Eicas v Dawson
[2016] SASCFC 124
•25 November 2016
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 & MH Stramare Pty Ltd (1991) 171 CLR 506; Sibley v Kais (1967) 118 CLR 424; Trompp v Liddle (1941) 41 SR (NSW) 108, discussed.
Banovic v Perkovic (1982) 30 SASR 34; Brooks v Police (2013) 116 SASR 234; Devries v Australian National Railways Commission (1993) 177 CLR 472; Dos Santos v C Morris Painting & Decorating & Anor (2006) NSWCA 54; Graham v Baker (1961) 106 CLR 340; Livingstone v Rawyards Coal Co (1880) 5 App Cas 25; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; McIntyre v Ridley District Council (1991) 56 SASR 343; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Stoecki v Harpas (1971) 1 SASR 172; Van Den Heuvel v Tucker (2003) 85 SASR 512; Packer v Cameron (1989) 54 SASR 246; Wade v Allsopp (1976) 10 ALR 353, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"damages", "contributory negligence", "apportionment"
EICAS v DAWSON
[2016] SASCFC 124Full Court: Nicholson, Parker and Lovell JJ
NICHOLSON J: I agree with the orders proposed by Lovell J and with his reasons.
PARKER J: I agree with the reasons of Lovell J and the orders he proposes.
LOVELL J:
Overview
At about 3.00pm on Sunday 7 September 2008 the plaintiff, Mr Dawson, whilst riding his motorcycle on Frome Road, collided with the motor vehicle driven by Ms Eicas, the defendant. As a result of the collision the plaintiff suffered severe personal injuries. He sued Ms Eicas in negligence for damages.
The matter proceeded to trial on 13 January 2014 and the Judge delivered judgment on 29 August 2014. The Judge apportioned liability for the accident 80/20 in favour of Mr Dawson and assessed his damages in the sum of $1,073,640. After allowing for contributory negligence, credit for special damages and interim payments made by Ms Eicas on account of damages, the Judge entered judgment in the sum of $682,479.10.
The judgment sum did not exceed an offer filed by the defendant. The costs order made by the Judge did not give the defendant the full benefit of the offer having been filed in accordance with the Rules of Court. The defendant appeals against the costs order. Mr Dawson cross-appeals against the apportionment of liability and the quantum of the assessment of damages.
It is appropriate to deal with Mr Dawson’s cross-appeal first given that Ms Eicas’s appeal on costs depends upon the resolution of the cross-appeal. For ease of reference I refer to Mr Dawson throughout this judgment as the appellant and Ms Eicas as the respondent.
General legal principles on appeal
Allowance must be made on appeal for the advantages of the trial Judge in having conducted the trial. Findings of fact that depend on the credibility of witnesses should not be interfered with unless the Judge “palpably” misused that advantage or his findings are “glaringly improbable.”[1] This also applies to the evidence of expert witnesses. As was stated in Fox v Percy[2] with regard to inferences from facts, appellate courts, while having regard to the advantages of trial judges are nevertheless bound to reach and act on their own conclusions. The plurality, Gleeson CJ, Gummow and Kirby JJ stated:[3]
[1] Devries v Australian National Railways Commission (1993) 177 CLR 472.
[2] (2003) 214 CLR 118.
[3] Fox v Percy (2003) 214 CLR 118, 126-128.
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes, the majority of this Court reiterated the rule that:
"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."
As this Court there said, that approach was "not only sound in law, but beneficial in … operation".
…
Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
(Footnotes omitted)
An appellate court should, absent some error of law or misapprehension of fact, be reluctant to interfere with the findings. When considering the question of negligence or contributory negligence the Court should give due weight to the considerations of the trial Judge.
The appellant was unrepresented on the appeal. He made lengthy written submissions and spoke to them on appeal. His approach, which was based largely on what he termed the law of equity, was misplaced. The appellant argued that the findings of the Judge did not achieve an outcome that is fair, just or right.
For example the appellant contested the amount awarded for non-economic loss on the basis that the statutory scheme did “not come close” to compensating him for the pain and suffering he has endured. The appellant submitted that this Court should use the “principles of equity” to depart from the restrictions of the statutory scheme.
The appellant disputed the assessments under most but not all heads of damage. He contested many findings of the Judge simply on the basis that he did not agree with them. Given that he was unrepresented I have reviewed the assessment by the Judge under all heads of damage. I have had regard to the appellant’s submissions as far as I am able when reaching my conclusions.
Liability
Overview of the accident
At about 3.00pm Mr Dawson was riding his motorcycle north along Frome Road in the city. He crossed over the intersection of North Terrace and Frome Road. Ms Eicas was also travelling north along Frome Road, ahead of the appellant, and was looking for a position to park her motor vehicle.
Ms Eicas had turned right from North Terrace into Frome Road shortly before the appellant travelled through the intersection. She had two passengers with her and they were looking to park the car and visit the South Australian Art Gallery. At a point some hundreds of metres past the intersection and just short of a pedestrian crossing near the Medical School of the University of Adelaide, a collision occurred between the appellant’s motorcycle and the car driven by the respondent. No finding was made as to where the accident actually occurred.[4] Photographs tendered of the accident scene establish in a general way where the accident occurred.
[4] By inference from the judgment it was likely to be approximately 200 metres north of the intersection of Frome Road and North Terrace.
The general layout of Frome Road can be seen by the photographs tendered.[5] Frome Road is divided into four lanes, two running generally north and two generally south. Cars could, and did on this day, park adjacent to the western kerb of Frome Road. The parked cars partially blocked the left-hand lane. With cars parked on the western side of Frome Road there was sufficient room for a motorcycle or a pushbike to travel in that lane but an average size motor vehicle, would have difficulty travelling in the lane without entering, partially at least, the right-hand lane. There was no challenge to these findings.
[5] In particular photograph number 147 at Appeal Book p 135.
The appellant’s case was that he was driving in the left-hand lane of Frome Road in a northerly direction as there was enough room for him to do so safely. The car driven by Ms Eicas was ahead of him and in the right-hand lane travelling in the same direction. Ms Eicas did not activate the indicator on her vehicle, nor check to see if the lane was clear before moving to the left. The car struck him causing him to veer to the left; he came off his motorcycle.
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.
The respondent gave evidence. She confirmed that she turned right at the lights onto Frome Road from North Terrace and noticed cars parked all along the western side of Frome Road. She was looking for a car park. As she drove down Frome Road in the right-hand lane she saw a gap ahead: it was a gateway and not a legal park. She looked further up the road and saw another gap in the parked cars. She moved to the right of the lane initially to get a better view of the gap, looked in her right mirror and rear-view mirror and decided to go into the park so she put her indicator on. She thought she was doing about 20 kilometres per hour. She looked to her left but had no expectation that there would be any vehicles travelling in the left lane. She did not look in her left rear-view mirror. As she approached the parking space she felt a bump and saw a person flip up in the air.
Under cross-examination the respondent agreed that she did not expect a motorcycle to be in the left-hand lane due to the parked cars. She did not think that the lane was wide enough for motorcycles to use safely. The Judge formed a reasonable impression of her as an honest witness doing her best to recall the events “with quite a good and detailed recollection of events up until the initial impact.”[8]
[8] Dawson v Eicas [2014] SADC 151 [34].
The respondent called Ms Remete who was a passenger in the front seat of the respondent’s vehicle. She agreed they were driving and looking for a park. The car was travelling at about 45 kilometres per hour at that time. She agreed that the car reduced its speed about the time it moved to the left. She recalled the indicator being on and became aware that the vehicle was moving to the left to enter a parking space. She saw something in her peripheral vision and saw a flash go past her window. The accident occurred after the car was “just veering in toward the space.”[9]
[9] Trial Transcript p 660.
The Judge considered her a “careful, considered and softly spoken witness who presented very well.”[10]
[10] Dawson v Eicas [2014] SADC 151 [37].
The respondent also called Ms Bonner who was the second passenger in the respondent’s vehicle. As the car travelled along Frome Road she was looking for an item in her bag. She remembered the respondent putting the indicator on. She said she remembered the respondent driving slowly as she approached the area where the accident occurred looking for a park. She recalled hearing the indicator being turned on and the vehicle starting to move to the left. She said she could hear the roar of the engine of the motorcycle as it struck the car. The Judge thought that she was an “honest witness with a very good and detailed recall of the events.”[11]
[11] Dawson v Eicas [2014] SADC 151 [39].
The damage to the left side of the respondent’s car extended along the side of the car. There was a dent to the left-rear passenger door with a scrape along the side to the front left passenger door. Evidence suggested that perhaps the appellant struck the external left side mirror. The precise point of impact with the respondent’s car could not be determined.
The law
In South Australia the law of negligence and the assessment of damages are governed by the Civil Liability Act 1936 (SA) (“the Act”).
In relation to the appropriate standard of care Section 31 of the Act states:
(1) For determining whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
(2) The reasonable person in the defendant's position will be taken to be sober unless—
(a) the defendant was intoxicated; and
(b) the intoxication was wholly attributable to the use of drugs in accordance with the prescription or instructions of a medical practitioner; and
(c) the defendant was complying with the instructions and recommendations of the medical practitioner and the manufacturer of the drugs as to what he or she should do, or avoid doing, while under the influence of the drugs,
and, in that event, the reasonable person will be taken to be intoxicated to the same extent as the defendant.
Section 32 of the Act states:
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if precautions were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
These principles apply equally to the question of contributory negligence.[12] Contributory negligence is defined in Section 3 of the Act as:
contributory negligence means a failure by a person who suffers harm to exercise reasonable care and skill for his or her own protection or for the protection of his or her own interests.
[12] Civil Liability Act 1936 (SA) Section 44.
It was not suggested on appeal that in negligence cases involving motor vehicles these principles are inconsistent with common law principles. Other sections of the Act deal with the specific questions of intoxication and the wearing (or failure to wear) a seat belt. Neither of those questions arise here.
If contributory negligence is found then it is necessary to apportion responsibility and for that purpose to compare the respective degrees of fault.[13] In Joslyn v Berryman[14] McHugh J stated:
At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed.[15]
[13] Civil Liability Act 1936 (SA) Section 50 and Section 3; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA). See McIntyre v Ridley District Council (1991) 56 SASR 343.
[14] (2003) 214 CLR 552.
[15] Joslyn v Berryman (2003) 214 CLR 552, 558 [16].
As to whether a driver can assume other road users will obey the rules of the road in Trompp v Liddle[16] Jordan CJ said:
A driver is entitled to assume that other drivers will observe the rules of the road. This does not mean that he may drive at any pace he chooses so far as roads coming in on his left are concerned, or with complete indifference to the possibility of a car suddenly emerging from the side road as a result of accident, miscalculation, ignorance or recklessness. It means that it is not unreasonable for him to act on the assumption that other drivers are obeying the rules unless there is something which should make him realise that they are not. Thus the mere fact that he sees the bonnet of a car appear from a side street on his left does not make it imperative for him to stop. Drivers in such positions normally advance far enough to see whether cars are approaching on their right; and a driver so approaching may reasonably assume that the driver on his left is advancing to serve this purpose unless he gets some indication to the contrary.
[16] (1941) 41 SR (NSW) 108,109.
In Sibley v Kais[17] the High Court approved this statement and observed:
…there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstance it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case.
The findings
[17] (1967) 118 CLR 424, 427.
The Judge made findings of what occurred without referring to whose evidence he accepted. He clearly rejected the evidence of Mr Thandi and found the appellant’s evidence of limited assistance given his injuries.
The Judge accepted the evidence of the respondent and her two witnesses that the respondent had activated the indicator on her vehicle to turn left just prior to the impact. However, as they did not see the appellant prior to impact their evidence could not assist in what occurred leading up to that point other than the movement of the car. The Judge found that Ms Tieri was a credible and reliable witness other than the question of whether the respondent activated her indicator before commencing to move into the left-hand lane.
The Judge made the following findings as to how the accident occurred:[18]
[49] At about 3pm the defendant and her two passengers turned right on the green arrow from North Terrace into Frome Road. The lights changed and the defendant and other traffic crossed North Terrace and drove down Frome Road. The defendant was travelling at between 30-45kph, looking for a park.
[50] The other traffic coming across North Terrace, including the plaintiff, travelled at about 50kph, with the plaintiff likely catching up with the defendant at or shortly before the point of impact. The plaintiff [sic][19] was travelling in the right hand lane. The left hand lane was full of parked cars, however there was a gap of perhaps 1.2-1.5 metres between those cars and the dotted white line dividing that lane from the right hand lane. The plaintiff elected to ride his motorcycle at about 50kph along the gap in the left lane.
[51] At the point where the plaintiff caught up to within a metre or so of the defendant the defendant saw a vacant parking spot about 2-3 car lengths ahead, looked to her left hand side and also in her rear and right mirrors. She did not look in her left mirror and therefore did not see the plaintiff who was to her left rear. She then indicated and moments later moved left across the lane dividing line. I find that she was braking and decelerating as she indicated and then moved left. The plaintiff did not see the defendant’s indicators and when he noticed the defendant’s car move to the left into his path had insufficient time to evade it, and collided with it.
(My emphasis)
[52] At the point of impact the plaintiff was still doing about 50 kph but the defendant had slowed from 30-45 kph to 20-30 kph, resulting in the plaintiff colliding initially with the defendant’s rear passenger door, then scraping along the defendant’s front passenger door, then shearing off the defendant’s left rear vision mirror located at the front of the defendant’s front passenger door. Due to that impact the plaintiff lost control of his motorcycle and collided with the back of the car parked at the front of the parking place the defendant had been heading towards.
[18] Dawson v Eicas [2014] SADC 151 [49]-[52].
[19] This must be incorrect and was intended to be a reference to the defendant. It is immediately followed by a finding that the plaintiff was riding in the left-hand lane.
The findings in paragraphs [49] and [50] were consistent with the evidence and open to the trial Judge.
From his findings generally about the accident it is clear that the Judge has accepted the evidence of Ms Tieri. It cannot be the case that the appellant was within “a metre or so” of the respondent’s vehicle when the respondent first saw a vacant parking spot ahead. The finding that the appellant was within “a metre or so” of the respondent’s car is necessarily based on the Judge accepting Ms Tieri’s evidence. She was the only witness the Judge accepted who could describe the accident in that detail. However her evidence was that by the time the appellant’s motorcycle was within “a metre or so” of the rear of the respondent’s vehicle the vehicle was already veering to the left and slowing down. Thus the respondent must have already seen the parking space before the appellant was “a metre or so” towards the back of her vehicle.
The respondent said that after she saw the parking spot she moved slightly to the right to get a better view of the parking spot. She was slowing her vehicle down. She then looked in her rear-view mirror, her right-hand mirror and then to her left-hand side before beginning to move her vehicle out of the right-hand lane and into the lane in which the appellant was travelling. For the respondent to have performed all of those actions, before commencing her manoeuvre, must at least have taken her a few seconds.
The respondent said she slowed down from 35-45 kilometres per hour to 20-30 kilometres per hour. The Judge found that she was braking and therefore decelerating as she indicated and then moved to the left. The respondent’s manoeuvre, from first observing the parking spot, must have taken at least a few seconds. The findings of the Judge do not allow a precise calculation as to the speeds of the car and motorcycle at any particular point. With a speed differential of up to approximately 10 kilometres per hour or so and assuming, as the Judge found, that the appellant collided initially with the left-hand passenger side door or left side mirror of the respondent’s car, then at the time the respondent first observed the vacant parking spot the appellant must have been at least a few metres further back from the respondent’s car. That is of course consistent with Ms Tieri’s evidence. Neither the respondent nor her passengers saw the appellant’s motorcycle before the collision. The Judge’s description of the accident must have been based on Ms Tieri’s evidence.
On that basis, by the time the appellant’s motorcycle was “a metre or so” from the rear of the respondent’s car, the respondent’s car was already veering into the lane in which the appellant was travelling. Thus accepting the Judge’s finding about the position of the appellant’s motorcycle based on Ms Tieri’s evidence the Judge should have found that the respondent’s car was already veering into the left lane. Either the finding as to the respective speeds of the two vehicles is incorrect or, if the speeds are correct, then his finding as to the position of the appellant’s motorcycle when the respondent first saw the parking spot is incorrect. They cannot, as a matter of logic stand together. So much was conceded by Mr Day counsel for the respondent.
The trial Judge found that the respondent was negligent in failing to check her left mirror before braking and changing lanes, and for failing to consider that there might have been a motorcycle in the left-hand lane. Those findings were appropriate. The onus and indeed a heavy onus on the respondent before changing lanes was to ensure that there was nothing that would impede her progress into the left-hand lane. She was not entitled to make an assumption that there may not be a motorcycle or pushbike in the lane. The Judge correctly found that the respondent acted in a negligent manner.
Contributory negligence
The Judge found that the appellant was guilty of contributory negligence. Contributory negligence is governed by Section 44 of the Act. Common law principles are of assistance in the interpretation of the section.
Contributory negligence exists if a person, such as the appellant, has failed to exercise the care for his own safety that a reasonable person would have exercised in the circumstances.[20] If contributory negligence is found then it is necessary to apportion responsibility and for that purpose to compare the respective degrees of fault.[21]
[20] Banovic v Perkovic (1982) 30 SASR 34.
[21] McIntyre v Ridley District Council (1991) 56 SASR 343.
In relation to his findings on contributory negligence the Judge stated:[22]
I find that the defendant [sic][23] was contributorily negligent in riding his motorcycle in the gap left in the left lane at 50kph up to and in such close proximity to the plaintiff, the adjacent parked cars, and the various entrances to the universities on the Western side of Frome Road. Whilst not illegal, riding in that gap at the edge of the parking lane unnecessarily created risks from opening car doors, vehicles’ egress from the various University entrance.
…
Riding up to within a metre of the defendant’s back corner in that gap left no room for error should such car decide to park or turn into any of the university entrances. The plaintiff should have been more aware that he may have been in a ‘blind spot’ to the left rear of the defendant and that motorists would not necessarily assume that anyone would be travelling where he was next to a row of parked cars, and should have driven more defensively than he did, either by leaving more distance between himself and the defendant or travelling in the one clear lane for northbound travel behind the defendant in the right hand lane.
[22] Dawson v Eicas [2014] SADC 151 [54].
[23] This is undoubtedly meant to be a reference to the plaintiff.
It is implicit in the Judge’s findings that the appellant had so positioned his motorcycle that he gave himself no opportunity of observing the slowing of the respondent’s vehicle and her activation of the indicator. The finding of the Judge of contributory negligence is based on his earlier finding that the appellant had ridden his motorcycle to within “a metre or so” of the rear of the respondent’s car and put himself into her “blind spot.” The finding of the Judge as to the appellant riding at 50 kilometres per hour in the left lane is also entwined with that same earlier finding. As stated earlier that finding cannot stand.
The Judge must have accepted the evidence of Ms Tieri on all matters other than whether the respondent activated her indicator just prior to changing lanes. Having accepted her evidence, the appellant, when the respondent first saw the parking space, must have been at least a few metres back from the rear of the respondent’s vehicle. He was not, at that stage, in the respondent’s “blind spot.” Whether the respondent indicated or not was of no consequence in this case. Her sharp and quick manoeuvre towards the parking space, without checking to see if anyone was coming, gave the appellant no chance of reacting to such indication even if given. That is so whether the appellant was in the “blind spot” or a few metres further back. The respondent admitted that she really gave no thought that a vehicle may have been travelling in the left lane. That is consistent with the manoeuvre she undertook.
On the appeal counsel for Ms Eicas submitted that simply riding in the left lane at the speed of 50 kilometres per hour, given the limited room in that lane, was of itself an act on which a finding of contributory negligence could be made. I cannot agree.
In support of the submission the respondent relied on the case of Dos Santos v C Morris Painting & Decorating & Anor.[24] Whilst the facts of that case bear a reasonable similarity to this matter there is one important point of distinction. The trial Judge in that case had made a finding that the defendant was “clearly looking for a parking space” and was travelling slowly, at a speed of approximately 20 kilometres per hour, which was slow given the 60 kilometres per hour limit. This driving behaviour of the defendant was a reason that the plaintiff ought to have been aware that the defendant’s vehicle may change lanes. There was an absence of any traffic ahead of the defendant in that case which would have required him to slow down. By majority the Appeal Court was satisfied that the defendant’s intention to look for a parking space was clear “in the sense of being apparent.” Unsurprisingly, given the inconsistencies between the witnesses called on behalf of the respondent as to the speed and the movement of the car prior to impact, the Judge made no findings about this aspect. Indeed the facts suggest that the respondent’s vehicle was travelling at a speed of approximately 40 kilometres per hour before braking rapidly and veering to the left. The case for the respondent was inconsistent on the events leading up to the accident
[24] (2006) NSWCA 54.
The question where contributory negligence is alleged is whether the defendant has proved that the plaintiff has failed to protect his or her person against damage. The obligation on the appellant was to take reasonable care for his own safety. Whilst that concept encompasses driving defensively it does not mean driving in such a manner as to avoid all risk. The matter is to be determined on the facts of the case.
The Judge found that there was a risk that cars may exit from the University onto Frome Road or open a door of a parked car. So much can be accepted. However such a general observation as to risks that might eventuate, other than obvious risks, of itself does not assist in determining the question of contributory negligence. It is a question of fact and degree in each case. There was enough room for a motorcycle to travel in the left lane. The respondent’s assumption about that was incorrect. There was no suggestion that traffic conditions were anything but light. There were few pedestrians on the footpath. The weather was fine and dry and visibility was good. The appellant was not exceeding the speed limit. He had a good view of the exits from the University and obviously the parked cars. Prior to braking and indicating her intention to move left the respondent was travelling at a speed of around 40 kilometres per hour.
Whilst it is true that there was little the appellant could do to avoid the accident once the respondent commenced her manoeuvre that does not, of itself, mean that he was driving in a negligent manner. As the Judge found, it was not illegal for him to ride in that lane nor do I consider it was negligent of him to have done so. The Judge also considered that it was negligent for him to do so as cars may execute dangerous manoeuvres from the right-hand lane looking for parking spaces or perhaps to turn into the University from the right-hand lane. I cannot agree. In my view that places too high an onus on road users.
The duty of a reasonably prudent driver is to drive with a defensive outlook.[25] The duty of a driver does not require that they drive at a speed such that there is no practical risk of an accident.[26] It is not appropriate to infer a want of care simply from the mere fact of an accident.[27] The respondent’s manoeuvre was sharp, dangerous and unpredictable.
[25] Stoeckl v Harpas (1971) 1 SASR 172.
[26] Van Den Heuvel v Tucker (2003) 85 SASR 512, 520 [41].
[27] Brooks v Police (2013) 116 SASR 234, 239 [22].
The appellant was entitled to consider that the respondent would comply with the rules of the road. While such rules are a variable factor in determining the existence of contributory negligence, this is not a case where the Judge found that the respondent’s manner of driving gave the appellant any reason to consider she may not obey them. Even if the appellant ought to have considered that the respondent may have been looking for a park, I do not accept that in the circumstances he ought to have foreseen that she would brake so rapidly and veer into his lane in the manner in which she did. The respondent conceded that the movement of her vehicle was “sharp.”
I have had regard to Section 32 and Section 44 of the Act.
In my view whether the appellant was within “a metre or so” of the respondent’s vehicle when she began to veer into his lane or if he was a few metres further back makes no difference to the question of contributory negligence. On either view the appellant had no chance to avoid the respondent’s car and contributory negligence could not be found.
I would dismiss the allegation of contributory negligence against the appellant. I would find the respondent totally responsible for the collision.
Damages
Background
The Judge assessed the damages as follows:
Non-economic loss (30) $ 79,430 Past loss of earning capacity $ 275,000 Future loss of earning capacity $ 350,000 Gratuitous services $ 65,000 Future care, assistance and equipment $ 127,000 Future surgery $ 40,000 Future non-surgical medical treatment $ 115,000 Future medication $ 17,500 Special damages (not previously paid) $ 4,710 Total $ 1,073,640
Judgment was entered in favour of the appellant in the sum of $682,479.10 on 24 February 2015.
The judgment sum was arrived at as follows:
Assessed damages $ 1,073,640.00 Less 20 per cent for contributory negligence $ 214,728.00 Less credit for special damages paid at 100 per cent
$ 44,247.90 Less interim payments $ 155,000.00 Total prior to interest $ 659,664.10 Plus agreed interest $ 22,815.00 Judgment $ 682,479.10 Appellant’s evidence
The appellant at time of trial was a 57 year old man born and raised in South Australia. He completed his schooling in 1972 and initially started a business selling toys. This lasted about five years. He then undertook training as a carpenter working in the building industry and he obtained a restricted carpenter’s licence in 1986. He obtained a building licence in the 1990s and he worked building houses until the accident. The witnesses Mr Forsyth and Mr Roper spoke highly of his abilities in that area.
In 2005 he incorporated a company, Peter Dawson Constructions Pty Ltd, through which he continued to operate his building business. Being somewhat entrepreneurial the appellant in 2006 started another business Peter Dawson Ice creams. This company purchased two Cold Rock Ice Cream franchises which he operated. The plaintiff gave evidence, which was accepted by the Judge, that in 2007 he was working close to 80 hours a week in his various businesses.
The appellant gave evidence about the severe injuries he suffered and the problems that had arisen as a result of the injuries.
After his accident the appellant was unable to return to any active role in his construction and carpentry business. He returned to the business in June 2009 but utilised more subcontractors. His role was confined to booking trades and materials with short site visits. Due to tiredness on physical activity he found that work difficult. He decided he was unable to continue with the building work and let his building licence expire at the end of 2010. The medical evidence supported his decision. However he continued with the North Adelaide Cold Rock franchise hoping to develop it to a stage whereby he could sell it for a profit. He continued to work about 40 hours a week in that business from mid-2010 to mid-2012 doing approximately 20 hours a week at the shop and 20 hours a week on paperwork. The Rundle Street business closed in September 2010. The appellant focused on the O’Connell Street business. He decided in June 2012 that he was finding it too hard and demanding and closed that business.
The appellant has undertaken no employment since that time and was declared bankrupt in 2013.
The appellant described the help he had received from family members since the accident. He gave evidence, which was not disputed, that after being discharged from hospital he was initially confined to a wheelchair. He gradually regained mobility although that remains restricted.
Prior to the accident the appellant enjoyed recreational activities of cycling, motorcycling and dancing. Due to his injuries he is unable to participate in these activities. His sexual function remains impaired.
During cross-examination the appellant admitted that neither Cold Rock franchises were profitable before his accident. He agreed that he had borrowed significant sums of money to acquire and set-up the franchises and that in 2009 that is after the accident, a new franchisor had caused him significant problems. However he disagreed that the Cold Rock businesses were likely to fail anyway regardless of the accident.
The appellant’s evidence was generally accepted by the trial Judge. During cross-examination a video of the appellant performing some activities was shown to him. It was suggested that he could perform activities for perhaps longer than he had stated in his evidence. His Honour resolved that by finding:[28]
Whilst I find the plaintiff was an honest witness who has been genuinely injured and deeply affected by those injuries, I find that the plaintiff may have unconsciously over recounted some of his functional limitations, or in an effort to convey his real inabilities been more absolute about them than an objective assessment would be.
Having closely considered those matters, I accept the evidence of other witnesses about the plaintiff’s functional ability, and his activities as indicated by the film taken the weekend before trial, is likely to be more reliable, in an objective sense, than the plaintiff.
[28] Dawson v Eicas [2014] SADC 151 [65]-[66].
It appears that his Honour’s reservations about that mattered little to the overall assessment. Whilst it was conceded by the respondent that the appellant’s earning capacity was severely restricted the main issue was the assessment of that loss.
Medical evidence
There was little dispute about the nature of the injuries suffered by the appellant. It was accepted by the respondent at trial that the appellant had suffered quite serious injuries and had been left with significant disabilities and restrictions. The focus of the evidence at the trial largely related to how the injuries and restrictions affected the appellant’s ability to work and care for himself.
After the accident the appellant was admitted to the Royal Adelaide Hospital. He suffered multiple injuries in the accident including an “open-book” pelvic ring disruption comprising pubic diastasis and fractures of the superior and inferior pubic rami bilaterally. The pubic rami fractures extended to involve the acetabula bilaterally. He also suffered pelvic bleeding from multiple internal injuries. The appellant suffered an associated partial rupture of his membranous urethra with a defect on the right side of the bladder wall.
The appellant underwent external fixation of his pelvis on 12 September 2008 and a cystoscopy, performed at the same time, demonstrated a partial rupture of the membranous urethra and a defect on the left side of the bladder wall. Unfortunately his post-operative progress was complicated by the development of a pulmonary embolus and he also developed a life threatening haemorrhage due to bleeding from a right vesicle artery.
The appellant was discharged to a rehabilitation facility on 13 November 2008 but re-admitted on 24 November 2008.
Mr Pohl was his treating orthopaedic surgeon. He re-admitted the appellant to the Royal Adelaide Hospital on 22 December 2008 to remove the external frame. By 24 February 2009 the appellant was able to walk with the assistance of two walking sticks.
When reviewed by Dr Pohl on 14 July 2009 the appellant was still suffering from groin pain and pain in the buttock. He described difficulties sitting but was able to walk albeit with a limp. An MRI scan documented the pelvic deformity and a malunion of his inferior pubic ramus fracture.
Mr Pohl continued to review the appellant’s condition. On review in June 2012 the appellant reported that he had returned to some work, particularly in relation to his shop, and this had placed additional physical demands on him. He reported that he needed to rest during the day. He was taking Tramadol and Valium to assist with pain. At this stage he was working five days a week but had developed increased fatigue and therefore had decreased his hours in his shop to four per day. He reported that he had difficulty walking more than 400 metres on level ground and after that distance his pain levels became intense. The appellant reported that his sex life had been nearly destroyed.
Mr Pohl considered that the appellant was severely disabled in his ability to work and that there were significant and considerable restrictions to his lifestyle. He considered that he was unfit to work in his previous job as a carpenter/builder or as a chef/restaurant owner given his limitations. Mr Pohl thought he would be unlikely to gain employment on the open market. Mr Pohl considered that even light duties in a sedentary capacity would be challenging for him.
Mr Pohl considered that the appellant would benefit from further surgery which would include open reduction of his pubic symphysis deformity, augmented by bone grafting. He thought improvement in his biomechanics of his anterior abdominal wall could alleviate some of the symptoms he experienced in the abdomen.
Upon review in October 2013 Mr Pohl considered that little had changed. Mr Pohl noted that the appellant, as a result of his need to rest or recline, had developed secondary shoulder subachromial bursitis. His progress had also been complicated by the development of low back pain and general fatigue. Clinical examination revealed a restricted range of right shoulder motion, a restricted range of back motion, and tenderness over the symphysis pubis and pelvic instability. There was decreased power of straight leg raising and adduction on the right.
Mr Pohl continued to be of the opinion that the appellant was incapacitated for work. He still considered that pelvic fracture surgery was appropriate.
Dr Aspinall, a urologist, gave evidence for the appellant. In September 2009 the appellant had complained of erectile dysfunction. This was treated with drug therapy which assisted in a minor way. A cystoscopy performed in October 2009 revealed a right-sided scar on his bladder consistent with a previous extraperitoneal rupture and associated embolisation of his bladder. He had some problems urinating. In July 2010 he consulted with Dr Aspinall who noted that the partial rupture of his membranous urethra and extraperitoneal rupture of his bladder had been dealt with by the Urological Department whilst the appellant was an inpatient. Dr Aspinall was not involved in his care at that time.
When the appellant was reviewed in July 2012 Dr Aspinall was of the view that his bladder function had remained relatively stable. The appellant still had problems emptying his bladder and also with erectile dysfunction.
Upon review in October 2013 Dr Aspinall noted that the appellant’s urinary tract infection problem had improved but he still had problems urinating. Further he continued to suffer from significant erectile dysfunction. Dr Aspinall considered that surgery could reduce the problems other than his erectile dysfunction. He considered that his inability to work was related to his orthopaedic injuries and not his urological issues. He thought it was necessary for the appellant to undergo the surgery but noted that the appellant was putting it off pending resolution of his claim.
Dr Bastian, a rehabilitation consultant, also gave evidence. He assessed Mr Dawson in August 2009. Having noted the injuries mentioned by Mr Pohl and Dr Aspinall he considered that the appellant had, at that stage, a significant partial incapacity for work. He thought that he was totally unfit to undertake work as a carpenter/builder apart from supervisory work. Indeed Dr Bastian was of the view that he was working beyond his capacity for light duties and this may impede his rehabilitation.
On review in June 2013 Dr Bastian noted that the appellant still reported experiencing constant tightness and discomfort in the central thoracic region. He reported ongoing intermittent pain in the low back particularly if standing for more than approximately half an hour. The appellant continued to experience discomfort around the pelvis and this was brought on if he walked for more than five to 10 minutes. In addition the appellant continued to have problems with his bladder and he also had significant erectile dysfunction. Dr Bastian noted that the appellant was independent in self-care but limited in relation to household tasks.
Dr Bastian was of the opinion that the appellant was fit for sedentary type tasks. He was not fit to work as a carpenter and not fit to continue working in an industrial food setting. Overall he thought he had an impairment of the upper back and thoracic region of approximately five per cent. In relation to the sequelae of the pelvic trauma he thought he had a 15 per cent permanent residual impairment of the whole person.
The appellant consulted with Dr Davis, a psychiatrist. When initially seen in May 2011 Dr Davis was of the opinion that the appellant had experienced a significant psychiatric disturbance subsequent to the motor vehicle accident. This was largely due to the significant physical problems that had impacted on his quality of life. Dr Davis considered that the appellant had experienced a major depressive disorder as well as symptoms of a post-traumatic stress disorder. At the time Dr Davis considered that the appellant had been troubled by a high degree of anxiety particularly associated with his precarious financial situation.
When reviewed in November 2013 Dr Davis noted that the appellant had confronted many overwhelming challenges since the previous review. He was severely in debt and his businesses had been closed. At this time Dr Davis was of the view that the appellant had experienced a chronic pain syndrome and also had symptoms of a chronic adjustment disorder with mixed emotional features. He considered that the chronic adjustment disorder was having a significant negative impact on his life and was contributing, to some extent, to his incapacity for work. However the overriding issue for working capacity was his physical condition.
Dr Davis was of the opinion that the prognosis was uncertain. He considered that in association with chronic pain the appellant would continue to experience some reactive emotional symptoms in the longer term with ongoing propensity for anxiety, depression, frustration and anger.
Dr Davis considered that if the legal matters did not resolve to his satisfaction he could foresee that the appellant would experience ongoing reactive emotional symptoms.
The respondent called little by way of medical evidence. Two reports of Dr Middleton, an orthopaedic surgeon, were tendered. Whilst he concluded that the appellant was significantly impaired, Dr Middleton was of the opinion that he could work full-time in a supervisory capacity. Mr Carney, a neurosurgeon, also gave evidence but the appellant’s main injuries were outside of his area of specialisation.
The appellant was also assessed by an occupational therapist, Ms Opperman, and a rehabilitation physiotherapist, Mr Tippett. Both were of the view that the appellant was not fit to resume work as a builder or carpenter. Ms Opperman considered the appellant had the capacity to work up to 38 hours a week for light level work and that doing so would be both physically and psychologically beneficial for him. Mr Tippett was of the opinion that the appellant could work in a full-time capacity in an administrative or managerial position with appropriately modified equipment.
Non-economic loss
The appellant suffered potentially life threatening injuries mainly to the pelvis and bladder. He has clearly suffered considerable pain and discomfort and has undergone significant periods of time in hospital and rehabilitative treatment. He has been left with significant residual problems that affect most areas of his life.
The appellant has also suffered non-physical injuries consequent upon his physical injuries. Prior to the accident he was generally in good physical health.
The Judge summarised his findings as follows:[29]
The plaintiff plainly suffered severe injuries requiring extensive hospitalisation, surgery and ongoing rehabilitative treatment. He suffered very significant pain, embarrassment and difficulty in the early stages of his recovery. His sex life suffered severely, particularly at the outset. His overall condition has improved over time, although he still suffers significant pain, discomfort and restriction in his life and activities of daily living.
He has successfully remarried and currently can, as the evidence including the tendered video indicates, live fairly self-sufficiently, go out, shop, attend markets and socialise with those he meets. He cooks, socialises and contributes to a voluntary organisation. All agree that the plaintiff is a positive and resourceful person who is likely to do all he can to bounce back and achieve a positive lifestyle.
The plaintiff has to date refused the further surgery that all his medical advice recommends, however I find that it is likely he will undergo that surgery after judgment is delivered in this case, and that it is likely albeit not guaranteed that such surgery will significantly improve his pain, discomfort, quality of life and functional ability.
I also find on the basis of all the evidence that a proportion of the plaintiff’s current psychological state and his perceived pain and consequently perceived functional restriction has been exacerbated and is currently being maintained by the plaintiff’s stress, anger and frustration at the insurer and the fact that the legal proceedings have not resolved satisfactorily to him prior to trial. I find that the resolution of these proceedings by judgment is likely to improve the plaintiff’s psychological state, lessen his perceived pain to some degree and improve his consequent functional capacity to a degree.
Accordingly, it is likely that the further surgery and the cessation of legal proceedings will significantly improve the plaintiff’s quality of life.
The plaintiff will however, notwithstanding these positives, likely continue to suffer significant discomfort and restriction in his capacity and enjoyment of life.
Taking into account the plaintiff’s age, the nature of his injuries and the totality of the evidence, and giving detailed regard to all the matters submitted by counsel, the court assesses the numerical value of the plaintiff’s non-economic loss on a 0-60 scale at 30.
[29] Dawson v Eicas [2014] SADC 151 [114]-[120].
The Judge had regard to the appellant’s injuries and the impact those injuries had, and continue to have, on his ability to enjoy the amenities of life since the accident. He found that the resolution of this litigation and further surgery were likely to improve his psychological state. The Judge found that despite some possible improvement the appellant is likely to continue to suffer significant discomfort and restriction in his enjoyment of life.
The Judge had to assign a number between 0-60 (with 60 being for the worst injuries) for non-economic loss pursuant to Section 52 of the Act.[30] With regard to non-economic loss there are many factors a judge must take into account. The Judge must make an overall assessment of the impact the injuries have had on a plaintiff without indicating what weight he or she would give to any particular factor.
[30] See Packer v Cameron (1989) 54 SASR 246.
Clearly there is a significant discretion when assigning an appropriate number. In my view, whilst I consider the Judge assigned a number which represented the bottom of the range, I am unable to say that such a figure was outside of the available range.
Loss of earning capacity
Legal principle
Damages for loss of earning capacity are governed by Section 54 and Section 55 of the Act. Subject to restrictions imposed by those sections the common law principles of assessment apply.
Damages awarded to a victim are “that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.”[31]
[31] Livingstone v Rawyards Coal Co (1880) 5 App Cas 25.
Damages for both past loss and future loss are allowed to an injured plaintiff because the diminution of his or her earning capacity is or may be productive of financial loss.[32]
[32] Graham v Baker (1961) 106 CLR 340.
An injured person is compensated for loss of earning capacity not loss of earnings. That is because an injured person recovers not merely because his or her earning capacity has been diminished but because the diminution of that earning capacity is or may be productive of financial loss. Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value.[33] What a worker earned in the past may provide useful guidance about what would have been earned if that worker had not been injured.
[33] Medlin v State Government Insurance Commission (1995) 182 CLR 1.
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