Planet Fisheries Pty Ltd v La Rosa

[1968] HCA 62

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto and Menzies JJ.

PLANET FISHERIES PTY. LTD. v. LA ROSA

(1968) 119 CLR 118

14 October 1968

Appeal—Negligence

Appeal—Damages—Personal injury—Whether excessive—Relationship of award to the injury and consequences—Reference to norm or standard derived from consideration of amounts awarded in other cases. Negligence—Action—Collision between motor vehicles—No direct evidence of negligence—Matter of inference from proved facts—Inference as to path of other vehicle—Sufficiency of facts to support inference.

Decision

October 14.
THE COURT delivered the following written judgment: -
The respondent, La Rosa, hereinafter called "the plaintiff" sued the appellant, hereinafter called "Planet" and the other respondent, hereinafter called "Gascoyne" for damages suffered in the collision alleged to have been due to the negligence of one or other or both of the defendants. Planet served Gascoyne with a third-party notice which claimed indemnity or contribution. The collision occurred at night on the Great Northern Highway between two heavy vehicles, Planet's vehicle - in which the plaintiff was a passenger - being driven south and Gascoyne's vehicle being driven north. A verdict was found and judgment entered by the learned Chief Justice of Western Australia for the plaintiff against Planet in a total sum of $49,322 of which $40,000 represented general damages. His Honour found a verdict for Gascoyne on the footing that it had not been established that it was negligent as claimed. (at p121)

2. Planet now appeals to this Court on two grounds. (at p121)

3. First, it says that the Chief Justice was wrong in refusing to conclude that Gascoyne was negligent in the management of its vehicle and that his Honour ought to have found Gascoyne responsible as to fifty per cent of the damages properly awarded to the plaintiff: and, second, it says that the amount awarded for general damages was excessive and beyond the range of a proper discretion in that behalf. (at p121)

4. As to the first ground, the evidence established that the two vehicles travelling in opposite directions were approaching each other upon a portion of the Great Northern Highway which was straight for at least half a mile on either side of the point of their impact. There was no account of the collision given by an eye witness. The two drivers were killed by the impact of the vehicles. But from the marks on the roadway and from the ultimate position of the two vehicles, it can be inferred that for some distance more than ninety-nine feet from the point of impact Planet's vehicle was being driven wholly upon its incorrect side of the sealed strip of roadway, some twenty feet in width: that for ninety-nine feet it was moving from that side towards the centre of the roadway, making a pronounced turn. It met Gascoyne's vehicle at a point about the middle of the road. The offside front of Planet's vehicle apparently struck Gascoyne's vehicle on that vehicle's nearside front. Planet's vehicle seemingly carried on across the roadway slewing Gascoyne's vehicle to that vehicle's right and carrying it across the roadway so that the front part of each vehicle came to rest well into the water table on Gascoyne's vehicle's incorrect side of the road. (at p122)

5. It can also be inferred from those marks that at the point of impact Gascoyne's vehicle was headed along the length of the road with the nearside rear wheels of its trailing section a little upon that vehicle's correct side of the road and some distance, variously estimated as five to eight feet, from the edge of the bitumen on that side of the road. Further, the wheel marks leading to those rear wheels would indicate that for at least six feet before the impact and probably for some longer distance those nearside rear wheels had been travelling directly forward in the same position parallel to the sides of the road. This would place Gascoyne's vehicle on its incorrect side of the road for some period of time before the impact of the two vehicles. But no more is known or can be inferred as to the position of Gascoyne's vehicle at the time when Planet's vehicle began its movement towards the centre of the roadway. Thus the incident begins with Planet's vehicle on its incorrect side of the road and it ends with that vehicle coming into contact with the Gascoyne vehicle when it is on its incorrect side of the road. Clearly, if Gascoyne's vehicle travelling on its correct side of the road, confronted by Planet's vehicle upon that vehicle's incorrect side of the road, had decided to avoid an impact by going to its incorrect side to pass Planet's vehicle rather than attempt to do so by running off the sealed carriageway, if that could be done, its movement from its correct to its incorrect side of the road would not be a negligent act in the circumstances as counsel for the appellant felt constrained to concede. Whilst it is true that at the point of impact, Gascoyne's vehicle was being driven upon its incorrect side of the road, the final position of Gascoyne's vehicle upon the material available in the case is quite consistent with its having been upon its correct side of the road prior to the time Planet's vehicle began to turn from its incorrect side towards its correct side and having at that time or thereabouts been in the process of moving towards the centre of the roadway in the course of an attempt to avoid Planet's vehicle. In these circumstances there was, in our opinion, no material upon which a finding of negligence could be made against the driver or owner of Gascoyne's vehicle: at best, the position of Gascoyne's vehicle immediately prior to the impact was equivocal. In our opinion, the Chief Justice was not in error in refusing to conclude that Gascoyne was to any extent responsible for the injuries suffered by the plaintiff. (at p122)

6. As to the second ground, the plaintiff was riding in the body of the Planet vehicle at the time of the impact and was severely damaged thereby. The details of the plaintiff's injuries and his resultant disabilities are fully set out in the Chief Justice's reasons for judgment. Broadly, putting aside his temporary injuries and dealing with his permanent disabilities, he has a weak hip, supported by a metal prosthesis forming an artificial joint, a shortened leg so that he walks with the aid of a stick and in a limping fashion, some loss of hearing, some maladjustment of the closure of his teeth: he suffers and will always suffer considerable pain. The prosthesis in his leg will break down at latest in about ten years and perhaps sooner when either the removal of the prosthesis will leave a weakened but still useful hip or the performance of an arthrodesis will stiffen the joint, again leaving him with a useful leg but having considerable limitations of movement. (at p123)

7. According to the evidence and the Chief Justice's findings, the plaintiff prior to the accident was an eager and tireless worker minded to be a working contractor on his own behalf in the lobster processing and prawn processing industries, or to operate a crayfish boat on his own account. Figures given in evidence would justify the view that he could have made a considerable amount of money by working as he proposed in these industries which the Chief Justice found to be prospering and to be likely to expand in the future. It could be concluded on the evidence that he would probably have succeeded as a working contractor in these industries or in working a cray boat on his own account. The trial judge found that, due to his disabilities caused by the accident, he will be unable to pursue such an avocation or to operate a cray boat. In substance, he will be condemned for the future to work as an employee for wages. In employment, he will be able to earn approximately as much as he could have earned as an employee before the accident but the range of his employment opportunities are much reduced and there is a probability that for periods in the future he may be employed at less wages than he could have earned prior to the accident. Thus, the diminution of his earning capacity as a wage earner is that he has limited opportunities for employment and a probability of some reduction at times in the remuneration he can command. (at p123)

8. The sum of $40,000 for general damages is in any case, in our opinion, a high award and if the plaintiff had not had the considerable prospects in business to which the trial judge and we have referred, it may very well be that it should be regarded as so excessive as to call for the Court's intervention. But as the plaintiff had such prospects which it would not be unreasonable to expect would yield him profits considerably greater in amount than the wages he could earn in employment, and bearing in mind the character and capacity of the plaintiff as the trial judge describes them, we are of opinion that it cannot properly be said that the award, though even in that event high, transcends the bounds of a proper exercise of a sound discretion in assessing the damages. It is not suggested that the Chief Justice adopted any wrong principle in his approach to the assessment or that he gave improper or insufficient emphasis to any fact or that he was in any respect mistaken in his view of the relevant facts, and we are unable to say that the award represents a wholly erroneous estimate of the damages to which the plaintiff was entitled: Miller v. Jennings (1954) 92 CLR 190 . Accordingly, we are of opinion that the Court would not be justified in setting aside the award of general damages. (at p124)

9. Some criticism was made of the rate of wages used by the Chief Justice in assessing the wages lost by the plaintiff during his period of total incapacity to work but, in our opinion, those criticisms upon examination have no substance. (at p124)

10. There is, however, one submission made by Planet's counsel to which reference should be made. It was submitted that in deciding whether or not the award of general damages was excessive, we should seek out a norm or standard in the decisions of this Court for the assessment of general damages, by comparison with which it was claimed that it would be seen that the award of $40,000 for general damages was disproportionate. In support of this submission we were referred to what our brother Windeyer said in Chulcough v. Holley (1968) 41 ALJR 336, at p 338 (col 1) , and to the following cases as establishing such a norm or standard of the amount to be awarded for general damages in the case of injuries and disabilities of the kind experienced by the plaintiff: Bresatz v. Przibilla (1962) 108 CLR 541 ; Teubner v. Humble (1963) 108 CLR 491 ; Watts v. Rake (1960) 108 CLR 158 ; Australian Iron and Steel Ltd. v. Greenwood (1962) 107 CLR 308 ; Purkess v. Crittenden (1965) 114 CLR 164 ; O'Leary v. Woods (1966) 40 ALJR 325 ; Parente v. Bell (1967) 116 CLR 528 . (at p124)

11. We would emphatically reject this submission. It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that it can be set aside. Whether it is so or not is a matter of judgment in the sound exercise of a sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. We cannot think that the passage cited from Chulcough v. Holley (1968) 41 ALJR, at p 338 should be understood as expressing a contrary view. The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. What was sought to be done in this case by the appellant's counsel, namely, to derive a norm or standard from a group of judgments of this Court reviewing awards of damages on appeal is erroneous. The same would be true if the same course were sought to be pursued in relation to awards of a Supreme Court or of a County or District Court. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet's counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand. (at p125)

12. In our opinion, for these reasons the appeal should be dismissed. (at p125)

Orders

Appeal dismissed with costs.