Motor Accident Commission v Curzons
[2012] SASCFC 22
•15 March 2012
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 22Full 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 $90,000.00 for past loss of earning capacity, $450,000.00 for future loss of earning capacity and $19,310.40 for past gratuitous services. However, this was reduced by 25 per cent on account of the plaintiff’s contributory negligence, resulting in a total award of $571,166.27.
[1] See section 43 of the Civil Liability Act 1936 (SA).
The defendant seeks an order setting aside the judgment and an order dismissing the plaintiff’s claim. In the alternative, an order for further contribution is sought. Further, there is a complaint about the quantum of the damages award.
Liability
The Facts
The plaintiff sustained his injuries at about 5:00 am on 8 October 2004 on John Rice Avenue, Salisbury. John Rice Avenue is the continuation of the Salisbury Highway.
At about 11:00 pm on 7 October 2004, the plaintiff and his friends, Michael Olds and Jason Nuitta, finished work and travelled to a hotel at Gawler. They spent about an hour drinking at that hotel. The plaintiff, Mr Olds and Mr Nuitta then travelled to the Eureka Tavern at Salisbury. The plaintiff and Mr Nuitta consumed a substantial amount of alcohol. Mr Olds was the designated driver and drank less.
Paul Jefferson and two young women, Sarah and Reagan, arrived at the Eureka Tavern after the plaintiff and his friends. The two groups – the plaintiff and his friends and Mr Jefferson and his friends – met and began talking and drinking together. Later, Mr Boyce, a friend of Mr Jefferson, joined the group at the Eureka Tavern.
An argument between the plaintiff and Mr Jefferson ensued. Mr Jefferson attempted to punch the plaintiff, but was restrained by a security officer. Mr Jefferson was then removed from the Tavern and a short time later, Mr Boyce, Sarah and Reagan also left the Tavern. The plaintiff, Mr Olds and Mr Nuitta remained drinking at the Tavern until or near closing time. They left not long after the rest of the Jefferson group.
Sandra Gibbens was in the gaming room at the Eurkea Tavern from about midnight until 4:30 am or 4:45 am, when she left the hotel. She intended to travel home by taxi. However, she knew Mr Boyce and saw him in the hotel car park. He offered and she accepted a lift home.
Mr Boyce was waiting for Mr Jefferson. Mr Jefferson who was still angry eventually joined Mr Boyce, Sarah, Reagan and Ms Gibbens. Mr Olds and Mr Nuitta appeared and Mr Jefferson called out to them. Mr Olds and Mr Nuitta apologised for the plaintiff’s behaviour following the trick. Both groups left in separate vehicles. Mr Olds was the driver of his vehicle. Mr Nuitta was sitting in the front passenger seat and the plaintiff was in the back seat. Mr Boyce drove Mr Jefferson’s vehicle. Ms Gibbens was sitting in the back seat directly behind Mr Boyce, Mr Jefferson was sitting in the middle of the back seat and Sarah and Reagan occupied the other two seats.
At this point, it is convenient to describe the roads between the Eureka Tavern and the location of the incident. The Eureka Tavern is located near Gawler Street, which intersects the Salisbury Highway. Salisbury Highway and its continuation, John Rice Avenue, is a major road which runs north-east and south-west. The Salisbury Highway has two carriageways, one for northbound and one for southbound traffic. Each carriageway has two lanes. To the north of the Eureka Tavern, Gawler Street joins Salisbury Highway at a junction controlled by traffic lights. Further north, Commercial Road intersects with the Salisbury Highway and at that point, Salisbury Highway continues but under a change of name. It is now called John Rice Avenue. The intersection of Commercial Road, Salisbury Highway and John Rice Avenue is controlled by traffic lights. A Mobil Quiz service station is situated to the north of this intersection on the west side of John Rice Avenue and is set back and separated from John Rice Avenue by a car park and grass verge. Opposite the service station and in the middle of John Rice Avenue is a traffic island.
Both vehicles left the Eureka Tavern and travelled towards the Salisbury Highway. They stopped at the traffic lights at the Gawler Street intersection with the Salisbury Highway. The vehicle driven by Mr Boyce was in the right-hand lane alongside the vehicle driven by Mr Olds. The vehicles were stationary. The argument which had begun at the Eureka Tavern resumed. The plaintiff and Mr Nuitta were both partly out of Mr Olds’ vehicle. They were yelling and screaming. Mr Nuitta was sitting on the window sill next to the front passenger seat. He was yelling across the roof of the vehicle. The plaintiff was sitting on the edge of the rear passenger window brandishing an iron bar.
Both vehicles then travelled north on Salisbury Highway. They stopped at the traffic lights at the intersection of Salisbury Highway and Commercial Road. At this intersection, the plaintiff and Mr Nuitta got out of Mr Olds’s vehicle. Mr Nuitta ran to the driver’s window of Mr Boyce’s vehicle and began to attack Mr Boyce through the window with the iron bar. At the same time, the plaintiff was on the roadway. Mr Boyce’s window was smashed and the iron bar ended up inside or partly inside Mr Boyce’s vehicle. However, it fell onto the roadway when Mr Boyce drove off, heading north on John Rice Avenue to the northern end of the traffic island. The plaintiff or Mr Nuitta collected the iron bar. They also collected items capable of being used as weapons or missiles from the boot of Mr Olds’ vehicle. The plaintiff and Mr Nuitta got back into the vehicle and Mr Olds also drove north along John Rice Avenue until they reached the traffic island where Mr Olds performed a U-turn.
Both vehicles drove around the traffic island located in front of the Quix Service Station at least twice. While doing so, the occupants of Mr Olds’ vehicle threw objects at the vehicle driven by Mr Boyce. One of the occupants of Mr Olds’ vehicle threw the iron bar which landed near the eastern gutter of the road.
At a moment when the vehicle driven by Mr Boyce was on the eastern side of the traffic island and the vehicle driven by Mr Olds was on the western side of the traffic island, Mr Jefferson jumped out of a window in the vehicle driven by Mr Boyce and picked up the iron bar. Mr Boyce continued to drive south around the traffic island. Mr Jefferson threw the iron bar at Mr Olds’ vehicle. After completing another lap of the traffic island, Mr Boyce slowed to a stop or almost slowed to a stop on the eastern side of the traffic island to allow Mr Jefferson to climb through the window back into the vehicle.
At the time when Mr Jefferson was climbing back into the vehicle driven by Mr Boyce, Mr Olds stopped his vehicle in the right hand lane on the northbound carriageway of John Rice Avenue in a position approximately opposite and on the other side of the traffic island to the vehicle driven by Mr Boyce. The plaintiff and Mr Nuitta got out of Mr Olds’ vehicle. The plaintiff left the rear passenger side door open. The plaintiff ran to the western gutter of John Rice Avenue, collected the iron bar which had been thrown a short time earlier by Mr Jefferson and returned to Mr Olds’ vehicle. As he did so, Mr Boyce drove around the southern end of the traffic island, at a fast speed. He swerved around Mr Olds’ vehicle and in the process struck the plaintiff while he was on the roadway and about to climb into the rear of Mr Olds’ vehicle.
The Judge described the incident which followed in the following terms:[2]
…While [the plaintiff] was still on the road, Boyce completed a U-turn at the southern end of the island, drove forward, fast, swerved to avoid colliding with the rear of Olds’s vehicle and struck [the plaintiff] as he was about to get into Olds’s car at a point next to the open rear passenger door. [The plaintiff] was thrown to the gutter on the western side. Nuitta managed to jump back into Olds’s car a split second before the collision.
Later in his reasons, the Judge found that Mr Boyce, “having driven to the southern end of the traffic island and done a U-turn, then stopped his car, revved the engine and greatly increased his speed as he drove up towards Olds’s car”.[3]
[2] Curzons v Motor Accident Commission [2011] SADC 103, [34].
[3] Curzons v Motor Accident Commission [2011] SADC 103, [47].
Following the incident, Mr Nuitta ran to the plaintiff. Mr Olds drove to the service station to obtain assistance. Mr Boyce drove approximately 50 metres down the road. He then stopped the vehicle on the verge and ran away. Mr Jefferson, Sarah and Reagan remained. Ms Gibbens left the scene but returned approximately 45 minutes later.
The plaintiff was taken by ambulance to hospital where a blood sample was taken at 6:20 am. Police officers spoke to Mr Olds and Mr Jefferson at the scene of the accident. Mr Olds lied, telling the police that the plaintiff was struck while hanging out of the vehicle window to vomit. Mr Olds told the same lie to the plaintiff the following day in hospital when the plaintiff asked him what happened. Mr Jefferson also lied, telling the police that he was so drunk that he did not know who had been driving the vehicle at the time of the collision.
The Witnesses – Credibility and Reliability
The Judge heard evidence as to the circumstances giving rise to the collision from Mr Olds, Mr Jefferson, Ms Gibbens and Mr Vin Hem. The plaintiff claimed to have no memory of the events preceding the collision.
Mr Vin Hem was parked at the Mobil Quick service station and at the time of the collision was using his mobile phone. The Judge was unimpressed with the evidence of Mr Vin Hem. The Judge observed that he was an independent witness, but concluded that he had heard the collision and only paid attention to the vehicles on the road thereafter. The Judge concluded that Mr Vin Hem had engaged in a reconstruction of the incident. On the appeal, there was no challenge to the Judge’s conclusions in respect of Mr Vin Hem.
Mr Olds, a friend and workmate of the plaintiff, had spent five or six hours before the collision drinking with the plaintiff and Mr Nuitta, although he had drunk considerably less than the other two. He was the driver of the vehicle in which the plaintiff and Mr Nuitta were passengers. The Judge accepted Mr Olds’ account of events at the Eureka Tavern, but he was “wary” of his account of events from the time he left the Eureka Tavern to the time of the collision. The Judge considered that his account of the events, as they left the Tavern, were in conflict with the other witnesses’ agreed account of what occurred. The Judge further noted that, on his own admission, he had lied to the police following the collision. The Judge considered that both immediately after the collision and in his evidence, he sought to minimise his involvement in the events on the road leading to the collision.
The Judge was “extremely wary” of Mr Jefferson’s evidence. He referred in particular to Mr Jefferson’s state of intoxication and to the fact that he had lied to the police both at the scene and later in an apparent attempt to protect Mr Boyce.
The Judge considered that Ms Gibbens was the most reliable of the witnesses and where her account of the events leading up to the collision differed from other witnesses, accepted her account.
As noted above, the plaintiff claimed to have no memory of the events of and leading to the collision. At trial, the plaintiff was challenged as to his assertion that he was unconscious for a short time and had no memory of the collision or the events leading to it. The Judge accepted the plaintiff as a credible witness on this topic and in that respect, reviewed medical evidence addressing concussion and retrograde amnesia. The Judge also had regard to ambulance and hospital records and to evidence of an ambulance officer who attended the scene. The Judge made a specific finding that the plaintiff “was unconscious for a brief time after he was struck by the car driven by Boyce. I find that he is genuinely unable to recall the events preceding the collision”. On appeal there was no challenge to the Judge’s conclusions in this respect.
No basis has been shown for this Court to overturn any of the findings in regard to the credibility and reliability of witnesses. The Judge set out in some detail his reasons for making the observations referred to above. There was no suggestion on appeal that the Judge had overlooked any relevant consideration. The Judge’s views on the credibility and reliability of witnesses should be accepted.
Mr Nuitta did not give evidence at the trial. His whereabouts were unknown and no explanation was offered for his absence. No inference adverse to the plaintiff was drawn as a consequence of the failure to call Mr Nuitta. The Judge further noted that in any event, the evidence established that Mr Nuitta was so intoxicated that it is unlikely that he would have been of any assistance. On the appeal, there was no challenge to the Judge’s conclusions in respect of Mr Nuitta.
Finding of Negligence
On the appeal, there was no challenge to the Judge’s finding that Mr Boyce had driven negligently. However, it is necessary to set out the basis of this finding as it is relevant to other issues argued on the appeal.
Mr Boyce was sober at all relevant times. However, he was aware that the plaintiff, Mr Nuitta and Mr Jefferson were all intoxicated. Mr Boyce observed their drunken behaviour at the Tavern and during the time that the vehicles travelled to the point of the collision. Mr Boyce was aware that the three were behaving very aggressively and that they had been getting out of the motor vehicles and remaining on the roadway from time to time.
The Judge found that Mr Boyce, immediately before the collision, must have seen at the very least that the rear passenger side door of Mr Olds’ vehicle was open. In those circumstances, Mr Boyce must have known that it was likely that the plaintiff or Mr Nuitta or both of them may have been on the roadway and may have been at that time in a drunken, aggressive state. There was a significant and foreseeable risk of injury, such that a reasonable person would have taken precautions as there was a higher probability of serious harm being caused unless such precautions were taken. Straightforward precautions could have been taken. Mr Boyce’s vehicle could have been slowed or stopped or simply driven away from the scene. In particular, the Judge concluded that Mr Boyce owed a duty of care to other users of the road, that he had breached that duty, and that his breach of duty contributed materially to the plaintiff’s injuries.
Volenti Non Fit Injuria
At trial, it was the defendant’s case that the plaintiff had caused or created a situation of danger by acting in an aggressive or intimidating manner in which it was obvious that injuries to the plaintiff could ensue. In these circumstances it was said that he had voluntarily assumed the risk.
Sections 36 and 37 of the Civil Liability Act 1936 (SA) had not been pleaded. The Judge expressed some concern that neither party had addressed the statutory provisions and in particular whether those provisions had extended the common law. The Judge proceeded to deal with the matter in accordance with the common law.
The Judge concluded that a reasonable person in the plaintiff’s position, being aware that the vehicles had been pursuing each other, would have reasonably thought that he could get across the road and retrieve the iron bar before Mr Boyce’s vehicle would have come around the southern end of the traffic island. In reaching this conclusion, the Judge had particular regard to his finding that Mr Boyce, having driven to the southern end of the traffic island, had then undertaken a U-turn, stopped his vehicle, revved his engine and greatly increased his speed as he drove toward Mr Olds’ vehicle. These considerations led the Judge to conclude “I am unable to find that [the plaintiff] took an obvious risk and the defence of what has been referred to as “volenti” fails”.
On appeal, the defendant submitted that the Judge had failed to have adequate regard to the fact that the plaintiff was engaged in conduct which actively incited Mr Boyce’s negligent conduct. The defendant referred in particular to observations in the tenth edition of Fleming’s the Law of Torts.[4] Attention was drawn to the finding that from the time the vehicles pulled up at the Gawler Street junction until the time of the collision, the plaintiff, Mr Nuitta and Mr Olds were encouraging each other to behave aggressively toward the occupants of Mr Boyce’s vehicle while Mr Boyce and Mr Jefferson, at the same time, were encouraging each other to behave aggressively toward the occupants of Mr Olds’ vehicle.
[4] Sappideen and Vines (eds), Fleming's the Law of Torts (Thomson Reuters, 10th ed, 2008) [12-290].
I see no reason to reject the Judge’s conclusions. The Judge’s findings do not support a conclusion that the plaintiff was inciting Mr Boyce to drive in the way that he did. In my view, he was correct to reject the defence of volenti non fit injuria. It should be noted that there was no attempt on the appeal to suggest that the statutory provisions of the Civil Liability Act extended the relevant common law principles.
Contributory Negligence
On the appeal, the plaintiff did not challenge the finding of contributory negligence. At issue was the extent of contribution awarded. The defendant contended that the Judge’s apportionment was erroneous and that the plaintiff should bear a substantially greater proportion than that awarded by the Judge. The plaintiff contended that the Judge’s assessment of 25 per cent contribution against the plaintiff should not be disturbed.
Section 46 of the Civil Liability Act provides:
Presumption of contributory negligence where injured person intoxicated
(1)If the injured person was intoxicated at the time of the accident, and contributory negligence is alleged by the defendant, contributory negligence will, subject to this section, be presumed.
(2)The injured person may, however, rebut the presumption by establishing on the balance of probabilities—
(a) that the intoxication did not contribute to the accident; or
(b) that the intoxication was not self-induced; or
(c) —
(i)the intoxication is wholly attributable to the use of drugs in accordance with the prescription or instructions of a medical practitioner; and
(ii)the injured person was complying with the instructions and recommendations of the medical practitioner and the manufacturer of the drugs as to what he or she should do, or avoid doing, while under the influence of the drugs.
(3)Unless the presumption of contributory negligence is rebutted, the court must assess damages on the basis that the damages to which the injured person would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25 per cent or a greater percentage determined by the court to be appropriate in the circumstances of the case.
(4)If, in the case of a motor accident, the injured person was the driver of a motor vehicle involved in the accident and the evidence establishes—
(a) that the concentration of alcohol in the injured person's blood was .15 grams or more in 100 millilitres of blood; or
(b) that the driver was so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle,
the minimum reduction prescribed by subsection (3) is to be increased to 50 per cent.
The plaintiff was intoxicated at the time of the collision. In the circumstances, section 46 had application and the presumption that the plaintiff had been guilty of contributory negligence arose. The plaintiff did not rebut the presumption. Accordingly, it follows from the terms of section 46(3) that the plaintiff’s damages were to be reduced “by 25 per cent or a greater percentage determined by the court to be appropriate in the circumstances of the case”.
The Judge compared the culpability of the plaintiff and Mr Boyce by assessing their degrees of departure from the standard of care of the reasonable person in possession of all of the information which each of them had or ought reasonably to have had at the time of the collision and the relative importance of the acts of each of them in causing the plaintiff’s injuries. The Judge’s critical conclusion was expressed as follows:[5]
The plaintiff contributed to the collision by running on the roadway at a time when he must have known that Boyce was likely to drive erratically on that same section or [sic] road. That was a departure from the relevant standard of care. But Boyce was in control of a heavy motor car and must have known that the plaintiff, or one of the men in Olds’s car, may have been on the roadway, especially as the open rear door of the car must have been obvious to Boyce. His driving immediately before the accident was a gross departure from the standard of care. In my view, Boyce was at least 75 per cent liable for the collision and the plaintiff no more than 25 per cent liable. Accordingly, I shall reduce his damages by no more than the statutory minimum, namely by 25 per cent.
[5] Curzons v Motor Accident Commission [2011] SADC 103, [68].
The defendant’s case was that, if the question of contribution was to be considered, the Judge’s apportionment of blame and responsibility should be set aside. It was submitted that a reduction of only 25 per cent in the circumstances of the case was a grossly inadequate apportionment. It was submitted that the extent of intoxication was a relevant consideration. This, it was said, was plainly demonstrated by section 46(4) that provided for greater contribution against an injured driver in the cases of higher blood alcohol readings. It is to be noted that the Judge in his reasons spoke of the plaintiff being extremely intoxicated. It is to be recalled that the plaintiff had been drinking with friends for some five to six hours before the collision.
A blood sample taken from the plaintiff at 6:20 am, a little less than one and a half hours after the collision, disclosed a blood alcohol reading of 0.195 grams of alcohol in 100 millilitres of blood. A calculation made by a qualified expert, Jason White, allowed the conclusion that his reading at the time of the collision was between 0.208 and 0.222 grams of alcohol in 100 millilitres of blood.
Professor White in his report expressed the following views about the effects of alcohol:
At a blood alcohol concentration around 0.215% there would be very significant effects on decision-making. At this blood alcohol concentration all cognitive processes are grossly impaired. The intoxicated person has difficulty thinking and concentrating, and is only able to function at a relatively low intellectual level. As a result of these effects the intoxicated person will make errors of perception and judgement that can influence their actions.
There is also a distortion of decision-making such that the person intoxicated to this level has little regard to the long-term consequences of their behaviour. This results in impulsive and risky behaviour that can take various forms depending on the circumstances. The resultant behaviour may be considered uncharacteristic for the individual.
Aggression may be increased by alcohol. The main effect of alcohol is a decease in the normal inhibitions that restrain aggression. This is consistent with the intoxicated person acting in a more impulsive manner with less than normal concern for the consequences (particularly long term consequences) of their actions. The likelihood of alcohol increasing aggression is enhanced if there is some degree of provocation. As the intoxicated person also shows errors of perception and judgement, such provocation may be more apparent to the intoxicated person than to observers. Alcohol-induced aggression is also more likely to occur in people with some predisposition to aggression.
…
At a blood alcohol concentration around 0.215% Mr Curzons’ ability to take care of himself in a situation of danger would be markedly impaired. At this level alcohol affects a number of relevant aspects of behaviour. The changes produced by alcohol include:
- Reduced clarity of visual perception
- Impairment of physical movement and coordination
- Impaired balance
- Poor eye-hand coordination
- Slowed reaction time
- Impaired decision making
As an indication of the level of impairment, a person at this blood alcohol concentration is almost certain to exhibit staggering gait; that is, they are unable to walk in a normal co-ordinated manner.
Based on these effects, if placed in a situation of danger, particularly from a person or persons not as grossly affected by alcohol, Mr Curzons would have had markedly reduced ability to take any evasive action.
The Judge admitted the expert’s evidence. Although it was not necessary to make a precise finding about the blood alcohol level, he concluded that the plaintiff’s blood alcohol level exceeded 0.08 grams of alcohol in 100 millilitres of blood. The Judge relied primarily on the evidence of the lay witnesses in the trial, that the plaintiff was “extremely intoxicated at the time of the collision”.
On the appeal, the plaintiff submitted that the conclusion of the Judge as to apportionment was open on the evidence and should not be disturbed on appeal.
On the Judge’s findings, this was not a case of mere intoxication. It was a case of extreme intoxication. The plaintiff’s blood alcohol reading was in excess of 0.2 grams of alcohol per 100 millilitres of blood. This is a reading that indicates extensive consumption of alcohol, leading to a significant impairment of faculties.
In all probability, the plaintiff’s ability to take evasive action was impaired along with his judgement and decision making. This is likely to have affected his physical and mental ability to respond to the dangerous situation, which he in part created, as it unfolded.
However, the High Court has made it clear that it is necessary to consider the relative culpability of the plaintiff and Mr Boyce.[6] Mr Boyce was in control of a dangerous object; namely, a motor vehicle. He was sober at relevant times and was well aware that the plaintiff was intoxicated. He was also aware that the plaintiff, Mr Nuitta and Mr Jefferson were also intoxicated and were behaving in a dangerous manner. They had been getting out of the motor vehicles and remaining on the roadway from time to time. The Judge found that Mr Boyce, immediately before the collision, must have seen at the very least that the rear passenger side door of Mr Olds’ vehicle was open. In those circumstances, Mr Boyce must or ought to have known that it was likely that the plaintiff or Mr Nuitta or both of them may have been on the roadway and may have been at that time in a drunken state and behaving in a dangerous manner. In those circumstances, Mr Boyce decided to greatly increase his speed as he drove towards Mr Olds’ vehicle. It is that conduct taken in the context of Mr Boyce’s knowledge and the surrounding circumstances that must be balanced against the plaintiff’s culpability resulting from his extreme intoxication.
[6] See for example, Pennington v Norris (1956) 96 CLR 10, 16 where Dixon CJ, Webb, Fullagar and Kitto JJ observed:
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. It seems clear that this must of necessity involve a comparison of culpability. By "culpability" we do not mean moral blameworthiness but degree of departure from the standard of care of the reasonable man.
This was applied in Astley v Austrust Ltd (1999) 197 CLR 1, [160].
I consider that an apportionment of 50 per cent fairly reflects the respective culpabilities. The plaintiff was not only intoxicated but he was creating a situation of danger. He was or ought to have been aware of those matters. In my view the Judge did not adequately assess the respective culpabilities.
Exclusion of Liability
Section 43 of the Civil Liability Act provides:
Exclusion of liability for criminal conduct
(1) Liability for damages is excluded if the court—
(a) is satisfied beyond reasonable doubt that the accident occurred while the injured person was engaged in conduct constituting an indictable offence; and
(b) is satisfied on the balance of probabilities that the injured person's conduct contributed materially to the risk of injury.
(2)However, the court may award damages despite this exclusionary principle if satisfied that—
(a) the circumstances of the particular case are exceptional; and
(b) the principle would, in the circumstances of the particular case, operate harshly and unjustly.
(3)For the purposes of subsection (1)(a), a relevant conviction or acquittal is to be accepted as conclusive evidence of guilt or innocence of the offence to which it relates.
(4) This section—
(a) applies where damages are claimed for personal injury—
(i)arising from a motor accident (whether caused intentionally or unintentionally); or
(ii) arising from an accident caused wholly or in part—
(A) by negligence; or
(B)by some other unintentional tort on the part of a person other than the injured person; or
(C) by breach of a contractual duty of care; and
(b) if an injured person dies as a result of injury arising in the manner described in paragraph (a)—applies where damages for harm resulting from the death are claimed under Part 5; and
(c) does not affect the operation of a rule of law relating to joint illegal enterprises.
Section 43(1) excludes recovery by a plaintiff and can plainly have drastic consequences for a seriously injured plaintiff. The section recognises the serious consequences that may follow by requiring proof beyond reasonable doubt. To this extent, it may be compared with a penal provision and, in my view, should be construed narrowly, in the case of ambiguity.
Section 43(1)(a) introduces the word “while”, suggesting contemporaneity. The relevant criminal conduct is to be contemporaneous with the act of negligence. The word “conduct” appears in both section 43(1)(a) and 43(1)(b). The word conduct should be given the same meaning in both subsections. This reinforces the contemporaneity of the relevant criminal conduct and the act of negligence.
Such a construction accords with the common law where liability may be excluded on the basis of illegal conduct by a plaintiff. Mason CJ, Deane, Dawson and McHugh JJ in Gala v Preston referred to the earlier High Court decision of Henwood v Municipal Tramways Trust (SA)[7] and made the following remarks:[8]
[7] Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438.
[8] Gala v Preston (1991) 172 CLR 243, 248.
In Henwood v. Municipal Tramways Trust (S.A.), this Court rejected unanimously the argument that a passenger in a tram had no action in negligence against the tramway authority because he put his head out of the window of the tram in breach of a by-law made by the authority as a safety measure. The passenger, affected by nausea, having put his head outside the window, was struck by two standards while the tram was in motion, the standards being situated seventeen inches from the side of the tram. The authority was held liable in negligence in that it had failed to construct barriers to prevent passengers leaning out of the windows. The action of the passenger in breach of the by-law which exposed him to liability for a penalty under the by-law was not a defence to the action. The proposition for which Henwood stands as authority is that "there is no rule denying to a person who is doing an unlawful thing the protection of the general law imposing upon others duties of care for his safety", to repeat the words of Dixon and McTiernan JJ.
That principle is, of course, subject to the qualification that a statutory provision which creates an offence may evince an intention to disentitle a person who sustains injury in committing the offence from recovery in a civil action.
[Footnotes omitted. Emphasis added.]
Their Honours then considered illegality as a defence in circumstances of joint illegal enterprise:[9]
However, Henwood was not a case in which the plaintiff sustained injury in the course of the commission by plaintiff and defendant of a joint illegal enterprise. Whether a plaintiff in that situation could recover damages for negligence was the question which arose for consideration in Smith v. Jenkins. The facts were similar to those in the present case. The plaintiff and the defendant, having assaulted and robbed the owner of a motor vehicle, unlawfully took the vehicle without the owner's consent. The plaintiff, who was a passenger, was injured when the vehicle left the road and collided with a tree due to the defendant's careless driving. The Court held unanimously that the plaintiff could not recover. Although the ratio of the decision is not altogether clear, it is best treated as deciding that, in the circumstances, no relevant duty of care arose on the part of the defendant to the plaintiff by reason of their participation in a joint illegal enterprise. Kitto J. considered that the relevant principle was that persons who join in committing an illegal act which they know to be unlawful have no legal rights inter se by reason of their respective participations in that act. Windeyer J. observed:
If two or more persons participate in the commission of a crime, each takes the risk of the negligence of the other or others in the actual performance of the criminal act. That formulation can be regarded as founded on the negation of duty, or on some extension of the rule volenti non fit injuria, or simply on the refusal of the courts to aid wrongdoers. How it be analyzed and explained matters not.
Earlier, his Honour rejected the public policy approach and stated that the special relationship between the parties excluded the existence of a duty of care. He referred to the principle that an accomplice owed no duty of care to another accomplice in doing an act which was "a step in the execution of the common illegal purpose" and went on to say that "[t]he question is whether the harm arose from the manner in which the criminal act was done." Barwick C.J. and Owen J. appear to have agreed with that statement of principle, whereas Walsh J. stated that the rule was one of public policy.
But it would be wrong to regard the case as authority for the proposition that in all circumstances the participation of plaintiff and defendant in a joint illegal enterprise will negate the existence of a duty of care on the part of the defendant to the plaintiff, even when the alleged breach of duty arises in the execution of the criminal act. To take one example. The fact that a joint enterprise is carried on illegally in breach of safety regulations requiring a particular precaution to be taken should not preclude the existence of a relevant common law duty of care on the part of one participant to another unless circumstances of the parties' relationship, including the nature and incidents of the enterprise, are such as to make it unreasonable to fix a participant with a duty of care. There is no a priori reason why the illegality of a particular enterprise or activity should automatically negate the existence of a duty of care which might otherwise arise from the relationship which subsists between the parties, especially if it be accepted that the decision in Smith v. Jenkins does not rest on public policy.
[9] Gala v Preston (1991) 172 CLR 243, 249-250.
The defendant submitted at trial and on appeal that the plaintiff had breached sections 19 and 29 of the Criminal Law Consolidation Act 1935 (SA). It was contended that the plaintiff’s conduct constituted an indictable offence against each section and that that conduct had occurred at the same time as the negligent acts of Mr Boyce.
Turning first to section 19 of the Criminal Law Consolidation Act. The defendant’s plea was as follows:
2.1.1the plaintiff, either himself or in concert with other occupants of the plaintiff’s vehicle constituting a joint illegal enterprise, threatened to cause harm to the occupants of the unknown driver’s vehicle, intending to arouse a fear that the threat would be, or was likely to be, carried out, or was recklessly indifferent to whether such a fear was aroused, contrary to the provisions of Section 19 of the Criminal Law Consolidation Act 1935, as then in force;
Section 19 provided:
(1) Where—
(a)a person, without lawful excuse, threatens to kill or endanger the life of another; and
(b)the person making the threat intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused,
that person shall be guilty of an indictable offence and liable to be imprisoned for a term not exceeding 10 years or, where the person whose life was threatened was at the time of the commission of the offence under the age of 12 years, for a term not exceeding 12 years.
(2) Where—
(a)a person, without lawful excuse, threatens to cause harm to the person or property of another; and
(b)the person making the threat intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused,
that person shall be guilty of an indictable offence and liable to be imprisoned for a term not exceeding 5 years.
(3) This section applies to a threat directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct.
In respect of section 29 of the Criminal Law Consolidation Act, the defendant’s plea was as follows:
2.1.2 the plaintiff, either himself or in concert with other occupants of the plaintiff’s vehicle by conduct constituting a joint illegal enterprise, attacked the unknown driver’s vehicle with fists, metal and/or timber objects, or similar items, intending to endanger the lives of, cause grievous bodily harm to or cause harm to the occupants of the unknown driver’s vehicle, or being recklessly indifferent in relation thereto, and knowing that such conduct was likely to endanger the lives of, cause grievous bodily harm to or cause harm to the occupants of the unknown driver’s vehicle, contrary to the provisions of Section 29 of the Criminal Law Consolidation Act 1935, as then in force.
Section 29 of the Criminal Law Consolidation Act provided:
(1) Where a person, without lawful excuse, does an act or makes an omission—
(a) knowing that the act or omission is likely to endanger the life of another; and
(b) intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered,
that person shall be guilty of an indictable offence and liable to be imprisoned for a term not exceeding 15 years.
(2) Where a person, without lawful excuse, does an act or makes an omission—
(a) knowing that the act or omission is likely to cause grievous bodily harm to another; and
(b) intending to cause such harm or being recklessly indifferent as to whether such harm is caused,
that person shall be guilty of an indictable offence and liable to be imprisoned for a term not exceeding 10 years.
(3) Where a person, without lawful excuse, does an act or makes an omission—
(a) knowing that the act or omission is likely to cause harm to the person of another; and
(b) intending to cause such harm or being recklessly indifferent as to whether such harm is caused,
the person shall be guilty of an indictable offence and liable to be imprisoned for a term not exceeding 5 years.
The Judge first addressed the alleged section 19 offence. The Judge took the view that the defendant had to prove beyond reasonable doubt that at the time of Mr Boyce’s negligent act and the collision, the plaintiff was threatening to cause harm to an occupant of Mr Boyce’s vehicle. He concluded that he was not satisfied beyond reasonable doubt in this respect. The Judge found that at the time of Mr Boyce’s negligent act, the plaintiff was attempting to get back into Mr Olds’ vehicle. He was at that time, neither brandishing the iron bar nor even facing Mr Boyce’s vehicle. At that time, neither Mr Olds nor Mr Nuitta were engaged in any act which could constitute a threat to implicate the plaintiff by way of joint enterprise. The Judge further noted that the defendant had not excluded the reasonable hypothesis that as far as the plaintiff, Mr Olds and Mr Nuitta were concerned, the incident was over and they were about to drive away having retrieved the iron bar.
The Judge then addressed the mental element to be made out, namely that the plaintiff intended to arouse the relevant fear or was recklessly indifferent as to whether he aroused such a fear. Applying the law as it then was, the Judge had to take into account the effects of the plaintiff’s extreme intoxication. To be reckless, the Judge reasoned that the plaintiff must have averted to the possibility of such a fear being aroused. The Judge concluded that he was not satisfied beyond reasonable doubt that the plaintiff had the necessary intention or that he was reckless. By the same process of reasoning, it was concluded that there was no basis for liability by way of joint enterprise.
The Judge then addressed the alleged section 29 offence. The Judge noted that the defendant’s plea in this respect could only refer to the earlier incident when both vehicles were stationary at the commercial road intersection. In these circumstances, the Judge concluded that he could not be satisfied beyond reasonable doubt that the plaintiff had committed an offence against section 29 at the time of Mr Boyce’s negligent conduct and the collision.
The primary argument advanced by the defendant was that the Judge was wrong to find that the joint enterprise had ceased at the time of the incident. It was argued that the evidence established that the enterprise continued. The submission in essence sought to reverse the Judge’s finding of fact.
The defendant argued that the whole of the circumstances were typical of an alcohol fuelled road rage joint criminal enterprise. It was suggested that the Judge’s suggestion that the section could produce harsh results was inappropriate. It was argued that the policy behind the section was simply that persons who sustain injury while committing indictable offences should bear their own losses.[10]
[10] The defendant referred to South Australia, Parliamentary Debates, House of Assembly, 14 August 2002, 1034-7 (K.O. Foley).
Attention was drawn to the following paragraph in the Judge’s reasons:[11]
From the time the cars pulled up.at the Gawler Street junction until the collision, Curzons, Nuitta and Olds were encouraging each other to behave aggressively towards the occupants of Boyce’s car while Boyce and Jefferson were encouraging each other to behave aggressively towards the occupants of Olds’s car.
It was claimed that this finding had been repeated later:[12]
Boyce was sober throughout the time he spent at the Eureka Tavern and at the time of the collision. He knew that Mr Curzons, Nuitta and Jefferson were drunk. He had seen how the three men had behaved at the Tavern and during the journey up to the time of the collision: that they were all behaving very aggressively and that they had been getting out of the motor cars and remaining on the roadway. …
It was then argued that these findings were tantamount to findings that the plaintiff had engaged in the alleged indictable offences at the time of the collision.
[11] Curzons v Motor Accident Commission [2011] SADC 103, [37].
[12] Curzons v Motor Accident Commission [2011] SADC 103, [41].
I do not consider that the Judge in these paragraphs was addressing the question of whether he was satisfied beyond reasonable doubt that the plaintiff had committed the indictable offences at the time of the collision. This is evident from an analysis of the reasons earlier referred to. The above findings were of a general nature. Those findings form the backdrop to the Judge’s detailed consideration of whether the defendant had met the criminal onus.
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.
He was an inpatient for 11 days and thereafter he “laid up” at home for about two months. His mother moved into the home to care for the plaintiff. His partner also assisted to some extent. When mobilised, he was on crutches for some months and then used a walking stick for many months.
The plaintiff suffered significant pain while in hospital in the weeks following the collision. He has continued to suffer pain in the left lower leg, left ankle, both knees and left lower thigh. A section of the left lower leg remains numb. The screws used to repair the lower left fractures protrude and cause pain when under pressure. The left knee is unstable and locks and causes pain when the plaintiff sits or stands for long periods. The left ankle tends to swell and this causes pain. These symptoms are aggravated by activity. The right knee also swells and causes pain. The plaintiff is restricted in running, bending, kneeling, lifting, squatting, sitting and standing for long periods. He has difficulty in ascending and descending stairs and when walking on uneven surfaces. He walks with a limp which worsens towards the end of the day. His ability to engage in heavy lifting is impaired.
In the future, it is probable that degenerative change will affect the plaintiff’s knees and possibly his left ankle. Degenerative change will lead to further pain and loss of function. Further surgery is a possibility with respect to both knees and it is possible that there will need to be removal of the metal in his left lower leg.
There was a dispute between the parties as to whether the plaintiff had sustained any psychiatric injury. In that respect, the Judge concluded:[13]
… I accept that Mr Curzons suffered shock when he regained consciousness and learned of his injuries and that he has suffered significant “low” periods and much upset owing to them but I am not satisfied that he suffers from post traumatic stress disorder or from any other psychiatric or psychological illness.
[13] Curzons v Motor Accident Commission [2011] SADC 103, [86].
None of these findings were challenged on appeal. The Judge came to the following conclusions in regard to the consequences of the physical injuries sustained by the plaintiff in the collision:[14]
His physical injuries are permanent and disabling and will affect him for life. They have caused a great change to his life and his lifestyle. His relationship with Ms Getgood has broken down irretrievably and he has been unable to hold down a stable job or to enjoy his work. His ability to perform household and home maintenance duties is restricted.
[14] Curzons v Motor Accident Commission [2011] SADC 103, [85].
The above description of the plaintiff’s injuries has been drawn from the Judge’s reasons.
Loss of Earning Capacity
The Judge made a primary finding that the plaintiff’s capacity to earn income has been reduced by reason of his injury and that the reduction of his earning capacity has been and will be productive of financial loss. This finding was not challenged on appeal.
The Judge addressed the plaintiff’s pre-accident work history and noted that at the time of the collision, he was working on the afternoon shift, earning about one hour’s overtime per day and that his usual take home pay was between $700.00 and $850.00 per week. The Judge found that had it not been for his injuries suffered in the collision, he would have continued to work on the production line with his pre-accident employer and would have done so until the time of trial.
The Judge found that the plaintiff and Mr Olds were both working on the same shift on the assembly line until the time of the collision. Neither was a full time employee but the plaintiff was expecting to be made full time. Soon after the collision, Mr Olds was made a full time employee. However, because of injuries he sustained in the same incident, he preferred to perform duties other than production line duties and as a result worked at a lesser remunerative rate on a different shift. The Judge took Mr Olds’ average income between the date of the collision and the date of trial as a base against which to assess the plaintiff’s pre-trial loss of earning capacity. However, the Judge made an adjustment as he considered the plaintiff would have continued to work on the production line and would have earned more than Mr Olds during that period. The Judge found that throughout the period between collision and trial, the plaintiff would have been earning an amount of $650.00 per week net after tax. In arriving at that figure, the Judge bore in mind the contingencies involved in the availability of work and overtime.
The plaintiff, following a period of total incapacity extending for about two years, attempted a return to work. He attempted fairly menial jobs and was able to cope with some. The Judge accepted the plaintiff’s evidence that he genuinely pursued employment and accepted his account of the problems that he encountered. The plaintiff’s counsel presented a calculation on the assumption of earnings of $650.00 per week net and making a reduction for monies earned from time to time leading to a total pre-trial loss claimed of a little more than $105,000.00. The Judge considered this to be overgenerous and not allowing adequately for negative contingencies. The Judge awarded $90,000.00 under this head of damage.
The Judge found that the plaintiff retained an earning capacity in the future. However, he concluded that the plaintiff was unfit to engage in employment that involved frequent heavy lifting, prolonged standing, squatting or kneeling, frequent or prolonged walking on uneven ground, stair climbing or running. The Judge found that the plaintiff was fit for sedentary work including forklift operation and earthmoving equipment operation. The Judge accepted that even in those activities, the plaintiff may encounter some difficulties.
The Judge found that there would be accelerated degenerative changes in both knees with those changes to be accepted to occur within the next five to ten years, that this would increase knee pain and increase the plaintiff’s disability. The Judge concluded that his working life had been foreshortened by his injuries. The Judge found that the plaintiff’s future earning capacity had been reduced by about 70 per cent for the balance of his working life.
Having regard to the evidence led that the plaintiff had been in fairly constant employment since leaving school and that the plaintiff’s activities showed persistence and enterprise, the Judge concluded that but for the injuries sustained in the collision, he would have remained in fairly steady employment until aged about 70 years.
The Judge assessed the plaintiff’s future loss by first having regard to his earlier finding that the plaintiff would have continued with his pre-accident employer earning some $650.00 per week net. The Judge then noted the fact that at trial, the State average weekly earnings were a little more than $1,000.00. The Judge further noted that the relevant actuarial multiplier for a man to age 70 was $890.00. The Judge then had regard to what he described as both negative and positive contingencies and assessed damages for future loss of earning capacity at $450,000.00.
The defendant on appeal submitted that the assessments for past and future loss of earning capacity were manifestly excessive. The defendant pointed out that the plaintiff’s pre-accident employment for the four years prior to the collision causing his injuries could be fairly described as patchy. At no time during those four years had the plaintiff maintained weekly earnings of $650 net. As best as could be determined, his earnings for the four years prior to the collision were as follows: for the year 2001 approximately $3,000.00; for the year 2002, approximately $1,200.00; for the year 2003, a little more than $28,000.00; and, for the year 2004, approximately $21,000.00. It was then pointed out that at the time of the collision and injury, the plaintiff was working part time – about 32 hours per week.
The plaintiff did not directly challenge the above earnings. However, it was pointed out that the records were not complete and it was suggested that the plaintiff had not been challenged in cross-examination on these topics. The plaintiff submitted on the appeal that, generally speaking, the plaintiff’s pre-collision work history was “on the up” and that the Judge proceeded to assess damages on this basis.
I do not consider that the evidence of the plaintiff’s pre-collision work history supported the picture painted by the plaintiff’s counsel on appeal. To my mind, it showed an earning history that indicated part-time employment and significantly less net average earnings than those adopted by the Judge for the purpose of his calculations. The evidence did not support the finding of the Judge that the plaintiff would in all likelihood have engaged in full time employment earning $650 net per week in the period between collision and trial. To postulate such a circumstance and then make a reduction of only a little more than ten per cent for contingencies led to a manifestly excessive award in respect of pre-trial losses. The same error permeated the Judge’s approach to assessing damages for loss of future earning capacity which I discuss in more detail later in these reasons.
The defendant submitted that the evidence did not support a conclusion that the defendant had lost 70 per cent of his working capacity for life. Attention was drawn to his post-injury work as a forklift driver and an excavator operator for a period of about one year; his work as a welder for about six months before being made redundant; and, his work for Outback Sleeps for three to four months. Attention was also drawn to the evidence of Christine Brown, an occupational physician, that the plaintiff was fit for employment as a forklift driver, excavator operator and grater operator. John Lipert, an orthopaedic surgeon, also expressed the view that the plaintiff was fit for duties as a forklift driver. Dr Brown also formed the opinion that the plaintiff was fit for sedentary work with restrictions on heavy lifting. She considered the plaintiff’s prognosis to be generally positive. It was pointed out that the plaintiff had, by choice, declined to obtain a driver’s licence in circumstances where he had declined employment available to him because of an ability to travel on public transport.
To my mind, the evidence did not support a finding that it was probable that the defendant but for his injuries would have continued to work on a full time basis until aged 70 years. I also consider it improbable given his earlier referred to pre-collision work history that he would have worked in regular employment as a full time employee. His past history and general lifestyle would suggest that he was likely to change employment from time to time and as a consequence, not work as a full time employee. It might be expected that at times he would obtain and hold full time employment. I consider it to be an unrealistic approach to the assessment of this head of damage to postulate full time employment to age 70 and then to make a modest reduction on account of contingencies. I consider that the Judge erred in his assessment of these matters. The evidence did not support a finding that the plaintiff had lost 70 per cent of his earning capacity, nor did the evidence support the Judge’s finding that he would have remained in full time employment for much of that time. Finally, the evidence did not support a finding that the plaintiff would have remained in employment until aged 70 years.
In my view the evidence justified an award for future loss of earning capacity in the range of $350,000.00 to $400,000.00 and I would assess the damages at the midpoint of $375,000.00. In respect of the past loss of damages, it is my view that the Judge was in error to assume full employment with earnings of $650.00 net and then to make a reduction on account of contingencies of only a little more than ten per cent. The plaintiff’s tax returns disclosing the plaintiff’s pre-injury earnings, as outlined above, demonstrate that such an approach was overly generous to the plaintiff and manifestly so. To my mind, an assessment of pre-trial net loss of $60,000.00 should have been made.
Past Gratuitous Services
The Judge considered that the plaintiff was entitled to recover the reasonable costs of gratuitous services created by the injuries sustained in the collision. The Judge observed that these damages would be assessed at a commercial rate. The Judge noted that there was no award rate available and he assessed the relevant market rate at $33.27 per hour.
The Judge made a finding that for the first eight weeks on his discharge from hospital, the plaintiff was wholly dependent on his mother for care and domestic assistance. The Judge proceeded on the basis that section 58 of the Civil Liability Act provided that the plaintiff was entitled to recover damages up to the maximum of State average weekly earnings for the services rendered by his mother for those eight weeks. Section 58 provides:
(1) Damages are not to be awarded—
(a) to allow for the recompense of gratuitous services except services of a parent, spouse, domestic partner or child of the injured person; or
(b) to allow for the reimbursement of expenses, other than reasonable out-of-pocket expenses, voluntarily incurred, or to be voluntarily incurred, by a person rendering gratuitous services to the injured person.
(2)Damages awarded to allow for the recompense of gratuitous services of a parent, spouse, domestic partner or child are not to exceed an amount equivalent to 4 times State average weekly earnings.
(3)However, the court may make an award in excess of the limit prescribed by subsection (2) if satisfied that—
(a) the gratuitous services are reasonably required by the injured person; and
(b) it would be necessary, if the services were not provided gratuitously by a parent, spouse, domestic partner or child of the injured person to engage another person to provide the services for remuneration,
but, in that event, the damages awarded are not to reflect a rate of remuneration for the person providing the services in excess of State average weekly earnings.
This led the Judge to make an allowance in that regard of $8,148.18. The Judge made a further allowance in respect of this eight week period with the assistance of the plaintiff’s partner. He assessed this at ten hours per week at $33.27 an hour for the same eight week period. This led to a further allowance of $2,661.60.
The defendant challenged the reasonableness of the Judge’s award of damages for past gratuitous services. The defendant drew attention to the observations of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Grincelis v House:[15]
In Van Gervan v Fenton, it was held that the true basis of a claim for damages with respect to care or services provided gratuitously to a person who has suffered personal injury is the need of the plaintiff for those services, not the actual financial loss suffered as a result of their provision. Accordingly, it was held in that case that a plaintiff's damages on this account are not to be determined by reference to the actual cost to the plaintiff of having the care or services provided, or by reference to the income foregone by the provider of the services, but, generally, by reference to the market cost of providing them. Neither party sought to reopen the decision in Van Gervan.
[15] Grincelis v House (2000) 201 CLR 321, [9].
The defendant also referred to the decision in McChesney v Singh where Williams JA speaking for the Court observed:[16]
In Van Gervan there is frequent reference to “the value of services provided”, “the proper and reasonable cost of supplying those needs”, and “damages are to be calculated by the need for the services”. Given the present circumstances observations in the judgment of Mason CJ, Toohey and McHugh JJ at 334 are important. In some cases the market cost may be too high to be the reasonable value of the services. Where there is no relevant market for the services some other method of calculation may have to be employed. The market cost is the cost of providing the particular services needed.
Here, given the fact that the paid carer would provide all the services requiring a particular skill, the needs to be met by family members providing services gratuitously would not require any particular qualification. Further, when one is concerned with the provision of services on an average of three and a half hours per week the engagement of a person through a commercially run care agency is not necessary. The rate of $32.60 per hour referred to by the appellant in submissions includes an agency fee as well as an hourly rate for a trained carer. The learned trial judge adopted an average rate of $15.00 per hour as being appropriate. Undoubtedly he had regard to the evidence that the award hourly rate before tax for a level 1 carer was $18.00 per hour. Given the nature of the unskilled care which the family members would provide the market cost on the evidence would be of the order of $15.00 per hour.
[16] McChesney v Singh [2003] QCA 498, [39]-[40].
The defendant submitted that the approach identified by Williams JA should be followed in the present case. It was pointed out that at the time of trial a person providing care of the type contemplated by a disability services award was $16.21 per hour, a person working as a cleaner under the caretakers and cleaners award was $15.42 per hour and a person performing lawn mowing and gardening duties was $14.53 per hour. It was contended that rates of this order should have been utilised by the Judge and had they been so utilised, it would reduce the award for past gratuitous services by about 50 per cent.
The plaintiff submitted on the appeal that the approach outlined in McChesney should not be followed. It was said that the decision was inconsistent with the reasoning of the High Court in Grincelis[17] and Van Gervan v Fenton[18] and should not be followed. It was submitted that the assessment of damages under this head is to be governed by considerations of practical common sense. It was contended that it was fanciful to suggest that a person could be employed by the plaintiff under any of the three awards identified by the defendant. If the plaintiff was to go to the market and engage services, it is inevitable that he would have contacted an agency.
[17] Grincelis v House (2000) 201 CLR 321.
[18] Van Gervan v Fenton (1992) 175 CLR 327.
In my view, it was open to the Judge to accept the agency rate as being the relevant market rate for considering the plaintiff’s need for services. Given the plaintiff’s injuries, he had little choice but to turn to his mother and partner. Had he attempted to engaged those services from third parties he would have inevitably been driven to an agency and having to pay the hourly rate identified by the Judge.
Conclusions Re Damages
As a consequence of the foregoing I would reduce the award of damages by a total of $105,000.00. This reflects the adjustments to be made to the allowances made for past and future loss of earning capacity.
These adjustments have an impact on the assessments in respect of past and future superannuation entitlements. The plaintiff submitted that the Notice of Appeal did not contain any complaint about the allowances for superannuation entitlements. It was contended that it was too late to raise this matter. However, no prejudice was identified if an adjustment were made. In particular there was no challenge to the consequential effects on the allowances for superannuation entitlements following the reductions in respect of past and future loss of incapacity. In these circumstances I consider it appropriate to make the consequential reductions. Past superannuation entitlements are to be reduced from $9,900.00 to $6,600.00 and future superannuation entitlements are to be reduced from $49,500.00 to $41,250.00.
The proposed reductions in respect of past loss of earning capacity and past loss of superannuation entitlements have an impact on the plaintiff’s entitlement to interest. Before reduction for contributory negligence an assessment of interest of $18,150.00 would be appropriate.
To understand the impact of the reductions to be made it is convenient to set out the Judge’s assessment and contrast it to the revised assessment.
Components of Award Judge’s Assessment Revised Assessment $ $ Non-economic loss 35,750.00 35,750.00 Past loss of earning capacity 90,000.00 60,000.00 Past superannuation entitlements 9,900.00 6,600.00 Future loss of earning capacity 450,000.00 375,000.00 Future superannuation entitlements 49,500.00 41,250.00 Past gratuitous services 19,310.40 19,310.40 Future gratuitous services 50,000.00 50,000.00 Outstanding special damages 10,594.62 10,594.62 Future medical treatment 16,500.00 16,500.00 Future surgery 5,000.00 5,000.00 Interest 25,000.00 18,150.00 $761,555.02 $638,155.02 Costs
Although the defendant has been successful on the appeal, it was unsuccessful in regard to two substantive matters, namely the issues of illegality and past gratuitous services. The defendant accepted that in these circumstances it should only recover a portion of its costs of the appeal and suggested that an order that it recover 70 per cent of its costs would be appropriate. The plaintiff submitted that it was appropriate that the defendant recover 20 per cent of its costs. It was contended that there were not two but eight discrete issues on which the defendant was unsuccessful. However, a number of these were minor matters. In all the circumstances I would order that the defendant recover two-thirds of its costs of the appeal to be taxed.
The defendant should pay the plaintiff’s costs of the District Court trial to be taxed.
Conclusion
Having regard to my interim conclusions with respect to liability and damages, it follows that the appeal should be allowed, the award of damages made by the District Court Judge set aside in lieu an order that the plaintiff recover judgment for one-half of the damages assessed at a total of $638,155.02. This leads to a judgment in favour of the plaintiff in the sum of $319,077.51, inclusive of interest, together with costs of the proceedings in the District Court to be taxed. These orders should take effect from the date on which judgment was entered in the District Court.
An order should be made that the plaintiff pays two-thirds of the defendant’s costs of the appeal to be taxed.
SULAN J: I would allow the appeal. I agree with the reasons of Gray J.
DAVID J: For the reasons given by Gray J, I would allow the appeal. I also agree with the orders he proposes.
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