State Government Insurance Commission v Peter Rossi No. SCGRG 93/583 Judgment No. 4110 Number of Pages 7 Negligence Evidence Damages

[1993] SASC 4110

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(2), DUGGAN(1) AND DEBELLE(3) JJ

CWDS
Negligence - contributory negligence - Respondent passenger in motor vehicle - injured in accident - evidence that driver affected by alcohol - onus on appellant to prove that respondent aware of impairment of driver's ability to drive before presumption of contributory negligence can arise pursuant to Wrongs Act, s.35a(l)(j) - insufficient evidence in this case.
Evidence - documentary evidence - Evidence of taxation returns admissible under Evidence Act, s.45a.
Damages - general principles - Discussion as to method of assessment of loss of earning capacity in family partnership.

HRNG ADELAIDE, 13 July 1993 #DATE 19:8:1993
Counsel for appellant:     Mr M G Steele
Solicitors for appellant:    Ward and Partners
Counsel for respondent:     Mr R A Harms
Solicitors for respondent: Tindall Gash Bentley

ORDER
Dismiss the appeal against the apportionment but allow the cross appeal.

JUDGE1 DUGGAN J The respondent suffered injuries in a road accident which took place on 16th June, 1990. He was a passenger in a vehicle driven by his brother who lost control of the vehicle shortly after attempting to overtake another car. The learned trial judge found that the respondent's brother was negligent, but he reduced the award of damages by twenty percent after finding that the respondent ought to have been aware that his brother's ability to drive the vehicle was impaired in consequence of the consumption of alcohol. (Wrongs Act, 1936 s.35a(1)(i)). The grounds of appeal challenge the finding that the respondent was wearing a seat belt and, by notice of cross-appeal, the respondent claims that the trial judge erred in reducing the award pursuant to s.35a(1)(j) of the Act. The appellant has also appealed against the trial judge's assessment of damages. According to the argument taxation returns of the respondent and the family partnership of which he was a member were wrongly admitted into evidence and it is claimed that the awards for past and future economic loss were manifestly excessive. 2. The finding that the respondent was wearing a seat belt was based on an acceptance of the evidence of the respondent and his brother that this was the case. In an attempt to rebut this evidence the appellant called Mr Warren, one of the ambulance officers who had assisted in conveying the respondent to the Lyell McEwin Hospital. Mr Warren prepared a report which was subsequently incorporated into the hospital medical records. It contained the entry "Patient was not wearing seat belt". 3. Mr Warren agreed that he had little recall of the events surrounding his attendance at the accident. He said he remembered only parts of a conversation he had with the respondent, but he claimed to remember that the respondent made a statement to this effect. The respondent denied making any such comment. 4. The trial judge rejected Mr Warren's evidence. He said:
    "I do not find Mr Warren's evidence convincing. The
    accident, for him, had no special significance. In the course of
    his duties, he attends many of such accidents. He conceded his
    recollection about this accident is skimpy. I gained the
    impression he was engaging in some reconstruction. Perhaps he
    considered, in all the circumstances, that he must have been told
    by the plaintiff that he was not wearing a seat belt because of
    his note to the effect that the plaintiff was not wearing one.
    Whatever, I prefer the evidence of the plaintiff. I accept his
    evidence that he was wearing a seat belt and that he did not tell
    anybody that he was not wearing a seat belt." 5. The appellant also placed reliance on certain entries in the hospital records. Dr Treacy, a surgical registrar, included in his notes the statement "Not wearing seat belt". 6. He was not called as a witness but a letter written by him to the appellant's solicitor was tendered in evidence. He said in the letter that he was not able to say whether the information about the seat belt had come from the respondent although he thought that this may have been the case. Although other references to the respondent not wearing a seat belt appear in the hospital notes there is every possibility that they were simply repetitions of the earlier information recorded by Mr Warren and Dr Treacy. The learned trial judge considered all of the above evidence before reaching the conclusion that he would accept the respondent's evidence. In my view this conclusion should be allowed to stand. The trial judge was required to make a finding based upon his view of the credibility of the respondent. If any previous statement inconsistent with his testimony had been made by the respondent then that would be a matter to be taken into account in the assessment of his evidence. But the trial judge was concerned about the reliability of the evidence of the alleged statements. The notes themselves, taken at face value, do not establish that the statements concerning the seat belt were made by the respondent. Given Mr Warren's poor recollection of the incident it was open to the trial judge to reject it. Dr Treacy acknowledged that he could not state with certainty the source of his information. The trial judge preferred the evidence of the respondent and I can detect no error in the reasoning which led him to that view. It follows that he was correct in refusing to reduce the award by reason of a failure on the part of the respondent to wear a seat belt. 7. It is convenient at this stage to deal with the cross-appeal. The notice of cross-appeal asserts that the learned trial judge erred in reducing the damages by twenty percent for contributory negligence by reason of the finding that the respondent was aware or ought to have been aware of his brother's impaired driving ability as a result of the consumption of alcohol. The accident took place at 6.30 pm on a Saturday. A sample of blood taken from the respondent's brother at 8.05 pm on the same evening indicated a blood alcohol level of 0.117 grams per 100 millilitres of blood. Dr James, the pathologist, stated in evidence that the driver's likely level at the time of the accident would have been about 0.137 percent. This, he said, would have resulted in a substantial impairment of a range of faculties necessary for driving. 8. According to the respondent he and his brother drank some home-made wine during lunch which they had in a shed on the market garden property on the day of the accident. He said they had lunch from 1.30 pm to a little after 2.00 pm and he agreed that he may have consumed up to four "vegemite" glasses of wine. His brother drank about the same amount. He said he did not notice any effects it may have had on his brother. He agreed that the wine had a high alcohol content. He gave the following evidence in cross-examination:
"Q. Do you say that you were to some extent affected by
    alcohol during that period?
    A. Yes, a little.
    Q. How would you describe what you were feeling?
    A. I don't remember.
    Q. What of your brother; did you think that he might be
    feeling a little affected between lunch and the time of the
    accident?
    A. I don't know.
    Q. Did it occur to you that he may be feeling the same as you
    did?
    A. Yes, could be.
    Q. Because it is your evidence, isn't it, that you and he
    drank about the same amount, isn't it?
    A. Yes.
    Q. And did it occur to you that if he was feeling the same as
    you did, that it may not be safe to drive with him?
    A. No." 9. The respondent said that they sat around in the shed until 5.00 or 5.30 pm and then drove from the market garden at Virginia to their house at Smithfield. There they prepared to go out. They then left and the accident took place shortly afterwards. The respondent did not see his brother drink any alcohol when they were in the house on this occasion. 10. The respondent's brother was called to give evidence. He said that the lunch took place at a time later than that deposed to by the respondent and his estimate of the time they stopped drinking was 3.30 pm. He said he had no more than four glasses of wine and he did not drink any alcohol when he arrived home. He said he did not feel affected by the alcohol. 11. The learned trial judge made the following findings on the issue:
    "Antonio's ability to drive the car at the time of the
    accident was impaired in consequence of the alcohol consumed by
    him. The evidence of Dr James makes that clear. I am also
    satisfied that the plaintiff ought to have been aware of that
    impairment: he had been present when Antonio consumed the amount
    of alcohol involved, had consumed about the same amount himself
    and had felt affected by the amount of alcohol he had consumed.
    In those circumstances, he is presumed to have been negligent in
    failing to take sufficient care for his own safety and any
    damages to which he is entitled because of the injuries sustained
    by him in the accident must be reduced to such extent as is just
    and equitable having regard to that negligence. In all the
    circumstances, I think that such damage should be so reduced by
20%." 12. There is some doubt as to whether the driver's blood alcohol level could have attained the estimated level if only four glasses of wine had been consumed. But the trial judge based his finding against the respondent on the basis that the respondent had been present when the alcohol had been consumed, had consumed a similar amount and had felt affected. 13. It is my view that his Honour's finding is not supported by the evidence. The respondent said that he felt only slightly affected by the alcohol and he was not asked at what stage he felt affected. There is no evidence that his brother showed any outward signs of the effects of alcohol and Dr James was careful to point out that, whereas a blood alcohol reading at this level would lead to impairment of driving faculties, it did not necessarily follow that such impairment would have been apparent to another. He said that whether or not a person showed signs of insobriety varied considerably from one person to another and he said that most experienced drivers would be able to mask signs of intoxication if they wished to at this level. 14. The appellant carried the onus of proving the matters required by s.35a(1)(j) before the presumption of contributory negligence could arise. The absence of any evidence as to observable signs of impairment in the present case coupled with the evidence of Dr James that they may not have been present are important factors in the respondent's favour. In my view the learned judge's finding was not justified. It follows that the damages should not have been reduced on this account. 15. The next ground of appeal concerns the admissibility of copies of taxation returns filed with the Taxation Department in relation to the income of the respondent and the partnership which operated the market gardening business. Mr Steele, for the appellant, submitted that the returns were hearsay evidence and that in the light of the objection that they were not supported by source documents they should not have been admitted into evidence by the trial judge. The basis upon which the returns were admitted is not apparent from the transcript, but in my view it was appropriate to receive them into evidence as business records within the meaning of the wide definition of such documents contained in s.45a of the Evidence Act, 1929. Alternatively, they would seem to qualify for admission as apparently genuine documents "purporting to contain a statement of fact ... or from which a statement of fact may be inferred". (Evidence Act s.45b.) Both sections were enacted in order to overcome the hearsay and secondary evidence difficulties referred to by Mr Steele in his argument. The weight of this evidence was a matter for the trial judge, but I am satisfied that the documents were relevant and admissible. 16. The remaining matter concerns the assessment of the respondent's economic loss. The learned trial judge awarded the sum of $25,000 to compensate for past economic loss. Prior to the accident the respondent had entered into a partnership in a market gardening business with his parents and the brother who was the driver of the vehicle on the occasion of the accident. The partnership commenced on 1st July, 1989. The plaintiff's income from the partnership for the year ended 30th June, 1990 was $9,855. This was a one-quarter share of the total income of the partnership. Apparently it was decided that he would not receive a share in the profits after that year, but the amounts to be shared by the other three partners in the 1991 and 1992 years were $27,678 and $61,196 respectively. No evidence was given as to the likely profit for the 1993 year. According to the evidence the respondent did not actually receive his share of the distribution of profits in 1990. However he was given free board and lodging with his parents during that year as well as petrol for his car and spending money which amounted to between $50.00 and $80.00 per week. The respondent's parents continued these arrangements up until the date of trial. 17. The fact that the respondent has not been given a share in the distribution of funds since the date of the accident is of no real relevance in determining his loss of earning capacity during that period. He worked for the partnership during part of this time and the family arrangements as to the distribution of partnership income are not a true indicator of the appellant's contribution to the partnership. Of course the total earnings of the partnership in recent years are of relevance in helping to ascertain what the respondent would have been entitled to by way of a share in the business if he had worked in it full-time and receive a one-quarter share. Some adjustment would have to be made for an increase in the productivity and profit of the business if he had continued in it full-time. On the other hand it is a matter of some relevance that the respondent's parents continued to provide him with board and a modest amount of money for his needs. 18. There is some evidence as to the extent of the respondent's involvement in the business since the accident. He returned to do some work in December 1990. He was restricted to cleaning up around the market garden and worked for an hour or so each day. In March 1991 he had another operation when some rods which had been inserted into his back were removed. However by the end of 1991 he was working four hours a day and he was able to do a little more work in the second half of 1991. From the beginning of 1992 he was doing about four to six hours a day and by the middle of 1992 he could manage five to six hours over a five day week. This was the position as at the date of trial in March 1993. He gave evidence that in this type of business at least eight to ten hours work each day is necessary. In the light of this evidence it is my view that the respondent's pre-trial economic loss was to be assessed on the basis that he had very little capacity for work for the first year after the accident followed by a gradual increase to approximately two-thirds of his pre-trial capacity by the time of trial. 19. There was little in the evidence to explain the increase in the total partnership income from $27,678 in 1991 to $61,196 in 1992. As I have said no figures were presented for the approximately nine months of 1993 up to the date of trial. The only evidence concerning the profitability in that year came from the respondent's mother who said: "Well, sometimes good, sometimes bad. Every year is the same." 20. The onus was on the respondent to prove his loss and in my view the trial judge was required to take a conservative approach to the 1993 year. The profit in the 1992 year may well have been exceptional and in my view it would have been unsafe to assume a level of income for the 1993 year which exceeded that of 1991. After taking into account the profits which would have been available for distribution to the respondent had he been able to work full-time in the partnership and then considering the respondent's reduced capacity for work as indicated by his evidence as to the hours worked, I have reached the view that the award of $25,000 for past economic loss was too generous. In my view a more appropriate figure would have been $15,000 and I would substitute this amount in the award. 21. The amount awarded for future economic loss was $75,000. The respondent was 25 years of age at the date of trial. It is not in dispute that he suffered a severe back injury in the accident. According to the evidence of Mr Morrison, an orthopaedic surgeon, the accident caused a burst fracture at the L1 level. The respondent was operated upon on the night of his admission and Harrington rods were inserted. Mr Morrison was of the view that the respondent was left with a permanent back injury and that he was unlikely to improve beyond the stage reached at the date of trial. He thought the respondent would be unemployable as a labourer and the only reason why he could work in the market garden was because of the freedom of choice which the family business allowed him. 22. The learned trial judge was justified in reaching the view that the respondent would be at a considerable disadvantage on the open labour market. Although he is able to play a restricted role in the family business, there is no certainty that this employment will always be available to him. His parents are in their sixties and there is no guarantee that in the future his brother will be able or willing to work with someone who has a permanent incapacity of this nature. There was evidence of a pre-existing degenerative back condition. It had caused the respondent some difficulty in his previous occupation as a cabinet maker, but had not prevented him from working the long hours of hard work as a market gardener prior to the accident. The trial judge took this pre-existing injury into account when assessing the respondent's economic loss. I am not persuaded that his Honour failed to give adequate weight to the pre-existing condition and in my view the serious and permanent injury suffered by the respondent at an early stage in his working career justified the award of the trial judge for future economic loss. I would not interfere with this component of the assessment. 23. I would dismiss the appeal against the apportionment but allow the cross appeal and substitute for the finding that the appellant was required to pay 80% of the damages a finding that the respondent is entitled to the full amount of the damages as assessed. I would allow the appeal against the assessment of damages and order that judgment be entered in favour of the respondent in the sum of $124,286.80 which sum includes a lump sum of $1,000 in lieu of interest.

JUDGE2 KING CJ I agree with the order proposed by Duggan J. and with his reasons therefor.

JUDGE3 DEBELLE J I agree with the reasons of Duggan J. and the order he proposes.