Holzheimer v Green

[1993] QCA 151

TIN THE COURT OF APPEAL                   [1993] QCA 151

SUPREME COURT OF QUEENSLAND

Appeal  No. 260 of 1992

Brisbane

[Green v. Holzheimer]

BETWEEN:

RONALD EDWARD HOLZHEIMER
  Respondent

- and -

WILFRED JOHN GREEN
  Appellant

MCPHERSON J.A.

DAVIES J.A.

SHEPHERDSON J.

Judgment delivered 30/04/1993

REASONS FOR JUDGMENT - THE COURT

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:   NEGLIGENCE - CONTRIBUTORY - Road accident - plaintiff injured in motor vehicle accident when truck collided with prime mover - whether trial judge should have found plaintiff negligent given presence of give way sign before single lane causeway. Traffic Regulations 1962 regs. 20(9), 33

DAMAGES - APPEAL - MEASURE OF - Appeal against awards for pain and suffering and future economic loss in favour of 36 year old with more than 60% disability to right leg - whether adequate evidentiary basis for awards

Counsel:Hanger Q.C. with him Mr O'Sullivan for the Appellant

R. Douglas Q.C. with him Mr A. Williams for the Respondent

Solicitors:Boreham Hancock & Associates for the Appellant

Payne Butler & Lang for the Respondent

Hearing Date(s):   2 April 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal  No. 260 of 1992

Brisbane

BeforeMr Justice McPherson

Mr Justice Davies

Mr Justice Shepherdson

[Green v. Holzheimer]

BETWEEN:

RONALD EDWARD HOLZHEIMER
  Respondent

- and -

WILFRED JOHN GREEN
  Appellant

REASONS FOR JUDGMENT - THE COURT

Judgement delivered 30/04/1993

This is an appeal from a judgment given in the Trial Division of this Court on 23 November 1992.  The action was one for negligence for personal injuries arising out of a collision, on 4 November 1987, between a Toyota truck driven by the respondent plaintiff and a prime mover and empty cement tanker driven by the defendant appellant.  The trial judge found the appellant solely to blame for the collision and awarded the respondent $396,694.50 damages for personal injury.

The appellant appeals to this Court on both issues of liability and quantum.  On the first, whilst not disputing his own negligence, he submits that the respondent should have been found guilty of contributory negligence.  On the second, he initially appealed against three components of the award of damages: an amount of $90,000 assessed for pain, suffering and loss of amenities, an amount of $110,000 assessed for future loss of earning capacity and an amount of $8,000 assessed for lost superannuation benefits.  In the event the last of these was not pursued.

On the afternoon of the day in question the respondent was driving his vehicle in a southerly direction from Gladstone to Bundaberg along a road described as the Lowmead Road.  The appellant was driving in the opposite direction.  The accident occurred just off the southern end of a concrete causeway across a creek.  The causeway was so narrow as to allow only one vehicle to pass over it at a time and was about 15 to 20 metres long.  The causeway was substantially lower than the roadway on both sides each of which had a gravel surface.  As one approached the causeway from the south, that is in the direction from which the appellant's vehicle approached it, the road descended and curved to the right, the causeway being at an angle of approximately 30 degrees to the projected line of the road.  Similarly, approaching from the north, the direction from which the respondent came, the road also descended and curved to the right, the line of the causeway being at an angle of about 30 degrees to the projected line of the road.  There was quite dense vegetation on each of the curves which impeded visibility.  There was a give way sign on the northern approach to the causeway, that is facing the respondent, at a distance of about 60 metres from the causeway.

The respondent said that as he approached the give way sign he slowed his vehicle to about 30 kph.  He could see no vehicles coming in the opposite direction and he did not see the appellant's vehicle until he was on or just before the northern end of the causeway.  He then saw the appellant's vehicle coming around the bend at the southern end of the causeway.  He thought it was then going at about 80 kph or a bit more.  His passenger, Ford, gave similar evidence.  Not surprisingly, the appellant swore that his speed was substantially less than that - about 50 kph.  Though his Honour made no specific finding on speed, he seems plainly to have accepted the respondent's evidence supported as it was by that of Mr Ford.  Although skid marks are generally an unreliable indication of speed it is of some relevance that the appellant left skid marks leading up to the point of collision of about 28 metres.

When he first saw the appellant's vehicle the respondent applied his brakes more.  He did not, however, stop and his failure to do so was criticised before us.  Whether he was on or just off the causeway when he first saw the appellant's vehicle, the respondent could not have stopped before the causeway.  Had he then attempted to stop, he would have stopped on the causeway. 

When the respondent first saw the appellant's vehicle it was, he thought, 100 to 150 yards away.  He decided to continue across the causeway in order to allow some room for the appellant's vehicle and his to pass on the appellant's side of the causeway. 

Mr Hanger Q.C., for the appellant, submitted that, notwithstanding that, at the give way sign, the respondent could not see any vehicles coming in the opposite direction, when he continued on past it he continued to remain under an obligation to give way to vehicles, such as the appellant's, approaching the causeway from the opposite direction.  He relied on regs. 20(9) and 33 of the Traffic Regulations 1962.  These provide:-

"20.

...

(9)Where a sign inscribed with the words 'GIVE WAY' is erected to face a driver approaching a one lane bridge, the driver shall give way to all other traffic upon the bridge or approaching that bridge from the opposite direction."

"33. Where these Regulations require a driver to give way to a vehicle ... the driver shall, in circumstances where if he proceeded there would be a reasonable possibility of his colliding with that vehicle ... or otherwise creating a dangerous situation, slow down to such an extent, or stop and remain stationary for such time as is necessary to allow that vehicle ... to continue on its ... course without risk of collision or as is necessary to avoid creating a dangerous situation."

A causeway such as this is a bridge for the purpose of the regulations.

Thus the appellant argued that the respondent, after passing the give way sign and whilst approaching or on the causeway, was obliged, when he saw the appellant's vehicle approaching, to stop his vehicle because there was then a reasonable possibility, if he proceeded, of a collision.  We do not think that, when at the give way sign the respondent could not have observed the appellant's vehicle approaching the bridge from the southern direction, he could then have been under any obligation to stop or slow down in order to give way to it.  Nor do we think that reg. 20(9) imposed any obligation upon him for the first time after he had passed the give way sign.

The respondent, when he first saw the appellant's vehicle, still a substantial distance away but travelling at a fast rate of speed, was in a dilemma.  If he stopped his vehicle on the causeway there was a danger that there might be a collision on the causeway with one or both vehicles going over the side and into the creek; but there was also the possibility that the appellant might observe him in time and be able to bring his articulated vehicle to a halt before a collision occurred.  On the other hand, if he continued over the causeway the roadway to the south was wider and there was much greater chance of the vehicles being able to pass one another safely; but there was also the possibility, which occurred, that a collision could occur there also.  It was not really disputed before us that it was the appellant who created this dilemma by driving his heavy vehicle too fast as he approached the causeway.  To criticise the respondent for the choice which he made is, we think, to place too high a burden upon him.  It was not, and indeed could not have been, established as a probability that, had he made the other choice an accident would not have occurred. 

The appellant also criticised his Honour's finding, contrary to the evidence of Mr Farlow, a former police officer who investigated the accident, that, had the appellant's vehicle not jack-knifed, the respondent would have been able to pass it safely on his correct side.  Mr Farlow's evidence, at least on one view, was that the roadway on the southern approach to the culvert where the accident occurred, was too narrow for two vehicles such as this to pass one another.  However, at the trial the appellant's case appears to have been conducted on the basis that, but for a movement by the appellant's vehicle on to its incorrect side of the road, there would have been room for the two vehicles to pass.  We would be disinclined to overturn his Honour's finding of fact in this respect.  But in the end it is unnecessary to consider whether his Honour was correct or not because we think that that question is irrelevant.  The question is whether, when he first saw the appellant's vehicle, faced with the dilemma to which we have referred, it was unreasonable for the respondent to continue across the causeway in order to reach the apparent
safety of the roadway on the southern side.  We do not think it was.

Consequently, the appellant has failed to establish contributory negligence on the part of the respondent and the appeal on this ground must fail.

His Honour assessed pain, suffering and loss of amenities at $90.000.00 by taking an example of a similar case decided in 1983 and applying an inflationary factor to the assessment of $50,000.00 for that component then.  It is unnecessary to consider whether an analysis of that kind produces the correct result.  It is sufficient, we think, to look at comparable verdicts in more recent times.  The respondent has a disability of his right leg of more than 60%.  He is still a young man, only 36 at trial, and he will require a total hip replacement at about age 55.  In the meantime, he will have increasing pain and disability.  His pain up to now has been very substantial.  He has been in hospital about seven times.  He has also had considerable discomfort in consequence of his periods in a plaster cast, including two quite lengthy periods, one of which was about six months.  His convalescence has been long and very difficult.  Moreover, he was, prior to his accident, a very active man, both in his sporting and family activities.  The substantial curtailment of those activities has seriously affected his enjoyment of life. 

The assessment of $90,000.00 under this head of damage was towards the high end of the permissible range.  But we do not think it was beyond it and consequently we are not prepared to reduce it. 

The assessment of $110,000.00 for loss of future earning capacity seems at first sight high because, at the time of trial, the respondent was employed by G. James Glass & Aluminium as an estimator at a rate very little different from the then current rate applicable to his previous occupation as a fixer.  However, there are three factors which make it plain that he was entitled to a substantial award under this head of damage.  The first is that, even as an estimator, there were a number of tasks which he could not do or could not do efficiently.  However, he had a good relationship with his manager, who thought very highly of him, and who was prepared to do that part of the work which the respondent was unable to do.  It is at least possible and perhaps even likely that another manager would not be so tolerant, particularly if he were not so familiar with the respondent's other qualities.

Secondly, even the respondent's tolerant manager said that, if the respondent were off work for six weeks or more, he would need to replace him because he is the only estimator employed by his present employer.  The respondent will be off for at least six weeks when he has to undergo his hip replacement operation whenever that will be.  There may, of course, be other reasons why, with his disabilities, the respondent may need as much time off as that at some earlier date. 

And finally, if thrown on to the labour market, the respondent will undoubtedly have great difficulty finding a job.  Certainly in economic times such as the present, it would be extremely difficult for a man with a disability such as this to obtain employment, in competition with fitter men, in a job which requires physical activity.  The respondent has no professional skills and no significant clerical skills.

The appellant's criticism of the amount assessed under this head of damage was, to a substantial extent, directed at the manner in which his Honour assessed it.  Assuming in each case a retirement age of 61, his Honour looked at the present value of a nett loss for the period from age 46 to that age and came to a figure of $127,875.00.  He then looked at an alternative calculation based on a period from age 51 to that age arriving at a nett present sum of $74,625.00.  His figure of $110,000.00 was a little above the middle of the range between those two figures.

It was very difficult in the present case, given the respondent's continued employment at not much less than he would have been earning but for the accident, to arrive at a figure for future loss of earning capacity by means of some mathematical calculation.  What can be said is that, if he is thrown out of work within ten years or so of the date of trial, his loss of earning capacity will be substantially higher than the amount awarded by his Honour.  What his Honour had to do was determine what should be allowed for the risk that that would occur.  We cannot say that a figure of $110,000.00 is too high an assessment of the value of that risk.

Accordingly, the appeal is dismissed with costs.