Bolton, K. v Pangallo, M

[1987] FCA 199

. . _ . , . , .>-.c . - - 1 . - -_' 1. ..-- '

. -. _ _ . _.I. _=__ C A ".- .

- . . .

~ m . . _ _ - .-___ . __

I	r.	I	'
I	*
1
I

l	C A T C H W O R D S
!
I I

Appeal - defence of volenti non fit injuria - rejection of

defence - contributory negligence - apportionment of liability

i i

i	- grounds	for	interfering	with	apportlonment	- role of
I	court	appellate
! l
l
I

i	Damages - appeal	against	quantum - no new	question of principle
I
i	I

i Law Reform (Miscellaneous Provislons) Ordinance 1955, s.15(1)

Australlan Capital Territory Supreme Court Act 1933, s.53A(1)

i Whlm Creek v. Federal Commissioner of Taxation

(1977) 17 ALR 421

Roggenkamp v. Bennett (1950) 80 CLR 292

Pennington v. Norris (1956) 96 CLR 10

Watt v. Bretag (1982) (1982) 41 ALR 597

Unwin v. Clarke (unreported, 18 Aprll 1984)

Combrldqe v. Whlte (unreported, 22 March 1985)

O'Brien v. McKean (1968) 118 CLR 540

Griffiths v. Kerkemeyer (19J'7) 139 CLR 161

Hodges v. Frost (1984) 53 ALR 373

KEVIN BOLTON v. MARIO PANGALLO

MARIO PANGALLO v. KEVIN BOLTON

A.C.T. No. G.24 of 1986

i A. G C.T. No. 26 of 1986

Coram:	Gallop, Neaves and Spender JJ.
Date :	24 April 1987.

j Canberra.

'--- -L/'

IN THE FEDERAL COURT OF AUSTRALIA	)
)

AUSTRALIAN CAPITAL TERRITORY i

I

1 No. ACT G24 of 1986

DISTRICT REGISTRY

GENERAL DIVISION

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

KEVIN BOLTON

Appellant

AND :

MARIO PANGALLO

Respondent

No. ACT G26 of 1986

BETWEEN: MARIO PANGALLO

Appellant

AND :	KEVIN	BOLTON
Respondent

O R D E R

Judges Making Order	: Gallop, Neaves and Spender JJ.
Date of Order	: 24 April 1987.
Where Made	: Canberra.

THE COURT ORDERS THAT:

( 1 ) The appeal be dismissed with costs.

(2) The cross-appeal be dlsmissed with no order as to

costs.

- Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

AUSTRALIAN	CAPITAL	TERRITORY	)
) No. ACT G24 of 1986

DISTRICT REGISTRY

DIVISION GENERAL )

ON APPEAL FROM THE SUPREME COURT	OF
THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

KEVIN BOLTON

Appellant

i

AND : MARIO PANGALLO

Respondent

No. ACT G26 of 1986

i

BETWEEN: MARIO PANGALLO

Appellant

AND : KEVIN BOLTON

Respondent

l

CORAM: Gallop, Neaves and Spender JJ.

DATE: 24pApril 1987.

REASONS FOR JUDGMENT

GALLOP J.

The unsuccessful defendant In an action for

damages for personal injuries has appealed against the

judgment of the Supreme Court of the Australian Capital

Territory (Kelly J.). The action was heard on 15 , 16, 17

August 1984 and 21 September 1984 and judgment was delivered

on 29 April 1986. The successful plalntiff has

cross-appealed against that part of the Judgment by which

2.

t h e p l a l n t i f f was found t o be c o n t r i b u t o r i l y n e g l i g e n t . His

Honour t h e t r i a l j u d g e a s s e s s e d d a m a g e s a t $376,883.55 made

u p as follows:

General damages $ 50,000.00

Pas t economic loss 90,000.00

Loss of e a r n i n g c 1 4 5 , 0 0 0 . 0 0 p a c i t y

I n t e r e s t i n r e s p e c t of past g e n e r a l

damages and pas t loss o f e a r n i n g s 5 6 , 0 0 0 . 0 0

P a s t a n d f u t u r e e x p e n s e s for c a r e 25,000.00

Agreed p o c k e t o f e x p e n s e s o u t 1 0 , 0 0 0 . 0 0

Total $376,883.55

H i s H o n o u r f o u n d c o n t r i b u t o r y n e g l i g e n c e o n t h e

par t of t h e p l a i n t i f f a n d r e d u c e d t h e a s s e s s e d s u m by 30%.

R o u n d i n g t h e r e s u l t a n t f i gu re o f f , h l s Honour en te red

j u d g m e n t f o r t h e p l a i n t i f f for t h e sum of $263,800.

T h e d e f e n d a n t h a s c o n t e n d e d o n t h e h e a r i n g of t h e

appeal t h a t t h e d e f e n c e of v o l e n t i non f i t i n j u r i a s h o u l d

h a v e s u c c e e d e d a n d t h a t t h e r e o u g h t t o have been judgment

for t h e d e f e n d a n t . A l t e r n a t l v e l y , it w a s s u b m i t t e d t h a t h e

r e d u c t i o n of t h e a s s e s s e d d a m a g e s by o n l y 30% because of t h e

p l a i n t i f f ' s c o n t r i b u t o r y n e g l i g e n c e was m a n i f e s t l y too low

o n t h e e v i d e n c e . T h e d e f e n d a n t a l s o h a s c o n t e s t e d t h e t r i a l

j u d g e ' s a s s e s s m e n t of d a m a g e s I n c e r t a i n respects.

By way of c r o s s - a p p e a l , t h e p l a i n t i f f h a s

c o n t e n d e d t h a t t h e f i n d l n g of c o n t r i b u t o r y n e g l i g e n c e was

wrong i n l a w a n d s e e k s r e s t o r a t i o n of t h e f u l l award of

damages.

The p l a i n t i f f ' s claim for damages arose o u t of a

motor v e h i c l e a c c i d e n t o n S a t u r d a y , 1 1 March 1978. The

3 .

p l a i n t i f f was i n j u r e d when t h e motor v e h i c l e d r i v e n b y t h e

d e f e n d a n t w i t h t h e p l a i n t i f f as p a s s e n g e r co l l ided w i t h a

tree in Nor thbourne Avenue , Canberra, s h o r t l y af ter 10.00 pm

t h a t n i g h t .

The t r i a l j u d g e f o u n d t h a t a t h o t e l c l o s i n g time

t h e p l a i n t i f f a n d t h e d e f e n d a n t h a d d e c i d e d t o go on t o a

c l u b I n a v e h i c l e w h i c h t h e p l a i n t l f f h a d b o r r o w e d . T h e y

w e n t o u t t o t h a t v e h l c l e . The p l a l n t i f f t r led t o s t a r t i t ,

b u t was unable t o d o so a n d t h e d e f e n d a n t s u g g e s t e d t h a t

t h e y go to t h e c l u b i n h i s v e h i c l e . H i s Honour found tha t ,

i when t h e d e f e n d a n t l e f t t h e h o t e l a n d e n t e r e d t h e s u b j e c t

motor v e h i c l e , h e was u n d e r t h e I n f l u e n c e o f l n t o x l c a t i n g

l lguor t o s u c h a n e x t e n t t h a t I t was u n s a f e f o r h i m t o d r i v e

I t h e motor v e h i c l e , a s h e was u n a b l e p r o p e r l y t o c o n t r o l t h e

v e h i c l e . H a v l n g l e f t t h e h o t e l w l t h t h e p l a i n t i f f a s

p a s s e n g e r , t h e d e f e n d a n t d r o v e h i s v e h i c l e a t an excessive

speed a a n d e v e n t u a l l y c o l l i d e d long Nor thbourne Avenue , l o s t c o n t r o l of t h e v e h i c l e

w i t h a tree o n t h e e a s t e r n s i d e of

t h e r o a d .

h i s H o n o u r f o u n d t h a t t h e d e f e n d a n t was n e g l i g e n t

a n d t h a t t h a t n e g l i g e n c e was t h e c a u s e of t h e a c c i d e n t a n d

h e n c e t h e i n - j u r i e s s u s t a l n e d by t h e p l a i n t i f f . He a l so

f o u n d t h a t t h e i n t o x i c a t i n g l i q u o r w h i c h t h e de fendan t had

consumed con t r ibu ted t o t h e a c c i d e n t . H l s Honour was n o t

s a t i s f i e d t h a t , I n a g r e e i n g t o r i d e w l t h t h e d e f e n d a n t , t h e

p l a i n t i f f n o t o n l y p e r c e i v e d t h e e x i s t e n c e of d a n g e r , b u t

a l s o f u l l y a p p r e c i a t e d I t and voluntarily a c c e p t e d t h e

I

r l s k . He f o u n d t h a t t h e p l a i n t i f f d l d n o t know how much t h e

defendant had had t o d r i n k a n d d l d n o t f u l l y a p p r e c l a t e w h a t

4.

had not established that the plaintiff fully appreciated the

extent of the risk whlch driving with the defendant in hls

then conditon entailed and voluntarily accepted the risk.

the defendant's condition was. He held that the defendant appreciated the risk he was taking in riding with the defendant, ought to have reallsed that he was engaged In a

perilous journey and taken measures to stop it. Accordingly

he found that the plalntiff was 30% responsible for hls

in~uries and resultant damage.

In the exercise of its jurisdiction to hear and determlne appeals from judgments of the Supreme Court of a

Territory pursuant to s.24 of the Federal Court of Australia Act 1976, this court is to have regard to the evidence given

!

in the proceedings out of which the appeals arose and has

power to draw inferences of fact and, in its discretion, to

receive further evidence ( s .27 ) . It may, in the exercise of

its appellate jurisdiction, inter alia, affirm, reverse or

vary the judgment appealed from and glve such judgment or

make such brder as in all the circumstances it thinks fit or

refuse to make an order (s.28(l)(a) and (b); Whim Creek v.

Federal Commissioner of Taxation (1977) 17 ALR 421.

In support of the ground of appeal that the

defence of volenti non flt injuria should have succeeded and

that there ought to have been judgment for the defendant,

he relied upon the evidence of the accident itself, his own

insobriety and the plaintlff's knowledge of his condltion.

With regard to the accident itself, the plaintlff gave evidence at the trial that on leaving the hotel the

I ,

I .,

5.

defendant drove down Northbourne Avenue and proceeded on

past the llghts at the intersection where the Rex Hotel was

located. The defendant was driving on the righthand side of the carriageway adjacent to the centre nature strip. The

car hit the kerb on the righthand side of the carriageway

and went over to the lefthand side and hit a tree.

In cross-examination the plaintiff gave evidence that he did not know why the vehicle hit the kerb and that he had no idea of the speed they were doing at that time.

The distance travelled from the hotel to the point of the

I accident was about two miles. The defendant gave evidence

that the distance travelled was probably a mile and a half.

An independent witness, Mr T.J. Hosking, gave

evidence at the trial that at about 10.30 pm on 11 March

1978 he was standing ln front of the Parkroyal Motor Inn

near the footpath taking down the flags that fly outside the

Motor Inn. He worked there as a casual walter. He saw the defendant's vehicle travelling south on Northbourne Avenue. It collided with the kerb on the righthand side of the

southbound'lane, the two wheels on the righthand side of the

car mounted the median strip and down agaln, the car slid

sideways and he then lost sight of it. He heard a crash.

He went up to the car and saw that it had collided with a

tree. He had noticed that the vehicle was travelling a lot

faster than the general traffic on Northbourne Avenue and

later sald "twice as fast as normal traffic". In

cross-examination he sald that his Impression at the time

was that the vehicle was going very fast.

I

l

6.

The statement of another independent witness,

Mr R.A. Souter, was put in evidence. In the statement he

said that he had been travelling in a southerly direction in Northbourne Avenue in the centre lane at about 60 kilometres

per hour. The weather was fine and the road surface was

dry. About 50 metres ahead of hlm he had seen a van

travelling In the same lane and at about the same speed or

perhaps a little faster. He saw the vehicle change into the

righthand lane, hit the kerb on the rlghthand side of the

three southbound lanes and bounce off the kerb. He saw the

van "fishtail" in the centre lane, swerve left off the

I

roadway and colllde head on with a tree outside NRMA House

in Northbourne Avenue.

!

Constable Keelty gave evidence that he inspected

the scene of the accident about 10.40 pm on 1 1 March 1978.

He gave evidence of the tyre marks on the roadway which

lndlcated that the defendant's car had travelled a distance

of 36 metres along the median strlp and then another

4 9 . 2 metres to where it collided with the tree. A sketch

drawn by Constable Keelty and indicating the marks on the

roadway was also in evidence as Exhibit 3 .

Hls Honour's findlngs of fact concerning the

circumstances of the accident were as follows:

"I am satisfled that on leaving the hotel the

defendant drove his vehlcle at an excessive speed south along Northbourne Avenue. Near the Parkroyal Motor Inn the defendant's vehicle collided with the right hand

Avenue in which he was travelling. The vehicle mounted

the kerb and travelled for some distance along the

median strip between the two carriageways of

kerb of the southbound carriageway of Northbourne control and the vehicle eventually collided with a tree on the eastern side of the road."

1 .

l With reqard to the insobriety of the defendant,

Sergeant Lawler of the Australian Federal Police gave evidence at the trial that he attended the scene of the

accident at about 10 .40 pm. Concerning his observations of

the defendant, he said that he notxed the defendant

displayed the symptoms of lntoxlcatlon, which were speech

quite blurred, eyes bloodshot and watery and a strong smell

of intoxicating liquor on h m . Sergeant Lawler formed the

I

oplnlon that the defendant was well under the influence of

intoxicating liquor at the scene of the accldent. Later

that night he saw the defendant at hospltal and made further

observations of him there. He concluded from the

defendant's behaviour at the hospltal that the defendant was

well under the Influence of intoxicating llquor.

Returning to the evldence of Constable Keelty, on

the sub-~ect of the defendant's Insobriety Constable Keelty

sald in evldence that at the scene of the accldent the defendant was well under the influence of intoxicatlng

llquor. Later, at the hospltal, he noticed that the

defendant had a smell of intoxicatlng liquor on hls breath,

and his eyes were watery and bloodshot.

In a certlficate under the Motor Traffic Ordlnance

1977 Constable T.J. Clarke noted the observatlons that he

had made of the defendant at 12.15 am on 12 March 1978, includlng that the breath of the defendant had a strong odour of alcohollc liquor, that the eyes were bloodshot and

heavy lldded and that the speech was slurred.

In his own evidence at the trlal the defendant

admitted to havlng drunk flve to s1x middles of beer between

5.30 p m when h e a r r i v e d a t t h e h o t e l a n d 7.30 pm when h e

went home, or so between when h e had a meal and came b a c k , a n d a n o t h e r s i x m l d d i e s

r e t u r n e d t o t h e h o t e l a n d f i n a l l y l e f t

t h e h o t e l t h a t n i g h t , m a k i n g a t o t a l of 1 2 m i d d i e s of b e e r .

He s a l d I n e v i d e n c e i n c h i e f t h a t as h e g o t I n t o t h e v e h l c l e

b e f o r e d r i v i n g away from t h e h o t e l h e f e l t a l r i g h t . Asked

whether he f e l t i n a n y way a f f ec t ed by wha t he had d runk , he

s a i d h e d i d n o t a n d r e p e a t e d t h a t h e f e l t " a l r i g h t " .

As i n d l c a t e d a b o v e , h l s H o n o u r f o u n d t h a t when he

I

l e f t t h e h o t e l a n d e n t e r e d t h e motor v e h i c l e s h o r t l y b e f o r e

I

t h e a c c i d e n t t h e d e f e n d a n t was u n d e r t h e I n f l u e n c e of

i n t o x i c a t l n g l iquor t o s u c h a n e x t e n t t h a t it was u n s a f e for

him t o d r i v e .

With regard to the knowledge of t h e p l a i n t i f f

c o n c e r n i n g t h e d e f e n d a n t ' s i n t o x i c a t i o n , t h e p l a i n t i f f s a i d

i n c h i e f t h a t h e h a d b e e n t a l k i n g t o t h e d e f e n d a n t a t t h e

h o t e l a n d d i d n o t n o t l c e a n y t h i n g u n u s u a l about hlm. They

were t a l k i n g f o o t b a l l a l l t h e time a n d t h e r e d i d n o t seem t o

him to be anything wrong.

I n c r o s s - e x a m i n a t i o n t h e p l a i n t i f f s a i d t h a t h e

h a d b e e n t h r e e - q u a r t e r s t a l k i n g a n d d r l n k i n g w i t h t h e d e f e n d a n t for h a l f t o

o f a n h o u r j u s t b e f o r e c l o s i n g time. He had

n o t e n q u i r e d a t a n y s t a g e of the de fendan t wha t he had been

d o i n g t h a t d a y , how l o n g h e h a d b e e n i n t h e h o t e l or whether

he had been dr inking . He s a i d h e knew t h a t t h e d e f e n d a n t

had been a t t h e h o t e l l o n g e r t h a n h e h a d b e e n .

As t h e y l e f t t h e h o t e l h e h a d a s k e d t h e d e f e n d a n t

whe the r he was c o m l n g w i t h t h e p l a l n t i f f . T h e d e f e n d a n t

9.

indicated that he would travel with the plaintiff. When the plaintiff's vehicle would not start, the defendant suggested

that they travel in his car. They went around to the front

of the parking area to the defendant's panel van. The

plaintiff said in evidence that he remembered saying to the

defendant "Are you right?", to which the defendant replied

"Yeah, I'm right". The plaintiff dld not ask the defendant

whether the defendant wanted the plaintiff to drive. The

plaintiff could not offer any reason why he had asked the

defendant that question, except that he used to ask

everyone. He sald that it did not occur to him that the

defendant mlght not be fit to drive. He had not asked the

question for the reason that	he thought the defendant	might
be affected by alcohol.

He denied that when he accepted the lift he knew that he was less affected by liquor than the defendant, or

that he could see that the defendant was intoxicated. He

sald he had not noticed anything at all that had caused him

to ask the defendant the question. The plaintiff also

maintained' that between the hotel and the accldent he had

not noticed anything untoward about the defendant's

driving. He re-iterated that before he entered the motor

vehicle he dld not know that the defendant was obviously

intoxicated.

On the subject of the plaintiff's knowledge of the defendant's intoxication, Sergeant Lawler gave evidence that at the Royal Canberra Hospital the plaintiff had said to him "Why dld I let the bugger drive? Why did I let him drive?"

.I.*". ,* 1 ...-

*I

10.

There was no evidence that the plaintiff himself was so

affected by intoxicating liquor that he was unable to make a

proper assessment of the defendant's condition. The

evidence was that he had drunk three middies of beer in a

period of one and a half hours.

It was submitted that the plaintiff had had ample

opportunity to assess the defendant while drlnking with him

in the hotel for at least half an hour and walklng with hlm

to where the vehicles were parked in the parking area.

Further, it was submitted that hls inqulry of the defendant indicated some concern on the plaintiff's part that the defendant was affected by intoxicatlng liquor and on receipt of the reply assumed the risk of travelling with the defendant as driver with full knowledge of the risk he was taking.

Hls Honour correctly applied the principles laid

down by the High Court in Roggenkamp v. Bennett (1950) 80 defence the plalntlff must be shown not only to have

perceived the existence of danger, but also to have fully

appreciated It and voluntarily accepted the risk. It is true that those principles cast a very heavy evldentiary onus upon a defendant seeking to establish the defence. The

increasing stringency with which the requirements of

knowledge of the danger and full appreciatlon of the risk

are applied by courts has probably contributed as much as

anything to the contemporary eclipse of the defence (The Law

of Torts: Fleming, 6th Ed., at p.272).

. r -

.-

11.

The t r i a l j u d g e h a s n o t been shown t o have

misapprehended t h e e v i d e n c e i n a n y way and he was e n t i t l e d

to a c c e p t t h e e v i d e n c e o f t h e p l a i n t i f f , whom h e saw and

h e a r d , t o t h e e f f ec t t h a t t h e p l a i n t i f f h a d n o t p e r c e i v e d

t h e exis tence of d a n g e r when h e e n t e r e d t h e d e f e n d a n t ' s

motor v e h i c l e . T h e r e is n o p r o p e r b a s i s fo r i n t e r f e r i n g

w i t h t h e t r i a l j u d g e ' s r e j e c t i o n of t h e d e f e n c e .

I t u r n t o t h e g r o u n d of a p p e a l t h a t t h e t r l a l

j u d g e w a s w r o n g i n h i s a p p o r t l o n r n e n t o f o n l y 30% of

l i a b l l i t y t o t h e p l a i n t i f f o n a c c o u n t of c o n t r i b u t o r y

n e g l i g e n c e . I t was s u b m i t t e d t h a t t h e a p p o r t i o n m e n t of 30%

was m a n i f e s t l y e r r o n e o u s a s b e i n g too low.

S e c t i o n 1 5 ( 1 ) of t h e Law Reform ( M i s c e l l a n e o u s

P r o v i s i o n s ) O r d i n a n c e 1 9 5 5 p r o v i d e s :

"15. ( 1 ) S u b j e c t t o t h i s s e c t i o n , w h e r e a p e r s o n

s u f f e r s damage a s t h e r e s u l t p a r t l y of h i s own f a u l t

and p a r t l y o f t h e f a u l t of a n o t h e r p e r s o n or o t h e r

p e r s o n s , a c l a i m i n r e s p e c t of t h a t damage is n o t

l l a b l e t o b e d e f e a t e d b y r e a s o n of t h e f a u l t of t h e

p e r s o n s u f f e r l n g t h e damage , bu t t he damages

r e c o v e r a b l e I n r e s p e c t of t h e damage s h a l l b e r e d u c e d

t o s u c h e x t e n t a s t h e court t h i n k s j u s t a n d equ i t ab le

h a v l n g r e g a r d t o t h e c la imant ' s s h a r e i n t h e

r e s p o h s i b i l i t y for t h e damage."

T h e p r i n c i p l e s t o be a p p l i e d b y a n a p p e l l a t e cour t

o n a n a p p e a l as t o a p p o r t i o n m e n t of l i a b i l i t y were l a l d down

by t h e H i g h C o u r t i n P e n n i n g t o n v . Norrls ( 1 9 5 6 ) 96 CLR 10

a t pp.15-16, where the High C o u r t (Dlxon C . J . , Webb,

F u l l a g a r a n d K i t t o JJ.) sa id :

"Much l a t i t u d e m u s t be a l lowed t o t h e o r i g l n a l t r i b u n a l

i n a r r l v i n g a t a ludgment as t o what i s j u s t and

l e q u i t a b l e . I t is to be expected, therefore, t h a t cases

w i l l b e r a r e i n w h i c h t h e a p p o r t l o n r n e n t made c a n be

s u c c e s s f u l l y c h a l l e n g e d . "

More r e c e n t l y i n - Wat t v . Bre t aq (1982) 41 ALR 597

t h e High Cour t (Gibbs C . J . , Mason, Murphy a n d Brennan JJ.)

1 - '

l

12.

said, in dealing with the	Wrongs Act 1936-1975
p.599:

"Section 27a of the Wrongs Act gives a very wide

discretion, and much latitude must be allowed to a

trial judge in deciding what is just and equitable

(Pennington v. Norris, at 15-16). It is only in

exceptional circumstances that it is right for an

appellate court to interfere with a trial judge's

.	apportionment, as this court said in A V Jennings
Construction Pty Ltd v. Maumlll (1956)O ALJ 100 at
101: 'Accordingly jurisdlction is subject to the

limitations imposed by the principles which govern all

appeals against judgments given in the exercise of

discretions, principles which this court has stated

repeatedly in recent cases. Consequently, as Lord

Simon remarked in [British Fame (Owners) v. Macgregor

(Owners) [l9431 AC 1971 at 198-9, "the cases must be

very exceptional indeed In which an appellate court,

while accepting the findings of fact of the court below

as to the fixing of blame, none the less has sufficient

reason to alter the allocation of blame made by the

trial judge".' The same approach has been adopted by

the Prlvy Council: Ramoo son of Erulapan v. Gan So0

- Swee [l9711 3 All ER 320 at 327, per Lord Cross."

Those principles have been applled by this court in Unwin v. Clarke (unreported decision of 18 April 1984)

and Combridge v. White (unreported decision of	22 March
1985).

I am not satisfied that it would be right for this

court to interfere with the trial judge's apportionment of

30% on account of the plaintiff's fallure to appreciate the

risk he was taking in accepting the defendant as his

driver. It has not been demonstrated that the trial judge

misunderstood or failed to appreciate the evldence which was

before him.

Likewlse no ground has been established for

interferlng with the trial judge's findlng of contributory

negligence. There was evldence to support the finding. His

Honour accepted the evldence and applied the correct principles of law.

I *

I

l

13.

The defendant has also appealed agalnst the

assessment of damages made by the trial judge in respect of the amounts awarded for past economic loss, Interest on the

assessments for past general damages and past loss of

earnlngs, and the assessment for domestic care.

In relation to the claim for past economic loss,

his Honour treated the plaintiff's earning capacity as

equivalent to that of a journeyman painter employed under

the relevant award. Using as a gulde the figures provided

by an actuary and making due allowance for contingencies and

some resldual capacity to earn, at least since the accident,

and for the natlonal wage increases of 2.6% and 3.8% awarded

on 6 April 1985 and 5 November 1985 respectively, his Honour

fixed an amount of $90,000 for economic	loss from the date
of the accident to the date of judgment.

I

The defendant made no submission to this court

about hls Honour's findlng that the plaintiff's earnlng

capacity during the relevant period would have been

equivalent to that of a -Journeyman painter employed under

the relevaht award. The submission was that the trial judge

did not make sufficlent allowance for adverse contlngencles

between the date of accident and the date of judgment and

for a residual work capacity of 30%.

The uncontested figures of the actuary estimated the net wage loss from the date of accldent o 30 June 1984

!

at $75,652. As previously stated, judgment was not

delivered until 29 April 1986, 22 months later than the date

adopted by the actuary. A further amount should have been

added to the actuary's flgure of $75,652 to bring the

estimated past wage loss based upon the relevant award up to

1 4 .

the date of judgment. The evidence established that the net

earnings of a journeyman painter from 1 July 1 9 8 3 to 3 0 June

1 9 8 4 would have been $ 1 5 , 0 1 4 . The figure which might have

been added to the actuary's total figure up to 30 June 1 9 8 4 ,

making allowance for the national wage increases taken into

account by the trial judge, is in the order of $30,000,

making a total of about $ 1 0 5 , 0 0 0 for past economic loss.

In relation to the plaintiff's residual earning

capacity the trlal ~udge	made the following findings	of
fact :

"In the result, I am satisfied that the plaintiff suffers disability from his chest, back and neck,

disability I find to be not totally incapacitating. I

think his condition is such that he will no longer be

able to carry out all that would be lnvolved in

painting, the trade in which he was engaged before the

accident. The fumes of the paint trouble him and,

leaving that aslde, I am satisfled too that he would be

unable to paint above his head because of his neck

condition. Because of his limited education and work

experience I do not think he would be able to obtain

work on the ordlnary labour market in competition with

men who are fully fit. At the same time I think he

could engage in lighter work and I am satisfied that if

his physical fitness can be increased, as I think it

can, with a programme of rehabilitative exercises he

will be capable of carrying out some work requiring

relatively little physical effort. I instance driving

as a courier although account must be had of the

possibility that prolonged sitting	in a car would cause
him incapacitating back pain.

On all the evidence I think he retains an earning capacity which I estimate at 3 0 % . "

His Honour did not make a finding of fact about

how long the plaintiff had had some residual capacity to

earn prior to the date of hearing. He stated that he took

into account some residual capacity	to earn "at least since
the hearing".

It is implicit from those findings of fact that

the trial ]udge regarded the plaintiff as being totally

15.

i n c a p a c i t a t e d for most of t h e period b e t w e e n t h e d a t e o f

a c c i d e n t a n d t h e d a t e of h e a r i n g . A t t h e same tlme, h e

f o r e s h a d o w e d t h a t i f h i s p h y s i c a l f i t n e s s could be i n c r e a s e d

t h e p l a i n t i f f w o u l d be c a p a b l e of c a r r y i n g o u t l i g h t work

!

r e q u i r i n g r e l a t i v e l y l i t t l e p h y s i c a l e f fo r t . Looked a t i n

t h a t way, h i s H o n o u r ' s a w a r d of $90,000 for p a s t e c o n o m i c

loss is n o t m a n i f e s t l y wrong and is s u p p o r t e d by t h e

e v i d e n c e . A s damages are c a l c u l a t e d a s a t t h e d a t e o f

judgment , it 1s a r e a s o n a b l e f i g u r e for loss of e a r n i n g s

o v e r a p e r i o d of 8 y e a r s 1 month.

T h e p r o v i s i o n for in te res t on an award of damages

is s .53A(1) of t h e Aus t r a l i an C a p i t a l T e r r i t o r y S u p r e m e

C o u r t A c t 1933 which reads :

"53A. ( 1 ) I n a n y p r o c e e d i n g s for t h e r e c o v e r y of

any money ( i n c l u d i n g a n y d e b t or damages or t h e v a l u e

o f any goods ) t h e Supreme C o u r t or t h e Judge s h a l l ,

upon a p p l i c a t i o n , u n l e s s g o o d c a u s e is shown t o t h e

c o n t r a r y , e i t h e r -

( a ) o r d e r t h a t t h e r e b e i n c l u d e d i n t h e s u m for which

judgment i s g i v e n i n t e r e s t a t s u c h r a t e a s t h e

C o u r t or t h e J u d g e , as t h e case may b e , t h i n k s f i t

o n t h e w h o l e or any pa r t of t h e money for t h e

whole or any p a r t of t h e period b e t w e e n t h e d a t e

when t h e cause of a c t i o n arose a n d t h e d a t e as of

which t h e judgment i s e n t e r e d ; or

( b ) w i t h o u t p r o c e e d l n g t o c a l c u l a t e l n t e r e s t i n

a c c o r d a n c e w i t h p a r a g r a p h ( a ) , o r d e r t h a t t h e r e be

i n c l u d e d i n t h e sum fo r w h i c h judgment 1s g l v e n a

l u m p s u m i n l i e u of any such interest ."

I t a p p e a r s t h a t h l s Honour d i d n o t c a l c u l a t e

i n t e r e s t i n a c c o r d a n c e w i t h p a r a g r a p h ( a ) a b o v e b u t

p roceeded t o o r d e r t h a t t h e sum of $56,000 be i n c l u d e d

p u r s u a n t t o p a r a g r a p h ( b ) . A r e a s o n a b l e way of t e s t i n g t h e

r e a s o n a b l e n e s s of the award of $56,000 for i n t e r e s t would be

t o a p p o r t i o n some p a r t of t h e g e n e r a l d a m a g e s of $ 5 0 , 0 0 0 t o

t h e past , s a y $ 3 0 , 0 0 0 , a d d t h a t f i g u r e t o t h e a s s e s s m e n t for

past economic loss, which yields a total of $120,000, apply the usual interest rate of 14% adopted in the Supreme Court of the Australlan Capltal Territory, halve the resultant

figure to arrive at the appropriate amount of interest for

one year, which figure in turn would be multiplied by the

number of years involved, namely 8 years. This calculation

I

yields a figure of $67,200, from which it would be

i appropriate to deduct the amount of $12,258.59 received by

the plaintlff by way of sickness benefits for various

periods between the date of accldent and the date of trial.

That calculatlon renders a flgure very close to the trial judgels lump sum for Interest.

It is regrettable that the delay between the

completion of the hearing and the delivery of judgment has

inflated the appropriate award for interest, but as damages

are calculated at the date of judgment (O'Brien v. McKean

(1968) 118 CLR 540, per Barwick CJ at 5 4 5 ) the award 1s

nevertheless appropriate.

Finally, it was submitted on behalf of the

defendant that the trial judge's assessment of $25,000 for

domestic care, past and future, was not supported by the

evidence. H1s Honour sald:

"I think the amount originally clalmed for care during

the plaintiff's recurrent bouts of pleuro perlcarditls

(see paragraphs 2.1 (e) and 6.1 of Exhibit "L") to be

much exaggerated. Compare Dr Cassar's report of 3 July

1984. I assess $25,000 as the appropriate flgure for

this item, past and future. I do not think the

plaintiff has establlshed any need for the services of

a housekeeper as a result of his injuries."

The evldence relating to thls head of damages was. that of the plaintiff, Mrs Kuleas and Dr E.J. Cassar. As a

1 7 .

g u i d e t o c a l c u l a t i n g d a m a g e s , t h e t r i a l j u d g e a l so had i n

e v i d e n c e t h e a c t u a r i a l report of Messrs E.S. Knight & Co.

d a t e d 1 5 March 1984. O n e of t h e i n j u r i e s s u s t a l n e d by t h e

p l a i n t l f f , as found by t he t r i a l j u d g e , was a c r u s h e d c h e s t

w l t h p u l m o n a r y c o n t u s i o n s . Hls H o n o u r f o u n d t h a t h e

p l a i n t i f f " s u f f e r s d i s a b i l i t y from h i s c h e s t , b a c k a n d n e c k "

n o t t o t a l l y I n c a p a c i t a t i n g .

The p l a i n t i f f ' s e v l d e n c e was t h a t s l n c e h i s

d l s c h a r g e f r o m h o s p i t a l h e h a d su f fe red a v e r y d e e p sort o f

p a i n g o i n g t h r o u g h t h e l e f t s i d e of h i s c h e s t . He s a i d t h a t

h e g e t s t h e c o n d i t i o n f o r a b o u t 1-2 d a y s a b o u t 3-4 tunes per

y e a r , w h i c h c a u s e s h i m to go t o bed for 1-3 weeks a t a

time. When h e g e t s t hese a t t a c k s h e g e t s f e v e r l s h w l t h p a l n

r i g h t t h r o u g h t h e b a c k of h i s n e c k down to t h e top of h l s

l e f t s h o u l d e r . He s a i d t h a t i n t h e 4-5 months prior t o

g l v i n g e v i d e n c e o n 1 5 August 1 9 8 4 h e h a d s u f f e r e d a few bad

recurrences i n h i s chest and t h a t Mrs Kuleas had been

l o o k i n g a f t e r him for a b o u t 3-3: y e a r s .

Mrs Kuleas , who g a v e e v i d e n c e on b e h a l f o f t h e

p 1 a l n t i f f ; s a i d t h a t s h e h a d met t h e p l a l n t i f f a b o u t 12

months a f t e r t h e s u b ~ e c t a c c l d e n t . S h e s a i d t h a t she had

n o t i c e d t h a t from time t o time h e s u f f e r e d a t t a c k s when he

would have 1 or 2 d a y s t o 2 or 3 weeks. t rouble w i t h h l s b r e a t h i n g . T h e y w o u l d v a r y from

When tha t happened , he wou ld

e l t h e r s t a y a t h l s p a r e n t s ' o r h i s s is ter ' s or w i t h Mrs

Kuleas. Someone had t o e n s u r e t h a t h e h a d p l e n t y of l l q u l d s

and was t a k i n g t h e r i g h t m e d i c a t i o n . S h e s a i d t h a t s h e had

b e e n d o i n g t h a t since 1 9 7 9 , s h e s a i d t h a t a t t h e d a t e o f

t r i a l t h e p l a i n t l f f was m a l n l y l i v i n g a t h e r p l a c e a n d t h a t

when h e had h i s ches t problems s h e would c h a n g e t h e linen

i

I

1 : 18.

very regularly, because the plaintiff got feverish, and do

I his cooking for him. She has had to do that in periods

lasting from 1-2 weeks. She said that during these periods

of illness the plaintlff would not be able to look after

himself because he is in paln. Over the 5 months prior to

giving evidence she had spent 1-2 days per month on average

nurslng the plaintlff.

In hls report of 3 July 1984, referred to by the

! trial ~udge, Dr Cassar stated:

"THE DISABILITIES:

1. Stable and permanent loss of lung function to an

amount of 50% since 1982, increasing to its present

extent in the perlod 1978 to 1982 based on recurrent

pleuropercarditis, the frequently of pleurisy being

stable in the past two years and amounting to no more

than 3 or 4 attacks per year, the attacks putting your

client to bed for a period of at least 7 days at a time

when anti-inflammatory agents and antiblotics have

proved necessary. His lung function tests have been

stable in the past two years with spirometry tests FEVI

reading 2.5 litres as against predicted value of 3.7

litres and forced vital capacity reading 2.95 litres as

against predicted value of 4 . 4 lltres. There has been

documentation of definlte reduction in lung volumes and

gas transfer consistent with lung volume loss each and

every year of revlew and this stabillsed in 1982 to

present level of incapacity. No further deterioration

is expected. It is mot (sic) unlikely that any

improvement will ever be seen."

The proper approach to an award of damages for

gratultous services was lald down in the well known passage

in Grifflths v. Kerkemeyer (1977)	139	CLR 161 at 168-9 by
Gibbs J. (as he then was):

"First, is it reasonably necessary to provlde the

services, and would it be reasonably necessary to do so

at a cost? If so, the fulfrlment of the need is likely

to be productive of flnanclal loss. Next, 1s the

character of the benefit which the plaintiff receives

by the gratultous provlsion of the services such that

it ought to be brought into account in relief of the

wrongdoer? If not, the damages are recoverable."

19.

It was submltted on behalf of the defendant that there was no medical evidence before the trial judge

specifying the care required elther in terms of Its nature

or duration, no evidence as to the commercial cost of any

relevant care, no evidence that any cost had been incurred and no medical or other evidence establlshing that the

servlces went beyond the mere re-arrangement of domestic

chores or the tender attention to comfort hat can be

I

expected In an affectlonate environment (Hodges v. Frost

( 1 9 8 4 ) 53 ALR 373 per Kirby J. at p.380).

In my view the above evidence sufficiently

established that it had been reasonably necessary to provlde

services to the plalntlff and that it would have been

reasonably necessary to do so at cost. Accordingly, the

fulfilment of the need would have been likely to be

productive of financial loss. The character of the services

which the plaintlff received was in the nature of nursing care and, If those servlces had been lncurred at a cost, the cost would have been recoverable from the defendant.

The calculation of the compensation was made difflcult by the absence of any evldence of the charges made

for the supply of such services on a commercial basis. But

such evidence, though deslrable, 1s not essential. As Klrby

J. observed in Hodges v. Frost (supra, at p.381), the

calculation of compensation with reference to charges made

for the supply of services on a commercial basis may not

always be appropriate. Services provlded by relatlves and

frlends may not be exactly the same as those provlded by

20.

commercial agencles. Commercial agencles wlll necessarily have an element of profit in their charges. On the other hand, relatlves and friends may provide services in a more cost-effective, intensive and prolonged manner, thereby

reduclng the pain, suffering and general damages of the

accident victim.

The actuarial figures were based upon an

assumption that the plaintiff would require fulltime care for 10 weeks each year for llfe and the amount calculated

I was $68,302. Again, the trial judge has not lndlcated what

proportion of the award of $25,000 relates to the past and what amount relates to the future. The periods of illness total in the order of 8 to 10 weeks per year.

Although he dld not say so, it is obvious that the trial judge accepted the contents of Dr Cassar's report of

3 July 1984 set out above and his evidence that the

plaintiff has, as a result of the accident, permanent left

lung disease which will cause recurrmg chest pains and

chest Infections and generally difficulty in breathing at

rest and under exercise.

As the plaintlff was only 34 years of age at the

date of judgment (born 6 July 1952) the cost of future care

when the plaintiff suffers recurrences of hls chest symptoms

is very signlflcant. Looked at In that way the award of

$25,000 for past and future care is not excessive and 1s

reasonable on the evidence.

For these reasons I would not be prepared to

conclude that his Honour's assessment of damages in each of

L

21.

the respects contested by the defendant was outside the

appropriate range of damages.

The orders I propose to make are that the appeal be dismissed with costs and that the cross-appeal be

dlsmissed but with no order as to costs.

Counsel for the appellant:

Mr T. Studdart Q.C. and

Mr P.M. Hall

Solicitor for the appellant:

Crossin .S Co.

Counsel for the respondent:

MK P.L.R. Sheils Q.C. and

Mr P.L. Dodson

Solicitor for the respondent:

Pamela Coward & Associates

Dates of hearlng: 29 and 30 October 1986

IN THE FEDERAL COURT OF AUSTRALIA	I
1
AUSTR-ALIAN CAPITAL TERRITORY	) No. ACT G24 of 1986
)
DISTRICT REGISTRY	1
!

DIVISION GENERAL )

ON APPEYqL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITIlL TERRITORY

BETWEEN : KEVIM BOLTON

Appellant

-ANE : MW30 PFNGALLO

Respondent

I No. ACT G26 OF 1986

BETWEEN : M.J;FtIO PANGALLO

Appellant

AND : KEYIN BOLTON

I

Respondent

I

i C 0 W . I : Gallop, Neaves and Spender JJ.

: - U 24 April 1'187.

I	REI?S!ONS FOR JIJDGMENT
I

SPENDER J. :

i

I have had the opportunity of reading in draft form the

Reasons for Judgment of Gallop J.. I agree with the orders that

he proposes for the reasons which he gives.

1 certify that this page is a true copy

of the Reasons for Judgment herem of

I

IN THE FEDERAL. COURT OF AUSTRALIA	) )
AUSTRALIAN CAPITAL TERRITORY	)
) No. ACT G 24 of 1986
DISTRICT REGISTRY	)
)
GENERAL DIVISION	1

ON APPEAL F R O M THE SUPREME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN : - KEVIN BOLTON

Appellant

AND : MARIO PANGALLO

Respondent

No. ACT G 2 6 of 19R6

BETWEEN : MARIO PANGALLO

Appellant

AND : XEVIN BOLTON

Respondent

--	CORAM: Gallop, Neaves and Spender	JJ.
DATE: 24 April 1987

REASONS FOR JUDGMENT

- NERVES J.

I have haa the benefit of reading the reasons for

judgment prepared by Gallop J. I agree wlth the orders he

proposes and with the rcasons advanced in support thereof.

I certify that this page is a true copy of the

Reasons for Judgment

herein of the Honourable

Mr Justice Neaves.

.

Associate

Dated: 24 April 1987

i