Robens v Fernandez

[2007] NSWSC 1309

CITATION:	Robens v Fernandez [2007] NSWSC 1309
HEARING DATE(S):	16/11/2007
JUDGMENT DATE :	26 November 2007
JUDGMENT OF:	Associate Justice Malpass
DECISION:	In my view, these damages should be reduced by 28%. The parties are to have liberty to apply.
CATCHWORDS:	Apportionment - just and equitable - dangerous driving - absence of complaint - seatbelt not worn - age of plaintiff
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1965 (NSW) Motor Accidents Compensation Act 1999 (NSW) Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW)
CASES CITED:	Berryman v Joslyn; Wentworth Shire Council v Joslyn (2004) NSWCA 121 Mackenzie v The Nominal Defendant (2005) NSWCA 180 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 Talbot-Butt v Holloway (1990) 12 MVR 70
PARTIES:	Sheree Robens by her next friend Jennie Robens (Pl) Jose Humberto Fernandez (Def)
FILE NUMBER(S):	SC 20010/05
COUNSEL:	Mr G. B. Hall QC / Mr M. Daley (Pl) Mr R. R. Bartlett SC / Mr R. H. Weinstein (Def)
SOLICITORS:	Brydens Law Office (Pl) Dibbs Abbott Stillman Lawyers (Def)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

26 NOVEMBER 2007

20010/05 Robens v Fernandez

JUDGMENT

1 HIS HONOUR: On 27 September 2007, I delivered a judgment in this matter. In that judgment, I made findings on the question of contributory negligence. Largely, it is unnecessary to repeat what was said in the judgment. Accordingly, what is repeated herein is not intended to be exhaustive.

2 On 16 November 2007, a further hearing took place. It concerned the question of the apportionment to be made.

3 Both sides have made written submissions. The writing has been supplemented by oral argument.

4 The question of apportionment is governed by s138(3) of the Motor Accidents Compensation Act 1999 (NSW) (the Act). It is in the following terms:-

“(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.”

5 Section 138 is the provision in the Act which has general application to the question of contributory negligence. It prescribes, inter alia, except as provided therein, that the common law and enacted law as to contributory negligence is to apply to an award of damages in respect of a motor accident. It also requires the Court to state its reasons for determining the particular percentage.

6 The question of apportionment is redolent with authority. There is abundant authority applicable both to this provision and to what was required to be done pursuant to s10(i) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW). Its provisions are somewhat similar to that of subs(3) of s138 of the Act (what “the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage).

7 The classic exposition of what is required by that provision is to be found in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 493-494. In that case, in a joint judgment, the Court observed that:-

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42–49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”

8 The authorities make it clear that the culpability exercise does not involve a consideration of moral blameworthiness.

9 It has been held by the Court of Appeal that what was said in Podrebersek is applicable to the exercise required by s138(3) (see, inter alia, Mackenzie v The Nominal Defendant (2005) NSWCA 180 and Berryman v Joslyn; Wentworth Shire Council v Joslyn (2004) NSWCA 121).

10 Counsel for the defendant have identified in their submissions what are regarded as being relevant cases which may provide guidance. The written submissions contain the following:-

“9. In each of the above cases such findings of contributory negligence were not in circumstances where the vehicle had been travelling in an obviously dangerous manner beforehand as is the situation here. Accordingly, either the taking off of her seatbelt or the failure to wear a seatbelt, in the circumstances of the manner of the driving of the vehicle leading up to the accident, is a greater failure on the part of the plaintiff to take care for her own safety. Added to that must be the additional matters of not attempting to do anything about the obviously dangerous driving by the defendant or failing when such dangerous driving activities continued not (sic) to get out of the vehicle at one of the stop lights when the vehicle came to a halt. In the factual circumstances of this case it does not necessarily matter whether the consumption of the alcohol by the defendant was a cause of the accident. It was the obviously dangerous manner of his driving which was the primary cause of the accident wherein the consumption of alcohol was likely to have contributed to his disinhibition. This is not a case where the plaintiff did not have ample opportunity after the commencement of such dangerous driving to have done something about it, as indicated above. The plaintiff’s age of 16 years and 8 months probably requires some small allowance (but not much). She was to a significant extent the author of her own misfortune by;
(a) being an active part of the group’s activities in the purchase and consumption of alcohol;
(b) chosing (sic) thereafter to go on a needless ride in a motor vehicle with one of the group driving who had been drinking;
(c) failing to complain or say anything when the defendant was driving in an obviously dangerous manner;
(d) failing to otherwise get out of the vehicle (at one of the lights) after the defendant was driving in an obviously dangerous manner;
(e) and whilst the vehicle was being driven in such a dangerous manner (including high speed) did not wear her seatbelt thereby suffering multiple serious injuries and damages which otherwise was highly likely she would not have suffered.
10. In such circumstances we consider the appropriate available discretionary range to be between 40% to 50% and that a proper finding should be in the middle of the range, 45%.”

11 The submissions made by Counsel for the palintiff were of much greater length. Similarly, the attention of the Court was drawn to the relevant statutory provisions and case law (including what was said in Talbot-Butt v Holloway (1990) 12 MVR 70 and other such cases).

12 The submissions emphasised a number of matters. I shall expressly refer to certain of them. One matter was the grossness of the culpability of the defendant and his responsibility for the accident. Another matter was the duty had pursuant to Regulation 47B of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW). Other matters were the minority and lack of experience of the plaintiff, together with the shortness of the periods during which the dangerous driving took place and the plaintiff was not wearing a seatbelt.

13 The written submissions also contained the following:-

“ Quantum
35. The Plaintiff submits that the appropriate range for the assessment of the Plaintiff’s just and equitable contribution pursuant to section 9 of the Law Reform (Miscellaneous Provisions) Act 1965, lies between five and fifteen percent.”

14 Section 138 requires a reduction by a percentage. It is to be such percentage as the Court thinks just and reasonable in the circumstances of the case. At best, other cases will provide guidance. Each case will turn on its own particular circumstances. The reduction process involves an exercise of judgment.

15 Largely, the relevant circumstances have been identified in the earlier judgment. I shall briefly mention certain of the matters that have led me to the percentage which I consider should be the subject of reduction in this particular case.

16 The primary cause for the injury suffered by the plaintiff was the dangerous manner in which the defendant was driving. But for such driving, the accident would not have taken place. He was in charge of the vehicle and it had the capacity of bringing about “great damage”. He did not ensure that the plaintiff continued to wear her seatbelt.

17 Despite the dangerous nature of the driving, the plaintiff remained as a passenger in the vehicle (without comment or complaint) and did so without wearing her seatbelt. Her failure to wear a seatbelt at the time of the accident was a significant factor in the suffering of those injuries.

18 In assessing the percentage, I have also taken into account the age of the plaintiff at the time of the accident.

19 In this case damages have been agreed in the sum of $10,250,000.00 plus fund management costs. In my view, these damages should be reduced by 28%. It seems to me that such a reduction is just and reasonable in the circumstances of this case.

20 The making of this finding does not bring the proceedings to an end. Other matters remain outstanding. The parties are yet to reach a figure for fund management costs. Because of the incapacity of the plaintiff, approval is required of the agreed sum. So as to enable the matter to proceed to a conclusion, the parties are to have liberty to apply.

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