Roads and Traffic Authority v Jacques

[2000] NSWCA 85

CITATION:	Roads And Traffic Authority v Jacques [2000] NSWCA 85
FILE NUMBER(S):	CA 40684/98
HEARING DATE(S):	06/04/00
JUDGMENT DATE:	11 April 2000
PARTIES :	Roads And Traffic Authority (Appellant) Paul Douglas Jacques (Respondent)
JUDGMENT OF:	Stein JA at 1; Fitzgerald JA at 2; Heydon JA at 19

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	6572/97
LOWER COURT JUDICIAL OFFICER :	Hughes DCJ

COUNSEL:	Mr D. Ronzani (Appellant) Mr B. Donovan QC / Mr C. Locke (Respondent)
SOLICITORS:	I V Knight - Crown Solicitor's Office (Appellant) John Simpson & Co (Respondent)
CATCHWORDS:	Negligence - Motor Vehicle Accident - whether appellate court intervention was warranted on the trial judge's finding on contributory negligence - whether trial judge's reasons were sufficient on damages - ND
DECISION:	Appeal allowed with costs, judgment in favour of the respondent for $237,532, but not the order that the appellant pay the respondent’s costs, set aside. The action remitted to the District Court for the respondent’s past and future economic loss to be reassessed and his damages determined on the basis of any amounts for past or future economic loss assessed at the retrial together with the other amounts already assessed for "general damages", "Out of pocket expenses", "Future medicals", and interest.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40684/98
DC 6572/97

STEIN JA
FITZGERALD JA
HEYDON JA

TUESDAY 11 APRIL, 2000

ROADS & TRAFFIC AUTHORITY v JACQUES

JUDGMENT

1   STEIN JA: I agree with Fitzgerald JA. 2   FITZGERALD JA: The respondent was seriously injured on 18 June 1990. He sued the appellant in the District Court. In a judgment delivered on 13 August 1998, that Court decided that negligence by both parties contributed to the respondent’s injuries, apportioned responsibility 80 percent against the appellant and 20 percent against the respondent, assessed the respondent’s total damages at $296,615, gave judgment for the respondent against the appellant in the sum of $237,532, and ordered the appellant to pay the respondent’s costs. 3   The argument in this Court was conducted by counsel for both parties with considerable efficiency and economy. Although numerous other issues were raised in the notice of appeal and written submissions, as the course of argument developed it became necessary for the Court to consider only whether the respondent’s contributory negligence should be increased and whether there must be a new trial limited to the trial judge’s assessment of the respondent’s past and future economic loss. 4   The respondent’s injuries occurred when the semi-trailer vehicle which he was driving failed to negotiate a left-hand bend on the New England Highway at Ben Lomond about 1 kilometre north of the intersection of Ross Road and the Princess Highway. After crashing through the safety fencing, the respondent’s vehicle continued down an embankment before it came to rest about 300 metres from the roadway. 5   The appellant had been carrying out roadwork in the area. There was an unsealed section of road shortly before the point where the respondent’s vehicle crashed through the safety fence. At that point, the road had been recently sealed, but not yet marked. There were no warning signs or lights. 6   Shortly prior to the accident, the respondent had stopped for a break at a road house. He left the road house in company with three other trucks. At the time when the respondent’s vehicle left the road, the “convoy” was headed by a truck driven by Mr Ken Greiner. The respondent’s vehicle was next, followed by another truck driven by Mr Ken Morris. Mr Greiner’s vehicle was at the head of the convoy because he was the driver most familiar with the area and his vehicle had fog lights and the conditions were foggy. 7   Prior to the respondent’s accident, Mr Greiner almost had an accident because of the poor visibility. The respondent was not in visual contact with Mr Greiner’s vehicle, and was perhaps hastening in an attempt to catch up. Mr Greiner estimated his speed at considerably less than the speed of the respondent, who gave evidence that his vehicle was travelling at 80 to 90 kilometres per hour despite the conditions. Mr Morris considered that speed “lunacy”, and gave evidence that he was travelling at a much slower speed, although he also gave evidence that the respondent’s vehicle’s tail lights were visible to him prior to the accident. 8   There was heavy fog rolling along the section of the roadway where the respondent’s vehicle crashed through the safety fence. The respondent was aware that the appellant had been carrying out road work in the area, knew that the road was not marked, and was aware that there were no warning signs or lights. Shortly before his vehicle crashed through the safety fence, the respondent received a radio message from Mr Greiner warning him that Mr Greiner had almost had an accident. According to the respondent, there was no opportunity for him to slow down between the time he received that message and the time his vehicle crashed through the safety fence. 9   The respondent was travelling too fast for the conditions, perhaps because he had taken the drug colloquially known as “speed”. However, there was no suggestion that the drug had otherwise affected the respondent’s driving capacity; for example, his ability to respond or his reaction time. The respondent’s contributory negligence consisted of his driving at an excessive speed. 10   The trial judge found that the respondent “was travelling at a speed which was excessive in all the circumstances, but not grossly or recklessly so.” Although his Honour did not expressly say so, it seems likely that that superficially lenient view of the respondent’s driving was based upon his acceptance of the respondent’s evidence that the thick “rolling” fog which so reduced his visibility that he could not see beyond the bonnet of his vehicle came upon him suddenly and unexpectedly and before he had time to respond to Mr Greiner’s warning. 11   The appellant submitted that the trial judge should have found that the respondent was equally to blame with the appellant. While that places the respondent’s responsibility for his injuries too high, the 20 percent contributory negligence assigned to the respondent by the trial judge is very favourable to him. 12   Nonetheless, after considerable hesitation, I have concluded that this is not a case in which interference by this Court to increase the proportion of contributory negligence by the respondent would be justified having regard to the principles which limit the Court’s entitlement to intervene. 13   Although there was a considerable body of evidence concerning the economic loss which the respondent had sustained between the accident and trial, the judgment made no reference to that evidence. The entire judgment in relation to past economic loss consisted of a single sentence, namely:

“I find that past economic loss, and I might say interposing, that there was a difficult task to ascertain, with some degree of accuracy, and there is necessarily a degree of guesswork in this, I find there is a past economic loss of $60,000.”

14   Future economic loss was dealt with with similar brevity, as follows:

“Diminished earning capacity. I find that the [respondent] has a diminished earning capacity on the open labor market and is likely to, from the medical evidence, to have a shortened working life. I allow him to that head of damages, $90,000.”

15   The only possible reference to the medical evidence in the judgment consisted of a list of the respondent’s injuries and “continuing disabilities”. 16   The amounts awarded for past and future economic loss might or might not be correct. It is impossible to tell. Regrettably, the trial judge failed to discharge his judicial duty to give adequate reasons. 17   Fortunately, the parties agreed that the new trial which is therefore necessary should be limited to the components in the respondent’s damages which related to past and future and economic loss. 18   In summary, the appeal should be allowed with costs, and the judgment in favour of the respondent for $237,532, but not the order that the appellant pay the respondent’s costs, should be set aside. The action should be remitted to the District Court for the respondent’s past and future economic loss to be reassessed and his damages determined on the basis of the amounts arrived at together with the other amounts already assessed for “general damages”, “Out of pocket expenses”, “Future medicals”, and interest. 19   HEYDON JA: I agree with Fitzgerald JA.