Saade v Fruci

[2003] NSWCA 168

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Saade v Fruci [2003]  NSWCA 168

FILE NUMBER(S):
40606/02

HEARING DATE(S):               24 June 2003

JUDGMENT DATE: 24/06/2003

PARTIES:
ELIAS SAADE
v
FRANCESCO FRUCI

JUDGMENT OF:       Handley JA Beazley JA McColl JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 7142/00

LOWER COURT JUDICIAL OFFICER:     JW Black DCJ

COUNSEL:
Appellant: M L Williams SC/M J Ward
Respondent: C M Simpson

SOLICITORS:
Appellant: McLachlan Chilton
Respondent: Bolzan & Princi

CATCHWORDS:
DAMAGES - future economic loss - no question of principle
NEGLIGENCE - collision case - no question of principle

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40606/02
DC 7142/00

HANDLEY JA
BEAZLEY JA
McCOLL JA

24 June 2003

ELIAS SAADE  v  FRANCESCO FRUCI

Judgment

1. HANDLEY JA:  This is an appeal by the defendant from the judgment of Black DCJ who tried a motor accident case.  The collision involved a motor cycle driven by the plaintiff and a motor car driven by the defendant.  The accident occurred in Acacia Avenue, Punchbowl on 24 November 1998.  It was about 10 pm, the night was clear and dry, and Acacia Road was straight for some one hundred metres before the point of impact.  The motor cycle was being driven by the plaintiff along Acacia Road.  The defendant was in a motor vehicle backing out of a driveway on a corner where a side road joined Acacia Road.  There was a telegraph pole with a light immediately overhead.  The appellant was intending to back his car out of the drive and to park it on the kerb, to allow his father to move his car which was blocked in.

2. The trial Judge found that the appellant was not keeping a proper lookout and had reversed his car out into the street immediately in front of the plaintiff.  He rejected the defence of contributory negligence and assessed the plaintiff’s damages at $383,810.60.

3. The defendant’s appeal challenges the Judge’s findings on contributory negligence and his award for future economic loss.  The Judge’s findings on contributory negligence are said to be unsupported by the evidence which required a finding of contributory negligence and it was also asserted that his Honour had failed to give adequate reasons for rejecting this defence.

4. The plaintiff said that he saw the appellant’s car reversing out of the driveway in one movement, straight out.  He noticed it on the kerb but, as I understand his evidence, when it was already moving.  The defendant backed his car across the road to take up some of the space on the wrong side of the road.  The road was some twelve metres wide and, judging by the photographs in evidence, it was likely that there were vehicles parked on one side or the other at various points along it.

5. The appellant’s sudden movement created a situation of danger for the respondent.  He had the impression that the motor vehicle was only twenty metres away when it moved out in front of him but there was no pretence of accuracy in this estimate made in a dynamic situation of immediate danger. 

6. The respondent had time to react and move his motor cycle to the left in an attempt to pass safely in front of the appellant’s car.  The respondent judged that it was not safe to proceed behind the car, in view of the space, time and the angles involved.

7. Unfortunately, the appellant had still not noticed the approach of the respondent and having stopped his car, straddling the centre line, he then moved forward closing the gap on the respondent as he sought to move safely in front of the appellant.

8. The appellant of course was seeking to move his car to park at the kerb and allow his father to move his car out of the drive.  The respondent noticed the forward movement of the appellant’s motor vehicle and Mr Williams suggested that this demonstrated that he must have had the motor vehicle under observation for far longer than he had suggested in his evidence, and this was a proper basis for a finding of contributory negligence.  Alternatively, his failure to notice the movement until the last moment demonstrated in his submission that the respondent had not been keeping a proper lookout as he had driven his motor cycle along Acacia Road.  I would not accept these submissions.

9. The respondent’s evidence was that the appellant had moved straight out in front of him (black book 94-95) in one movement and having stopped, then commenced to move forward again.  The respondent agreed that he had told the police that he noticed the appellant stop and he had noticed the movement forward immediately before the accident.  As I understand the respondent’s evidence in the light of his Honour’s findings, the whole manoeuvre on the part of the appellant took place very quickly, creating an immediate situation of danger for the respondent and the movement forward he observed took place an instant or so before the collision.

10. I see no basis in the evidence for this Court to interfere and substitute a finding of contributory negligence for the finding made by the trial Judge.

11. The trial judge said in his reasons for judgment that he was satisfied that the plaintiff did all he reasonably could to avoid the collision and for that reason he rejected the allegations of contributory negligence.  I see no inadequacy in the reasons provided by his Honour, bearing in mind his earlier reasons for finding that the appellant had been guilty of negligence.  His Honour in fact found that the collision occurred because the appellant reversed onto the road without seeing the plaintiff, and in his Honour’s words only twenty metres from the point of impact.  Without endorsing the finding of twenty metres, his Honour clearly found that the plaintiff was confronted with a situation of sudden danger, and in those circumstances his finding that he did all that he reasonably could to avoid the collision provided a proper basis for rejecting the defence of contributory negligence.

12. The other question argued on appeal related to his Honour’s award for future economic loss.  His Honour took as his starting point a sum of $250 a week over the plaintiff’s expected normal working life of forty years and he deducted the normal allowance for vicissitudes.  Mr Williams’ challenge was focused on the figure of $250 a week.

13. There were two aspects to this challenge.  The first was based on the mathematics accepted by his Honour.  The second was based on his Honour’s failure to incorporate a proper allowance for the respondent’s prospects of advancement in his career as a computer technician which he had taken up after the accident.

14. At the time of the accident the respondent was working as a boilermaker.  He had qualified in his trade and had been promoted not long before to the position of leading hand with the responsibility of supervising some seven or eight other employees, tradesmen and tradesmen’s assistants, and he himself was also actively working as a boilermaker tradesman.  The accident involved a significant injury to his right shoulder, and it was not disputed that the injury and its effects were such as to prevent him from continuing in his chosen trade as a boilermaker.  Some seven months or so before the start of the trial, and some ten months or so before the trial finished, the plaintiff, having undertaken retraining as a computer technician, commenced employment with a company working on reconditioning second hand computers to fit them for resale to the public.

15. The mathematical difference between the wage that the plaintiff’s successor as leading hand earned in the year ended 30 June 2001 and the plaintiff’s wage for the year commencing July 2001, in each case net figures being involved, was some $233.  The plaintiff’s case for future economic loss at the trial was based on a loss of $250 a week and invoked the decision in Wade v Allsopp (1976) 50 ALJR 643, particularly the judgment of Stephen J at 647, to support the difference between $233 and $250 a week.

16. Mr Williams challenged this additional allowance and submitted that his Honour had erred in allowing the plaintiff more than $233 a week.

17. Although the effect of this difference on the verdict is not great, being some $13,000, if I were persuaded that this was a mere gratuitous handout to a plaintiff, I would not have thought it inappropriate to intervene.  However, there were a number of matters which entitled his Honour to act as he did.  His Honour was not unaware of the difference because he had allowed a weekly loss of $233.79 for the period from July 2001 to June 2002 when he delivered his reserved judgment.  When he came to the future, he referred to the figure put forward by the plaintiff of $250 a week, incorporating the submission in the plaintiff’s damages schedule referred to in para 19 of the respondent’s submissions.  The matter was not simply overlooked.

18. There are at least three factors which in my judgment entitled his Honour to increase the award from $233.79 a week to $250 a week. 

19. The first of these is that there would be some added difficulties faced by the plaintiff in obtaining employment if for any reason he were to lose his job.  One is concerned with a future working life of some forty years at the date of trial.  Over this period the allowance is indeed modest.

20. On the other hand, the plaintiff had only just become a leading hand and although there was no specific evidence directed to this question, he undoubtedly had some prospects of further advancement to foreman or the like or with a larger employer which would have attracted higher remuneration.  To be appointed leading hand at an early age indicated that the plaintiff had real prospects of advancement in his chosen trade. 

21. The third aspect is that the comparative figure based upon the salary of the person who succeeded him as leading hand was for the year ended 30 June 2001, while his own salary was for the following financial year.  There was some scope for unfairness to the plaintiff in a comparison between an earlier year as a boilermaker and a later year as a computer technician.

22. With these three matters in mind, and having regard to his Honour’s discretionary role in assessing future economic loss, I conclude that this Court should not interfere.

23. The final matter relied upon by Mr Williams concerned his Honour’s failure to allow for any prospects of the respondent advancing in his newly chosen trade as a computer technician beyond the level identified at the time of the trial. 

24. It is true that the respondent had only been working in his new occupation for some twelve months at the time of trial but nevertheless there was ample evidence before his Honour which entitled him to discount any prospects of advancement in his new occupation.  His immediate superior in his current employment, Mr Bruce Jackson, was called to give evidence.  His evidence included a statement that the respondent had gone about as far as he could in the organisation already at the end of that twelve month period (black 66).  He gave further evidence about the respondent’s capacity in his new occupation and commented that he seemed to lack an ability to concentrate and he was hampered by his lack of communication skills.

25. The trial Judge accepted the evidence of Mr Jackson and concluded that the respondent’s capacity in relation to computer work was nowhere near as good as it had been in relation to boiler making.  He was satisfied that the respondent had done all that could reasonably be expected of him to mitigate his damage and had established that he was at a significant disadvantage as far as his future employment was concerned.

26. There was ample evidence to support those findings and in my judgment they cannot properly be disturbed.

27. In my judgment therefore the appeal fails and should be dismissed with costs.

28. BEAZLEY JA:  I agree.

29. McCOLL JA:  I also agree.

30. HANDLEY JA:  They are the orders of the Court.

******

LAST UPDATED:               27/06/2003