Eicas v Dawson

Case [2016] SASCFC 124

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Civil)

EICAS v DAWSON

[2016] SASCFC 124

Judgment of The Full Court

(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Lovell)

25 November 2016

TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES

TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE - APPORTIONMENT OF DAMAGES - GENERALLY

PROCEDURE - COSTS - APPEALS AS TO COSTS

Mr Dawson (the plaintiff) sued Ms Eicas (the defendant) in negligence for damages for injuries suffered in a motor vehicle accident on 7 September 2008. The trial Judge apportioned liability 80/20 in favour of Mr Dawson and having assessed damages entered judgment in his favour in the sum of $682,479.10.The judgment sum did not better an offer filed in court by Ms Eicas. When exercising his discretion in relation to costs the Judge did not allow Ms Eicas the full benefit of the offer available under the Rules of Court. Ms Eicas appealed the costs order. Mr Dawson cross-appealed against the Judge's apportionment of liability and the award of damages.

Whether the respondent was totally responsible for the accident - whether the trial Judge erred in the assessment of past and future loss of earning capacity - whether the trial Judge approached the question of costs in accordance with the Rules of Court.

Held: per Lovell J (Nicholson and Parker JJ agreeing):

1. Finding made by the trial Judge of contributory negligence is set aside. The cross-respondent held totally responsible for the collision.

2. Trial Judge erred in his approach to assessment of past loss of earning capacity. Award of $275,000, set aside. Damages assessed at $350,000.

3. Trial Judge erred in his approach to assessment of future loss of earning capacity. Award of $350,000, set aside. Damages assessed at $490,000.

4. The trial Judge in exercise of his discretion departed from a strict application of the costs penalty pursuant to the Rules of Court. The discretion miscarried and the costs order is set aside.  Appeal allowed.

Orders:

1. The trial Judge's finding of contributory negligence is set aside. The respondent is totally responsible for the collision.

2. The trial Judge's assessment of damages is set aside. The Court reassesses damages in the sum of $1,320,640.

3. The costs order is set aside.

4. The Court will hear the parties as to appropriate orders as to the final judgment sum and costs.

Civil Liability Act 1936 (SA) s 3, s 31, s 32, s 50, s 54; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA), referred to.
Simonovski v Bendigo Bank Ltd (No 2) [2003] VSC 139; Shaw v Jarldorn (1999) 76 SASR 28; Whitehead v Maas (1991) 56 SASR 362, applied.
Fox v Percy (2003) 214 CLR 118; Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 6) [2010] FCA 381; Husher v Husher (1999) 197 CLR 138; Joslyn v Berryman (2003) 214 CLR 552; March v E &…

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Eicas v Dawson [2016] SASCFC 124
Case
[2016] SASCFC 124
Decision Date

CaseChat Overview and Summary

This case concerned an appeal from a decision of the District Court of South Australia regarding a road accident. The appellant, Mr Eicas, was the plaintiff and the respondent, Ms Dawson, was the defendant. The dispute arose from a collision between Mr Eicas's motorcycle and Ms Dawson's car on Frome Road. Mr Eicas sustained severe injuries in the accident.

The primary legal issues before the Full Court of the Supreme Court of South Australia were the apportionment of responsibility for the accident between the parties and the assessment of damages. Specifically, the court had to determine the extent to which each party's negligence contributed to the collision and the resulting injuries.

The court considered the evidence presented by both parties. Ms Dawson admitted to a significant degree of responsibility, stating she was looking for a parking space, indicated left, slowed down, and moved her car to the left without checking for vehicles in her blind spot. Mr Eicas's recollection of events was impaired due to his injuries, and the evidence of one of his witnesses was found to be unreliable by the trial judge. The court placed significant weight on the evidence of Ms Tieri, an independent witness, who observed the car in the right-hand lane veer and slow down to move left, with the motorcycle following closely behind without slowing. While Ms Tieri was found to be a credible witness, the trial judge did not accept her evidence that Ms Dawson had not activated her left-hand indicator. The court ultimately upheld the trial judge's apportionment of responsibility, finding that both parties were negligent and contributed to the accident.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The respondent’s case was that she was travelling in the right-hand lane of Frome Road, at a slow speed, looking for a space in which to park her car. When she saw a parking spot ahead she switched on the left-hand indicator of her vehicle, slowed the vehicle and then moved her car to the left. She said she looked in her rear view and right rear mirrors to check traffic behind but did not see the appellant. She accepted that she did not turn to check if any vehicles were in the left-hand lane. Whilst the respondent accepted a large proportion of the responsibility for the accident she claimed that the appellant, by his negligence, contributed to the accident. The evidence The appellant gave evidence and also called two witnesses. As the appellant had been quite severely injured, his version of events was somewhat incomplete. The appellant said in evidence that his recollection of the accident was “very patchy.” He could remember travelling at about 40-50 kilometres per hour north along Frome Road in the left-hand lane at least a metre to the left of the white line dividing the two north bound lanes. He recalled a car moving rapidly towards him and thought that the impact of his motorcycle was to the rear passenger door of the respondent’s vehicle. He remembered lying on the ground screaming but could not remember being taken to the Royal Adelaide Hospital. The Judge found that the appellant, whilst honestly trying to recount events, had a very poor memory of what occurred. The appellant called Mr Thandi, a passenger in a car driving behind the appellant. He gave evidence that was inconsistent with a number of proven objective facts and the Judge found that aspects of Mr Thandi’s evidence caused “immediate concern.”[6] The Judge did not accept his evidence.[6] Dawson v Eicas [2014] SADC 151 [22]. Ms Tieri gave evidence for the appellant. She was walking south along the western footpath of Frome Road. She said that she first saw the car and motorcycle coming towards her when they were approximately 200-300 metres away. She thought the car was not speeding. Ms Tieri noticed the car in the right-hand lane and it started to veer and slow down. At that point she noticed the appellant’s motorcycle about a half a metre behind the car. She did not recollect seeing any indication by the respondent that she intended to change lanes. She did not disagree with the proposition that the car was doing 30-40 kilometres per hour then slowed down and moved left. Ms Tieri said the motorcycle did not slow down and it hit the car as the car veered left. The Judge found that Ms Tieri was: …quite a good witness, whose presentation was good and had quite a good recall of events. She was walking and listening to headphones but had quite a good view of the accident. She was an ostensibly credible and reliable witness.[7][7] Dawson v Eicas [2014] SADC 151 [41]. However, the Judge did not accept her evidence that the respondent did not activate her indicator shortly prior to the accident.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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