Motor Accident Commission v Curzons - [2012] SASCFC 22

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MOTOR ACCIDENT COMMISSION v CURZONS
[2012] SASCFC 22
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
15 March 2012
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
Appeal from decision of District Court Judge awarding plaintiff damages for injuries suffered as a result of being struck by a vehicle driven by defendant.
Whether Judge erred in assessing contribution of plaintiff at 25 per cent - plaintiff in state of extreme intoxication, leading to significant impairment of faculties - comparison of relative culpability of plaintiff and driver of vehicle - appeal allowed to apportion damages at 50 per cent on account of contributory negligence.

TORTS - NEGLIGENCE - MISCELLANEOUS DEFENCES - ILLEGALITY OF PLAINTIFF'S ACTIVITY
Whether plaintiff's conduct constituted an indictable offence under sections 19 and 29 of the Criminal Law Consolidation Act 1935 (SA), excluding liability of defendant pursuant to section 43 of the Civil Liability Act 1936 (SA).
Judge provided clear reasons for why the defendant had not satisfied the onus of proof that the plaintiff's conduct constituted an indictable offence - findings of Judge concerning liability confirmed.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY - LEGAL PRINCIPLES
Assessments for past and future loss of earning capacity found to be manifestly excessive - award of damages to be reduced by $105,000.
Held: Appeal allowed. Award made by Judge set aside. Plaintiff to recover judgment in the sum of $315,777.51, together with interest.
Civil Liability Act 1936 (SA) s 36, s 37, s 43 and s 46; Criminal Law Consolidation Act 1935 (SA) s 19, s 29 and s 58, referred to.
Pennington v Norris (1956) 96 CLR 10; Astley v Austrust Ltd (1999) 197 CLR 1; Gala v Preston (1991) 172 CLR 243; Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438; Grincelis v House (2000) 201 CLR 321; McChesney v Singh [2003] QCA 498; Van Gervan v Fenton (1992) 175 CLR 327, considered.

MOTOR ACCIDENT COMMISSION v CURZONS
[2012] SASCFC 22
Full Court Gray, Sulan and David JJ
GRAY J:
Introduction

This is an appeal from a decision of a District Court Judge awarding Anthony Curzons, the plaintiff and respondent, damages.
The plaintiff was standing on a road when struck by a vehicle driven by Mark Boyce. The plaintiff suffered injuries. Mr Boyce fled the scene of the incident. As a consequence, the plaintiff sued the Motor Accident Commission, the defendant and appellant.
The Judge found that the plaintiff was entitled to damages but that those damages were to be reduced due to the plaintiff’s contributory negligence. The Judge rejected the defendant’s contention that it was not obliged to pay damages because the evidence did not establish beyond reasonable doubt that the plaintiff was injured while committing an indictable offence.[1] The Judge assessed damages at $761,555.02, including…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] SASCFC 22
Decision Date: 15 March 2012

CaseChat Overview and Summary

This matter concerned an appeal from a decision of a trial judge regarding a motor vehicle accident. The appeal was brought by the Motor Accident Commission (the defendant) against Mr Curzons (the plaintiff). The core of the dispute revolved around findings of liability, specifically the plaintiff's contributory negligence, and the assessment of damages awarded to the plaintiff for injuries sustained in the collision. The appeal was heard by Gray, Sulan, and David JJ.

The legal issues before the appellate court included whether the trial judge erred in his assessment of the plaintiff's contributory negligence, and whether the damages awarded for loss of earning capacity and past gratuitous services were excessive. The defendant sought to overturn the trial judge's findings on liability, arguing that the plaintiff's contributory negligence should have been assessed at a higher percentage. The court also considered the plaintiff's injuries, which included severe fractures to his left lower leg, damage to both knees, a soft tissue injury to his lower back, and a closed head injury.

The appellate court confirmed the trial judge's findings concerning liability, finding that the defendant had not demonstrated that the judge's doubt regarding the plaintiff's alleged commission of an indictable offence was unreasonable. However, the court allowed the appeal in part, increasing the apportionment of contributory negligence against the plaintiff from 25 per cent to 50 per cent. The court also reviewed the components of the damages award, specifically addressing claims for loss of earning capacity and past gratuitous services.

The appeal was allowed in respect of the apportionment of contributory negligence, with the plaintiff's contribution increased to 50 per cent. The court otherwise confirmed the trial judge's findings concerning liability and the assessment of damages.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The trier of fact had to be satisfied that the plaintiff was committing one of the pleaded indictable offences at the time of Mr Boyce’s act of negligence that caused his injuries. On appeal, it was necessary for the defendant to show that the Judge’s doubt was not reasonably open on the evidence. As noted above, the Judge provided clear reasons for why he held a doubt; or alternatively, why it was that the defendant had not satisfied the onus of proof beyond reasonable doubt; or alternatively, why it could not be said that there was a reasonable hypothesis consistent with innocence. To my mind, the Judge explained clearly why he held a doubt and why he was not satisfied beyond reasonable doubt. Those doubts were open on the evidence and no basis has been shown for this Court to overturn the Judge’s findings. Conclusion in Respect of Liability As a consequence of the foregoing, I would confirm all of the findings concerning liability, save for the finding as to the extent of the plaintiff’s contributory negligence. In that respect, the appeal should be allowed to increase the apportionment against the plaintiff from 25 per cent to 50 per cent. Damages The appeal against damages attacked two discrete components of the overall award - damages for loss of earning capacity both past and future and damages for past gratuitous services. The plaintiff was born in 1978 and was aged 26 years at the time of the collision. He was educated to year 11 and then undertook employment in a number of unskilled jobs including as a production worker, a press operator and a machine operator in earthworks. At the time of the collision, he was working for a labour hire firm who had found a position for him involving the manufacture of car seats. The plaintiff would work such overtime as was available. He worked with this company for about 18 months before the collision. He enjoyed the work and was about to be offered a position as a permanent employee. Before the collision the plaintiff was in good health, he cycled to and from work in a trip of about 30 minutes when the weather permitted. He was in a permanent relationship with plans to marry. He and his partner had children and he enjoyed his role as father to his young sons. At home, he attended to all outdoor duties including lawn mowing and gardening. In the collision the plaintiff sustained a serious injury to his left lower leg including compound fractures of the tibia and fibula with loss of muscle and tissue. He sustained damage to both knees including loss of cartilage in the right knee. He sustained a severe laceration to the right knee. He suffered a soft tissue injury to the lower back together with multiple bruises and abrasions. The plaintiff was admitted to hospital and the damage to the left leg was surgically repaired by the insertion of a steel rod, bolt and screws which remain in place. Skin grafting was necessary with the tissue and muscle being removed in his upper right thigh. The operative treatment left unsightly scaring to his lower limbs. The Judge described the scaring to the left leg as being significantly disfiguring. He suffered a closed head injury which led to concussion.

Ratio Decidendi

Legal Principle Established

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