5 per cent (see s 35A(1)(e) and s 35A(6), the annuities to cease respectively upon the female attaining the ages of 60, 65 and at death is 740.6.  So applying $108.20 to the annuity value results in a capitalised sum of $80133.  Some discounting of that capitalised figure is necessary to account for the fact that I have used, from Exhibit P13, a high net weekly salary.  Further, I have averaged the said three annuities which is necessarily an assumption that the (first respondent) would have worked beyond the age of 60.  As for the ‘usual’ adverse contingencies, I see no basis for concluding that they would necessarily outweigh the advantageous.  The (first respondent) was, prior to the accident, a relatively healthy resourceful woman who has worked most of her life and when necessary studied to advance herself.”

19. In a case like this arithmetical calculations are but indicators of an appropriate allowance.  It is not persuasive to complain about the absence of direct evidence of the first respondent’s retirement plans when she is in her forties, a breadwinner and mother of twins, born in October 2001.  The appellant must satisfy this Court that the award of damages is excessive whatever arithmetical calculations may have been used as a guide to the sum arrived at.

20. I am not persuaded that the total award is excessive in the circumstances.  With respect to loss of future earning capacity, the award seems modest, rather than excessive, for this woman with her disabilities given her age and limited skills.

21. I would allow the appeal solely for the purpose of substituting $8000 in lieu of $11137.50 as an appropriate amount of interest on the amount of $55000 awarded for past economic loss.  After the reduction of 20 per cent for the first respondent’s fault, the substituted judgment sum in favour of the first respondent is $137194.40.

22. VANSTONE J:     I agree with the orders proposed by Prior J and with his reasons.

    JUDGMENT CITATIONS
    LISTED IN ORDER OF APPEARANCE IN JUDGMENT

1.       Wrongs Act 1936, s 27A(3)

2.Pennington v Norris (1956) 96 CLR 10; Evers v Bennett (1982) 31 SASR 228 at 229