Nominal Defendant v Bogic

NEW SOUTH WALES COURT OF APPEAL

CITATION: Nominal Defendant v Bogic [2000] NSWCA 164 revised - 02/05/2007

FILE NUMBER(S):
40736/98

HEARING DATE(S): 03/05/00

JUDGMENT DATE: 10/07/2000

PARTIES:
The Nominal Defendant (Appellant)
Kathy Bogic (Respondent)

JUDGMENT OF: Priestley JA Stein JA Fitzgerald JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC6152/97, DC6151/97

LOWER COURT JUDICIAL OFFICER: Seery ADCJ

COUNSEL:
Mr R Bartlett SC (Appellant)
Mr J Agius SC / Mr D Elliott (Respondent)

SOLICITORS:
Hunt & Hunt (Appellant)
Harpers Solicitors (Respondent)

CATCHWORDS:
Negligence - Motor Vehicle Accident - Liability of driver of vehicle that caused accident - whether contributory negligence - whether damages awarded were excessive
ND

LEGISLATION CITED:
Compensation to Relatives Act 1987
Motor Accidents Act 1988

DECISION:
Respondent’s damages for nervous shock reduced from $233,999 to $191,905. Judgment under the Compensation to Relatives Act varied to give effect to the following apportionment, namely 41.8857% to the respondent, with the balance divided between the children in the proportions 82/314 to the eldest child, 97/314 to the second child and 135/314 to the youngest child. Appeal otherwise dismissed, with costs. The parties to bring in short minutes of the orders to be made pursuant to these reasons within 7 days.

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40736/98
DC 6152/97
DC 6151/97

PRIESTLEY JA
STEIN JA
FITZGERALD JA
MONDAY 10 JULY 2000

NOMINAL DEFENDANT v BOGIC

JUDGMENT

PRIESTLEY JA: I agree with Fitzgerald JA.
STEIN JA: I agree with Fitzgerald JA.
FITZGERALD JA: On 27 April 1994, Nikola Simun Bogic was struck and killed by an unregistered motor vehicle driven by Patricia Power. The respondent is the widow of the deceased.
At the time of his death, the deceased was aged 40 years and the respondent was aged 28 years. They had three children, aged 4 (almost 5) years, 3 (almost 4) years and 1 year. The deceased had worked for the same employer continuously for about 4 ½ years except for a period of about 5 months from November 1992 to April 1993, when there was a shortage of work. After her marriage to the deceased about 5 ½ years prior to his death, the respondent worked from time to time, but had not worked since she was retrenched in January 1992 between the births of her second and third children. However, at the time when the deceased was killed, she intended to return to work in the future to perform duties of a clerical nature. The deceased earned a modest income, and, if she obtained work, the respondent would probably have earned less. The deceased, the respondent and their children were all in good health and lived in a home which they owned, which was subject to mortgage. The deceased’s grandmother lived with them.
The respondent sued the appellant in the District Court and, on 1 September 1998, recovered judgments of $393,359 on behalf of herself and her three children under the Compensation to Relatives Act 1987 and $233,999 on her claim for damages for nervous shock. The appellant was also ordered the pay the respondent’s costs of the District Court proceedings.
By this appeal, the appellant has sought orders that the District Court judgments and orders in favour of the respondent be set aside, that there be a retrial or alternatively a reassessment of damages payable by the appellant, and an order that the respondent pay the appellant’s costs of the trial and of this appeal.
LIABILITY
The deceased was a truck driver. Sometime prior to 6 a.m. on 27 April 1994, he was driving a truck in an easterly direction along the M4 Motorway when a tyre on the driver’s side front wheel deflated shortly before the Beresford Road overpass at Greystaynes. The deceased parked his vehicle in the break-down lane as close as reasonably practical to a wall on the left of the road cutting at that point. It was dark at the time and there were no street lights in the vicinity, but the deceased activated hazard warning lights on his truck. Contrary to regulation 80D of the Motor Traffic Regulations, the deceased was not carrying warning triangles for placement on the road. However, he placed a reflective vest on two containers on the road surface to mark off an area within which he worked to replace the wheel with a deflated tyre with another wheel.
At that point, the M4 Motorway runs generally east-west with two traffic lanes in either direction. The maximum permissible speed was 110 km per hour. A long straight stretch of roadway preceded the point at which the deceased’s vehicle was parked.
According to Ms Power, she was proceeding east along the M4 Motorway in the left hand lane when she swerved to avoid a wheel from the deceased’s vehicle which was in the middle of the lane in which she was travelling. She said that she did not have time to ascertain whether she could veer to the right and so she veered to the left in the direction of the deceased’s parked truck. She also said that she did not see the deceased before or after her vehicle struck and killed him. After the collision, she departed from the scene.
Regrettably, the trial judge made a careless mistake in his analysis of the evidence. Not surprisingly, he rejected Ms Power’s version of the circumstances in which her vehicle struck and killed the deceased. However, he stated, wrongly, that she did not give the same account to police officers who interviewed her at about 8.25 a.m. on the morning of the accident and again later that day, and, in particular, that she did not claim that she had swerved to avoid a wheel in the lane in which she was travelling.
If there is a real, as distinct from fanciful, possibility that Ms Power’s version of what occurred might be accepted by a trial judge who correctly analysed the evidence and a different conclusion concerning liability might result, it would be necessary to order a retrial. However, the position is otherwise.
It is unnecessary to discuss the evidence in detail. A number of other motorists who had preceded Ms Power’s vehicle past the deceased’s truck or were following behind her gave evidence. Predictably, their recollections were not precisely identical. However, there was an overwhelming preponderance of evidence, including photographs and other physical evidence, which conflicted with Ms Power’s account.
The workspace which the deceased created by placing the containers with the reflective vest on them on the roadway probably extended into the left hand lane of the carriageway along which Ms Power was travelling because of the narrowness of the breakdown lane. The hazard lights on the deceased’s truck and the reflector vest on the containers outlined the workspace. It is highly probable that the only wheel which was neither on nor in the deceased’s vehicle was at least partially within the area of the workspace which the deceased had created. Even if the wheel had been where Ms Power claimed, it would have been obvious to any motorist travelling in that lane that there was no passage available between the wheel and the deceased’s truck.
No sensible motorist travelling at a safe speed, keeping a proper lookout and concentrating on what he or she was doing would have contemplated the extremely dangerous manoeuvre of swerving towards the deceased’s truck. Even Ms Power’s claim that she was unable to ascertain whether she could veer right indicates a culpable lack of awareness. There was nothing to prevent her from moving to the right, as other motorists did, whereas the course she took made a collision with anyone in the deceased’s workspace almost certain.
Ms Power’s negligence is beyond question. Conversely, there is nothing to indicate a failure by the deceased to take reasonable care for his own safety or that any act or omission on his part, including his omission to carry and use warning triangles, had any blameworthy connection with the collision.
Damages
It was agreed that the award of $233,999 for nervous shock should be reduced to $191,905. It was common ground that the trial judge made an error in calculating the amount awarded to the respondent for nervous shock in that he applied s 72 of the Motor Accidents Act 1988 by reference to what the section provided at the date of trial not at the date of the accident. The parties do not appear to have drawn his Honour’s attention to the correct provision, and it was not explained why the trial judge was not subsequently asked to correct a mistake to which all involved had contributed.
The other grounds of appeal relating to damages, grounds (xiii) and (xiv), concern the amount awarded under the Compensation to Relatives Act. Those grounds say:
“(xiii) … his Honour was in error in approaching the issue of the entitlement to damages pursuant to the Compensation to Relatives Act with reference to the report of Stewart Russel, chartered Accountant, which calculations were not supported by the evidence.
(xiv) … his Honour failed to have regard to the likely income of the [respondent] when determining the measures of financial support that she and her children might have expected from the deceased.”
The trial judge awarded damages of $393,359 under the Compensation to Relatives Act, calculated as follows:
Funeral Expenses  $5,863.00
Loss of support 27.4.94 to 31.10.96               $76,887.00
Interest on past loss of support        $11,172.00
Future loss of support  $429,770.00
Loss of superannuation support      $38,249.00
  $561,941.00
Less 15% for contingencies and 15%
for prospects of marriage                  $168,582.00
$393,359.00
The appellant submitted that the amount awarded should be reduced to $259,668, calculated as follows:
Past loss of support  67,989
Interest  Nil
Future loss of support  277,090
Loss of superannuation support  17,500
Total  362,579
Less 15% for contingencies and
15% for prospects of marriage        253,805
Funeral expenses  5,868
Total  $259,668
However, if the Court were to uphold either of the appellant’s grounds, it could not determine the amounts to be awarded but would have to order a retrial of the material issues. The undesirability of that course is increased in this case by the circumstance that all, or most, of the arguments now raised by the appellant were not clearly put to the trial judge.
The main argument advanced by the appellant under ground (xiii) was that the deceased’s past and probable future earnings according to evidence given by his employer differed from some of the figures in the accountant’s report upon which the trial judge relied, which also did not take account of possible fluctuations in employment conditions in the building industry in which the deceased was employed, the period when he had been without work in 1992 - 1993, or the possibility that he might not continue to work the same amount of overtime throughout his working life up to retirement at age 65. The adjustment sought by the appellant in respect of past loss of support is quite small, with the major adjustment related to loss of future support.
Although it is regrettable that more care was not taken to ensure that the information contained in the accountant’s report was updated to correspond with the employer’s evidence, it was not demonstrated that the total awarded for past and future loss of support on the basis of the accountant’s report was more than the total deducible from the deceased’s employer’s evidence. Further, the accountant’s report was tendered without objection, its contents and methodology were not challenged by either cross-examination or a conflicting expert’s report, and, so far as counsel were able to inform the Court, the criticisms now made of the report were not made to the trial judge. In these circumstances, it would not be appropriate for this Court to conclude that the accountant on whom the trial judge relied could not justify the approach which he adopted or that the trial judge was wrong to proceed as he did.
A more specific criticism levelled by the appellant was that the trial judge relied on the accountant’s report in determining the amount awarded for loss of superannuation. However, his Honour does not appear to have relied on the report for this purpose, at least in the manner attributed to him by the appellant’s argument. After noting that the calculations made in the accountant’s report were “significantly higher than the claims in the [respondent’s] schedule of damages in respect of Past Superannuation Loss and Future Superannuation Loss” and concluding “that the deceased would probably have used 50% of superannuation benefits for his own use”, his Honour awarded an amount related to “the figures claimed in the schedule of damages”. After discounting for contingencies and the respondent’s prospects of remarriage, the amount awarded was $27,635. According to the appellant, there should be a reduction of about $6,000.
The assessment was necessarily imprecise, the extent of the error asserted by the appellant is small, and when regard is had to the figure adopted by the trial judge, which is lower than that advanced by the accountant, it is not obvious that his Honour omitted to take into account his conclusion that “the deceased would probably have used 50% of superannuation benefits for his own use”. Such an oversight is unlikely having regard to the location of that finding in the judgment. Again, this is a point that does not appear to have been taken clearly at trial.
In my opinion, the appellant is not entitled to succeed on ground (xiii).
Ground (xiv) contains another criticism of the trial judge’s reliance on the accountant’s report, namely, that the report made no allowance for the respondent’s future income which will be available for the support of herself and her children. Her intention to return to work was accepted by the respondent, and her award for nervous shock included a component for her reduced earning capacity.
The respondent’s intended return to the workforce was not occasioned by the deceased’s death [1], and she retained an earning capacity although it was diminished by the psychiatric illness she suffered as a result of his death. Her earning capacity was potentially material to the award for lost future support. [2] However, a reduction in the amount awarded was not inevitable.
The position in relation to a widow’s claim for loss of future support was explained in the following passage from the judgment of Samuels JA in Dominish v Astill [3], which was adopted in Halvorsen Boats Pty Ltd v Robinson [4]:
“…The basis of the widow’s claim is what she got during marriage, and would have been likely to get had the husband survived. A husband may provide support for his wife, for which she may claim after his death, even though during marriage she earned more than he did. ….”
….
..future loss of support is not to be diminished by reason only of the fact that the wife would have continued to work. But the future pattern of the wife’s employment and its financial prospects may increase or reduce the assessment of the lost benefits, and must be taken into account ….”
In Halvorsen [5], with whom the other members of the Court concurred, after expressing his agreement with those statements, continued [6]:
“…. The court is concerned to assess the widow’s expectations of pecuniary benefits. In doing so it will, in so far as the future is concerned, consider and evaluate a number of chances…..”
The present case was effectively approached as a claim by the surviving family unit of the respondent and her 3 children. The deceased’s income was modest, and an appropriate proportion of his projected earnings had already been deducted as money exclusively for his benefit in the calculation of lost future support. The respondent’s earning capacity was less than the deceased’s had been. The family’s needs are and will continue to be considerable, at least until the children are self-sufficient, by which time the respondent might have again become solely dependent on the deceased if he had not been killed. For the foreseeable future at least, the respondent’s earnings might well not have diminished the extent of the dependency of the respondent and the children on the earnings of the deceased.
At least some of the relevant questions were not canvassed in the respondent’s cross-examination and, as earlier stated, the accountant upon whose report the trial judge relied was not cross-examined. It is unlikely that the argument now raised was clearly put to his Honour and either overlooked or ignored. In the circumstances, I do not consider that the Court is warranted in remitting the issue for retrial.
The appellant also submitted that:
(a) the trial judge awarded interest on past loss of support without a proper basis for doing so under s 73(4) of the Motor Accidents Act; and
(b) his Honour did not give reasons properly explaining the aspects of his decision which the appellant considers unsatisfactory.
It is not clear whether the point raised by subpara (a) was raised with the trial judge. However, neither point was raised in the grounds of appeal, and leave to amend was not sought. Against that background and having regard to the way in which the case was conducted at trial, I do not think it appropriate to deal with these points.
The final matter is that the trial judge did not apportion the amount awarded under the Compensation to Relatives Act. On the material before this Court, an appropriate apportionment would be 41.8857% to the respondent, with the balance divided between the children in the proportions 82/314 to the eldest child, 97/314 to the second child and 135/314 to the youngest child.
Conclusion
I would reduce the respondent’s damages for nervous shock from $233,999 to $191,905, and vary the judgment under the Compensation to Relatives Act to give effect to the preceding paragraph. I propose that the appeal be otherwise dismissed, with costs. The parties should within 7 days bring in short minutes of the orders to be made pursuant to these reasons.

End Notes
1. Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1
2. Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1
3. (1979) 2 NSWLR 368, 387-388.
4. 31 NSWLR, 13.
5. 31 NSWLR 1.
6. 31 NSWLR 1, 13.

Revision Reasons

Hyperlinked End Notes added - 02/05/07

LAST UPDATED: 02/05/2007

[2000] NSWCA 164

10 July 2000

Key Legal Topics

Areas of Law

Negligence & Tort

Civil Procedure

Legal Concepts

Damages

Appeal

Costs

Negligence