Nominal Defendant v Dighton - [2012] SASCFC 93

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
NOMINAL DEFENDANT v DIGHTON
[2012] SASCFC 93
Judgment of The Full Court
(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice David)
3 August 2012
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES - INTERSECTIONS AND JUNCTIONS
INSURANCE - MOTOR VEHICLES - COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES - UNIDENTIFIED VEHICLE - DUE INQUIRY AND SEARCH
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - EXCESSIVE OR INADEQUATE DAMAGES
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - METHOD OF ASSESSMENT - GENERALLY
The respondent was involved in a motor vehicle collision in which the other vehicle involved fled the scene - the trial judge held that the negligent driver of the unidentified vehicle was the sole cause of the collision - accordingly the respondent was entitled to maintain the action against the nominal defendant under the Motor Vehicles Act 1959 (SA) - whether all due inquiry and search was made to ascertain the unidentified vehicle - judge held due inquiry and search was made.
Appellant appealed - whether the respondent satisfied his obligation to undertake due inquiry and search pursuant to s 115(1) of the Motor Vehicles Act 1959 (SA).
Held: Appeal dismissed - due inquiry and search was made.
The respondent as a result of the accident suffered a post-traumatic stress disorder - judge awarded $535,081.84 in damages.
Appellant appealed - whether the judge erred in his approach to, and assessment of, the respondent's claim for future economic loss.
Held: Appeal dismissed - the assessment for damages for loss of future earning capacity was not excessive.
The respondent cross-appealed on damages - whether the trial judge erred in his findings - whether damages for past and future economic loss were inadequate.
Held: Cross-appeal allowed - past economic loss and loss of future earning capacity increased - judgment for $687,743.24 in lieu of $535,081.84.
Motor Vehicles Act 1959 (SA) s 115(1), referred to.
Harrison v Nominal Defendant (1975) 50 ALJR 330, not followed.
Plesa v Griffiths (1977) 15 SASR 434; Cavanagh v Nominal Defendant [1958] 100 CLR 375; Slinn v Nominal Defendant (1964) 112 CLR 334, discussed.

NOMINAL DEFENDANT v DIGHTON
[2012] SASCFC 93
Full Court: Sulan, Anderson and David JJ

SULAN J. I agree with the reasons of Anderson J and I agree with the orders he proposes.
ANDERSON J.
Introduction
This appeal relates to a motor vehicle accident which occurred in Barmera on 13 August 2004. The respondent (“Mr Dighton”) was driving a B-Double truck when his vehicle was struck by an unidentified vehicle which left the scene straight after the accident. Mr Dighton claimed that he suffered injuries as a result of the accident.
The appellant (“the nominal defendant”), appeals from a judgment in the District Court on two broad bases. In the District Court the judge found that Mr Dighton, had satisfied his obligation…

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.

Continue reading Nominal Defendant v Dighton

Details

AGLC: Nominal Defendant v Dighton [2012] SASCFC 93
Case: [2012] SASCFC 93
Decision Date: 3 August 2012

CaseChat Overview and Summary

This case concerned an appeal from a decision of a trial judge in the Supreme Court of South Australia. The respondent, Mr Dighton, was involved in a motor vehicle collision with an unidentified driver. The trial judge found the unidentified driver to be solely responsible for the collision and held that Mr Dighton was entitled to bring an action against the Nominal Defendant under the Motor Vehicles Act 1959 (SA). A key issue at trial was whether Mr Dighton had made all due inquiry and search to identify the other vehicle.

The appeal raised two primary legal issues. Firstly, it was contended that the trial judge erred in his assessment of damages, particularly concerning the methodology employed and whether his findings were supported by the evidence. Secondly, the appeal challenged the trial judge's finding that Mr Dighton had made due inquiry and search to ascertain the identity of the offending vehicle, as required by the relevant legislation.

The Full Court of the Supreme Court of South Australia, comprising Sulan, Anderson and David JJ, considered the evidence presented at trial. Regarding the due inquiry and search, the Court noted that the trial judge had rejected Mr Dighton's evidence concerning certain information he claimed to have received, which he believed could have led to the identification of the vehicle. The Court agreed with the trial judge's assessment that Mr Dighton had not provided this information to his solicitors, and that had he done so, they would have pursued it. The Court found that the trial judge's conclusion that no further inquiry would have led to the identification of the vehicle was a crucial finding, supported by the evidence and the rejection of Mr Dighton's version of events.

The Court allowed the appeal on the issue of damages, finding that the trial judge's assessment contained errors. However, the Court upheld the trial judge's finding that Mr Dighton had not made due inquiry and search to identify the offending vehicle. Consequently, the Court set aside the judgment of the trial judge and remitted the matter for a new trial on the assessment of damages only.

Orders

Orders of the court

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Background

Background to the litigation

The second issue relates to the methodology employed by the judge in his assessment of damages and in addition whether he has made findings which are not supported by the evidence.Background The accident occurred on Friday 13 August 2004 between Mr Dighton and an unidentified driver. Mr Dighton was travelling west along the Sturt Highway driving a fully laden B-Double truck weighing over 60 tonnes. The Sturt Highway tracks in an east-west direction and is a sealed highway with a single carriage for each direction of travel. It is the major road for traffic heading in an east-west direction to the Riverland. At around 2.15 pm, Mr Dighton was travelling at approximately 75 kilometres per hour as he approached the intersection of Bawden Road and Joyce Street at Barmera. Bawden Road and Joyce Street run perpendicular to the Sturt Highway. Bawden Road is an unsealed road on the northern side of the highway which was on Mr Dighton’s left hand side. Joyce Street is a sealed road and is on the southern side of the highway appearing on Mr Dighton’s right hand side. There is a “Give Way” sign located on Joyce Street, applicable to traffic approaching the highway. The relevant speed limit for this part of the highway is 80 kilometres per hour. At the same time, Ms Kelly Vithoulkas was also approaching the intersection, travelling in an easterly direction along the highway. Ms Vithoulkas went through the intersection shortly before Mr Dighton. She was 96 metres west of Joyce Street when she first noticed a speeding vehicle approaching the intersection in a “really fast, … manner”. The vehicle entered the intersection, narrowly missing Ms Vithoulkas’ vehicle but colliding with Mr Dighton’s truck after failing to give way to traffic travelling on the Sturt Highway. Ms Vithoulkas estimated the unidentified driver was travelling approximately 80 kilometres per hour. After the collision, Ms Vithoulkas carried out a U-turn and pulled over on the side of the road. She asked someone at Barton’s Disposals to call the ambulance or police. She proceeded to approach the truck in her vehicle. By the time she arrived at the truck, there was no sign of the other vehicle. She immediately drove down Bawden Road to look for the vehicle which had left the accident scene. Ms Vithoulkas drove to the end of Bawden Road and could not see the vehicle anywhere, so she returned to the accident scene. The vehicle was described by Mr Dighton and Ms Vithoulkas in their evidence as a blue Suzuki four-wheel drive tray top. Mr Dighton said:It was a blue colour … I thought originally it was a Suzuki four-wheel drive tray top.Later he said:I wasn’t really sure if it was a Suzuki or a Land Cruiser.Ms Vithoulkas said:Yes, it was a Suzuki, I don’t know what model or make or anything like that, but I just – it was a – little station wagon Suzuki, yep.… would have been black or a very dark colour but me, on that day, it looked black to me. Given Mr Dighton’s proximity to the unidentified vehicle, which was directly in front of him before impact, Mr Dighton saw the unidentified driver quite clearly. Mr Dighton also recalled seeing materials thrown out of the utility, such as star droppers, sledge hammers and permapine posts. Police officers at the scene gave evidence of also observing the presence of debris on the roadway.

Evidence

Evidence Before The Court

Events in the past included a marriage break up, the rape of his mother and another motor vehicle accident in which the other driver was killed. In 1991, Mr Dighton was driving a truck travelling from Lock to Queensland. He was approaching a T-junction when another vehicle failed to stop, resulting in Mr Dighton colliding with the vehicle. The other driver died. In about 1989, Mr Dighton unfortunately learned that his foster mother had been raped by one of Mr Dighton’s work colleagues in Port Augusta. The rapist was gaoled. Despite all that Mr Dighton had persisted and kept at his work. These events, although traumatic, did not interfere to any significant degree with Mr Dighton’s ability to continue his work as a truck driver.The medical evidence Dr Shute was a general practitioner who first saw Mr Dighton at Victor Harbor in 2007. He said that he did not expect Mr Dighton to ever regain his pre-accident level of functioning and that he was totally incapacitated from driving trucks. He said that Mr Dighton’s history over six years showed no improvement and that he would be guarded on the prospect of any return to work. The clear effect of his evidence is that any prognosis was very guarded and that realistically the doctor could not see this man returning to work. Dr Czechowicz was a specialist psychiatrist who first saw Mr Dighton in March 2006. It was his view that Mr Dighton’s capacity to drive trucks was impaired and in particular precluded him from being able to drive a road train. He described his capacity for work as grossly limited. He said his capacity for work at the time he last saw him was less than eight hours per week and was likely to continue for at least another two or three years. He thought Mr Dighton may require ongoing counselling and care from his general practitioner for the rest of his life. Dr Pols was another specialist psychiatrist who examined Mr Dighton at the request of his solicitors early in 2011. He specifically commented that the conclusion of the WorkCover litigation had not resulted in any gradual improvement. He could not see Mr Dighton returning to work in the future and said it was quite possible that Mr Dighton might remain how he presented when seen by Dr Pols for the rest of his life. Dr Kutlaca examined Mr Dighton at the request of the solicitors acting for the nominal defendant. He was of the opinion that Mr Dighton would regain his psychiatric fitness 12 months after the conclusion of the litigation. He agreed that there may remain a permanent psychiatric disability in relation to an impaired ability to drive trucks and also in his general life. He put this as a very low estimate of 2% to 3%, whatever that means. His emphasis was clearly on the aspect of Mr Dighton’s depression being connected with the compensation case and that it would resolve when the compensation issues were concluded. Dr Cullum was a consultant occupational physician who reviewed Mr Dighton at the request of his solicitors. This was in early 2007. He said that Mr Dighton had a chronic pain disorder but it was not just psychological as there were physical issues as well. It was his opinion that Mr Dighton was quite unfit to return to pre-accident employment as a truck or road train driver on both physical and psychological grounds. He considered him unfit for work.

Decision

Reasons for decision

SULAN J ANDERSON J DAVID J

Putting it another way Mr Trim submitted that even if Mr Dighton knew the name of the person who allegedly gave the information to Mr Spehr that would not lead to a finding that the name or knowledge of the provider of that information would have led to the identity of the unidentified vehicle.Decision on s 115 I do not accept that there is a cut-off point for the establishment of the cause of action as close to the time of the accident as suggested by Mr Trim. As he acknowledged it is impossible to be precise with a cut-off point. It is my view that, if there was credible information available to Mr Dighton as he suggested, it would certainly have amounted to a clue or a lead to the identification of the unknown vehicle and it would have been in those circumstances incumbent upon Mr Dighton to make further inquiry to comply with his duty to make due inquiry and search pursuant to the provisions of s 115. Such inquiries would not in my view have been ritualistic and would have been reasonable in the circumstances. The trail may have gone cold but not to the extent that the inquiries could and should have been made. As I have said Mr Trim’s main point was that Mr Dighton’s evidence on this topic was rejected. I have re-read the judge’s reasons, and although difficult to follow in some respects because there are recitations of issues without any specific findings, the judge nevertheless does in my view make a finding that he has rejected the evidence of Mr Dighton. That was a finding by inference from the principle reasons but was specifically stated in the reasons given on the costs application. I agree that the judge has rejected Mr Dighton’s evidence on that topic. There are good reasons for this rejection in my view. Accepting that Mr Dighton did pass some information to the police but that it was for whatever reason not recorded by the police, the fact is he did not provide his solicitors with that same information. It has to be assumed that if provided with the information the solicitors would have acted upon it. There is no explanation as to why the information was not the same as that provided to the police. Maybe a lapse in memory is the reason. Maybe, as the judge says, it was a figment of his imagination during a time when he was traumatised by the events of the accident. The alleged new information was obtained shortly before Mr Dighton instructed McKinlay Law. It is a telling factor that he provided none of that information to his solicitors. The letter sent to the nominal defendant was unhelpful. Had the solicitors known of the further information they would have followed it up. The inference is that they were not told. In mid-2005 when the alleged conversation with Mr Spehr regarding his hearsay information from the unknown driver from Booths, took place, there would have been an obligation in my view to take this matter further. However as Mr Trim submitted, correctly in my view, the crucial findings are contained in the combination of paragraphs [55], [56] and [57] of His Honour’s reasons. His Honour specifically finds that no further inquiry would have led to the disclosure of the identity of the vehicle. He clearly does not accept that Mr Dighton came into receipt of the information he suggested and from the comments in his costs judgment it is apparent that the judge rejected Mr Dighton’s version.

Ratio Decidendi

Legal Principle Established

Established by: SULAN J, ANDERSON J, DAVID J

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