Barnard v Towill
[1998] SASC 6883
•10 September 1998
BARNARD v TOWILL & ORS
[1998] SASC 6883Full Court: Prior, Lander & Wicks JJ
PRIOR J
1 I agree with the reasons published by Lander J. The appeal should be allowed only for the purpose of substituting $79286 for the sum entered at trial.
LANDER J
2 This is an appeal and cross appeal from a decision of a District Court Judge.
3 The appellant was the defendant in proceedings brought by the respondents pursuant to s23 of the Wrongs Act as dependants of Mark Alexander Marshall who died as a result of injuries which he sustained in a motor vehicle accident on 4 February 1993 when a vehicle being driven by him came into collision with a vehicle being driven by the appellant.
4 The respondents were respectively the wife, the stepson, the son and the daughter of the deceased.
5 The learned Trial Judge found that the appellant was guilty of negligence in the driving and management of his motor vehicle. He also found that the deceased was guilty of contributory negligence in the driving and management of his motor vehicle. The learned Trial Judge apportioned liability equally between the deceased and the appellant, that is each fifty per cent liable.
6 The learned Trial Judge assessed damages as follows:
1. For the widow:
Solatium $4000.00
Funeral Expenses $3572.00
Past Economic Loss $29000.00
Loss Of Services $1500.00
Future Economic Loss $79350.00
2. For the stepson:
Future Economic Loss $1150.00
Loss Of Care And Guidance $500.00
3. For the son:
Future Economic Loss $17250.00
Loss Of Care And Guidance $2500.00
4. For the daughter:
Future Economic Loss $17250.00
Loss Of Care And Guidance $2500.00
7 There is no explanation as to why his Honour allowed only the widow a sum for past economic loss. His son and daughter were both children at the time that their father died. They were both, in part, dependant upon their father. It appears to be illogical to allow a future economic loss for these children without allowing something for past economic loss. However the respondent did not complain about the learned Trial Judge’s assessment of damages.
8 In entering judgment his Honour deducted 50 per cent from those figures, except one, to reflect the contributory negligence on the part of the deceased. For reasons not explained his Honour allowed 100 per cent of the funeral expenses. His Honour entered judgment for the plaintiff for $81,072. For reasons, again unexplained, no allowance was made for any interest which might have attached to the past losses.
9 Judgment was entered for the respondents collectively in the sum of $81,072 together with their costs.
10 The appellant appeals against the whole of the judgment. The grounds of appeal are:
“1.... The Learned Trial Judge erred in law by imposing a single overall percentage reduction of 50% of the respondents’ damages having regard to the respective culpability of the deceased and the appellant on the one hand and the deceased’s failure to wear a seatbelt and an appropriate reduction under s35(1)(i) on the other hand rather than:-
1.1first, assessing the appropriate reduction on account of the contributory negligence of the deceased pursuant to section 27a of the Wrongs Act 1936 and reducing the total of the damages awarded on that account and
1.2secondly, reducing the sum to be awarded by such further percentage having regard to the extent to which the proper use of a seatbelt would have reduced the severity of the injury in accordance with s35a(1)(i) of the Wrongs Act.
2.The Learned Trial Judge erred in failing to reduce the award of damages by a sufficient percentage having regard to the deceased’s failure to wear a seatbelt.
3.The Learned Trial Judge erred in failing to reduce the award of damages by a greater percentage for the deceased’s contributory negligence pursuant to s27a of the Wrongs Act.
4.The Learned Trial Judge erred in reducing the first respondent’s award for solatium from the statutory maximum of $4,200.00 pursuant to the S.23(1)(b) Wrongs Act 1936 to $4,000.00, a reduction which the appellant says was inadequate in the factual circumstances accepted by the Learned Trial Judge.
5.The Learned Trial Judge erred in failing to reduce the award for funeral expenses in accordance with 1.1 and 1.2 above or at all.
6.The Learned Trial Judge erred in failing to take into account in the assessment of damages to the first respondent the benefits gained by the first respondent from the death of the deceased namely motor vehicles and cash in a credit union account.
7.The Learned Trial Judge erred in the assessment of loss of dependency in failing to take into account the contributions made by the first respondent’s present husband Peter Towill, and in particular, by finding that the Department of Social Security benefit received by the first respondent (which benefit was contingent upon a Disability Pension received by Peter Towill) was not a financial contribution to the upkeep of the respondents and should be disregarded in the assessment of damages.”
11 The respondents have cross appealed but only in respect to the finding of contributory negligence. The respondents ground of appeal is:
“1.... That the Learned Trial Judge erred in reducing the Respondents’ damages by fifty percent (50%), having regard to the extent to which the Appellant’s negligence exceeded any contributory negligence on the part of the deceased.”
12 Grounds 4 and 6 were not pursued by the appellant. Ground 5 was conceded by the respondent. The learned Trial Judge obviously made a mistake in not reducing the amount allowed for funeral expenses to reflect the deceased’s contributory negligence.
13 The deceased was born on 27 September 1957. He met his wife in 1977 and they were married on 6 June 1981. His widow, the first respondent, was born on 24 April 1956. The deceased and the first respondent had two children: a son, Paul, born on 21 April 1984 and a daughter, Catherine, born on 12 September 1987. The first respondent, the child, is the deceased’s stepson Corey, who was born on 23April 1975.
14 At the time of the marriage the deceased was in the Australian Army. He remained in the army and they lived at army bases until 1982 or 1983 when he and the first respondent took up residence at Aberfoyle Park. The deceased and the first respondent lived at that address with the three children until late 1990 or early 1991. At or about that time the deceased began drinking heavily which led to frequent arguments and in due course the first respondent asked him to leave the home. He left in late 1990 or early 1991 and thereafter the deceased and the first respondent lived separately and apart. The first respondent undertook the immediate custody of the deceased’s stepson and son and daughter. Notwithstanding the separation the deceased and the respondent remained on relatively good terms. He continued to visit the first respondent and the children regularly, sometimes as many as four or five times a week. He regularly stayed overnight on Saturday nights returning to his flat on Sunday.
15 The deceased remained relatively close to his children after the separation. The learned Trial Judge found that he assisted them with their school work. He took them to the beach and to parks and gardens for outings and took them on barbecues. Indeed the learned Trial Judge found that he remained just as close to them after the separation as he had been before.
16 In 1986 the deceased obtained employment with Australia Post. At the date of the collision he held the position of postal transport officer with Australia Post.
17 The collision which claimed the deceased’s life occurred on 4 February 1993 and the deceased died on 6 February 1993.
18 The circumstances of the accident are uncomplicated. The deceased was driving a van in the course of his employment collecting mail from street post boxes. He cleared a box number nine which is located on Black Road at Flagstaff Hill. That box was about 100 metres east of the junction of Black Road and Manning Road. The next box which he needed to clear was number ten which was west of the junction of Black Road and Manning Road. The deceased was driving in a general westerly direction along Black Road.
19 The respondent was travelling in a general northerly direction along Manning Road intending to turn right into Black Road. The deceased’s motor vehicle was therefore on the right of the appellant’s motor vehicle.
20 The learned Trial Judge has found that the deceased’s left hand door was open at the time of collision. He also found that there was a seat belt available for use by the deceased but the deceased did not have the seat belt on at the time of the accident. Lastly, he found that at sometime prior to entering the junction of Black Road and Manning Road the deceased had activated the left hand indicator on his van. That indicator had been activated prior to reaching the point where vehicles travelling along Black Road wishing to turn left would leave Black Road to travel into Manning Road.
21 The learned Trial Judge found that whilst the left hand indicator was activated it was never the deceased’s intention to turn left into Manning Road and he always intended to travel through the junction along Black Road.
22 The appellant saw the deceased’s van approaching. He noticed that the left hand indicator was indicating that the deceased’s van intended to travel into Manning road and not pass through the junction. The appellant looked to his left, saw there was nothing to prevent him entering the junction from his left and entered the junction and his vehicle came into collision with the deceased’s motor vehicle in the junction.
23 The collision therefore was a combination of circumstances. Clearly enough, as the learned Trial Judge found, the appellant failed to keep a proper look out. He should have looked again before leaving his stationary position to satisfy himself that the deceased’s motor vehicle was turning left into Manning Road rather than travelling through the junction.
24 The deceased should not have left the left hand indicator indicating in circumstances where he intended to travel through the junction.
25 Both the appellant and the deceased were responsible in some part for the collision. No-one argues to the contrary.
26 The deceased was thrown from the van. Two circumstances allowed that to happen. First the van door was open and secondly the deceased was not wearing a seat belt.
27 The deceased struck his head on the roadway and suffered very serious head injuries from which he succumbed two days later.
28 The left hand door of the van was a sliding door. Shortly after the collision the van was examined by a Police Officer who found on examination that the sliding door had been held by a mechanism to ensure it was retained in the open position. The learned Trial Judge accepted that evidence and found that at all material times the deceased drove his van with his left sliding door in the open position.
29 Two witnesses gave evidence in relation to the cause and effect of the open van door and the absence of a seat belt on the injuries and death of the deceased.
30 Professor Donald Simpson, a neurosurgeon offered the opinion that it was likely that the chance of a fatal outcome would be greatly increased when an injured person was ejected from a vehicle and that it was probable that the deceased suffered his fatal injury from ejection. He also offered the opinion that on the balance of probabilities the outcome would have been more favourable in that there was less chance of fatal injuries had the deceased been secured by a seat belt.
31 Doctor McLean, the director of the National Health and Medical Research Council of the Road Council Research Unit at the University Of Adelaide, offered the opinion that the appellant would not have been ejected had he been wearing a seat belt unless the latch of the seat belt had failed.
32 In particular he said that the deceased would not have suffered an injury to the head which would have caused his death, if he had been wearing a seat belt. Whilst he might have suffered some injury it would not have been an injury which would have been, to use his term ‘dangerous to life’, and probably the injury would not have required medical attention.
33 Section 27A of the Wrongs Act provides:
“(1) In this section -
.................. “court” means, in relation to any claim, the court or arbitrator by or before whom the claims falls to be determined;
“damage” includes loss of life, personal injury, and suffering for which a sum by way of solatium may be awarded under section 23A or 23B of this Act;
.................. “damages” includes any such solatium as mentioned in section 23A or 23B of this Act but does not include any sum payable as compensation pursuant to the Worker’s Compensation Act, 1932-1950, or pursuant to any corresponding subsequent enactment;
“dependant” means any person for whose benefit an action could be brought under Part 2 of this Act;
.................. “fault” means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.
(2)Every reference in this section to the fault of a person shall be deemed to include a reference to a fault for which that person is vicariously responsible and in a case where the claim arises out of the death of a person, a fault of the deceased shall be deemed to be a fault of the claimant.
(3)Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage: Provided that -
(a)this subsection shall not operate to defeat any defence arising under a contract;
(b)this subsection is subject to subsection (4) of this section.
(4)Where damages (not being a solatium) are recoverable by virtue of subsection (3), subject to such reduction as is therein mentioned, and a contract or enactment providing for a limitation of liability is applicable to the claim or the jurisdiction of the court is limited, the amount of the damages recoverable shall be arrived at as follows:-
(a)the court shall find the total damages which would have been recoverable if the claimant had not been at fault and there had been no limitation of liability or of the jurisdiction of the court;
(b)the total damages so found shall be reduced to such an extent as the court thinks just and equitable having regard to the claimant’s share in responsibility for the damage and the reduced amount shall, except as provided in paragraph (c) of this subsection, be the amount recoverable;
(c)if the amount of damages as reduced under paragraph (b) of this subsection exceeds the limit provided for in the contract or enactment or the limit of the jurisdiction of the court the court shall award the maximum amount of damages permitted by the contract, enactment, or limit of the court’s jurisdiction.
(6)Where damages are recoverable by any person by virtue of subsection (3) subject to such reduction as is therein mentioned, the court shall in every case find and record the total damages which apart from any limitation of liability provided by contract or enactment, or any limitation of the jurisdiction of the court would have been recoverable if the claimant had not been at fault.
(7)Sections 24 to 27 (inclusive) of this Act (which relate to proceedings against, and contributions between, joint and several tort-feasors) shall apply in any case where two or more persons are liable or would, if they had all been sued, be liable by virtue of subsection (3) of this section in respect of the damage suffered by any person.
(8)Where any person dies as the result partly of his own fault and partly of the fault of any other person or persons, and accordingly if an action were brought for the benefit of the estate under the Survival of Causes of Action Act, 1940, the damages recoverable would be reduced under subsection (3) of this section, any damages recoverable in an action brought for the benefit of the dependants of that person under Part II of this Act and any amount recoverable by way of solatium under that Part shall be reduced to a proportionate extent.
(9)Where -
(a)a person (in this subsection called “the injured person”) suffers damage as a result partly of his own fault and partly of the fault of any other person or persons; and
(b)by reason of the damage to the injured person a third person suffers damage (whether by way of the loss of the society or services of the injured person or otherwise).
then, in any claim by the third party for the damage so suffered by him the fault of the injured person shall be taken into account under subsection (3) of this section for the purpose of reducing the damages recoverable by the third party as if the said fault were the fault of the third party.
(10)Where, in any case to which subsection (3) of this section applies, one of the persons at fault avoids liability to any other such person or his personal representative by pleading any enactment limiting the time within which proceedings may be taken, he shall not be entitled to recover any damages or contribution from that other person or representative by virtue of the said subsection.
(11)Where any case to which subsection (3) of this section applies is tried with a jury, the jury shall determine the total damages which apart from any limitation of liability provided by contract or enactment or any limitation of the jurisdiction of the court, would have been recoverable if the claimant had not been at fault and the extent to which those damages are to be reduced.”
34 Section 27A of the Wrongs Act is of general application. It applies to all claims for negligence, breach of statutory duty or any other act or omission which gives rise to a liability in tort. It applies to all actions for personal injuries arising out of motor vehicle accidents. In particular the section has application to claims of the kind brought by the respondents (s27A(1) and s27A(8)).
35 The section was enacted to provide relief from the rigours of the common law which had otherwise treated contributory negligence as a complete defence to an action in tort.
36 By s27A(3) contributory negligence is no longer a complete bar to an action in tort but a court is required where it makes a finding of contributory negligence on the part of the plaintiff to reduce the damages recoverable in respect of the defendant’s negligence “to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”.
37 The plaintiff’s claim arises because the defendant owes a duty of care to the plaintiff. There is no corresponding duty owed by the plaintiff to the defendant.
38 It is therefore necessary when determining what is just and equitable having regard to the plaintiff’s share in the responsibility for the damage to have regard to the duty that the plaintiff owed to take reasonable care for himself or herself: Nance v British Columbia Electric Railway Co Ltd (1951) AC 601 at 611.
39 In Pennington v Norris (1956) 96 CLR 10 at 16 the High Court said:
“The only guide which the statute provides is that it requires regard to be had to “the claimant’s share in the responsibility for the damage.” As to the effect of this see generally an article by Mr Douglas Payne, Reduction of Damages for Contributory Negligence (1955) 18 Mod.L.R.344. What has to be done is to arrive at a “just and equitable” apportionment as between the plaintiff and the defendant for the “responsibility” for the damage. It seems clear that this must of necessity involve a comparison of culpability. By “culpability” we do not mean moral blame worthiness but degree of departure from the standard of care of the reasonable man.”
40 Therefore in a consideration of contributory negligence the court must determine the extent of the reduction in the damages recoverable by having regard to the failure by the plaintiff to take care for the plaintiff’s own safety.
41 In Rust v Needham (1974) 9 SASR 510 at 523 Bray CJ was required to consider the question of a failure to wear a seat belt and whether such a failure could amount to contributory negligence. He said:
“I confess that a kind of contributory negligence which did not contribute to the event which caused the plaintiff injury or to the occurrence of some injury to him, but only to the extent of that injury, appears to me to be a novel species of contributory negligence and one difficult to fit into the genus as traditionally defined. I am aware that the Court of Appeal in England has recently held that it exists (O’Connell v Jackson [1972] 1 QB 270)... I would prefer to reserve consideration of the matter until it arises directly.”
42 In Hancock v Commercial Union Assurance Company of Australia Ltd (1974) 10 SASR 185 Hogarth J was also required to consider whether a failure to wear a seat belt amounted to contributory negligence and the specific provisions of s162ab (now s162AB) of the Road Traffic Act.
43 Section 162ab provided that a person shall not be seated in a motor vehicle which is in forward motion for which a seat belt is provided unless that person is wearing a seat belt and it is properly adjusted and securely fastened.
44 However s162ab(5) provided:
“(5). In any legal proceedings, evidence that any person contravened this section shall not be regarded as establishing or tending to establish, negligence or contributory negligence on the part of that person.”
45 Hogarth J said:
“The learned Chief Justice in his judgment in Russ v Needham has pointed to theoretical difficulties which arise in the application of sub-s(5). With respect, I share his difficulties... And so, despite remarks in the judgments in O’Connell v Jackson, I do not think that failure by a plaintiff to wear a crash helmet, or a seat belt, can be contributory negligence within the provisions of the Wrongs Act for apportioning liability. It may possibly even be negligence which also falls within the definition of fault.”
46 In Richardson v Schultz (1980) 25 SASR 1 Williams J was called upon to consider the question of a failure to wear a seat belt and whether that would amount to contributory negligence. He concluded that if it were not for the provisions of s162ab(5) of the Road Traffic Act he would have found that the plaintiff was guilty of contributory negligence in failing to wear a seat belt. He specifically followed a decision of the Court of Appeal in England in Frome v Butcher (1976) QB 286. Williams J did not entertain the same doubts about the concept of contributory negligence applying in circumstances where a plaintiff has failed to wear a seat belt.
47 Section 162ab(5) was repealed in 1981. Thereafter it was considered that the failure to wear a seat belt could amount to contributory negligence and could give rise to a reduction in damages which would otherwise have been recoverable.
48 Any doubt as to whether the failure to wear a seat belt could amount to contributory negligence was laid to rest, in this Court, in Ferrett v Worsley (1993) 61 SASR 234. Whilst the decision in the Full Court was given in 1993 the subject motor vehicle accident occurred on 11 October 1986, prior to the enactment of s35A of the Wrongs Act. The decision declared the law prior to the enactment of s35A.
49 King CJ, with whom Olsson J agreed, after referring to the dicta in the High Court concerning the assessment of culpability in Pennington v Norris (1956) 96 CLR 10 and Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 said at 236:
“The above principles apply to contributory negligence in the form of failure to wear a seat belt as they do to other forms of contributory negligence. The required comparison of the degree of responsibility for the damage necessarily involves not only an examination of the extent to which the omission to wear a seat belt increased the degree of the injury, but a comparison of the respective culpability of the plaintiff and defendant.”
50 The process, which King CJ said was appropriate, involved two stages. First, an assessment of the extent to which the seat belt increased the severity of the injuries suffered. Thereafter a comparison of the culpability of the plaintiff and defendant.
51 In my opinion the decision of King CJ, with respect, is undoubtedly right. On an assessment of contributory negligence where the plaintiff failed to wear a seat belt a two stage process was always required.
52 Section 35A of the Wrongs Act provides:
“(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:
(a)no damages shall be awarded for non-economic loss unless -
(i)the injured person’s ability to lead a normal life was significantly impaired by the injury for a period of at least seven days; or
(ii)the injured person has reasonably incurred medical expenses of a least the prescribed minimum in connection with the injury; and
(b)if damages are to be awarded for non-economic loss, they shall be assessed as follows:
(i)the injured person’s total non-economic loss shall be assigned a numerical value on a scale running from 0 to 60 (the greater the severity of the non-economic loss, the higher the number); and
(ii)the damages to be awarded for non-economic loss shall then be calculated by multiplying the prescribed amount by the number assigned under subparagraph (i); and
(c)no damages shall be awarded for mental or nervous shock except in favour of -
(i)a person who was physically injured in the accident, who was the driver of or a passenger in or on a motor vehicle involved in the accident or who was, when the accident occurred, present at the scene of the accident; or
(ii)a parent, spouse or child of a person killed, injured or endangered in the accident; and
(d)if the injured person was incapacitated for work, no damages shall be awarded for loss of earning capacity in respect of the first week of the incapacity; and
(e)if -
(i)the injured person is to be compensated by way of a lump sum for loss of future earning capacity or other future losses; and
(ii)an actuarial multiplier is used for the purpose of calculating the present value of the future losses,
then in determining the actuarial multiplier a prescribed discount rate shall be applied; and
(f)no damages shall be awarded to compensate for the cost of the investment or management of the amount awarded; and
(g)no damages shall be awarded -
(i)to allow for the recompense of gratuitous services except services of a parent, spouse or child of the injured person; or
(ii)to allow for the reimbursement of expenses, other than reasonable out-of-pocket expenses, voluntarily incurred, or to be voluntarily incurred, by a person rendering gratuitous services to the injured person; and
(h)damages awarded to allow for the recompense of gratuitous services of a parent, spouse or child shall not exceed four times State average weekly earnings; and
(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 court thinks just and equitable having regard to the extent to which the proper use of a seat belt would have reduced or lessened the severity of the injury; and
(j)if -
(i)the injured person (not being a person under the age of 16 years) was, at the time of the accident, a voluntary passenger in or on a motor vehicle; and
(ii)the driver’s ability to drive the motor vehicle was impaired in consequence of the consumption of alcohol or a drug and the injured person was aware, or ought to have been aware of the impairment,
it shall be presumed that the injured person was negligent in failing to take sufficient care for his or her own safety, and the damages shall be reduced to such extent as may be just and equitable having regard to that negligence; and
(k)no interest shall be awarded on damages compensating a non-economic or prospective loss; and
(2)Notwithstanding the limits fixed by subsection (1)(h), if the court is satisfied that by rendering gratuitous services a parent, spouse or child has saved or will save the injured person the cost of engaging another person to provide those services (those services being reasonably required by the injured person), the court may make an award of damages in excess of that limit but the damages awarded in that event must not reflect a rate of remuneration for the person providing the services in excess of State average weekly earnings.
(3)A person shall not be regarded as a voluntary passenger in or on a motor vehicle for the purposes of subsection (1)(j) if, in the circumstances of the case, that person could not reasonably be expected to have declined to become a passenger in or on the vehicle.
(4)The defence of volenti non fit injuria is not available against the injured person where -
(a)the injured person was, at the time of the accident, a voluntary passenger in or on a motor vehicle; and
(b)the driver’s ability to drive the motor vehicle was impaired in consequence of the consumption of alcohol or a drug and the injured person was aware, or ought to have been aware, of the impairment.
(5)For the purposes of this section, an injury shall not be regarded as arising from a motor accident if it is not a consequence of -
(a)the driving of a motor vehicle; or
(b)a collision, or action taken to avoid a collision, with a vehicle whether in motion or stationary; or
(c)a motor vehicle running out of control.
(6)In this section -
“the Consumer Price Index” means the Consumer Price Index (all groups index for Adelaide) published by the Commonwealth Statistician under the Census and Statistics Act 1905 of the Commonwealth;
“court” includes an authority with judicial or quasi-judicial powers;
“injury” means bodily injury and includes -
(a)mental and nervous shock; and
(b)death;
and “injured” has a corresponding meaning;
“medical expenses” includes -
(a)the fees of medical practitioners and other professional medical advisers and therapists;
(b)the cost of hospitalisation;
(c)the cost of medicines and therapeutic appliances;
“motor accident” means a motor vehicle as defined in the Motor Vehicles Act1959 and includes a vehicles that -
(a)runs on a railway, tramway or other fixed track or path; and
(b)is operated by -
(i)a person under or pursuant to a contract, licence or authority under the Passenger Transport Act1994; or
(ii)the Australian National Railways Commission; or
(iii)a person who holds an accreditation under the Rail Safety Act 1996;
“non-economic loss” means -
(a)pain and suffering;
(b)loss of amenities of life;
(c)loss of expectation of life;
(d)disfigurement;
“the prescribed amount” means -
(a)in relation to an injury arising from a motor accident that occurred during 1987 - $1000;
(b)in relation to an injury arising from a motor accident that occurred in a subsequent calendar year - a sum (calculated to the nearest multiple of $10) that bears to $1000 the same proportion as the Consumer Price Index for the September quarter of the preceding year bears to the Consumer Price Index for the September quarter, 1986;
“the prescribed discount rate” means -
(a)if no percentage is fixed by regulation for the purposes of this definition - 5 per cent;
(b)if such a percentage is fixed by regulation - the percentage so fixed;
“the prescribed minimum” means -
(a)if no amount is fixed by regulations for the purposes of this definition - $1400;
(b)if such an amount is fixed by regulation - the amount so fixed;
“State average weekly earnings”, means the amount published by the Commonwealth Statistician as an estimate of Average Weekly Earnings for Ordinary Hours of Work for each Full-time Employed Male Unit in the State.
(7)This section is intended to apply to the assessment of damages in respect of an injury arising from a motor accident that occurred in this State -
(a)irrespective of whether the assessment is made by a court of the State or by a court of some other state, territory or country; and
(b)notwithstanding that the court by which the assessment is made would not (but for this subsection) assess the damages in accordance with, or by reference to, South Australian law.
(8)If -
(a)damages in respect of an injury arising from a motor accident that occurred in this State are assessed by a court that is not a court of the State; and
(b)notwithstanding subsection (7), the court does not assess damages in accordance with this section and the amount of the damages awarded exceeds the amount that would have been awarded in an action before a court of the State; and
(c)the State Government Insurance Commission or the Crown is liable to pay the damages awarded either under a policy of insurance or on the basis of vicarious liability, the State Government Insurance Commission or the Crown is entitled to recover from the person to whom the damages were awarded any amount in excess of the damages that would have been awarded by a court of the State had the damages been assessed by such a court in accordance with this section.
(9)In the course of proceedings under subsection (8) a court may -
(a)receive in evidence any transcript of evidence in proceedings before the court by which the damages were awarded and draw any conclusions of fact from the evidence that it considers proper; or
(b)adopt any of that court’s findings of fact.”
53 Section 35A only applies in circumstances where a party has suffered injury in a motor accident; that is, where the injuries have been caused by or arise out of the use of a motor vehicle. It has no application to claims for personal injuries arising in any other circumstances.
54 Section 35A is, in my opinion, a code for the purpose of assessment of damages for personal injuries arising from motor accidents. It is intended to cover the field in relation to damages for personal injuries in motor accidents. It restricts a person’s right to claim for damages for non economic loss unless that person has qualified under s35A(1)(a). If a person has qualified for damages for non economic loss then those damages must be assessed in accordance with s35A(1)(b).
55 It also provides a code, in my opinion, in relation to the assessment of damages for economic loss including loss of earning capacity, future medical expenses and for damages to recompense for gratuitous services provided to the injured party.
56 The section is not restricted only to a question of damages. It also deals with other aspects of claims for damages for personal injuries arising out of motor accidents. It specifically abrogates the defence of volenti non fit injuria in circumstances where the driver’s ability to drive a motor vehicle was impaired in consequence of the consumption of alcohol or a drug. Such a defence was available to a driver prior to the enactment of s35A: Banovic v Perkovic (1982) 30 SASR 34 at 36.
57 Not only was a defence of volenti non fit injuria available to a driver in circumstances where the driver’s ability to drive the motor vehicle was impaired in consequence of the consumption of alcohol or a drug and the injured person was aware or ought to have been aware of the impairment, but so also was the partial defence of contributory negligence available to a driver (Banovic v Perkovic (supra) 36).
58 Section 35A(1)(j) preserves that partial defence only in the circumstances where the driver was impaired in the circumstances mentioned. Section 35A(1)(j) requires the court to presume, in the circumstances to which I have referred, that the injured person was negligent in failing to take sufficient care for his or her own safety and then requires the court to reduce damages to such extent as may be just and equitable having regard to that negligence.
59 Section 35A(1)(i) deals with a plaintiff who was not wearing a seat belt at the time of the accident. It requires the Court if satisfied that a seat belt was not being worn contrary to s162ab of the Road Traffic Act to reduce the damages to be awarded by 15 per cent or such greater percentage as the Court thinks just and equitable having regard to the extent to which the proper use of a seat belt would have reduced or lessened the severity of the injury.
60 The section makes it mandatory to reduce the damages by 15 per cent if the Court concludes that there was a breach of s162ab. The Court shall also reduce the damages by a greater percentage as it thinks just and equitable having regard to the extent that a seat belt would have reduced or lessened the severity of the injury. It is therefore mandatory to reduce damages by 15 per cent even in circumstances where the failure to wear the seat belt did not contribute to the injury or even contribute to the severity of the injury which was suffered.
61 Section 35A(1)(i) is in different terms to s35(1)(j) which requires a presumption of negligence where the driver is impaired in consequence to the consumption of alcohol.
62 There are reasons why s35A(1)(i) and s35A(1)(j) are in different form. Prior to the enactment of s35A it was the law that a failure to wear a seat belt could amount to contributory negligence for failing to take proper care for the plaintiff’s own safety. It was a question of fact. However the failure to wear a seat belt would not amount to contributory negligence unless that failure contributed to the injuries or the severity of the injuries. The law, as can be seen from the reasons of King CJ in Ferrett v Worsley (supra), required a consideration of whether the failure to wear a seat belt increased the severity of the plaintiff’s injuries before the court considered the respective culpability of the plaintiff and defendant.
63 Where a person travelled with a driver whose ability to drive the motor vehicle was impaired in consequence of the consumption of alcohol or a drug that person might fail in the claim because a court concluded that the person voluntarily assumed the risk or might have his or her damages reduced by reason of contributory negligence. However it was necessary for the defendant to establish in both those cases that the injured person was negligent in failing to take care for his or her own safety. Such was rarely, if ever, successfully established. Section 35A(1)(j) has been enacted to raise a presumption that the injured person was negligent in failing to take sufficient care for his or her own safety in those circumstances.
64 There was no need to raise such a presumption in the case of a failure to wear a seat belt because it was already the law that a failure to wear a seat belt which contributed to the injuries or the severity of the injuries amounted to contributory negligence.
65 The scheme of the Act in relation to seat belts is to oblige the court to reduce a person’s damages by 15 per cent in all circumstances where a person, who has suffered injuries, brings a claim for damages and it is established that that person was not wearing a seat belt in contravention of s162ab. If in fact it is established that the wearing of a seat belt would have reduced or lessened the severity of the injury then a court can reduce the damages by some greater amount but that will depend upon the extent to which the proper use of a seat belt would have reduced or lessened the severity of the injury.
66 It was argued that the inquiry under s35A(1)(i) is different, in as much as the court does not inquire into the culpability of the party but inquires into the extent to which the failure to wear a seat belt has impacted upon the severity of the injury. It was suggested that is a different test than is required in the case of an examination of contributory negligence which requires an inquiry in relation to the claimant’s share in the responsibility for the damage.
67 I do not believe that Parliament intended by the enactment of s35A(1)(i) to erect a new and separate inquiry in relation to the assessment of a person’s responsibilities for that person’s own injuries, except to the extent that Parliament intended that all people who fail to wear a seat belt and who suffer injuries would have their damages reduced by 15 per cent. That aside, it seems to me that s35A(1)(i) is in its form so that the court, after determining that a seat belt was not worn, must next inquire into whether the proper use of the seat belt would have reduced or lessened the severity of the injury. If so satisfied then that would be the culpability that must be examined in a consideration of contributory negligence in an inquiry under s27A(3). In other words, satisfaction of the matters in s35A(1)(i) would give rise, in my opinion, to a particular of contributory negligence which would then be examined under s27A(3). That is, in my opinion, consistent with the approach before the enactment of s35A (Ferrett v Worsley (supra)).
68 In any event, there is no other way that the matter can be examined. For instance, in this case it can be said that the deceased suffered the severe injuries he did because he was not wearing a seat belt. But it was not only the failure to wear a seat belt that contributed to the severity of his injuries, it was also the fact that the left hand door of the van was left open. It was a combination of those two matters which gave rise to the very serious head injuries which he suffered.
69 The second aspect is clearly a matter of contributory negligence. It is negligent to drive a van with the door open and more so if at the same time the driver or passenger plaintiff fails to wear a seat belt.
70 There were three different aspects to the deceased’s driving which were relevant to a question of a reduction of the damages available to his dependants. First, he was negligent in the driving of his motor vehicle in driving with the left hand indicator indicating inappropriately. Secondly, he was negligent in driving the van with the left hand door open. Thirdly, he was negligent in failing to wear a seat belt.
71 The first was independent of the second and third matters but the second and third matters were dependant upon each other for the severity of the injuries which the deceased suffered.
72 If the appellant’s contention was correct then there would be, in effect, three inquiries. There would be an inquiry as to whether the failure to wear a seat belt alone would have reduced or lessened the severity of the injury. That would be an inquiry, so it was submitted, which is not the same as the inquiry in relation to s27A(3) apportionment. Secondly there would be an inquiry as to whether the driving of the van with the door open was a matter of culpability which ought to give rise to a reduction in damages having regard to the deceased’s share in the responsibility for the damage. Thirdly there would be a separate inquiry in relation to the pure matter of contributory negligence in the driving of the motor vehicle.
73 If that was right then the exercise would become impossible. It would be impossible to divorce the failure to wear a seat belt from the failure to close the van door. It would not be possible to assess the failure to wear a seat belt independent of the failure to close a van door. If after having assessed that matter it was then a matter of inquiring into contributory negligence in relation to the van door and to the driving of the van with the indicator on then the inquiry would become impossibly confused.
74 In my opinion Parliament intended that proof of the matters in s35A(1)(i) would give rise to a particular of contributory negligence, i.e. culpability which would then be examined in accordance with s27A(3). There would be no contributory negligence apart from the statutory 15 per cent unless the defendant could first establish, however, that the proper use of the seat belt would have reduced or lessened the severity of the injury. Once that was determined that would go in as a particular of contributory negligence with all other aspects of the plaintiff’s behaviour which would bear upon the appropriate reduction having regard to the plaintiff’s responsibility. Parliament intended that the process provided for by the law would continue after enactment of s35A.
75 In this case the defendant did establish that the proper use of a seat belt would have reduced or lessened the severity of the injury. The defendant also established, in my opinion, that the failure to close the van door allowed the deceased to be thrown from the van and suffer the head injuries which later claimed his life.
76 In those circumstances the defendant established that those matters gave rise to contributory negligence which would have required a reduction of something greater than 15 per cent, because 15 per cent would be deducted even where the use of the seat belt would not have reduced or lessened the severity of the injury.
77 That matter, together with the deceased’s driving, were matters that had to be taken into account in determining whether there should be a reduction in the damages.
78 The learned Trial Judge proceeded to an overall assessment of contributory negligence on the part of the deceased. In that respect, in my opinion, the process which he followed was appropriate. He reached a conclusion that an appropriate reduction would be 50 per cent.
79 The appellant claims that 50 per cent was too little and the respondent claims that 50 per cent was too great.
80 In Podrebersek v Australian Iron and Steel Pty Ltd (supra) at 493 the High Court said:
“A finding on a question of apportionment is a finding upon a “question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds”; British Fame (Owners) v MacGregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge is not lightly reviewed.”
81 I am not persuaded that either party is correct in their claim that the reduction arrived at by the learned Trial Judge was unreasonable or outside the discretion which reposed in the learned Trial Judge.
82 I believe a reduction of 50 per cent of the plaintiff’s damages on account of the plaintiff’s contributory negligence was not, in the circumstances of this case, unreasonable.
83 The deceased had to bear at least 15 per cent of the responsibility for his own damages because of his failure to wear a seat belt. In fact he had to bear more than that because the appellant did establish, in my opinion, that the proper use of a seat belt would have reduced or lessened the severity of the injury. The deceased also had to suffer some reduction in his damages for his negligent driving.
84 I believe a reduction of 50 per cent was, in the circumstances of this case not inappropriate.
85 I would dismiss that ground of appeal and the cross appeal.
86 I turn to ground 7. The appellant argued that in the assessment of the dependant’s claim under the Wrongs Act regard should be had to the fact that the deceased’s wife remarried after the death of her husband. She married Mr Peter Towill, who was then on unemployment benefits. He was in receipt of unemployment benefits and as a result the first respondent became eligible for a pension which, it was submitted, should be taken into account in the assessment of the loss of dependency.
87 The respondent’s claim is a statutory cause of action given under Part II of the Wrongs Act; no claim for damages for the death of another person lay at common law. The action is therefore regulated by the statute. Only one action lies and it is brought for the benefit of all those who are entitled under s20 of the Wrongs Act, being the wife, husband, parent, brother, sister and child of the deceased.
88 The Court is obliged to give such damages as it thinks proportioned to the injury resulting from the death of the deceased to the parties respectively for whom and for whose benefit that the action is brought (s20(2)).
89 Apart from the statutory right for medical expenses incurred as a result of the injury causing death, the funeral expenses incurred by those for whom the benefit of the action has been brought and the right to solatium as provided in s23B of the Wrongs Act, the action is to recover damages for pecuniary losses. In Public Trustee v Zoanetti (1945) 70 CLR 266 at 276 Dixon J said:
“In estimating the damages to be recovered under legislation taken from Lord Campbell’s Act (the Fatal Accidents Act 1846, 9 & 10 Vict.c.93) two rules are clearly settled. One is that what is recoverable for the benefit of the widow or other relative of the deceased is the pecuniary loss resulting from his death and that nothing may be recovered by way of solatium for the suffering that his death caused to his widow or relative. The other is that in ascertaining the pecuniary loss resulting from [a deceased’s death] there must be taken into consideration, on the one side, the reasonable expectations of benefit upon which the claimant would have been entitled to rely, had his life not been brought to an end, and , on the other side, the pecuniary benefits arising on his death to which the claimant had a reasonable expectation, whether as of right or otherwise.”
90 His Honour then went on to point out that the South Australian Wrongs Act specifically provides for a sum for solatium.
91 At 279 Dixon J said:
“The pecuniary loss to which the damages are confined consists in the loss of material benefits or of the reasonable prospect of material benefits which depended on the continuance of the life of the deceased. What must be ascertained is whether any and what loss has been sustained by the relatives of the deceased after comparing the material benefits depending upon his life with any material gains accruing from his death. Thus it was decided that accident and life insurances must be taken into consideration if any benefit accrued from them: Cf per Greer J, Baker v Dalgleish Steam Shipping Co (1921) 3 KB 481, at p 485; see Hicks v Newport, Abergavenny & Hereford Railway Co (1857) 4 B & S 403 [122 ER 510]; and Bradburn v Great Western Railway Co (1874) LR 10 Ex 1.”
92 In this State, however, Parliament has identified a number of matters which may not be taken into account as material benefits.
93 Section 20 (2aa) of the Wrongs Act provides:
“(2aa)In assessing damages under this section in any action based on a death occurring after the passing of the Wrongs Act Amendment Act, 1956, there shall not be taken into account -
(i)any sum paid or payable on the death of the deceased under any contract of assurance or insurance, whether made before or after the passing of the said Act;
(ii)any sum paid or payable consequent on the death of the deceased person as a gratuity to any person for whose benefit the action is brought:
(iii)any superannuation payments or benefits consequent upon the death of the deceased person:
(iv)any sum paid or payable consequent upon the death of the deceased person under any contributory medical hospital death or funeral benefit scheme:
(v)any sum paid or payable as a social service benefit or pension by the Governments of the Commonwealth of Australia, or the United Kingdom, or the State of South Australia to or in respect of any person for whose benefit the action is brought.”
94 Usually the Court examines the circumstances of the deceased to determine what part of the deceased’s income was available to the dependants and what part of that income has been lost by reason of the deceased’s death. Ordinarily the benefits available to the family of a deceased person are shared benefits.
95 That was the approach taken by the learned Trial Judge in this case and he determined that the family as a whole was dependant upon the deceased to the extent of about $105 per week.
96 Of course the deceased and his wife were separated at the time of his death. She was entitled by reason of that circumstance to a supporting parent’s pension. She remained on Social Services after the death of her husband and until she began to live with Mr Towill in 1994. Apparently on her marriage her pension was stopped. However Mr Towill was unemployed and she then received an equivalent benefit to that which she received before her marriage because of his unemployment. Subsequently Mr Towill was granted a disability pension and Mrs Towill’s benefits underwent a further change. She now receives an equivalent benefit on the basis of his disability.
97 The appellant submitted that Mrs Towill now receives a Social Security benefit by reason of her marriage and in particular by reason of the fact that Mr Towill is in receipt of a disability pension.
98 It is submitted that the pension which she receives ought to be brought to account in the assessment of the loss of dependency.
99 The submission fails, in my opinion, on the facts. Mrs Towill received a pension before her husband’s death. She still receives a pension. Her entitlement to the pension has changed but the amount of the pension has not. She is in no better position now than she was. It would be unfair and inappropriate to take into account in the assessment of the loss of dependency the amount of the pension which she now receives simply because her eligibility for the pension has changed.
100 It could not be said that Mrs Towill has received any material benefits consequent upon the death of the deceased.
101 The deceased’s death left Mrs Towill free to remarry which she did. However, her remarriage has not brought any material pecuniary benefits at all. Her income and the amount available to all the relevant respondents has not changed. She gained nothing, in a pecuniary sense, from her remarriage.
102 In any event, in my opinion, it would be contrary to law to take the pension into account. In my opinion s20(2aa) of the Wrongs Act forbids the Court from taking into account any Social Service benefit received from the Commonwealth of Australia in respect of any person for whose benefit the action is brought. The injunction does not arise only if the pension is consequential upon the death of the deceased. The injunction prohibits the taking into account any sum payable as a social service benefit or pension in respect of any person for whose benefit the action is brought.
103 In my opinion the learned Trial Judge was right to reject the argument that any regard should be had to this pension.
104 I believe that all grounds of appeal fail except that ground of appeal relating to the failure by the learned Trial Judge to reduce the sum allowed for funeral expenses by the amount of the contributory negligence.
105 I would therefore allow the appeal for the purpose of reducing the judgment arrived at by $1786 to reflect a reduction of 50 per cent of the funeral expenses. The judgment of the learned Trial Judge entered in the sum of $81072 should be set aside and in lieu thereof judgment should be entered for the respondents in the sum of $79286.
106 I would hear the parties as to the costs of the appeal.
WICKS J
107 I agree that this appeal should be allowed for the reasons given by Lander J. I also agree with the terms of the order he proposes should be made.
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