Keating v Rechichi - [1999] WASCA 97

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: KEATING -v- RECHICHI [1999] WASCA 97

CORAM: WALLWORK J
OWEN J
PARKER J

HEARD: 21 MAY 1999

DELIVERED : 28 JULY 1999

FILE NO/S: FUL 171 of 1998

BETWEEN: IAIN LEIGHTON KEATING
Appellant
AND
ANDREW DINO RECHICHI
Respondent

Catchwords:

Negligence - Motor vehicle accident - Intersection collision - Contributory negligence - Trial Judge's assessment upheld - Decided on facts

Damages - Motor vehicle accident - Whether appellant would have continued to earn at pre-accident rate - Trial Judge carefully assessed evidence - Appeal and cross-appeal dismissed

Legislation:

Nil

Result:

Appeal and cross-appeal dismissed

Representation:

Counsel:

Appellant: Mr D R Clyne
Respondent: Mr K N Allan

Solicitors:

Appellant: Evangel Taylor
Respondent: K N Allan

Case(s) referred to in judgment(s):

Morris v Zanki (1997) 18 WAR 260
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Sibley v Kais (1967) 118 CLR 424
Wynbergen v Hoyts Corporation Pty Ltd (1998) 72 ALJR 65

Case(s) also cited:

Bowen v Tutte (1990) ATR 81-043
Bresatz v Przibilla (1962) 108 CLR 541
Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997
Davies v Day (1995) 22 MVR 481
Jones v Dunkel (1958-1959) 101 CLR 298
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
State Government Insurance Commission v Toomath, unreported; SCt of WA; Library No 960218; 24 April 1996
State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 396; (1999) 160 ALR 588
Thomas v O'Shea (1989) ATR 80-251
Wade v Allsop (1976) 10 ALR 353
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485

WALLWORK J: The appellant appeals from a judgment which was pronounced in his favour against the respondent in the District Court at Perth on 16 October 1998 pursuant to which he was awarded the sum of $455,918, inclusive of workers compensation payments which he had received. He appeals against the judgment on both the questions of liability and damages.
The first ground of appeal is that the learned trial Judge was wrong in finding that the appellant was guilty of contributory negligence to the extent of 10 per cent.
The facts were that the appellant had been driving a Mini motor vehicle in a southerly direction along Ellam Street in Welshpool when it was struck by a vehicle driven by the respondent. The respondent's vehicle had come into Ellam Street from Tennant Street, passing through a stop sign without stopping and failing to give way to its right.
The reasons of the learned trial Judge were very carefully prepared. The Judge noted that the appellant's evidence was that he first saw the respondent's vehicle a few seconds before impact, at which time he had concluded that there was no chance of the respondent's vehicle stopping. At that time, in the appellant's estimation, the respondent's vehicle was about 30 to 40 metres away from the intersection and appeared to be exceeding the speed limit. In cross-examination the appellant confirmed that he had not seen the respondent's vehicle until a couple of seconds before impact. The appellant said he had not been looking down the street the other way either.
The learned Judge found there was nothing in the evidence which suggested that there was anything blocking the appellant's view of traffic travelling in Tennant Street and that there was nothing to explain the appellant's failure to see the respondent's vehicle approaching on his left-hand side, other than the appellant having failed to keep a proper look out.
Applying the principles discussed in Sibley v Kais (1967) 118 CLR 424 and Pennington v Norris (1956) 96 CLR 10, the learned trial Judge came to the conclusion that the failure of the appellant to keep a proper look out as he approached the intersection had been a far less substantial cause of the collision than the behaviour of the respondent. The Judge considered that had the appellant kept a proper look out, he would have seen the respondent's vehicle travelling towards the intersection in time to allow himself to take more effective evasive action. The Judge found that the respondent had taken no evasive action at all, even by applying his brakes, before proceeding into the intersection. The learned Judge assessed the apportionment of liability at 90 per cent in favour of the appellant.
On appeal it was contended for the appellant that no apportionment at all should have been made. On the other hand the respondent contended that the apportionment should have been 75 per cent in favour of the appellant.
It was contended for the respondent that the appellant had failed to take proper care of himself. He had had a problem with the sight in his left eye. He had failed to keep a proper look out to his left. The appellant had originally pleaded that the respondent had been stationary at a stop sign and had moved out in front of his vehicle. That indicated how much he knew about what the respondent's vehicle had been doing prior to the collision. The question was whether he should have seen the respondent's vehicle coming on his left. It was contended that had he kept a proper look out he would have seen the tow truck earlier. His obligation was to take whatever precautions were necessary to avoid a collision - Sibley v Kais (supra).
In Pennington v Norris (supra) at 16 when discussing responsibility for tortious acts, Dixon CJ, Webb, Fullagar and Kitto JJ said:
"The only guide which the statute provides is that it requires regard to be had to 'the claimant's share in the responsibility for the damage'. As to the effect of this see generally an article by Mr Douglas Payne, Reduction of Damages for Contributory Negligence. What has to be done is to arrive at a 'just and equitable' apportionment as between the plaintiff and the defendant of the 'responsibility' for the damage. Thus it seems clear that this must of necessity involve a comparison of culpability. By culpability we do not mean moral blameworthiness but the degree of departure from the standard of care of the reasonable man."
The Judges said:
"Here, in our opinion the negligence of the defendant was in a high degree more culpable, more gross, than that of the plaintiff. The plaintiff's conduct was ex hypothesi careless and unreasonable but, after all, it was the sort of thing that is very commonly done: he simply did not look when a reasonably careful man would have looked. We think too that in this case the very fact that his conduct did not endanger the defendant or anybody else is a material consideration. The defendant's position was entirely different."
In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 it was said by the court at 494:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1976] VR 208 at 219, and the cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
In Wynbergen v Hoyts Corporation Pty Ltd (1998) 72 ALJR 65, Hayne J said at 68:
"No doubt the making of the apportionment which the legislation requires involves comparison of the culpability of the parties, ie, the degree to which each has departed from the standard of what is reasonable, (Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494; Pennington v Norris (1956) 96 CLR 10 at 16) but that is not the only element to be considered. Regard must be had to the 'relative importance of the acts of the parties in causing damage' (Podrebersek (1985) 59 ALJR 492 at 494) and it is 'the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination' (Podrebersek (1985) 59 ALJR 492 at 494)."
In my opinion and with respect, in this case the learned trial Judge's assessment of the facts was made very carefully and accurately. There is no ground to interfere with her Honour's apportionment on the question of liability.
The next matter raised by the appellant was a claim that the learned trial Judge had assessed the question of past economic loss at a figure which was too low in the circumstances.
The plaintiff's work history was that he had completed his education at 14 years of age. He had then worked as a storeman and with an auto cleaner. He then worked on a bowser at a service station for a number of years before commencing a 12 month apprenticeship as a mechanic. He was unable to complete the apprenticeship because that business closed. He then returned to the auto cleaner. Later he obtained employment as a gardener with the City of Cannington for approximately two years.
The appellant had also worked as a freezer hand for approximately 18 months and with WA Tanners at Fremantle. Later he had worked at loading sea and air freight containers. He had ultimately become a supervisor with an export company. He there worked long hours which varied depending on the season. He earned a considerable sum by way of overtime. It was rare for him to work less than 60 hours a week.
After the appellant married, he and his wife had purchased a car detailing business which they worked up and sold about four months later for a substantial profit. They then took a four month holiday. The appellant then took employment with a service station. At the end of 1991 he entered into an agreement pursuant to which, for the payment of a sum of $25,000, he was to receive 25 per cent of the annual profits of the business, as well as an annual salary of $32,000, plus an additional fuel allowance of $40 per week. The appellant was to divide his income of $32,000 per annum with his wife on the basis that he would receive $22,000 a year and his wife the balance. All the money however, was paid into his account. Mrs Keating initially worked at the business for two hours on a Friday afternoon.
The appellant advanced the sum of $25,000 to the business by way of an unsecured loan. It was agreed that this would be repaid to him after 12 months. Following his accident there were difficulties concerning the repayment of the loan. Ultimately after court proceedings it was ordered that he be repaid the loan at $1000 per month. The full amount of the loan was eventually repaid to him.
The appellant did not work after his accident. He received worker's compensation from the time of the accident.
On appeal it was claimed that the learned trial Judge had assessed the past economic loss on the basis of a loss of $440 net per week. It was said that this was too low a sum, because at the time of the accident the appellant had been earning something in the order of $550 net per week. That was more than he had earned "historically" but his work history had been extremely good. It was claimed that there were difficulties with the proof of his earnings at the time of the accident because after the accident, he had fallen out with his partner in the service station. There was no evidence called as to what had happened with respect to the income from the business or the ongoing progress of it. It was conceded that the business had later ceased. The question had arisen as to whether the appellant could have continued to earn at the rate he had been earning at the time of the accident.
The appellant complained that the learned trial Judge had found that he would not have continued to earn at the rate he had been earning at the time of the accident. The Judge had deducted 20 per cent for contingencies. It was said that that was too much and that the decision in Morris v Zanki (1997) 18 WAR 260 was authority for the proposition that something in the order of 6 to 10 per cent was appropriate for past loss in these circumstances.
It was said for the appellant that his employment had been formally terminated two years after the accident. The business had still been operating at that time. That was at 10 August 1994. It was conceded that the appellant had not been able to prove that the business had been profitable up to that time or that the appellant could have sustained his pre-accident earning rate. However it was claimed that for 7½ months prior to the accident he had earned at a high rate. It was contended that after two years he would have gone back to employment such as a supervisor or a labourer, taking into account that he had been employed with the Sumich Group for 7½ years as a supervisor.
The appellant's highest rate of earnings at the service station was said to have been $550 net per week. It was said that an earning capacity at about $440 net per week had ignored the appellant's higher earning rate immediately prior to the accident.
Counsel for the respondent contended that the appellant had not established what his earning capacity would have been but for the accident. This was because the business had apparently failed. The appellant had not produced evidence other than the receipts into his bank account at the time of the accident. It was contended that it was for the appellant to prove his past loss of earning capacity.
It is my opinion that the learned trial Judge very carefully considered the relevant facts before calculating the sum for past loss of earning capacity. It has not been established that the calculation was in any way incorrect.
The next complaint of the appellant was that with respect to the calculation for future loss of earning capacity, the learned trial Judge had taken as a starting point the sum of $440 per week which was said to be 20 per cent less than the appellant had been earning at the time of the accident. There was also the period of six years from the accident to the trial which it was claimed would have inflated the earnings figure. It was said that it would be expected that the appellant would have earned at a higher rate six years post-accident than the figure used by the learned trial Judge.
It was then said that having used the lower rate the learned Judge had found that the appellant had retained 30 per cent of his earning capacity. That that was far too high in the circumstances due to the injuries which had admittedly been suffered by the appellant, including a 15 per cent disability of his right lower limb and a 10 per cent disability of his right upper limb, plus damage to his eyesight.
In her reasons for judgment, the learned trial Judge carefully discussed the relevant medical evidence. It has not been established that in any way the Judge had mistaken the effect of the medical evidence or had wrongly assessed the appellant's attitude to work. The appellant in some respects had reacted in a bizarre way to his injuries.
It was further submitted for the appellant that there had been no suggestion from the defence as to what work would be available for the appellant in the future. It was said that there should have been some evidence called for the respondent as to what the appellant was capable of doing. That the learned Judge had put the appellant's retained capacity at too high a figure. Due to the appellant's difficulties with his sight, there were many occupations in which he could not be employed due to the danger aspect. Added to that was the 15 per cent loss of use of his leg and

the 10 per cent loss of use of his arm. It was submitted that there were very few occupations in which the appellant could be employed.

It was agreed for the appellant that there had been considerable conflict on the medical evidence. It was conceded that the learned trial Judge had prepared very thorough and carefully considered reasons for judgment. However, it was submitted that in making the assessment for retained capacity, the Judge had "got it wrong in practical terms". In practical terms the appellant could not do any work and was not going to obtain employment. In addition to the 30 per cent retained earning capacity there had been the further reduction of 7 per cent for contingencies.
In answer to those propositions and in support of the cross‑appeal concerning the loss of past and future earning capacity it was put for the respondent that Professor Finlay-Jones had said in evidence that the appellant would recover from some of his problems within 12 months. The learned trial Judge had found on all the evidence that Professor Finlay‑Jones' prognosis was somewhat optimistic as he did not foresee any restrictions on the plaintiff returning to full time employment. However, her Honour had said that the prognosis of Dr Skerritt and the opinion of Dr Lee on the other hand were rather too pessimistic.
The learned Judge's finding was:
"…that there is a significant probability that the [appellant's] psychiatric and emotional condition will improve over time particularly when his claim is finalised, but I accept that the [appellant] will never be entirely pain free and that there are some physical restrictions on his ability to rejoin the workforce as a result of the problem with his right eye and associated headache and pain."
It was submitted for the respondent that the medical evidence was that the appellant could work. It was not known what he could do because he had demonstrated abnormal illness behaviour. This had presented a fundamental problem. However, the appellant was not an itinerant labourer who could not speak English. He had worked in many capacities in the past. It was submitted that the appellant had not proved at the trial what his earning capacity was for the future, because of his abnormal illness behaviour. For example, it was submitted that he had not proved he could not work as a service station proprietor. It was submitted that the

effect of the psychiatric evidence was that the appellant would recover substantially within a few years.

In my view the learned trial Judge made the best of the medical evidence and the other evidence which was available to her. It has not been established that there was any error in the reasons for judgment concerning the loss of either past or future earning capacity.
I would dismiss the appeal and the cross‑appeal.
OWEN J: I have read the reasons to be published by Wallwork J. I agree with those reasons and have nothing further to add.
PARKER J: I have had the advantage of reading the reasons for decision of Wallwork J. For the reasons given by his Honour I agree that both the appeal and the cross appeal should be dismissed.