Gillgall Property Holdings v Langby

[2000] NSWCA 328

Reported Decision: [2000] 32 MVR 138

New South Wales

Court of Appeal

CITATION:

Gillgall Property Holdings & Anor v Langby & Anor [2000] NSWCA 328

FILE NUMBER(S):

CA 40336/99

HEARING DATE(S):

3 November 2000

JUDGMENT DATE:

15 November 2000

PARTIES :

Gillgall Property Holdings Pty Ltd and Leslie John Bryant
(Appellants)

v

Glenn Ronald Langby
(First Respondent)

The State of New South Wales
(Second Respondent)

JUDGMENT OF:

Powell JA at 1; Fitzgerald JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	7933/98
LOWER COURT JUDICIAL OFFICER :	Phegan DCJ

COUNSEL:	As: Mr R R Bartlett SC 1R: Mr B M J Toomey QC 2R: Ms K E Burke
SOLICITORS:	As: Hunt & Hunt 1R: Wilson Fardell & Moore (Orange) 2R: I V Knight, Crown Solicitor
CATCHWORDS:	Negligence - Personal Injury - escort of overdimension vehicle by police car - whether police officer negligent in permitting overdimension vehicle to be driven at night - apportionment of negligence - contributory negligence - damages - no point of principle.
LEGISLATION CITED:	Motor Traffic Regulations 1935, reg 59 Motor Accidents Act 1988, s 79
CASES CITED:	Southgate v Waterford (1990) 21 NSWLR 427
DECISION:	Appeal and cross-appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40336/99
DC 7933/98

POWELL JA
FITZGERALD JA
DAVIES AJA

Wednesday, 15 November 2000

GILLGALL PROPERTY HOLDINGS PTY LTD & ANOR
v
Glenn Ronald LANGBY & ANOR


JUDGMENT

1    POWELL JA: I agree with Davies AJA.

2    FITZGERALD JA: I agree with Davies AJA.

3    DAVIES AJA: This is an appeal from the judgment of a Judge of the District Court of New South Wales, his Honour Judge Phegan, in which his Honour made an award of damages in favour of the present first respondent, Glenn Ronald Langby. Mr Langby had been injured in a motor vehicle accident, when a concrete truck which he was driving collided with the load carried by a truck or low loader ("the vehicle") owned by the first appellant, Gillgall Property Holdings Pty Ltd and driven by its servant or agent, the second appellant, Leslie John Bryant. The learned trial Judge found the appellants liable in negligence. He assessed contributory negligence at 20 per cent and he ordered that the State of New South Wales, which had been joined on a cross-claim, contribute 25 per cent of the damages payable.

4    The appellants' vehicle was carrying a huge steel structure having a width of 8.1 metres, a length of 19 metres and a height of 4.9 metres. The structure overhung the vehicle by a considerable distance on both sides. The rear overhang was 4 metres. The structure was being transported from Rooty Hill via the Western Motorway (M4) and the Great Western Highway through Katoomba and Lithgow and then via Mudgee Road to the Mt Piper Power Station.

5    The trip was subject to a permit which required the journey to be referred to the Police Service. Mr Bryant understood that it was within the discretion of the police to decide whether or not to escort the load. Mr Bryant contacted the police and, as a result, Senior Constable Hughes was present at the commencement of the journey at 5.00am on 14 June 1995. On arrival, Senior Constable Hughes was handed the permit which he read. He was not familiar with the route and had had no experience in escorting overdimension loads. It is not in dispute, however, that Senior Constable Hughes had authority to override any condition of the permit, should he consider it desirable to do so and that he had all the usual authority of a police officer to direct and control traffic should he see the need to do so (see, for example, reg 59 of the Motor Traffic Regulations, 1935).

6    On the way through the Blue Mountains, there was an incident in which the left-hand side front of the load struck the branch of a tree. The left front light on the load was damaged and replaced by the light from the left rear of the structure. Further trouble occurred at about Katoomba, at a point where there was a concrete division in the middle of the road. The load struck and snapped a telegraph pole and lines came down. As a result, traffic was stopped for some time.

7    Under the permit, travel was not permitted between sunset and sunrise, save for some exemptions which I need not mention. After the delay which occurred at Katoomba and because there was nowhere for the vehicle to park at Katoomba, Senior Constable Hughes authorised the vehicle to proceed at night to Medlow Bath where there was a substantial parking area near the Hydro Majestic Hotel. On arrival at Medlow Bath, the parking area was found to be occupied by a number of buses and cars. As a result, when the vehicle was parked, the load projected well into one lane of the highway.

8    Unfortunately, no attempt was made to ascertain whether another parking area was available further along the highway. Mr Bryant spoke to Senior Constable Hughes about the problem. Mr Bryant gave evidence that he could not remember the conversation but that he had in mind to stop further on, when he had the opportunity to do so. Senior Constable Hughes gave evidence that he was approached by Mr Bryant at Medlow Bath and was told that, in addition to the fact that the load was protruding into the highway where it was parked, there was a further problem, namely that it would be difficult to get the load through the narrow streets of Lithgow once the Lithgow streets were filled with daytime traffic and parked cars. Senior Constable Hughes gave evidence that Mr Bryant, who was an experienced transporter of overdimension loads, advised that the best course of action was to proceed along the highway and get through Lithgow whilst the traffic was light. Senior Constable Hughes gave evidence that he was persuaded that this was the sensible course of action and that he authorised Mr Bryant to proceed.

9    There is no doubt that both Mr Bryant and Senior Constable Hughes were negligent. Amongst other factors, the vehicle and its load were not emblazoned with lights. The load had only a light on each corner. The light on the left hand front corner was destroyed again when the load hit a sign on a bridge. A further consequence of that incident was that, whereas there had been two escort vehicles plus the police car travelling as escorts in front of the vehicle, one of the escort vehicles went off to obtain a replacement light. Thus, for the transportation of this huge load during the night, there were, immediately before the accident, insufficient lights and insufficient escort vehicles.

10    The main problem, however, and one to which Senior Constable Hughes had given no thought and of which he had not been warned, was that, unlike the Great Western Highway, the bitumen on Mudgee Road was only 6 metres in width. The result was that, even when the vehicle was travelling as close as possible to the left-hand edge of the bitumen, the load overhung most of the lane used by the opposing traffic. Senior Constable Hughes gave evidence that there would have been only a metre and a half of bitumen available between the right-hand edge of the load and the right-hand edge of the bitumen. That meant, effectively, that opposing traffic would have to pass on the gravel.

11    In the darkness, Mr Langby, whose truck weighed 42½ tonnes, came around a corner. He passed the escort vehicle, which displayed flashing lights and an "OVERSIZE" sign, and then the police vehicle, which also had a flashing light. Senior Constable Hughes drove in the centre of the road flashing his headlights until he had to move to the left to avoid Mr Langby's vehicle. Mr Langby did not appreciate what the lights signified. He slowed but did not brake hard. By the time Mr Langby saw the load coming towards him, it was too late for him to avoid the accident.

12    The trial Judge found that the appellants were liable for negligence and that the State of New South Wales had also been negligent. The State of New South Wales was ordered to contribute 25 per cent of the damages payable. The appellants challenge this figure, alleging that Senior Constable Hughes, by authorising the overdimension vehicle to travel at night, had been primarily responsible for the accident.

13    Counsel for the appellants rely upon Mr Bryant's evidence that Senior Constable Hughes directed him to move on from Medlow Bath. Mr Bryant, although he could not remember the terms of the conversation, gave evidence that: "I was directed by Senior Constable Hughes to continue"; "I didn't choose not to [remain at Medlow Bath] Senior Constable Hughes did"; and "it wasn't my decision".

14    However, the trial Judge rejected that view. The trial Judge said:-

"The suggestion that the second defendant was in some way overawed by the authority of the Police Service, and, therefore, entirely beholden to any instructions issued by them - in fact, the word was repeatedly used by the second defendant was that he was 'directed' to take the action which was taken - I find to be quite out of step with the facts and I am not satisfied that there was any such attitude genuinely harboured by the second defendant. The second defendant was well aware of the advantage which he enjoyed. There is no doubt at all, on the evidence, that the arrangement between the parties was entirely cooperative, but that seems to me to be beside the point. In all of those circumstances, I am satisfied that, when it comes to measure what is just and equitable as between the defendants and the cross-defendant, that the major share of the blame should be borne by the defendants."

15    I agree with the finding of the trial Judge. In my view, it is clear that Mr Bryant, who was an experienced transporter of overdimension loads, was the person who had the ultimate responsibility for transporting this particular load from Rooty Hill to the Mt Piper Power Station. He and his company, Gillgall Property Holdings Pty Ltd, were transporting the load in the course of their business as transporters. The responsibility for the choice of the route, the choice of the hours of travel and the manner in which the journey proceeded lay at all times upon the appellants, subject to any lawful direction which a police officer may give. In my opinion, it is highly improbable that Senior Constable Hughes directed Mr Bryant to do something which he did not wish to do. The probabilities of the matter support the conclusion that Mr Bryant suggested to Senior Constable Hughes that it would be preferable to move on at night and that he requested a variation of the permit to enable that to be done.

16    The trial Judge held that Mr Bryant chose, in the advice which he gave to Senior Constable Hughes, to highlight reasons for proceeding which he considered to outweigh the reasons against and said nothing about the latter. The trial Judge said that he was of the view that Mr Bryant "took a calculated risk, which, given what, without exaggeration, was the lethal character of the load which he was carrying, was not justified".

17    I agree with these findings of the trial Judge. I am not persuaded that his apportionment was wrong.

18    As to contributory negligence, the trial Judge concluded that Mr Langby failed to give proper attention. His Honour held:-

"I find it impossible to explain his account, except on the basis that, for some reason, whether it was sleepiness or momentary inattention, or some other factor of that kind, he did not adequately assess and pay sufficient attention to the warnings provided by the pilot and escort vehicles."

19    As his Honour's finding accords with the probabilities of the matter, there is no reason to doubt the appropriateness of his finding of contributory negligence or of his attribution of 20 per cent of blameworthiness to that contributory negligence.

20 There are several challenges made by the appellants to the award of damages. Section 79 of the Motor Accidents Act, 1988 provides, inter alia, "The maximum amount which may be awarded for non-economic loss is $180,000, but the maximum amount shall be awarded only in a most extreme case". Subsections (4) and (5) make special provisions with respect to awards for damages for non-economic loss assessed under $55,000.

21    The trial Judge held that "an appropriate percentage of a most serious case, for the purpose of s79, is thirty per cent".

22    The first ground of challenge is that his Honour referred to "a most serious case" whereas s 79(3) uses the term "a most extreme case".

23 The effect of s 79 was explained by Gleeson CJ, Kirby P and Meagher JA in Southgate v Waterford (1990) 21 NSWLR 427. At p 440, their Honours said:-

"It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s 79(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 s 79(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'."

24    Mr Langby had two significant injuries. The first was an injury to his neck. At the time of the trial, the neck continued to bother Mr Langby although it was no longer a serious disability. The other was the right knee. The trial Judge found that the knee had remained a source of serious pain and disability and that there was a very real likelihood that it would remain permanent. The trial Judge referred to the fact that Dr Johnston, who was called for the appellants, thought there was likely to be a permanent disability in both the neck and the knee, that Dr Burgess assessed the permanent loss of effective use of the right leg at 30 per cent and that Dr Cross, to whom Mr Langby had been referred, diagnosed any permanent loss at 15 per cent but thought it was not necessarily conclusive that any permanent loss would be suffered.

25    It is difficult to determine from the trial Judge's description of Mr Langby's injuries how he arrived at a figure of 30 per cent of a most extreme case, such as quadriplegia. The trial Judge did not mention quadriplegia and he used the adjective "serious" not "extreme".

26    However, an award of damages for non-economic loss takes into account, not merely the percentage of physical disability, but also the effect that the physical disability has upon the injured person's life. It seems to me that the trial Judge concluded that the neck and knee injuries imposed a very great limitation upon the ordinary everyday activities in which Mr Langby was able to engage and, in this respect, had a very substantial effect upon his life.

27 On the whole, although I would have preferred the finding of the trial Judge to be more clearly expressed, I have come to the view that his Honour correctly applied the terms of s 79 and that the percentage adopted has not been shown to be wrong in principle.

28    Counsel for the appellants also submitted that Mr Langby had a reduced life expectancy, arising from matters other than his injuries in the accident, which should have been taken into account. In a report dated 27 August 1998, which dealt only with Mr Langby's life expectancy, Dr Slezak said:-

"Taking into account the Plaintiff's morbid obesity, hypertension and [controlled] sleep apnoea/hypoventilation syndrome, I would estimate the Plaintiff's life expectancy to be a further 15-20 years. This assessment might have to be revised, were the Plaintiff's fasting serum glucose and fasting lipid status to be known."

29    The trial Judge did not refer specifically to this evidence. However, his Honour, in reliance upon other evidence, reduced the future working life from 28 to 23 years. As the trial Judge rejected another aspect of Dr Slezak's evidence, namely, his opinion that, "I do not consider Mr Langby's ability to lead a normal life has been in any way impaired", I draw the conclusion that his Honour made this finding having regard to his view of Mr Langby and the evidence as a whole.

30    It has been submitted on behalf of the appellants and the second respondent that the figure of $795 failed to take tax, or sufficient tax, into account. It was submitted on behalf of Mr Langby that his economic loss should have been assessed at a higher figure. A difficulty arises because his Honour, in his ex tempore reasons for judgment, first adopted a net annual income of $49,000, which appears to have been based on earnings in 1995, not the higher 1997 earnings, and then, having realised that this figure did not take tax into account, adjourned the proceedings to allow adjustments for tax to be taken into account. After a short adjournment, his Honour said:-

"As far as the calculation of an appropriate amount to accurately represent the earning capacity of the plaintiff at the time of his injury, on reflection, I have come to the conclusion that I should rely on the amount which was actually suggested by the counsel for the defendant, that I have a clear recollection of the expression '795 a week man', being used to describe the plaintiff, in preference to '1,000 a week man', which was the figure closer to the Macquarie Services calculations.
In the circumstance, because on the calculations which I have undertaken, the estimate of $795 per week net is, in my view, a fair assessment of the real earning capacity of the plaintiff at the time of the accident and, therefore, I will proceed to calculate the damages on that basis."

31    There is no evidence before the Court which shows what was the basis of the figure of $795 which had been suggested to the trial Judge. In fact, if an appropriate amount of tax is added to that figure, it appears that the income adopted approaches that for which counsel for Mr Langby contends. In my opinion, the $795 net after tax which his Honour adopted, was, in his mind, not the result of a precise calculation but a fair figure taking account of all the evidence, including the evidence given as to earnings and as to problems which Mr Langby would be likely to suffer from his medical conditions which were not related to the accident.

32    Having read the evidence, it appears to me that his Honour's assessment was a fair one. I am not satisfied that his discretion miscarried.

33    The final submission was that the assessment of economic loss should have taken into account Dr Slezak's view that Mr Langby had a reduced life expectancy. I consider, however, that his Honour was not bound to accept Dr Slezak's opinion in this respect, that his Honour did not accept it and that his Honour made his award of economic loss taking into account his own view of the future probabilities.

34    It follows, in my opinion, that the appeal and the cross-appeal should be dismissed with costs.

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