Jones v Bradley - [2003] NSWCA 81

CITATION: Jones v Bradley [2003] NSWCA 81 revised - 11/06/2003

HEARING DATE(S): 09/09/2002, 10/09/2002, 28/11/2002, 29/11/2002

JUDGMENT DATE:
16 April 2003

JUDGMENT OF: Meagher JA at 1; Beazley JA at 2; Santow JA at 3

DECISION: Appeal allowed.

CATCHWORDS: CONTRIBUTORY NEGLIGENCE - apportionment of responsibility - whether Trial Judge's discretionary assessment of contributory negligence miscarried - where actions of both the plaintiff and defendant involved serious and substantial departures from standard of care - where actions of both the plaintiff and defendant involved a significant degree of causal potency - NEGLIGENCE - assessment of damages - whether Trial Judge's discretion in assessing damages miscarried - scope of obligation to give reasons - whether it was appropriate for the appellate court to reassess damages - Griffiths v Kerkemeyer allowance - lost earning capacity allowance - home modification allowance - taxi transport allowance - handyman assistance allowance - future medical care allowance - case manager allowance

CASES CITED: Abalos v Australian Postal Commission (1990) 171 CLR 167
Agbaba v Witter (1977) 14 ALR 187
Beale v GIO (1997) 48 NSWLR 430
Biogen Inc v Medeva plc [1997] RPC1
Clarke v Freund 1999 (29) MVR 361
Damberg v Damberg [2001] NSWCA 87
Derrick v Cheung (2001) 181 ALR 301
Devries v Australian National Railways Commission (1993) 177 CLR 472
Emery v Wilson (1974) 28 ALJR 131
Gamser v Nominal Defendant (1977) 136 CLR 145; 13 ALR 387
General Insurance Office of New South Wales v Evans (1990) 21 NSWLR 564
Flanery v Halifax Estate Agencies [2001] 1 WLR 377
Fuller v Galvin Incorporated, SCNSWCA, 7 April 1995
House v The King (1936) 55 CLR 499
Jones v Hyde (1989) 63 ALJR 349
Malec v JC Hutton Pty Limited (1990) 169 CLR 638
Miller v Jennings (1954) 92 CLR 190
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Moran v McMahon (1985) 3 NSWLR 700
Moylan v The Nutrasweet Company [2000] NSWCA 337
Nestle Australia Ltd v McDougall, (NSWCA, 24 June 1998, unreported)
North Sydney Council v Lygon (1995) 87 LGERA 435
Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492
Rosenberg v Percival (2001) 205 CLR 434
RT & YE Falls Investment Pty Ltd v NSW [2001] NSWSC 1027
Schieb v Abbott (1999) 27 MVR 285
Shehata v Montague L Meyer Pty Ltd (1976) 51 ALJR 77
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
State Rail Authority of NSW v Earthline Construction (1999) 73 ALJR 306
TCN Channel Nine Pty Limited v Henry Alfred Anning [2002] NSWCA 82
Tuebner v Humble (1963) 108 CLR 491
Van Gervan v Fenton (1992) 175 CLR 327
Warren v Coombes (1979) 142 CLR 531
Wilkes v Bradford Kendall Ltd (1962) 79 WN (NSW) 850
Williams v The Minister for Aboriginal Land Rights Act 1983 and the State of NSW [2000] NSWCA 255
Wilson v Peisley (1975) 7 ALR 571; 50 ALJR 207
Yip v Zreika [2001] NSWCA 446

PARTIES :
Edward John JONES (Appellant)
Emma Ward BRADLEY (Respondent)

FILE NUMBER(S): CA 41050/01

COUNSEL: C Hoeban (Appellant)
J McCarthy, QC/ P S Jones (Respondent)

SOLICITORS: Lee & Lyons (Appellant)
Colin Daley Quinn (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2140/99

LOWER COURT
JUDICIAL OFFICER : Dent DCJ

CA 41050/01
DC 2140/99

MEAGHER JA
BEAZLEY JA
SANTOW JA
16 APRIL 2003

Edward John JONES -v- Emma Ward BRADLEY

Catchwords

– apportionment of responsibility – whether Trial Judge’s discretionary assessment of contributory negligence miscarried – where actions of both the plaintiff and defendant involved serious and substantial departures from standard of care – where actions of both the plaintiff and defendant involved a significant degree of causal potency

NEGLIGENCE – assessment of damages – whether Trial Judge’s discretion in assessing damages miscarried – scope of obligation to give reasons - whether it was appropriate for the appellate court to reassess damages – Griffiths v Kerkemeyer allowance – lost earning capacity allowance - home modification allowance – taxi transport allowance – handyman assistance allowance – future medical care allowance – case manager allowance

Facts

These proceedings are the result of a serious pedestrian accident on the Princes Highway at Rockdale. The Respondent was run over by a vehicle driven by the Appellant. The Appellant was intoxicated by alcohol at the time and the Respondent crossed the major arterial road in a hurrying manner without checking for approaching vehicles. At the time the Respondent was adversely effected by a substance as earlier in the day she had consumed a number of Rohypnol tablets. Immediately before the Appellant’s car collided with the Respondent, an unidentified vehicle had broke heavily and swerved to avoid colliding with the Respondent.

The Respondent suffered serious orthopaedic injuries and has suffered ongoing disabilities as a result.

The Appellant challenged the Trial Judge’s findings on apportionment of contributory negligence and the assessment of damages.

Held per Santow JA, with Meagher and Beazley JJA agreeing:

Contributory negligence

1. The mental condition of the Respondent and her ability to make sensible and rational decisions were relevant to assessing the Respondent’s departure from the standard of care expected of the reasonable pedestrian. It was more than mere speculation that the Respondent’s intoxicated state contributed to her choosing to cross the road in the manner she did.

2. The degree of departure from the relevant standard of care by the Respondent and Appellant was significant and serious. The causal potency of each party’s action in the injuries suffered by the Respondent was also significant. The Trial Judge’s apportionment of liability did not reflect the substantial degree of culpability of the Respondent for the accident. The proper apportionment of liability in this case is one of equal responsibility of the Appellant and Respondent.

Damages

1. In negligence actions the focus of a damages award is to put the plaintiff in a position that he or she would have occupied had the accident not occurred.

2. The Trial Judge’s acceptance of a report as to the costing of damages prepared for the Respondent, without regard for the conflicting opinions on specific heads of damages, and without sufficiently engaging in the particular issues thereby raised, opened the door for the Appellant to demonstrate that particular amounts awarded were too large and unsubstantiated or insufficiently substantiated.

3. The intervention by this Court is not based on an alleged lack of reasons (save in failing to engage with certain significant issues), but rather that the inferences drawn from the evidence by the Trial Judge were not soundly based in the circumstances. Reassessment of damages is warranted under the principles in House v The King (1936) 55 CLR 499.

4. In assessing the appropriate level of future care, the Trial Judge failed to take into account relevant evidence, namely the present actual level of cognitive functioning; that the Respondent was coping before and during the trial with a lower care regime; and there was a failure sufficiently to engage with certain issues of importance raised by the experts.

5. In assessing lost earning capacity, it is essential that facts pertinent to the individual be considered and that there be explicit consideration of the individual’s characteristics in the workforce. The Respondent’s work and personal history indicated she would have had very great difficulty obtaining employment at the rate of remuneration and for the periods allowed by the Trial Judge.

ORDERS

1. Appeal allowed.

2. The Trial Judge’s assessment of contributory negligence be set aside. In lieu thereof order that contributory negligence be assessed at 50% to the Plaintiff and 50% to the Defendant

3. The Trial Judge’s assessment of damages be set aside. In lieu thereof damages assessed at $1,539,709.70.

4. Verdict entered for Plaintiff in the amount of $769,854.85

CA 41050/01
DC 2140/99

MEAGHER JA
BEAZLEY JA
SANTOW JA
16 APRIL 2003

Edward John JONES -v- Emma Ward BRADLEY

Judgment

1 MEAGHER JA: I agree with Santow JA.

2 BEAZLEY JA: I agree with Santow JA.

3 SANTOW JA:

INTRODUCTION

4 The Appellant was driving a motor vehicle on Princes Highway on 4 May 1996 at 4.15 pm, in an intoxicated state. He ran over the Respondent. She had just earlier been in a nearby Medical Centre, suffering from the after effects of two to four rohypnol tablets. These had, at the Medical Clinic, induced a somnolent state, followed by aggressive behaviour.

5 The Respondent, a young woman of 27 years had been hurrying across the Princes Highway, not at the pedestrian crossing. She first caused another car to brake suddenly and swerve to the left and miss her. Still proceeding forward at the same pace, she was hit in the third lane by the Appellant’s car.

6 The Respondent sustained serious orthopaedic and brain injuries leading to brain damage.

7 The Respondent as plaintiff commenced proceedings against the Appellant as defendant in negligence for damages. Whilst admitting liability, the Appellant claimed that the Respondent had contributed to her injuries by failing to take adequate care for her own safety.

8 The Trial Judge (Dent DCJ) found that the Respondent was 25% liable and the Appellant 75% liable. The Trial Judge awarded judgment for the Respondent in the amount of $1,949,715.40.

9 The issues in this appeal are first the Trial Judge’s assessment of contributory negligence at 25%; that is to say, apportioning liability 75% upon the Appellant and 25% upon the Respondent. The Appellant submits that the apportionment of liability between the Appellant and the Respondent should have reflected the Respondent’s greater share in causal potency and relative culpability. The Appellant recommends a finding of contributory negligence against the Respondent of 65%.

10 The second issue is the assessment of damages, said by the Appellant to be manifestly excessive. Essentially, the Appellant contends in relation to each of the specific heads of damage that lower figures be substituted, apart from the figure for non-economic loss of $236,800 which is conceded. The Appellant contends that the total damages should be $1,186,081.13 as against the figure found by the Trial Judge of $2,599,620.60.

11 I set out the Appellant’s contended assessment of damages in columnar form, so it can be compared to that of the Trial Judge.

MATERIAL FACTS

12 The Respondent was born on 16 September 1969. She attended High School but did not obtain her School Certificate. She initially left school at 15 years of age in mid-1984, returned to school in February 1985, and finally left on 30 September 1985.

13 Her employment record was very limited. In 1984, the Respondent had worked for approximately three months as a shop assistant at Jewells Supermarket, Oatley. In 1985/1986 she worked as a shop assistant in Woy Woy Wool Shop for approximately six months. Relevant on the positive side to employment, the Respondent in 1994 participated in Meadowbank TAFE course and successfully completed a typing/secretarial course. She also undertook and completed successfully a Child Care Course, she having had three children in earlier years, her first child being born in November 1986. These courses were completed whilst she was in prison following a sentence imposed on 4 November 1992 of nineteen months dating from 21 July 1992 for the offence of assaulting and robbing, together with an additional eighteen months sentence imposed in November 1992 and a further seven months sentence imposed on 30 March 1993 following a brief escape from Mulawa Detention Centre.

14 Before dealing further with that period, it should be recorded that in 1990/1991 the Respondent commenced working as a prostitute. This period coincided with her also using drugs, in particular heroin and cocaine, but also speed, serepax and methadone. By December 1991 and during the first half of 1992, she was using cocaine at a cost of $500 per day, and heroine at a cost of $400 to $500 per day. During the first half of 1992 she was arrested on a number of occasions for soliciting, for making false prescriptions, and for minor crimes of dishonesty. This led to a number of admissions for short periods of time to the Mulawa Detention Centre.

15 In September 1994 the Respondent was accepted for the methadone programme whilst in prison so that by December 1994 her methadone dosage had increased to 120mg per day. Following her release from prison on 16 October 1995 the Respondent continued in the methadone programme at 120mg per day.

16 I should add that whilst in Mulawa Detention Centre, the Respondent was found to be suffering from Hepatitis C, the Trial Judge remarking that this was “a common finding in people who have indulged in drug taking and/or found themselves in a penitentiary”; Red, 65R.

17 The Trial Judge also found, and this was not challenged on appeal, that

“[D]espite the plaintiff’s falling from grace in this period of her life, I do accept that it was her wish to be a successful mother and that her long-term interest in employment was to be in some form of social work with children.”; Red, 65P.

18 In relation to the period in prison, as an inmate of Mulawa Detention Centre, the Trial Judge rejected the Appellant’s tender of the Respondent’s disciplinary record whilst there, it having been tendered in order to support an inference that while she was in jail the Respondent continued with substance abuse. The contention was that the prison record should have been allowed to be tendered in order to show that that was why she refused to have her urine tested for drug detection purposes; Blue, 1301-2, Black, 734-5 and earlier at Black, 1287-8 where a serious of such offences are listed under the heading “Apparent intoxication with unknown substances while in prison”.

19 Leave was given to add Appeal Ground 18A, to the effect that “His Honour erred in rejecting the Appellant’s tender of the Respondent’s disciplinary record whilst an inmate of Mulawa Detention Centre …”

20 The Appellant at trial, in support of this tender, submitted unsuccessfully that it was relevant to support a submission by the Appellant that “history indicates that she was not a good prisoner and that those sort of internal convictions and breaches of discipline indicate that she was having troubles in jail as well.”; T, 735G.

21 The Respondent submitted that the Trial Judge’s reasons for rejecting the tender really went to weight and he correctly gave the material no weight, or little weight. The Trial Judge concluded that the material was not relevant on the basis that “I can’t see how her behaviour in the present environment, which seems to have amounted to pretty spirited and regular resistance, can provide any basis for any adverse conclusions against her upon her release from prison”; Black, 737 I to J.

22 I consider that the Trial Judge was in error in rejecting this evidence altogether though its weight be limited, as it was relevant to an issue, namely the Respondent’s future employability. It is thus material which should have been before the Trial Judge available to be taken into account insofar as it bears upon damages. But one may, with some latitude, treat the Trial Judge’s conclusion as amounting to no more than that the weight of that evidence was so slight as to fail to influence him against the plaintiff on her employability on that score. I am satisfied that was a conclusion open to him. However, as emerges later, I do not, with respect, consider his conclusion, based on inference, as to the extent of her likely capacity to secure employment can stand, when regard is had to the evidence of her very limited past employment pre-accident. However I consider the weight of this material to be slight.

23 Returning to the narrative of relevant events on 16 October 1995, after the Respondent was released from prison, she continued in the methadone programme. When the Respondent attended for routine psychological assessment on 12 March 1996, it was noted that she was on prescription methadone and serepax.

24 In late 1995, the Respondent had met and formed a relationship with Mr Sengos, a clerk employed by the Department of Defence, and a member of the Army Reserve. His evidence as to her capacity to look after herself was important as was that of her subsequent companion Mr Frost; see later. The Respondent had commenced to live with Mr Sengos in January 1996. The Respondent applied for jobs, but was unsuccessful. This is significant as it pre-dated any injury.

25 In April 1996, Mr Sengos went overseas to attend a friend’s wedding. On 9 May 1996, the date of the accident, while Mr Sengos was still away, the Respondent attended the Immediate Health Care Clinic. What there transpired is set out in uncontroversial detail by the Trial Judge at Red, 62G to Q. This is with the minor correction in the reference to the plaintiff lapsing back into sleep. This occurred, according to the evidence of Sister McLeod who was in charge of the waiting room, in the treatment room rather than the waiting room; Black, 493R.

“The plaintiff’s movements on the afternoon in question are known to a degree. Some five to ten minutes prior to the accident occurring the plaintiff left the medical centre known as Immediate Health Care, situated on the corner of Bay Street and the Princes Highway at the Sevenways intersection. The plaintiff had been seen in the waiting room of the medical centre by a Sister McLeod, who saw her in a somnolent state lying over two chairs. She roused her and took her to the treatment room and placed her on the bed there. The plaintiff was a patient of the medical centre as they held her patient card. A decision was taken not to treat her but to call the Ambulance Service. The plaintiff lapsed back into sleep and was in that state when the ambulance officers, two of them, arrived. It is clear from the conversations recalled by Sister McLeod and the ambulance officers, which are not identical, that the plaintiff had attended the medical centre to secure a medical certificate to excuse her from being at work that day. On questioning she admitted that she had taken Rohypnol that day. Apart from her somnolence she appeared to the ambulance officers to be in good condition. The ambulance officers wished to take the plaintiff to hospital by ambulance. The plaintiff refused the offer and became verbally aggressive and stomped out, after an ambulance officer had responded in kind to her, pointing out that she did not have to go to hospital, but that she could not stay where she was. The plaintiff apparently said that she would go home and when she was asked how she was going to get home, the plaintiff said that she would catch a train. Sister McLeod recalls the ambulance officer prophetically uttering, “Well don’t get run over on your way.”

26 The Appellant in his submissions does however take issue with what the Trial Judge then says in the next paragraph relevant to rohypnol. At Red, 62Q he says:

“Rohynol [sic] is a prescribed medication prescribed for insomnia. Records from Mulawa where the plaintiff had been an inmate are in evidence and suggest that the plaintiff suffered from insomnia … it is known from other evidence, to wit that of Mr Sengos, that the plaintiff was looking for work at the time and it is interesting that her stated purpose in attending the medical centre was to obtain a certificate for employment non-attendance purposes, as opposed to treatment for any condition from which she was suffering. Having studied the entirety of the evidence presented by the defendant on this issue, I am firmly of the view that it is speculative that the somnolent state that the plaintiff was in whilst in the medical centre, caused as it may well have been by an adverse reaction to rohypnol, was the cause of the error of judgment that the plaintiff committed in assaying [sic] to cross the carriageway, at a time when she ought to have realised that there were two vehicles proceeding on her right which would either have to slow down or to stop, to permit her free passage across the carriageway.”

27 Before returning to the Appellant’s attack upon this aspect of the Trial Judge’s reasoning, which is essentially that he misused his discretion in the assessment of contributory negligence by erring in finding that the plaintiff was not affected by an intoxicating substance being probably rohypnol, at the time when she attempted to cross the road, I should return to the actual events of the accident. This is to place that factor in that context.

28 Much of what follows is not controversial, though some aspects are, such as the capacity of the Appellant driver to see the Respondent and at what point of time, as well as issues concerning reaction time and braking time. Importantly, there is no dispute that a breach of the duty of care by the Appellant driver is admitted. Thus it is not challenged that the Appellant should not have been driving at all because of his intoxicated condition. That is a factor bearing on “causal potency” in the terms adopted in Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492. It is used to identify which party’s conduct made the greater contribution to the occurrence of the accident in order then to determine “relative culpability” as between the parties. That requires a comparison of the degree of departure from the standard of care of the reasonable person, here as between Appellant and Respondent. The Trial Judge thus set out to determine the relative importance of the acts of Appellant and Respondent in causing the damage. Our task is to determine whether the Trial Judge’s finding as to that relative contribution gave rise to appellable error. Such findings are to be afforded considerable latitude, bearing, as they do, on what is a just and equitable apportionment, where a range of assessments can be sustainable.

29 Thus I turn to what is described by the Appellant as the fundamental facts found by His Honour at Red, 58D to M.

“The accident occurred at abut 4.15 pm on Thursday 9th May 1996 in lane three of the Princes Highway, Rockdale, at a point approximately 35 metres south of Bay Street at a time when the plaintiff had traversed the width of the Princes Highway to a point where she was probably more than halfway across the median strip lane which is lane three. The defendant Edward John Jones, a 49 year old male was driving his Holden Commodore Station Wagon north in the Princes Highway which for the purposes of this judgement can be regarded as a highway laid out in the north south alignment. The plaintiff was traversing the highway from west to east.

In the vicinity of the subject collision the Princes Highway is a straight road which enters a slight curve to the right at the intersection. It is a faintly uphill gradient of about two degrees from the horizontal. It is closely developed with commercial premises on either side of the highway. There is a hotel known as the St. George Tavern on the western side of the highway at the intersection. Travelling north to the intersection there are three marked traffic lanes and at the intersection the highway widens on the western side to provide a fourth lane presumably for traffic exiting the highway by a left hand turn.

The weather at the time was fine and clear.”

30 The Appellant as I have said, does not dispute the fact that he was under the influence of intoxicating liquor at the time of the accident and that, consequently, his driving ability was impaired, Red, 59G.

31 The Appellant stated to the police that he had consumed six 245ml “stubbies” of Carleton cold beer between 12 mid-day and 3.20 pm on the day of the collision, the last being just under an hour before the accident. The Appellant admitted to the police that he had had only four hours sleep on the evening before and that he had not breakfasted but had a sandwich at “Smokers” and that he had nothing for lunch other than the beer; see Blue, 756.

32 The Trial Judge’s summary of the following part of the expert evidence below is uncontroversial. This is subject to the minor caveat that in relation to the evidence of Associate Professor Graham Starmer, the reading which Professor Starmer estimates would have been produced had a direct blood reading been taken at the same time as the accident, was about 0.150g/100ml, rather than the higher figures quoted below, though it is conceded that nothing hangs on that.

“It was the opinion of Anthony Frederick Moynham, Director, Clinical Forensic Medicine Unit, that at the time of the collision, the alcoholic burden of the defendant would have been not less than 0.130 grams of alcohol in 100 ml of blood and not more than 0.190 grams of alcohol in 100 ml of blood. It was Mr Moynham’s view that within that range all persons would be under the influence of intoxicating liquor to the extent that there would be an impairment of driving ability.

Associate Professor Graham A. Starmer of the Psychopharmacology Research Unit of the Department of Pharmacology of the University of Sydney who reviewed all available evidence was of the opinion that at the time of the collision the defendant’s most likely blood/alcohol concentration would have been about 0.197 grams alcohol in 100 ml of blood, that it would not have been lower than 0.192 grams alcohol in 100 ml of blood, or higher than 0.202 grams alcohol in 100 ml of blood. He expressed the view that from a psychopharmacological point of view, alcohol has been shown to impair the three most important driver functions, perception, decision-making, and response. The inability to efficiently divide attention amongst two or more sub-tasks is classical expression of alcohol-induced driving impairment. Intoxicated persons almost invariably feel that they need to concentrate on events in the centre of the visual field and to ignore those in the periphery. He expressed the view that it is generally accepted that the driving ability of all individuals is measurably impaired at blood/alcohol concentrations of 0.100 grams/100 ml and above.” (Red, 59)

33 Some additional elaboration is needed as to the evidence concerning the location of the accident. At Blue, 929 is to be found a detailed street and location map showing the medical centre visited by the Respondent. Upon it can be located where the accident occurred on Princes Highway and the relative distance from where Princes Highway intersects with Bay Street and Sevenways. The Respondent crossed from just south of Frederick Street where she travelled between a walk and a run (statement of George Tsipiras, Blue, 850).

34 The Appellant in his statement to the police made on 12 June 1996 some five weeks after the accident, states that,

“I was driving north on the outside lane of the Princes Highway. The traffic was very light for that time of day, the traffic any other times always stop, start, stop, start. I was on the outside lane, median strip lane heading north. The green lights were on and I wasn’t speeding, I never speed. I was just driving up, I’ve got vague recollections of a car passing me on the inside. I was driving up towards the lights and watching the lights and I seen a girl or a women run across and I seen her about the middle of the middle lane. I hit me brakes but she kept runnin’ towards me and hit me.”; Blue, 827.

35 He thus confirms that the accident occurred in the third lane near the median strip in which he was driving.

36 Later in the same police interview he states that “we were not that far from the lights, and as I say, I seen the girl in number, lane number 2, about midway between lane number 2, and I hit me brakes and she just kept comin.”; Blue, 829. He confirms that his speed was under 60 kilometres an hour.

37 Later in the same interview he confirms that there were no parked vehicles in the gutter lane, that is lane number 1, that is to say “in that general vicinity”; see Blue, 831.

38 He confirms that “the girl collided with the left-hand side of the car”; Blue, 833 and that “she seemed to hit inside the headlight, towards the grille”.

39 Finally, he confirms that when he first saw the Respondent, she was about two metres in front of him; Blue, 841, being the time when he hit the brakes and skidded.

40 Viewing the site of the accident, it is unexplained how the Respondent had gone from the medical centre to the place where she crossed from west to east near the corner of Frederick Street and Princes Highway. She herself has no recollection of the accident, having suffered brain damage. The place where she crossed was not far from the lights at the intersection. There was a zebra crossing and a pedestrian intersection at the place where Princes Highway intersected with Sevenways and Bay Street. That pedestrian intersection would have been a safe crossing, though it would have taken her longer in crossing first Sevenways and then Princes Highway further north finally crossing back across Bay Street, if that were her destination. In fact we do not know what her ultimate destination would have been. There is also a zebra crossing at the commencement of the crossing over Sevenways followed by the pedestrian intersection.

41 The Trial Judge made no mention of the fact that the Respondent appears to have rejected the safer route. The Respondent crossed when the lights (at the intersection) were green and did so over a triple lane highway that is a vehicle thoroughfare. The Trial Judge makes no mention of the fact that the layout of the pedestrian crossings should have indicated that the place chosen to cross was a more dangerous place to cross than the pedestrian crossings, though the latter may have been less convenient in terms of proximity.

42 The only known eye witnesses to the accident was the Appellant who gave evidence and Mr George Tsipiras. The latter made a statement to the police at Hurstville on 14 July 1996 (Blue, 849). He describes that he himself was driving in a northerly direction along Princes Highway, Rockdale at the time being in the middle lane of the three northbound lanes and approaching a set of traffic lights which were red outside the Ambulance Station and then changed to green. He describes that after he passed the Ambulance Station he was doing approximately 60 kilometres per hour behind the small light coloured car, the owner of which has not been identified (“the unidentified car”). This car was approximately 50 metres in front of Mr Tsipiras’ car. He described continuing in a northerly direction towards the intersection of Sevenways at Rockdale where there were parked cars on the left-hand lane up to the hotel. He describes how “as the car in front of me approached the hotel, I saw a lady start to cross the Princes Highway”.

43 He continues,

“I first saw the lady she was in the process of crossing Princes Highway from my left to right. At the time she was in between a walking and running pace. I did not see her until she was near the lane markings that divide the inside lane to the middle lane, because of the parked cars.”

44 I should note here that being some 50 metres behind and in the centre lane, it is not unreasonable to conclude that the parked cars would, to begin with, have obstructed his vision, at least partially.

45 He continues,

“the car that I was following braked heavily, as I saw smoke coming from the front tyres, the driver swerved to the left to avoid the lady as the driver had already passed the parked cars. At this stage I slowed down as I was closing in on the car in front of me. The lady did not react to the car in the middle lane, but continued to cross the highway in the same manner. The next thing that I saw was that there was a silver commodore station wagon in the lane on my right-hand side [the Appellant’s car] when I first saw the commodore station wagon it was near the rear of the car that braked heavily and swerved to the left.”

46 He then describes the actual collision with its heavy impact:

“The next thing that I saw was the lady appear in front of the commodore. The brake lights on the commodore came on and the front dipped as if it was under sudden braking. I saw the front of the commodore hit the lady on her right side. After hitting the front of the car the lady rolled onto the bonnet and hit the windscreen. She was thrown into the air and landed back onto the bonnet and she roll (sic) onto the roadway as the commodore had stopped. The lady landed in the right-hand lane but was close to the lane markings that divide with the middle lane.”

47 He confirms that the traffic travelling in the northern direction was very light, while the traffic travelling in the southerly direction was extremely heavy; Blue, 851.

48 In relation to Mr Tsipiras’ evidence, it is significant that he confirms in cross-examination that “it is not until the lady is really into lane 3 [where the collision occurred] that suddenly the Commodore hits the brakes”; Black, 489. Accepting that evidence, which is not inconsistent with the Appellant’s account that he saw her “about the middle of the middle lane”, it supports that he did not see her earlier and applied the brakes when collision was unavoidable.

49 Second, he confirms as to the small sedan being the unidentified car:

“Q. The car that was in front of you, the small sedan, it was obvious when it was performing this manoeuvre? [the manoeuvre being to hit the brakes]
A. Yes.

50 He explains that the unidentified car “swerved and went round the lady”; Black, 498, being at that stage in lane 2.

51 Finally, he clarifies that “hurrying” was an apt description of being faster than a walking pace but not a running pace; Black, 490P-S.

52 From this evidence, the Trial Judge after noting that the Respondent was not emerging between parked cars (where visibility would be constricted) but attempting to cross the highway at a point to the north of where the last vehicle was parked, concludes as follows:

“I am unable to infer on the evidence that the emergency response of the unknown driver was entirely the result of the conduct of the plaintiff. It may well have been made necessary by simple failure to keep a proper lookout by the unidentified driver until an emergency response was called for, but the importance and significance of the behaviour of the unidentified vehicle is that it occurred, and its conduct was plainly visible to Mr Tsipiras and ought to have been plainly visible to the defendant had he had his wits about him. The tragedy of the occasion was that the defendant did not have his wits about him, doubtless as a combination of the effect of the alcohol which he had consumed and probably his lack of sleep and proper nutrition in the 24 hours prior to the accident.

Exhibit 4 and the viva voce evidence of the defendant make compelling reading. In my judgment the only fair inference from the experience is that Mr Jones’ driving talents were so dulled and distorted by the alcohol which he had consumed that he was only vaguely aware of his surroundings as he drove north on the Princes Highway. His unawareness extended to his completely failing to see the plaintiff entering upon the carriageway or seeing the dramatic incident which occurred in relation to the plaintiff and the unidentified vehicle up ahead and to the left of him.” Red, 60

Appellant’s and Respondent’s Competing Contentions

53 The Appellant takes issue with the suggestion that the unidentified driver in the second lane who had braked and swerved to avoid the accident had failed to keep a proper look out until an emergency response was called for, because in implying that the unidentified driver was negligent by inference the Appellant was even more negligent.

54 Thus the Appellant contends that the Trial Judge failed to take into account that the Respondent moved from behind a line of parked cars, at no time was observed to stop on the kerb before commencing to cross the road, did so at a speed between a walk and a run from the moment she left the kerb, and importantly, “failed to appreciate that drivers do not react instantaneously, but there is a lag between the perception of a danger and reaction thereto”, citing as an accepted reaction time in such a situation, 1.5 seconds. The Appellant concludes, relying on his expert Mr Foley, “assuming a ‘hurrying speed’ for the Respondent of 2 metres per second (see Jamieson Foley report Blue, 409 at para 5.2), the driver in the second lane did extraordinarily well to avoid the Respondent, and there is no basis for a finding that he failed to keep a proper look out. His need for an emergency response was entirely due to the conduct of the Respondent.”; Orange, 33.

55 The Appellant also takes issue with what is attributed to the Trial Judge, namely that the Trial Judge

“seems to assume that the Appellant’s vehicle was in a similar or the same position as that of Mr Tsipiras, and therefore his reaction should have been the same. … the undisputed evidence of Mr Tsipiras was that the Appellant’s vehicle was near the rear of the car in the second lane …”; see Orange, 33, para 29 and 35, para 33.

56 But it is difficult to see how anything in the Trial Judge’s reasoning involved that assumption. The Trial Judge can be taken to have been aware of the relative position of the two vehicles and in any event, given that the undisputed evidence was that the Appellant’s vehicle was near the rear of the car in the second lane, it is clear that the Appellant had a fraction more time to react than did the unidentified driver who successfully avoided an accident.

57 However, the Appellant acknowledges that,

“the fault on the part of the Appellant was that he failed to react quickly enough, and that he failed to observe the emergency braking of the vehicle in the second lane. Nevertheless he did see the Respondent when she was in the centre lane … . Had the Appellant not been affected by alcohol he would have applied the brakes earlier, and even if he had hit the Respondent, would certainly not have hit her with the same force.”

58 Given this concession by the Appellant, it appears there is still a difference between the conceded position of the Appellant and the finding of the Trial Judge earlier quoted. It is this. The Appellant does not in terms concede that had he been sober, with his wits about him, he would not have hit the Respondent at all, though he does concede he would not have hit her with the same force. It is however not entirely clear that the Appellant means to make that distinction; see Orange, 35 at para 33P and Red, 60R.

59 The other areas where, despite the concession made, the Appellant challenges the findings of the Trial Judge, is in relation to when the Appellant should have first been expected to see the Respondent, when heading towards an intersection controlled by traffic lights but without a pedestrian crossing. The Appellant contends that to require that the driver in those circumstances “should be looking towards the kerb, rather than to his or her front is to impose an unrealistic level of care”, citing Derrick v Cheung (2001) 181 ALR 301. The Appellant refers to the Respondent emerging from behind a line of parked cars and that the Appellant’s vision “was also obscured by the vehicle in lane 2, which was between him and the Respondent”.

60 To this the Respondent responds, by relying upon the swerving of the unidentified car immediately in front, this should have alerted the Appellant to the presence of the Respondent. Also, the Respondent relies upon the movement of the Respondent towards and onto the roadway where her pace should have been a sufficient trigger to bring her into the foveal (peripheral) vision of the Appellant; Black, 757D, evidence of Mr Moir, the Appellant’s expert at Black, 757E and earlier at 756W.

61 Mr Moir for the Respondent, gave evidence that the Appellant should have then taken some action, be it release of the accelerator or movement of the right foot towards the brake and continued to have monitored the Appellant (Black, 756W to 757C). This was put on the basis that the Appellant had ample time to avoid colliding with the Respondent based upon this monitoring (Black, 757K).

62 Mr Moir also gave evidence to the effect that if the Appellant’s attention was not triggered by the Respondent’s movement onto the roadway, it should have been triggered by the braking and evasive movement of the other unidentified car; Black, 756; Blue, 763H, asserting that even at this stage the Appellant had ample time either to brake to stop, or to swerve, to avoid the Respondent; Blue, 763J. This is particularly if sober; Black, 761Q.

63 Mr Moir concluded that the swerving movement would not have required the Appellant to head towards the Respondent while in lane number 2 as there was still time to accomplish this when the Respondent was already in lane number 3; Black, 773G.

64 Mr Moir’s evidence as to vision was that a normally alert driver is looking at the road ahead but his peripheral vision also extends beside him. His foveal vision is ordinarily concentrated on where he is steering to. His attention is not directed to the periphery unless something occurs, a strong stimulus, such as a visual stimulus which is stronger than all other stimuli. Thus here, the moment the car beside him braked heavily, its nose dropping, smoke coming up, he should have detected this and the Appellant’s focus should have moved towards the stimulus. If his attention was not attracted by this, then nothing was going to attract his attention; Black, 769I to W.

65 The Appellant takes issue with this evidence, first on the asserted basis that the Trial Judge did not adequately or at all, indicate why he preferred the opinion of Mr Moir to the Appellant’s expert Mr Johnston of Jamieson Foley & Associates.

66 But at Red, 61H, the Trial Judge indicated why he did prefer the evidence of Mr Moir rather than Mr Grant Johnston of Jamieson Foley, referring to the latter in this passage.

“He at the time of qualifying himself did not have the benefit of some of the police photographic material which was given in evidence and in my opinion, the facts of cross-examination upon his reconstruction denied the validity of the theory that he had espoused for the purpose of the criminal proceedings. I prefer the analysis of the accident propounded by Mr Geoffrey Moir qualified by the plaintiff, and I am satisfied from his evidence on the probabilities that had the defendant not been intoxicated, he would have had ample notice of any emergency arising from the plaintiff’s choosing to cross the carriageway at the time that she did and ample opportunity to stop his car before the collision occurred. Further, the defendant’s state of intoxication was such that he had fallen into a state of tunnel vision where he was not reacting to anything other than the colour of the traffic lights at the intersection which he was approaching. Had the defendant reacted timeously he could have avoided the collision by a combination of breaking and, if necessary, deviating to the left. This conduct of the defendant establishes the negligence pleaded.”

67 The Appellant points out in response that the absence of the police photographs had no effect on Mr Johnston’s opinion and this is correct. It is also said that the cross-examination of Mr Johnston did not lead to any withdrawal by him of his opinion. Finally, it is said that “His Honour failed to deal with the rather spirited criticism of the report of Mr Moir contained in Mr Johnston’s second report of 17 October 2001 [Blue, 936]. So it is said that apart from anything else, His Honour failed to deal with the inconsistency between fundamental elements of Mr Moir’s theory and the direct evidence of Mr Tsipiras (Transcript, Black, 487, lines 50 to 54).” I shall return the two reports later.

68 Finally, as regards contributory negligence and the challenge to the Trial Judge’s apportionment, the Appellant’s submissions take issue with the conclusion of the Trial Judge that,

“it is speculative that the somnolent state that the plaintiff was in whilst in the medical centre, caused as it may well have been by an adverse reaction to rohypnol, was the cause of the error of judgment that the plaintiff committed in assaying (sic) to cross the carriageway, at a time when she ought to have realised that there were two vehicles proceeding on her right which would either have to slow down or to stop, to permit her free passage across the carriageway.”

Resolution of the Apportionment Issue

69 It is convenient at this stage to return to the Trial Judge’s findings, to view them as a whole. Then I recapitulate the principal grounds of attack on the Trial Judge’s apportionment, before turning to the two expert’s reports. I do so in order to determine whether, within the undoubted constraints applicable to appellate review of apportionment in contributory negligence, the Trial Judge’s apportionment based on his assessment of the evidence and the two reports can and should be disturbed.

The Trial Judge’s findings

70 To recapitulate. The Trial Judge made a number of findings in reaching his assessment of culpability. In relation to the liability of the Appellant, His Honour held that

“the Defendant’s driving talents were so dulled and distorted by the alcohol which he had consumed that he was only vague [sic] aware of his surroundings as he drove north on the Princes Highway. His unawareness extended to his completely failing to see the Plaintiff entering upon the carriageway or seeing the dramatic incident which occurred in relation to the Plaintiff and the unidentified vehicle up ahead and to the left of him” (Red, 60).

71 The Trial Judge stated that he was satisfied on the balance of probabilities that had the Appellant not been intoxicated he would have had ample notice of an emergency arising on the carriageway at the time and an ample opportunity to stop the car before the collision occurred. The Appellant’s state of intoxication was such that he had fallen into a state of tunnel vision where he was not reacting to anything other than the colour of the traffic lights at the intersection (Red, 61).

72 In relation to the culpability of the Plaintiff the Trial Judge noted that in the period 5 to 10 minutes before the accident the Plaintiff had been to a medical centre on the corner of Bay St and the Princes Highway at the Sevenways intersection. While present at the medical centre the nurse attending to the Plaintiff, Nurse McLeod, was concerned about the Plaintiff’s condition and called for an ambulance. Ambulance Officer Callum Dickson attended the medical centre to treat the Plaintiff. The Plaintiff had admitted at the medical centre to have taken Rohypnol that day. The nurse and ambulance officer described the Plaintiff as being in a somnolent state at the time. The ambulance officer suggested that the Plaintiff attend hospital. The Plaintiff became aggressive and refused to go with them (Red, 62).

73 The Trial Judge concluded that

“having studied the evidence presented by the Defendant, [he] was firmly of the view that it is speculative that the somnolent state that the Plaintiff was in whilst in the medical centre, caused as it may well have been by an adverse reaction to Rohypnol, was the cause of the error of judgment that the Plaintiff committed in assaying to cross the carriageway” (Red, 62-63).

74 The Trial Judge concluded that the Appellant had demonstrated that the Plaintiff, in essaying to cross at the time she did, was guilty of want of care for her own safety that amounted to contributory negligence in the circumstances. He assessed contributory negligence in the proportions earlier set out.

Appellant’s challenge

75 The focus of the Appellant’s challenge to the assessment of culpability is that the Trial Judge failed to take adequate account of the Respondent’s departure from the standard of care imposed on the Respondent as a pedestrian, to take care for her own safety. The Appellant admits that he was in breach of his duty of care as a driver. I now consider in more detail the four bases or grounds of challenge, before turning to the two experts’ reports.

First basis for challenging apportionment: Influence of a substance

76 The first challenge to the apportionment of contributory negligence is in relation to the Trial Judge’s finding that the Respondent was not under the influence of any substance when she attempted to cross the road. Counsel for the Appellant contended that this finding was wrong and contrary to the evidence.

77 The Appellant points to a range of evidence which would support a contrary finding. In particular the Appellant submits that the behaviour of the Plaintiff in continuing to attempt to cross the road in the same manner following the heavy braking and swerving action of the unidentified vehicle was “extraordinary, unless the Respondent was so under the influence of a substance that she was substantially unaware of her surrounding” (Orange, 30).

78 Second, the evidence of Nurse Mcleod and her concern for the Respondent’s well being (in calling the ambulance) was indicative that the Respondent was significantly affected by some substance (Orange, 31).

79 Third, the evidence of ambulance officer, Callum Dickson indicated that at the time he saw the Respondent, some 5-10 minutes before the accident, the Respondent was under the influence of some substance (Orange, 31). In addition the Respondent had told him that she had taken four Rohypnol tablets that day.

80 Fourth, there was evidence led from Dr Helen Daucey a pharmacologist, which set out the affects of Rohypnol and that the Respondent’s alleged usage was well in excess of the amount recommended to treat insomnia (Orange, 31). The Appellant submits that the Trial Judge did not have regard to the fact that Rohypnol is a benzodiazepine, which the Respondent has had a history of abusing. The Appellant submits that in view of such compelling evidence, the Trial Judge’s finding that it was mere speculation that the Respondent’s adverse reaction to the Rohypnol was a causal factor in her decision to cross the road (Orange, 32) cannot stand.

Second basis for challenging apportionment: Appellant’s driving ability

81 The second challenge made to the Trial Judge’s apportionment was that the inferences that the Trial Judge drew from the facts about the Appellant’s driving ability were not open on the evidence. In particular, the Appellant submits that on the evidence before the Court there was no basis for the finding that the Appellant was at fault because he had not seen or detected the Respondent commencing to cross the road (Orange, 35). It was submitted that this finding was based on an erroneous assumption that the Appellant would have had the same line of vision as the witness, Mr Tsipiras. The Appellant submits that there was no evidence to support such an assumption (Orange, 35).

Third basis for challenging apportionment: Adequacy of reasons

82 Then the Appellant submits that the Trial Judge did not give adequate reasons as to why he preferred the opinion of the expert retained by the Respondent, Mr Moir.

Fourth basis for challenging apportionment: Inconsistency in standard of care imposed

83 Finally, whilst adhering to the earlier submissions, the Appellant submits that the Trial Judge imposed too a high a standard of care on the driver and was too favourable to the Respondent. The Appellant in summary indicates that the Respondent failed to take reasonable care for her own safety and caused the emergency situation (Orange, 37-38). The Appellant submits that if there were liability, the apportionment should have been 65% to the Respondent and 35% to the Appellant (Orange, 38).

Respondent’s submissions in response

84 The Respondent submits that the Trial Judge’s assessment was not in error and that the Appellant has failed to establish that the Trial Judge did make an appellable error warranting this court to re-assess contributory negligence. The Respondent points to the fact that the Appellant has not sought to challenge what it regards as the central finding of the Trial Judge, that the Appellant was unfit to drive because of his state of intoxication. It was on this basis and after considering the experts’ reports, that the Trial Judge concluded that the Defendant was more culpable for the accident than the Plaintiff. In addition, the Respondent submits that the Trial Judge’s findings about the state of the Plaintiff at the time of the accident and her poor decision of crossing the road at that time were open to His Honour. The Respondent submits that the Trial Judge was entitled to consider that the causative potency of the Appellant’s driving of the vehicle, in combination with the Appellant’s significant breach of duty in driving at all in the state he was in, justified the apportionment of liability 75% against the driver and 25% against the pedestrian.

Resolution of argument – the competing Expert’s reports

85 To successfully obtain a review of such a discretionary finding, an Appellant must show that the Trial Judge made an error because he or she acted on a wrong principle, acted on extraneous or irrelevant material, mistook facts or failed to take into account a relevant consideration or took into account an irrelevant one. The Trial Judge’s assessment of a just and equitable apportionment of the respective liability of plaintiff and defendant is afforded considerable latitude. The first two challenges to the apportionment are based on arguments which seek to establish that, first, the Trial Judge did not take relevant material evidence into consideration and second that the judge acted on wrong principle in relation to the standard of care of a driver and that of a pedestrian.

86 In his judgement, the Trial Judge stated that he rejected the evidence of the expert retained by the Appellant as he believed that the evidence in the case disproved his hypothesis. Insofar as that conclusion is based on the evidence of witnesses, the challenge faces the conventional constraints on appellate review. While the statement of reasons for rejection are relatively brief and do not elaborate in any detail the grounds for finding that that theory was disproved, I conclude that an analysis of the evidence of the expert witnesses affords a sufficient basis for the finding made by the Trial Judge.

87 The Jamieson Foley Traffic Engineer’s Report of 2 October 1996 written by Mr Grant Johnston was prepared for the Appellant’s defence in relation to criminal charges arising from the accident (Blue, 912; Black, 621E-J). Mr Johnston prepared a letter in relation to his first report and in reply to Mr Moir’s report dated 17 October 2001 in which he addresses some of the criticisms of his first report (Blue, 936). Mr Johnston reiterates the basic hypothesis of the first report and that the report had been prepared for the criminal matter.

88 The general hypothesis posed was that even a sober driver confronted with the same circumstances as the Appellant would have been unable to take any action to avoid the impact with the Respondent (Blue, 925; Black, 621H-J). The Report contends that the primary causal factor in the incident was the Respondent’s action of crossing the roadway (Blue, 925). Mr Johnston considered that the Respondent was fortunate to have not been hit by the unidentified vehicle in lane 2 (Blue, 928). The unidentified vehicle formed a “view obstructor” in relation to “inter-visibility” between the Appellant and the pedestrian (Blue, 928; Black, 688U). In Mr Johnston’s opinion, the Appellant was only able to see the Respondent when the unidentified vehicle broke and swerved and that the Appellant reacted in a reasonable amount of time, that is within 1.5 seconds of viewing the Respondent and commenced braking before impact (Blue, 924; Black, 667V-668O). In these circumstances, Mr Johnston was of the view that when the Appellant was first able to see the Respondent on the road, the impact and accident was imminent and unavoidable. Mr Johnston contended that the view of the Respondent was impeded by the unidentified car and that the accident was unavoidable irrespective of whether the Appellant was affected by alcohol (Blue, 936).

89 As there were limitations in the extent of the available evidence, analysis of the accident was predicated on various assumptions: that the vehicles in lane 2 and lane 3 were positioned in the centre of their respective lanes (Blue, 923); that the Appellant was travelling at approximately 55 km/h before the accident (Blue, 922; Black, 664N); that the braking of the car had slowed it to a speed of between 40 and 45 km/h at the time of impact with the Respondent (Blue, 922; Black, 661F); that the Respondent was crossing the road at a speed of 2.0 metres per second (Blue, 923; Black, 665T); and that the Respondent was crossing the road at a 90 degree angle (Blue, 936; Black, 692K-M).

90 In contrast, the report of Geoff Moir and Associates of 27 August 2001, written by Mr Geoff Moir, was prepared for the civil case for the Plaintiff (Blue, 762). Mr Moir presented a number of scenarios that sought to show that the pedestrian was within the Appellant’s peripheral field of vision for a considerable time before the collision and that there were a number of options open to a driver in the Appellant’s position to avoid the collision or at the very least to minimise the damage to the Respondent.

91 In an overview of the accident, Mr Moir noted that the impact between the car and the Respondent was severe and that the severity of the impact and the damage to the car indicated that the Appellant had not slowed his car by any significant margin before impact (Blue, 763). (That is supported by Mr Tsipiras’ evidence earlier noted (Black, 489) and not inconsistent with the Appellant’s account.) Mr Moir accepted that the Appellant had been travelling at a speed of 55 km/h (Blue, 764) before the accident. But he considered that the severity of damage could not support a conclusion that the emergency braking commenced by the Appellant when he actually sighted the pedestrian had slowed the car to a speed of 35 to 45 km/h (Blue, 767). Rather the evidence of the single skid mark and the damage to the Respondent and the car indicated an impact speed of 55 km/h (Blue, 767).

92 Another aspect of the Jamieson Foley report of which Mr Moir was critical, was the conclusion that the Respondent only became visible at a time when the collision was imminent and unavoidable. In contrast Mr Moir posited that the Respondent would have been visible to a driver in lane 3 as she was clearly within the peripheral vision range of a driver (see below for explanation). Then that, although the unidentified vehicle may have somewhat obstructed the view temporarily, the action of the unidentified driver in braking heavily and emergency swerving should have “pre-alerted” a driver in the Appellant’s position to the impending emergency (Blue, 768).

93 The main hypothesis of this report was that a sober, normally cautious and responsive driver would have been capable of reasonably responding to this emergency in a way that would have avoided impact with the pedestrian. The Appellant had a number of options open to him to avoid the incident, including braking to bring the car to a halt, as well as the ability to brake and then swerve around the Respondent in the same way that the driver of the unidentified car had done. Mr Moir also considered the contention that the accident was unavoidable. He contended that had the Appellant braked conscientiously upon seeing the unidentified car brake and swerve, such braking would have dramatically slowed the speed of the car and that the drop in speed would have substantially reduced the impact energy and force responsible for injuring the Respondent (Blue, 775).

94 The assumptions underpinning this formulation include: that the half cone of vision of a normal driver is 37 degrees and that when the Respondent was at the kerb about to commence her crossing she would have been at an angle of 12 degrees (Blue, 769; Black, 757O-S); Mr Moir asserted that a normal cautious driver would have been pre-alerted by this activity and would have, if not commenced braking, removed his or her foot from the accelerator and covered the brake (Blue, 771; Black, 756W-757D). Mr Moir, thus asserted that a driver who had taken heed of the warnings given would have been able to react in a period of 0.3 to 0.5 seconds and thus could either have stopped the vehicle, or braked and then swerved to avoid impact (Blue, 771). It was also asserted that it was likely that the Appellant’s concentration as a driver was diminished and that his field of vision may have been reduced because of the consumption of alcohol (Blue, 769). It was suggested that the Appellant may have succumbed to extended eye dwell such that his ability to detect and then to respond to activity at the side of the carriageway may have been below that of a normal driver (Blue, 769). It was also suggested that because of the level of his blood alcohol concentration, the Appellant’s ability to make a correct decision as to the best course of evasive action and then to implement it may have been impaired (Blue, 769). Mr Moir was prepared to accept that the Respondent, as she crossed the road, may have been moving at a maximum speed of 2.0 m/s, but that more realistically, the range of speed was between 1.5 m/s and 2.0 m/s (Blue, 767). To support this view, Mr Moir pointed to the possibility that, although the Respondent may have appeared to be hurrying because of her possible state of intoxication, her gait may have been inefficient (Blue, 767).

95 The most significant points of difference between the accident reports led by the Respondent and the Appellant related to the amount of time in which the Appellant would have been able to detect the Respondent entering and moving across the laneways, the likely reaction time of the driver and what would have been an appropriate evasive response. Mr Johnston and Mr Moir pose altogether different views of the ability of the Appellant to detect the Respondent. Mr Johnston was of the view that the time of exposure was limited to immediately before the accident when the unidentified car swerved from lane 2. In contrast, Mr Moir’s opinion was that the Respondent would have been visible to a driver in lane 3 when she was at the kerb because the angle that she would have been at would have been within the ordinary range of peripheral vision. Second he posited that she would have been visible through the unidentified car, even though there may have been instances in which visibility was obstructed and that she then again became visible when the unidentified car swerved (Blue, 768). Mr Johnston’s report states that it would have been difficult for the Appellant in lane 3 to have seen the pedestrian at the kerb and that the drivers in lane 2 would have had a better view (Blue, 938). This issue of when the ordinary prudent driver would have first detected the pedestrian in the position of the Respondent is crucial. These scenarios are based on assumptions as to facts about the speed at which she was walking and the angle at which she crossed the road.

96 The reports also differ on what would be a reasonable reaction time in the circumstances. Mr Johnston posited 1.5 seconds as a reasonable reaction time from when the Appellant first detected the Respondent after the driver of the unidentified vehicle reacted (Black, 676M-R). Support for such a time was said to be found in various experimental test results and their application to the circumstances here, contending that the response required in this case was complex (Blue, 939). In contrast, Mr Moir adopted a reaction time of 0.3 to 0.5 seconds upon seeing the pedestrian. The reasoning behind the adoption of this reaction time can seemingly be found in one of Mr Moir’s criticisms of Mr Johnston’s time:

“The reaction time of … the Jamieson report … failed to allow for the very much shorter reaction time that was appropriate for a driver who was already braking or who had the foot on the brake pedal in readiness for braking. The 1.5 second reaction time was quite inappropriate for a driver mentally and physically prepared to respond to a possible emergency.” [Blue, 771]

97 Thus underpinning Mr Moir’s shorter reaction time is the conclusion that a prudent driver in the position of the Appellant would have sighted the pedestrian and have been aware of, or “pre-alerted” to, the possibility of the impending emergency (Black, 753M-P). In Mr Johnston’s report the key assumption he makes in this regard is that the prudent driver was unaware of any impending emergency and had not detected the pedestrian until after the unidentified car had swerved.

98 The Respondent claims that Mr Johnston’s reaction time of 1.5 seconds was inappropriate and not in conformity with the Olsen study quoted as support for this figure (Summary of Evidence of Geoff Moir prepared by Respondent). In contrast, Mr Johnston for the Appellant contended that the reaction time of 0.3 to 0.5 posited by Mr Moir was flawed for this case, as it was a reaction time for response to a simple stimulus and not for reaction to complex events (Blue, 939; Black, 674H).

99 The third point of departure in the reports is the likely responses that were available to avoid or at the very least minimise the danger. Mr Johnston contended that because of the circumstances created by the Respondent and that the driver’s view of her movement across the road was obstructed, there was very little that could have been done to avoid the accident. Mr Johnston contended that the action of the driver in applying the brakes to slow the car was the only available response and that as the Appellant had done this he had taken all steps that were available to him at that point (Blue, 941). Important to this conclusion were the two previous points concerning a 1.5 second reaction time and that the Appellant could only have become aware of the Respondent after the unidentified car had braked heavily and then swerved (Black, 676M-R).

100 As Mr Moir’s report is based on opposing assumptions, not shown to be unreasonable, about reaction times and when the driver should have been alerted to the Respondent’s conduct, his conclusion greatly differs. He concludes that there were a number of alternate courses of action. He contended the options available could have easily avoided the accident or curtailed the damage to the Respondent. Mr Moir supposed that there would have been sufficient time for the Appellant to have safely brought the car to a halt or that he could have performed a manoeuvre where he braked and then swerved much in the same way that the driver of the unidentified vehicle had done. Finally he posed that even if the Appellant had only seen the pedestrian at the last moment, he should have been alerted to the danger by the action of the unidentified driver and should have been able to slow the car to a much slower speed thereby reducing the magnitude of the impact.

101 Based on this consideration of the evidence, it is clear that the Appellant has not shown that the finding reached by the Trial Judge accepting Mr Moir’s conclusions over those of Mr Johnson was not open on the evidence. This does not settle the matter however. It is still necessary to consider whether the apportionment made by the Trial Judge is beyond challenge.

102 The Trial Judge was firmly of the view that it was mere speculation that the effects of an intoxicating substance were a cause of the Respondent’s actions in crossing the road. However, I agree with the Appellant’s submission that the mental condition of the Plaintiff and her ability to make a sensible and rational judgment were relevant to assessing whether she had departed from the standard of care expected of the reasonable pedestrian. The evidence of both Nurse McLeod and Ambulance Officer Callum Dickson was that the Respondent was intoxicated by some substance and that there was a considerable effect on her degree of mental alertness. Second, the fact that the Respondent had told the witnesses that she had consumed a number of Rohypnol tablets and her history of benzodiazepine abuse is indicative that it was more than mere speculation that the Respondent’s intoxication contributed to her choosing to cross the road in the manner that she did. In making the assessment as to the Respondent’s mental condition at the time of accident it was necessary to take into account the clear statements by witnesses as to the state of the Respondent immediately prior to the accident as well as her past history of benzodiazepine abuse. In failing explicitly to refer to this evidence the Trial Judge was in error.

103 However, to intervene, this Court must be of the view that the failure to advert to relevant evidence led to the Trial Judge’s apportionment of liability falling into error of the kind warranting appellate intervention. To make such an assessment it is important to consider more closely the Trial Judge’s apportionment.

104 Podrebersek (supra) holds that in making an assessment of contributory negligence it is necessary to consider, for both Plaintiff and Defendant, their respective shares of culpability by considering the relative culpability of each and the causal potency of the acts which caused the damage. Thus as a starting point the degree of departure from the standard of care of the reasonable driver and pedestrian must be considered. Then it is necessary to look to the relative importance of the acts of the parties in causing the damage.

105 In assessing the relative culpability of the Respondent, the starting point is that the Trial Judge found that the Respondent had been negligent is attempting to cross the road in the manner that she had. From the eye-witness evidence it is apparent that the Respondent acted in an unreasonable manner and that she acted without due regard for her own safety. The Respondent elected to cross the road in an area that was not marked for pedestrian crossings, she attempted to cross a major arterial road either by running or hurrying, she continued to cross the road even though another vehicle had to brake and swerve to avoid a collision and the Respondent should have seen the approaching vehicles. The Respondent’s actions involved a clear departure from the standard of care expected of a reasonable pedestrian to take care for his or her own safety (Tuebner v Humble (1963) 108 CLR 491 at 502; Schieb v Abbott (1999) 27 MVR 285 at 288; Clarke v Freund 1999 (29) MVR 361).

106 However, as was correctly identified by the Trial Judge the Appellant’s degree of departure from the standard of care expected of the reasonable driver was also significant. The Appellant elected to drive his car while in an intoxicated state which rendered him wholly unable to drive lawfully; the Appellant failed to detect the approaching pedestrian and he failed to take appropriate measures in reaction to the actions of other road drivers. It is well established that a driver is not expected to anticipate all irrational acts of other drivers and pedestrians. Yet in this case, that does not alter the fundamental finding that the Appellant’s conduct was admitted to be negligent; that it involved serious departure from the standard of care expected of a reasonable driver as he drove his vehicle while heavily intoxicated, and that he could and should with reasonable care have avoided the accident.

107 The issue of causal potency is one which here raises significant questions. The causal potency of the Respondent hurrying on to the road should not be understated. The submission of the Appellant’s counsel that the Respondent’s action of crossing the road was the immediate cause of the action is undoubtedly true. However, the action of the Appellant in driving a motor vehicle while intoxicated and unable to comply with the standard of care expected of a driver at all, was no less a cause of the accident and the consequent damage. Counsel for the Appellant directed the Court’s attention to a number of cases in which the pedestrian has been held to be more culpable than the driver. Noting the cautionary principle from Teubner v Humble (supra) at 503 concerning the inappropriateness of using other decisions on apportionment as a guide and that the cases referred to did not involve such consistent and serious departures from the standard of care by both the driver and the pedestrian, I do not consider they offer any real guidance for the present case.

108 However, I do consider that, the Trial Judge nevertheless erred significantly in his assessment of apportionment, even allowing the high degree of latitude which should properly be afforded to that determination, more especially in matters of apportionment. I consider in consequence that despite the strictures on appellate intervention in such a case, the apportionment does not reflect the substantial degree of culpability of the Respondent for the accident. The Respondent had been warned by Nurse McLeod and the ambulance officer that she was not able to properly look after herself, yet she nevertheless chose to cross the road and did so in a manner which showed that she had very little, if any, regard for her own safety. The Trial Judge failed to advert to this relevant evidence. This led him into error. That culpability of the Respondent however, does not remove the impact of the serious breach by the Appellant though it reduces it significantly. In the end, I consider that the proper apportionment is one of equal responsibility and that this is one of those rare cases where appellate intervention is justified in an apportionment case.

Conclusion

109 I consider that a proper apportionment of liability is 50% to the Appellant and 50% to the pedestrian.

DAMAGES

Introduction

110 The Appellant has attacked the damages part of the judgement on a number of bases. First, the Appellant submitted that the Trial Judge failed to give adequate reasons for his findings as to damages in favour of the Plaintiff and against the Defendant. Second, that the Trial Judge erred in not applying vicissitudes of life in relation to specific awards, owing to the fact that she has Hepatitis C. Third, the Appellant takes issue with the amounts awarded under specific heads of damages as being excessive, based on wrong principles or as not being supported by evidence. In the event that this Court decides that the Trial Judge did err in the assessment of damages, it is then necessary to consider whether there is sufficient material available for this Court to reassess damages, or whether a new trial should be ordered. The Appellant presses the former. The Respondent, while defending the original damages determination submits that if it is not to stand, then a new trial should be ordered. I will return to that issue later. This will be in light of the degree to which, if at all, the trial judge’s assessment of damages must be disturbed and, if it is to be disturbed, the capacity of this Court to assess damages for itself and the desirability of doing so.

111 The Appellant contests the amount awarded by the Trial Judge under a number of heads of damages. These are: the Griffiths v Kerkemeyer (1977) 139 CLR 161 award in relation to past, future and vacation care; house modification; taxi transport; handyman assistance; economic loss for past and future years, superannuation and long service leave; future medicals; and the need for a case manager.

112 Before considering the Trial Judge’s award and reasons and the submissions put by the Appellant and Respondent, it is necessary to consider the nature and scope of the duty of this Court to review factual findings made at first instance in the context of a damages award. It is trite law that an appellate court should act with restraint when considering whether to interfere with findings based on a Trial Judge’s assessment of the credibility of a witness, more especially when it comes to damages. The mere reading of the transcript and the written reasons of the Trial Judge cannot replace the advantages enjoyed by the Trial Judge in assessing the witnesses during the course of a trial: Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; Jones v Hyde (1989) 63 ALJR 349; Rosenberg v Percival (2001) 205 CLR 434. An appellate court ought not interfere with credibility findings, here basing a damages award, unless satisfied that the Trial Judge palpably misused the advantage of seeing and hearing the witnesses or that the advantage could not be sufficient to explain the Trial Judge’s conclusion: Abalos v Australian Postal Commission (supra) at 178-179; Devries v Australian National Railways Commission (supra). The Court may interfere if it determines that the Trial Judge’s findings are inconsistent with, or are glaringly improbable having regard to, incontrovertible evidence: Agbaba v Witter (1977) 14 ALR 187. However, the appellate court is not excused from weighing conflicting evidence, while giving full weight to the advantages enjoyed by the trial judge and drawing its own inferences and conclusions; Warren v Coombes (1979) 142 CLR 531; State Rail Authority of NSW v Earthline Construction (1999) 73 ALJR 306, per Kirby J at 324.

113 In cases such as the present where the Court is asked to review the specific factual findings of the Trial Judge which underlie the discretionary determination of damages, the Court will not interfere with the primary factual findings if the findings made were reasonably open on the evidence: see for example Damberg v Damberg [2001] NSWCA 87; Williams v The Minister for Aboriginal Land Rights Act 1983 and the State of NSW [2000] NSWCA 255. In Williams v The Minister for Aboriginal Land Rights Act 1983 and the State of NSW (supra), Heydon JA delivering judgment for the court gave a detailed exposition of the law in this area. Many of his comments have particular application here, as the Appellant is seeking the Court to undertake a detailed review of all of the evidence in the case. Heydon JA held at [60] that the Appellant “bore the burden in the appeal not merely of showing that on the facts her contentions might be available or even correct, but of showing that the Trial Judge’s conclusions ought to be reversed”. Heydon JA then favourably referred to the Full Federal Court decision of Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 369 where it was held:

“... the court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the Trial Judge and do not support the judgment. The court must be satisfied that the judgment of the Trial Judge is erroneous and it may be so satisfied if it reaches the conclusion that the Trial Judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the Trial Judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made.”

114 In dismissing the appeal in Williams v The Minister for Aboriginal Land Rights Act 1983 and the State of NSW, Heydon JA highlighted that the Appellant’s approach was inadequate to warrant appellate court interference with the judgment at first instance. The impugned approach was characterised by His Honour as [61]:

“The Plaintiff's approach sometimes invited the court to survey for itself, afresh, all the evidence on particular points and arrive for itself at particular conclusions about them, without essaying the necessary task of positively demonstrating that the Trial Judge was wrong. The Plaintiff's approach also paid insufficient regard to the difference between, on the one hand, pointing to difficulties in the Defendants' path of establishing matters which they wished to contend for and, on the other, pointing to sufficient evidence to permit an inference to the contrary of the Defendants' contention”.

194 The second difficulty with the assessment by the Trial Judge is that he accepted that she would be able to earn in excess of the average wage of female shop assistants on a permanent basis. Such a finding did not include consideration of the fact that the Respondent only has 3 months experience in such a position (although it is unskilled) and that that work experience was in 1985 and 1986. Additionally, if money handling is involved in such positions, trust by the employer is required. The fact that the Respondent has a history of criminal activities would unfortunately significantly reduce her opportunities of obtaining such employment. Further at the time of the accident the Respondent was on the methadone programme. These various factors indicate that the Respondent would have great difficulty in competing successfully in the employment market.

195 In Yip v Zreika [2001] NSWCA 446, the Court of Appeal reassessed damages for economic loss awarded to an individual who had a relatively poor employment record. In that case the Trial Judge had assessed economic loss on the basis that the Plaintiff would be employed for 42 years without break. The court considered that such an assessment was fanciful as there was little evidence to support the conclusion that the Plaintiff would have settled down and obtained secure employment. The majority of Mason P and Young CJ in Equity allowed a third of that period on the basis of the Plaintiff’s sporadic work history. This analysis is apposite to this case. The Respondent’s work history indicates that she would have had difficulty in obtaining employment at the rate of pay allowed by the Trial Judge and for the period of time allowed by the Trial Judge. Accordingly, this ground of appeal must be allowed; its consequence remains to be considered.

F. Future medicals

196 The Trial Judge accepted the future medical calculations as set out in the Furzer Crestani report based upon the evidence to be led by the Respondent at trial. It was approximately $69,000. The Appellant points out that included in this calculation was the cost of an occupational therapist and occupational rehabilitation costs of $9,000, which would overlap with the case manager claim. The Appellant submits that although the overlap had been pointed out, it was not resolved by the Trial Judge. Second, the Appellant submits that there was no need established for knee surgery, yet the Furzer Crestani report allows for the costs of two such operations. Third the Appellant had sought to challenge the allowance made for physiotherapy claims. The Respondent had replied that the claims were supported by evidence.

197 The Appellant’s claim under this head must be successful. The failure of the Trial Judge to consider those matters pertaining to this head of damage, mean that he has not entered properly into that issue. Evidence and argument was led which was contrary to that accepted by the Trial Judge and His Honour made no reference to it at all.

G. Case manager

198 The Trial Judge was of the view that the Respondent would require the services of a case manager who was independent of her daily carer for two hours per fortnight. This allowance was based on the Trial Judge’s acceptance of the Furzer Crestani report. The Appellant conceded that the Respondent would have some need for a case manager, but that the claim was excessive. The Respondent submitted that the allowance was based on the evidence of Dr Buckley. This ground of appeal must also be successful for the reasons previously set out. The mere acceptance of the Furzer Crestani report without consideration of the evidence and issues pertaining to this head of damage gave rise to appellable error.

Vicissitudes of life

199 The Appellant claims that the Trial Judge when assessing damages should have discounted a percentage from all awards for vicissitudes of life owing to the fact that the Respondent has Hepatitis C. The essence of the Appellant’s contention is that Hepatitis C is a serious disease that has potentially life threatening consequences. There is always present the possibility that the disease will become active in the future and such consequence would significantly reduce the Respondent’s life expectancy and income earning capacity. The Appellant submitted that the failure of the Trial Judge to take this issue into account led to error, requiring appellate court intervention by applying a vicissitudes discount to all of the heads of damages.

200 The Trial Judge allowed a discount of 30% for vicissitudes of life in discounting the amount awarded for past income loss, future income loss and superannuation (Red, 77C). The conventional figure which is discounted for vicissitudes in NSW is 15%. The Appellant submitted that due to the Plaintiff’s Hepatitis C a 15% discount for vicissitudes should also be applied to all of the heads of damages. The basis of this contention is that evidence led by the Appellant at trial was that Hepatitis C is a serious medical condition which may have life threatening consequences. The Appellant submitted that it was necessary that the chance that the Hepatis C may become active be included in the assessment of damages (Orange, 47). However, the Appellant admitted that in most cases vicissitudes are only applied to economic loss awards and not to the awards based on life expectancy as such figures are based on the life tables, which have included a component for vicissitudes. But the Appellant submitted that because there was a chance of the Hepatitis C becoming active, it must be taken into account pursuant to the principle from Malec v JC Hutton Pty Limited (1990) 169 CLR 638. The Appellant did not challenge the use of the normal life expectancy table to determine life expectancy but did contend that it was necessary that a discount apply to all of the heads of damages.

201 In “Assessment of Damages for Personal Injury and Death” Professor Luntz, comments that “apart from death the four major contingencies that exposes employees to risk of loss of income are sickness, accident, unemployment and industrial disputes.”: at 381. The discussion precedes on the basis that vicissitudes relate only to awards for future economic loss. However, it is made clear that it is the circumstances of the case affects what is to be considered.

202 This may have been a case in which it is appropriate to consider the chance that the Plaintiff’s disease will become active. However there was a dearth of evidence about the likely impact of hepatitis C on the Plaintiff. There was no specific expert that was called to give evidence about a likely prognosis or the nature of the chance of the vicissitudes developing. Second, the trial judge explicitly considered this in his judgment and his determination of this issue should not be disturbed.

Outcome

203 The appellable errors earlier identified led to the question, what should follow: a new trial, or reassessment by this Court.

204 The Court of Appeal has power to substitute its own verdict for a judgment which it sets aside. Section 107 of the Supreme Court Act provides:

“Where, in an appeal to which this section applies:

(a) the Court of Appeal would, but for this section set aside the verdict, finding, assessment or judgment and order a new trial on an issue of the amount of debt or damages or of the value of goods,

(i) without seeing or hearing the Plaintiff or Defendant or other witnesses, or

(i) the parties consent to the exercise of the powers given by this section,

(ii) it appears to the Court of Appeal to be desirable to exercise the powers for the purpose of avoiding a multiplicity of trials, or

(iii) it appears to the Court of Appeal that, as a result of an error of law on the part of the Trial Judge or (where there has been a trial with a jury) a manifest error on the part of the jury, some item of debt or damages or valuation has been wrongly included in or excluded from the assessment,

205 The policy underlying this section is that the Court of Appeal should assess damages where it is satisfied that it is able to do so. However, in exercising this power it is imperative that the court is of the view that it is able to properly assess damages and that it has sufficient material for such assessment: General Insurance Office of New South Wales v Evans (1990) 21 NSWLR 564 at 577-578. Where such assessment is contingent on credibility findings, the court may not be in a position to undertake the reassessment: Emery v Wilson (1974) 28 ALJR 131 at 132 Shehata v Montague L Meyer Pty Ltd (1976) 51 ALJR 77 at 79-82; Agbaba v Witter (supra) at 506. Likewise if the evidence of witnesses is conflicting and the appeal court cannot resolve the conflict, then the matter will need to be remitted for a new trial.

206 In determining whether this is an appropriate case for the Court to reassess damages, the submissions of the parties on re-assessment should be taken into account in determining the appropriate course. A request by both parties for the appellate court to make the assessment, with its evident saving of costs as against a new trial, indicates that the parties believe that there are no questions of credibility which would prevent the court from reassessing damages and that the quantum of damages can be reassessed based on the appeal papers. If that course is urged against opposition from the other party, that requires the court to make its own assessment by reference to the matters set out in s107.

The views expressed by the litigants

207 The Appellant was of the view that this was a case in which it would be appropriate for this Court to reassess damages (see Prayer for Relief 2 in Notice of Appeal). Mr Hoeben SC for the Appellant submitted that this was a case where there were sufficient errors in principle to enable this Court to intervene and without there being any real need to assess matters such as credit or otherwise being compelled to proceed by ordering a retrial for the other usual reasons why a re-hearing is ordered (appeal transcript 9 September 2002 T, 46.25-.30).

208 The Respondent resisted the adoption of such a course based on the submission that this was not a matter where it was appropriate for the Court of Appeal to reassess damages. Mr McCarthy QC for the Respondent submitted that if there needed to be a reassessment of damages, the matter should be remitted to the District Court for a new trial. It was submitted that critical to any assessment of damages would be an evaluation of the Respondent, as well as the other witnesses across many issues (appeal transcript 29 November 2002, T, 246.1-.15).

This case

209 For this Court to be entitled to substitute its own verdict for that of the Trial Judge and to reassess damages for itself, this Court must have sufficient material to make such reassessment. The Respondent contends that this is a case in which it would be important for the court assessing damages to observe the witnesses as opposed to reliance on the transcript and other evidence. However, I do not consider that such reassessment requires disturbing the findings of the Trial Judge on the credibility of the Plaintiff. Nor does it require any different assessment of the two lay witnesses Messrs Sengos and Frost primarily relied upon by the Trial Judge. The errors identified go rather to the inferences drawn from the Trial Judge’s assessment of the credibility of these witnesses informed by a proper engagement with the issues in those instances where the Trial Judge has failed to do so. Moreover, the supposed conflicting evidence of the two companions is minor, and readily resolved by consideration of the transcript of their evidence. In addition, I would not disturb the Trial Judge’s decision not to give weight to the evidence of the Respondent as to her supposed competencies but rather to look to the two lay witnesses.

210 I am therefore satisfied, in terms of s107, that this Court can and should carry out such reassessment of damage as is necessitated by the appellable errors identified. I consider that it properly appears that it is desirable to exercise that power for the purpose of avoiding a multiplicity of trials, with their attendant additional costs.

Griffiths v Kerkemeyer – past, future and vacation care

211 In relation to past care, a number of errors were identified. I consider that it is appropriate to set aside the award by the Trial Judge. I would accept the figure of $75,000 put forward by the Appellant. This figure is an appropriate award as it takes into account that some of the gratuitous services from the two male companions would have been provided in any event, thus satisfying s72(6) of the Act.

212 I consider that the Trial Judge’s assessment of future care was excessive taking into account the actual performance of the Respondent since the accident and, though secondary, such of the expert evidence as bears upon that. The evidence presented from Messrs Sengos and Frost illustrates that the Respondent has genuine difficulties with household activities and preparing her main meals. The evidence established that some of the difficulties presented safety hazards for the Respondent and that the Respondent was at times ill equipped to deal with many ordinary household activities and dangers. Accordingly, I consider that it is clear that the Respondent requires daily care in the amount of three hours per day, seven days a week for the remainder of her life. On the figures accepted by the Trial Judge this equates to $497,763.

213 The allowance for vacation care also requires reassessment. I consider that the Appellant’s submission on reassessment should be accepted in full, with the amount to be allowed being $47,950. There was no evidence to indicate that in the years immediately preceding the accident that the Respondent had taken a holiday nor did she have any plans to take any holidays. In view of this fact and the Respondent’s pre-accident lifestyle there is no evidence to support a higher award.

Case manager

214 The Appellant submitted that to some extent the services of the case manager would be a duplication of the services provided by a carer in attendance for six hours per day. This is because both Dr Buckley and Ms McMaster gave evidence that one of the services to be provided by the carer would be to facilitate, encourage and supervise the Respondent in undertaking a variety of tasks for herself. As the allowance for future care has been reduced, it would not be appropriate to alter the Trial Judge’s allowance of $93,005, which was for the attendance of a case manager for two hours per fortnight.

House Modification

215 I consider that the allowance for house modification should be set aside and no allowance should be given. This is because the initial allowance was based on the purported need for a carer to attend for prolonged periods. As such need has not been made out, there can be no basis to support an award for house modification.

Taxi transport

216 I consider that the allowance for taxi transport is excessive considering the Respondent’s post accident lifestyle and that she has made little use of taxi’s since the accident. The Appellant properly conceded that because of the Respondent’s mobility problems there is some need for use of taxis. As there is little evidence indicating what the average use of taxis by the Respondent would be and the fact that she has been reliant on and has access to public transport, the Appellant submitted that an allowance of $50 a week would be appropriate. It must be stressed that the fact the Respondent has not previously been using taxis should not be detrimental to her claim. There may be many reasons, not least of which is that her financial circumstances have precluded her from using such a service. I accept that there is a need for the Plaintiff to use taxi transport at times and consider that a figure of $50 per week is adequate to cover the Respondent’s needs, recognising that the Respondent also has the capacity to use public transport. The allowance for this becomes $48,950.

Handyman assistance

217 I consider that the allowance made by the Trial Judge for handyman assistance was unreasonably high. The amount of assistance recommended by Ms McMaster appears more reasonable in that it takes account of the varying needs of the Respondent throughout the course of the year. The allowance should be based on that assessment of need. Allowance should be made for handyman assistance based on two hours per fortnight in summer and two hours per month in winter. Based on the average assessment of the cost for such services at $22.00 per hour (see Dial An Angel Report, Blue, 728), allowance of $10,788.58 should be substituted.

Economic loss for past and future years, superannuation and long service leave

218 Before the accident the Respondent had a poor employment record and at the time of the accident was trying to gain employment. In addition, she had a criminal record and was on the methadone programme. The Appellant submitted that the Trial Judge erred in rejecting the Appellant’s tender of the Respondent’s disciplinary record whilst an inmate of Mulawa Detention Centre. I am of the view that the Trial Judge did err in refusing to admit this record to the extent that it went to show the Respondent’s rebelliousness but agree he was entitled to give it little or no weight. In the Respondent’s favour however was that whilst in prison she had undertaken a TAFE typing course and a child care course and had entered a methadone programme.

219 Nevertheless even without the accident there would have been real and significant obstacles to the Respondent being able to secure long-term employment, based on her poor employment record; her period in prison and her health concerns. As the previous reasoning illustrates, the chance of the Respondent being unemployed for substantial periods of time must be taken into account in assessing economic loss. This chance may be taken into account in one of two ways. First, the vicissitudes deduction may be such as to take into account the chance of the Respondent being unemployed for periods of time. Or, alternatively, the court may take into account the likelihood of unemployment by reducing the period of time for which the Respondent can be compensated for lost income.

220 In the Court below the Plaintiff accepted that vicissitudes of 30% were required. The generally accepted level of vicissitudes in the ordinary case is 15%. It is well established that the Court has the discretion to increase or decrease the vicissitudes discount dependant on the circumstances of each case (see for general discussion, Nestle Australia Ltd v McDougall, (NSWCA, 24 June 1998, unreported). In Nestle v McDougall (supra), Beazley JA referred to cases where vicissitudes discounts of 40% have been regarded as high. In this case, the Appellant posited that the vicissitudes discount should be at 65%. The basis for this extraordinarily high vicissitudes rate is that it very likely that the Respondent would not have obtained secure employment. As submissions were not received on any alternate basis for reducing the award I will proceed to reduce damages by increasing the vicissitudes to take into account the above mentioned facts and recognising that such adjustments cannot be made with precision. I am of the view, noting both the favourable and unfavourable subjective and objective factors, that the vicissitudes in this case should have been assessed at around 50%.

221 Second, it is important to consider what the likely income rate the Respondent would have received had she gained employment. The only legitimate paid job that the Respondent previously had was working as a shop assistant. The Respondent had not been employed in that field of work for many years and so there is no information of what she would have actually expected to earn. The qualifications earned by the Respondent whilst she was in prison were some years old, would have required updating and in any event would have only offered employment at best in semi-skilled fields. Accordingly it is necessary to look for an approximate guide to the statistical average income earnings of females employed as a shop assistant. The average income used in the Furzer Crestani report, termed scenario 1 is an appropriate source of this information.

Past

222 Based on the Furzer Crestani report the hypothetical past earnings forgone based on average weekly earnings of shop assistants was $115,243. This amount requires reduction by 50% to take account of the vicissitudes level assessed above and leads to an award of $57,621.50 being substituted.

Future

223 The Furzer Crestani report for scenario 1 assessed future loss of income at $390,469. Applying a vicissitudes rate of 50% results in an allowance of $195,234.50 being substituted.

224 Applying this reasoning to the award for lost superannuation, the relevant allowance to be made is $33,757.50. The award for long service leave is $1,261.

Future medicals

225 I consider that the Trial Judge’s allowance of $68,473 should be set aside and in lieu an allowance of $52,002 should be made. This reduced figure is to remove the possibility of duplication of services by not providing for the services of occupational rehabilitation. Such services should be covered by the services of the case manager and occupational therapist for which the full award claimed by the Respondent has been given. Second, the figure must be reduced so that there is compensation for only one knee surgery. The Appellant posited $14,000 would be a fair allowance, which I accept.

Summation as to Reassessment

226 The result of the above reassessment can be conveniently set out in the tabular summary below.

Head of Damages	Judgment amount	Appellant amount	Proposed in Appeal Judgement
Non Economic Loss	$236,800.	$236,800.	$236,800. This head of damages was not challenged.
Griffiths v Kerkemeyer Past	$83,204.	$75,000.	$75,000. Griffiths v Kerkemeyer claim for past care is discounted to take into account that some of the care claimed would have been provided in any event. The figure advanced by the Appellant is accepted as appropriate.
Griffiths v Kerkemeyer Future	$995,526.	$331,842.	$497,763. Griffiths v Kerkemeyer claim for future care has been discounted by 50%. This is to reflect the fact that the award by the Trial Judge based on 6 hours care per day is excessive. On reassessment, I have held that 3 hours care per day is appropriate. In calculating the allowance have used the figures adopted by the Trial Judge and reduced them by 50%.
Griffiths v Kerkemeyer Vacation	$207,425.	$47,950.	$47,950. Griffiths v Kerkemeyer claim for vacation care has been reduced to reflect the fair award for vacation care is two weeks annually until the Respondent is 70. The figure advanced by the Appellant in this respect is accepted.
House modifications	$75,000.	0.	0. The challenge to the allowance for house modification is entirely successful. Based on the reduced hours of future care, no need has been established to make house modifications
Future equipment	$35,605.	$35,605.	$35,605. This head of damages was not challenged.
Exercise facilities	$12,668.	$12,668.	$12,688. This head of damages was not challenged.
Taxi transport	$93,005.	$48,950.	$48,950. The challenge to the allowance for taxi transport was successful and the amount advanced by the Appellant was accepted. This figure is based on a $50 per week allowance for taxi transport.
Handyman assistance	$86,152.	$10,000.	$10,788.58 The allowance for handyman assistance was reduced to be in conformity with the regime proposed by Ms McMaster. To reach this assessment the figure from the Dial-an-Angel Report (Blue Book 728) of $22 per hour was used as the hourly rate for such services and the multiplier of 979 from the Furzer Crestani report was adopted. The allowance is for 2 hours handyman assistance a fortnight in summer and 2 hours handyman assistance per month in winter.
Past income loss	$96,383.50	$40,335.	$57,621.50 The allowance for past economic loss has been reduced as the deduction for vicissitudes of life has been increased to 50%. The base figure for this calculation was past economic loss under scenario 1 (average earnings for female shop assistants) in the Furzer Crestani report of $115,243. The 50% vicissitudes were then deducted (Blue Book 688).
Future income loss	$316,850.	$115,722.	$195,234.50 The allowance for future economic loss has been reduced as the deduction for vicissitudes of life has been increased to 50%. The base figure for this calculation was future economic loss under scenario 1 (average earnings for female shop assistants) in the Furzer Crestani report of $390,469. The 50% vicissitudes were then deducted (Blue Book 689).
Superannuation loss	$55,872.5	$20,085.	$33,757.50 The superannuation allowance was based on the Furzer Crestani allowance of $67,515 and then reduced by 50% for vicissitudes (Blue Book 690).
Long Service Leave	$2,105.	$618.	$1261.50 The long service leave allowance was based on the Furzer Crestani scenario 1 calculation of $2522, less 50% for vicissitudes (Blue Book 691).
Past Medicals	$141,283.13	$141,283.13	$141,283.13 This head of damages was not challenged.
Future Medicals	$68,736.5	$22,720.	$52,002. This allowance has been reduced. The cost assessment of future medicals in scenario 1 in the Furzer Crestani report was generally accepted (Blue Book 695). Scenario 1 presented future medical costs as $90,435. The Trial Judge disregarded the allowance for a lumbar fusion, this was not challenged. Additionally, the allowance of $21,471 for knee surgeries is to be disregarded and in lieu, an allowance of $14,000 is to be given. The allowance of $9000 for occupational rehabilitation is to be disregarded, as it would be a duplication of services already provided for.
Case manager	$93,005.	$46,503.	$93,005. The challenge to this award was not successful.
Totals	2,599,620.6	1,186,081.1	$1,539,709.70

CONCLUSION

227 I would propose the following orders:

2. The Trial Judge’s assessment of contributory negligence be set aside. In lieu thereof order that contributory negligence be assessed at 50% to the Plaintiff and 50% to the Defendant

3. The Trial Judge’s assessment of damages be set aside. In lieu thereof damages assessed at $1,539,709.70.

4. Verdict entered for Plaintiff in the amount of $769,854.85

228 I would propose that costs be separately addressed, after hearing from the parties. I note that no appeal was brought in relation to what the Trial Judge determined in relation to interest on the damages award.

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Last Modified: 06/17/2003

CITATION:	Jones v Bradley [2003] NSWCA 81 revised - 11/06/2003
HEARING DATE(S):	09/09/2002, 10/09/2002, 28/11/2002, 29/11/2002
JUDGMENT DATE:	16 April 2003
JUDGMENT OF:	Meagher JA at 1; Beazley JA at 2; Santow JA at 3
DECISION:	Appeal allowed.
CATCHWORDS:	CONTRIBUTORY NEGLIGENCE - apportionment of responsibility - whether Trial Judge's discretionary assessment of contributory negligence miscarried - where actions of both the plaintiff and defendant involved serious and substantial departures from standard of care - where actions of both the plaintiff and defendant involved a significant degree of causal potency - NEGLIGENCE - assessment of damages - whether Trial Judge's discretion in assessing damages miscarried - scope of obligation to give reasons - whether it was appropriate for the appellate court to reassess damages - Griffiths v Kerkemeyer allowance - lost earning capacity allowance - home modification allowance - taxi transport allowance - handyman assistance allowance - future medical care allowance - case manager allowance
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Agbaba v Witter (1977) 14 ALR 187 Beale v GIO (1997) 48 NSWLR 430 Biogen Inc v Medeva plc [1997] RPC1 Clarke v Freund 1999 (29) MVR 361 Damberg v Damberg [2001] NSWCA 87 Derrick v Cheung (2001) 181 ALR 301 Devries v Australian National Railways Commission (1993) 177 CLR 472 Emery v Wilson (1974) 28 ALJR 131 Gamser v Nominal Defendant (1977) 136 CLR 145; 13 ALR 387 General Insurance Office of New South Wales v Evans (1990) 21 NSWLR 564 Flanery v Halifax Estate Agencies [2001] 1 WLR 377 Fuller v Galvin Incorporated, SCNSWCA, 7 April 1995 House v The King (1936) 55 CLR 499 Jones v Hyde (1989) 63 ALJR 349 Malec v JC Hutton Pty Limited (1990) 169 CLR 638 Miller v Jennings (1954) 92 CLR 190 Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 Moran v McMahon (1985) 3 NSWLR 700 Moylan v The Nutrasweet Company [2000] NSWCA 337 Nestle Australia Ltd v McDougall, (NSWCA, 24 June 1998, unreported) North Sydney Council v Lygon (1995) 87 LGERA 435 Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492 Rosenberg v Percival (2001) 205 CLR 434 RT & YE Falls Investment Pty Ltd v NSW [2001] NSWSC 1027 Schieb v Abbott (1999) 27 MVR 285 Shehata v Montague L Meyer Pty Ltd (1976) 51 ALJR 77 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 State Rail Authority of NSW v Earthline Construction (1999) 73 ALJR 306 TCN Channel Nine Pty Limited v Henry Alfred Anning [2002] NSWCA 82 Tuebner v Humble (1963) 108 CLR 491 Van Gervan v Fenton (1992) 175 CLR 327 Warren v Coombes (1979) 142 CLR 531 Wilkes v Bradford Kendall Ltd (1962) 79 WN (NSW) 850 Williams v The Minister for Aboriginal Land Rights Act 1983 and the State of NSW [2000] NSWCA 255 Wilson v Peisley (1975) 7 ALR 571; 50 ALJR 207 Yip v Zreika [2001] NSWCA 446
PARTIES :	Edward John JONES (Appellant) Emma Ward BRADLEY (Respondent)
FILE NUMBER(S):	CA 41050/01
COUNSEL:	C Hoeban (Appellant) J McCarthy, QC/ P S Jones (Respondent)
SOLICITORS:	Lee & Lyons (Appellant) Colin Daley Quinn (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2140/99
LOWER COURT JUDICIAL OFFICER :	Dent DCJ