CHALKIN v Beyer - [1999] WADC 92

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CHALKIN -v- BEYER & ANOR [1999] WADC 92

CORAM: LA JACKSON DCJ

HEARD: 15 OCTOBER 1999

DELIVERED : 22 OCTOBER 1999

FILE NO/S: CIV 180 of 1999

BETWEEN: DARRYL PETER CHALKIN
Plaintiff
AND
FREDERICK GEOFFREY BEYER
First Defendant
JOHN BRUCE JONES
Second Defendant

Catchwords:

Tort - Apportionment of liability between a motorist turning across the path of oncoming traffic and a motorist running into the rear of the vehicle in front.

Damages - Assessment of the proportion of a most extreme case.

Legislation:

Road Traffic Code

Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Liability apportioned 70:30 in favour of the plaintiff. Broken right arm assessed at 7-1/2 per cent of a most extreme case. Judgment for the plaintiff for $6,465.81.

Representation:

Counsel:

Plaintiff:     Mr P Batros
First Defendant             :     Mr P Momber
Second Defendant         :     Mr P Momber

Solicitors:

Plaintiff:     Godfrey Virtue & Co
First Defendant             :     Peter Momber
Second Defendant         :     Peter Momber

Case(s) referred to in judgment(s):

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Southgate v Waterford (1990) 21 NSWLR 427
Wynbergen v Hoyts Corporation Pty Ltd (1979) 149 ALR 25

Case(s) also cited:

Nil

LA JACKSON DCJ: The plaintiff's claim is for damages arising out of a motor vehicle accident on 5 March 1998. The plaintiff was born on 6 September 1952 and was therefore aged 45 at the date of accident and 47 at trial. Both liability and quantum of damages are in issue.

Liability

At about 11.15am the plaintiff was riding a Harley Davidson motor cycle in a westerly direction in Railway Road, Karrakatta approaching the main entrance to Karrakatta Cemetery. Railway Road is a 4 lane road and the plaintiff was riding in the lane nearest the centre line. He was following behind a jeep Cherokee 4‑wheel drive vehicle driven by Barry John Palmer. The plaintiff was travelling approximately 25m behind the jeep. Ahead of the jeep was a Vespa motor scooter ridden by Egidio Donadio. All three vehicles were travelling at about the same speed namely 60km/h or slightly less. In his evidence Palmer said he was travelling at 55km/h and the plaintiff said he was travelling at 60km/h. However the evidence generally indicates they were travelling at the same speed and I do not consider their evidence of the estimated speed of their own vehicles should prevail.
At the same time the first defendant was driving a Mazda 626 Sedan in an easterly direction along Railway Road also approaching the entrance to Karrakatta Cemetery. He was followed by a Ford Fairmont Sedan driven by the second defendant. Both defendants were driving in the centre lane of Railway Road. Neither defendant gave evidence. Palmer said that the first defendant, without stopping, suddenly turned to his right and immediately into the path of the Vespa which was only a few metres away. A witness, David Prescott, was driving a vehicle in a westerly direction along Railway Road in the kerbside lane. He was being overtaken by the other three vehicles. He said he observed the first defendant's vehicle stop and then suddenly swing to its right in front of the Vespa. Whether the first defendant stopped prior to turning is not, I think, relevant to these proceedings. Clearly the first defendant turned immediately in front of the Vespa giving Donadio no chance of avoiding colliding into it which he did. Donadio was thrown from his motor scooter onto the first defendant's vehicle and onto the ground. The weather was good and the road dry. It is apparent that the first defendant failed to see the Vespa at all because on the descriptions of both Palmer and Prescott the first defendant's turning manoeuvre was necessarily going to cause a collision with the Vespa.
At or about the same time that the Vespa collided with the first defendant, the second defendant collided with the rear of the first defendant. The second defendant was charged with careless driving and pleaded guilty to that charge. Plaintiff's counsel advised that there was some uncertainty as to whether the collision between the first and second defendants preceded the first defendant's collision with the Vespa. Both defendants were joined in on the basis that it might well have been that the collision by the second defendant pushed the first defendant into the path of the Vespa. Although on the evidence before me it is clear that the second defendant's running into the rear of the first defendant did not cause and was not a contributing factor to the collision between the first defendant and the Vespa, counsel for both defendants accepted that if there was to be a judgment against the first defendant then it should, as a matter of convenience, be against both defendants. As is well known, in Western Australia there is a compulsory third party insurance scheme as a result of which both defendants were insured by the same insurer and it is therefore immaterial whether there is a judgment against one or both of them and any issue of contribution between them would be sterile.
Palmer observed the first defendant turn and the Vespa collide with the Mazda. He immediately applied his brakes. He described the brakes on the jeep as being particularly modern and efficient and he was able to stop prior to running into either the Vespa or the Mazda.
The plaintiff was not so fortunate. He was unable to see beyond the jeep. The jeep is an off road vehicle of fairly bulky construction and completely obscured the view of the plaintiff riding a motor cycle of the road ahead. In addition there is immediately to the east of the Karrakatta Cemetery main entrance a dip in the road. The first warning the plaintiff had was when he observed the brake lights on the jeep come on. He says, and I accept, that he immediately applied both front and rear brakes on the motor cycle. He looked through his left hand mirror and glanced to his left to see if he could turn into the kerbside lane so as to avoid the jeep. He was unable to do so because of the presence of the vehicle driven by Prescott. The plaintiff was unable to stop in time and ran into the left rear of the jeep causing his motor cycle to topple over and deposit him on the ground causing him injuries.
Regulation 509(4) of the Road Traffic Code provides:
"Except when overtaking and passing, the driver of any vehicle shall, when following another vehicle, keep such distance behind it, as will enable him to stop his vehicle in an emergency with safety and without running into the vehicle in front of him."
It seems to me that a motorist who runs into the rear of another is in a most difficult position. Either he was too close to enable himself to stop in the case of an emergency or he was failing to keep a proper lookout and therefore failed to observe the emergency until it was too late, or he has failed to adequately apply his brakes or to steer clear of the vehicle ahead of him. It seems to me unnecessary to have to come to a definitive decision as to the various alternatives. There was some discussion as to the comparative braking efficiencies of a modern vehicle like a jeep compared to a more old fashioned vehicle such as a Harley Davidson motor cycle. But if the motor cycle's braking efficiency is less, then the requirement is for the rider to be further back. Karrakatta Cemetery is the primary cemetery in Perth. It is well known to be a busy area as a result of many funerals during the course of the week. The plaintiff was familiar with the area. Following behind the jeep when he could not see what was ahead of the jeep required him to be particularly cautious. The fact that he ran into the back of the jeep, in my view, indicates a failure on his part to observe the appropriate standards of care for his own safety and I consider that he was negligent as alleged.
The real issue in this case is whether the first defendant's negligence caused or contributed to the collision between the plaintiff and the jeep. The question of whether the first defendant's negligence was a cause of the accident and of the plaintiff's injuries is to be answered firstly by considering to whom the first defendant owed a duty of care. That question is, of course, answered that the duty is owed to anyone who might be injured as a result of such negligence provided such injury is not too remote. It is not necessary in this case to consider issues of remoteness. It is well known that motorists will sometimes be inattentive. They will sometimes drive too fast. They will sometimes drive too closely behind the vehicle in front of them. They will sometimes drive whilst affected by alcohol or other drugs (although I hasten to say this is not suggested in this case). It is plainly foreseeable that there will be such motorists about on the road and a duty of care is owed to such motorists. It is not an answer to a claim for negligence that the other motorist was also lacking in proper care and attention unless truly such lack of care is a novus actus interveniens. In March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 the Court was dealing with a case where the defendant's truck was parked at night in the middle of a 6 lane highway for the purpose of unloading. It was fully illuminated. The plaintiff whilst under the influence of alcohol and driving at an excessive speed collided with it and was injured. The defendant argued that even if its driver was negligent, that negligence did not cause the plaintiff's injuries which were due entirely to his own negligence. At 519 Mason CJ said:
"Viewed in this light, the respondents' negligence was the cause of the accident and of the appellant's injuries. The second respondent's wrongful act in parking the truck in the middle of the road created a situation of danger, the risk being that a careless driver would act in the way the appellant acted. The purpose of imposing the common law duty on the second respondent was to protect motorists from the very risk of injury that befell the appellant. In these circumstances, the respondent's negligence was a continuing cause of the accident. The chain of causation was not broken by a novus actus. Nor was it terminated because the risk of injury was not foreseeable; on the contrary, it was plainly foreseeable."
At 521 Deane J said:
"Expressed in terms of causative fault, the effective causes of the appellant's injuries were the negligence of the second respondent in creating a hazard for a careless and inattentive driver and the negligence of the appellant in being such a driver."
And further at 524 Deane J said:
"…the Courts will be unlikely to deny causation in any case where the fault of a defendant contributed to an accident. Nonetheless, the question whether conduct is a 'cause' of injury remains to be determined by a value judgment involving ordinary notions of language and common‑sense."
In Wynbergen v Hoyts Corporation Pty Ltd (1979) 149 ALR 25, at 29 Hayne J said:
"This and other apportionment legislation is predicated upon a finding that a person suffers damage as a result partly of the person's own fault and partly of the fault of any other person or persons. No doubt the making of the apportionment which the legislation requires involves comparison of the culpability of the parties, ie, the degree to which each has departed from the standard of what is reasonable, but that is not the only element to be considered. Regard must be had to the 'relative importance of the acts of the parties in causing the damage' and it is 'the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
In referring to "other apportionment legislation" his Honour referred to the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 of Western Australia.
The plaintiff was someone who should properly have been in the contemplation of the first defendant and to whom he owed a duty of care. The first defendant's negligence in turning immediately in front of the Vespa causing the Vespa to collide with him was obviously significant. On the other hand, although the plaintiff was either driving too closely or failing to keep a proper lookout, his level of culpability was considerably less. This is, of course, a value judgment. The value judgment is for the Court to make but the evidence of both Palmer and Prescott is of assistance. Prescott, an Anglican Minister, was contented that day. Not only was the contentment due to the weather and the fact that he was in no particular hurry, he was also warmed by the apparent actions of the drivers of the Vespa, the jeep, and the Harley Davidson. He described their conduct in exemplary terms, to be contrasted, with an increasing tendency of people to drive too fast and too close. Palmer, who was aware of the following plaintiff, immediately after the accident having checked the Vespa rider, went to the plaintiff and said he was sorry but there was nothing he could do about it. Neither Palmer's nor Prescott's perception of the manner of riding by the plaintiff of his motor cycle is exculpatory but it does assist me in my assessment of the relative culpability of the plaintiff and of the first defendant.
In my opinion the plaintiff contributed 30 per cent to the accident and the first defendant 70 per cent. Following acceptance by counsel for the defendants that any degree of negligence would be visited on both defendants, it is the defendants jointly and severally who will be liable to the extent of 70 per cent.

Damages

The plaintiff was a 45 year old motor cycle tour operator. He is right handed. As a result of the accident he suffered a displaced fracture of the right humerus and grazing to the right thigh. The thigh injury was treated with antiseptic and although for a while the plaintiff's knee hurt he recovered from injuries to his right leg promptly.
He was taken to Sir Charles Gairdner Hospital where he was treated in casualty. He was not admitted as an in‑patient. His right arm was placed in a plaster cast from the shoulder to the elbow. He was given some pain killing tablets and a tetanus injection and was allowed home. Unfortunately the fracture failed to knit and after some months the plaster cast was replaced by an arm brace. For about 5 months from the date of the accident the plaintiff had no functional use of his right arm. He said he was unable to work and carry out his ordinary hobbies of gardening and house painting. He said he felt frustrated and depressed by the consequences of his injury. He visited his local general practitioner and was given advice as to how to cope and that advice appears to have been satisfactory.
He is left with a 15 degree posterior bowing of the right humerus. Operative procedure is available to straighten the arm but it is not strongly recommended and the plaintiff has decided not to proceed with such a procedure. I find nothing unreasonable about his taking that position.
He is left with some residual weakness but no percentage loss of use of the right arm has been estimated. The only recreational effect the plaintiff was able to describe was that he is unable to throw a ball to his dog as well as he used to in the past.
The plaintiff's claim is limited by s3C of the Motor Vehicle (Third Party Insurance) Act 1943. Section 3C(2) and (3) provide:
"(2)The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded.
(3)The maximum amount of damages that may be awarded for non‑pecuniary loss is ($219,000), but the maximum amount may be awarded only in a most extreme case."
The Act also provided a threshold and if damages were assessed at less than the threshold then no damages are to be awarded for non‑pecuniary loss. The threshold at the date of trial was $10,500. If the damages awarded for non‑pecuniary loss is less than $33,000 then the threshold is deducted from the amount so assessed. If the damages are assessed at $43,500 or more then there is no deduction. Between $33,000 and $43,500 there is a sliding scale.
Similar legislation is in force in New South Wales. That legislation was considered by a very strong Court of Appeal in New South Wales consisting of Gleeson CJ, Kirby P and Meagher JA in Southgate v Waterford (1990) 21 NSWLR 427. Sections 79(2) and (3) of the New South Wales Act are to the same effect as ss3C(2) and (3) of the Western Australia Act. At 440 the Court said:
"There are a number of ways by which trial judges could approach the task of apportionment required by s79(2) and s79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s79(2). But clearly, because the task in hand is that of awarding damages for 'non‑economic loss', it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'."
Further at 441 the Court said:
"The only criterion for the apportionment prescribed is the comparison of the severity of the non‑economic loss, as disclosed by the evidence, suffered by the injured person in the case before the judge and that suffered in 'a most extreme case'. The statutory maximum may only be awarded in the latter case. The judge must then assign the case as found somewhere along the resulting scale."
And further:
"At least in the first instance, the determination of the 'proportion' is committed by law to the trial judge. He or she has the outside parameters which are fixed by the legislation. The task of determining the 'proportion' which follows may not be scientific or normative; but it is not wholly at large. A wide measure of discretion has always existed in fixing damages for non‑economic loss. All that this legislation does is to require that the damages under this head be fixed in harmony with the fact that Parliament has determined that a maximum will be laid down, varied from time to time and reserved for 'a most extreme case'."
I would say that in general terms a broken arm which knits properly would be at best 5 per cent of a most extreme case. In this case the displaced nature of the fracture resulted in some further problems for the plaintiff and has left him with a permanent, although not very significant, disability. I would assess the appropriate percentage of a most extreme case at 7½ per cent. 7½ per cent pursuant to s3C results in a figure of $5,925.
By a memorandum of agreement between the parties the following figures were agreed:
Refund due to the Health Insurance Commission         $21.00
Medical and travelling costs  $175.00
Loss of earning capacity  $2,959.16
Interest was claimed in the writ. Neither counsel argued interest at trial. I think it should be allowed on the expenses actually incurred and the loss of earning capacity. As the plaintiff was disabled for about 5 months, those expenses and losses would have crystalised about 12 months or so. I would therefore allow interest for 1 year. Interest rates are particularly low at the prsent time. I think 5 per cent is appropriate.
Medical and travelling expenses  $175.00
Loss of earning capacity  $2,959.16
$3,134.16
$3,134.16 x 5% x 1 year  $156.71

I therefore assess the defendant's liability as follows:
Non‑pecuniary loss  $5,925.00
Repayable to Health Insurance Commission                $21.00
Medical and travelling expenses  $175.00
Loss of earning capacity  $2,959.16
Interest  $156.71
Total  $9,236.87
The plaintiff is entitled to recover 70 per cent of that sum namely $6,465.81.