Suncorp Insurance and Finance v Fitchett

[1997] QCA 104

IN THE COURT OF APPEAL	[1997] QCA 104
SUPREME COURT OF QUEENSLAND

Appeal No. 2648 of 1996

Brisbane

Before McPherson J.A.
Davies J.A.
Mackenzie J.

[Suncorp Insurance & Finance v. Fitchett]

BETWEEN:

SUNCORP INSURANCE AND FINANCE

(Defendant by Election) Appellant

AND:

NORMAN FITCHETT

(Plaintiff) Respondent

JUDGMENT OF THE COURT

Judgment delivered 6 May 1997

At about 7.00 pm on 16 July 1991, the plaintiff, who is the respondent to this appeal, was

driving a truck in a northerly direction along the Gunnawarra Road when it collided with the rear of a

large trailer attached to a prime mover belonging to the second defendant. The trailer was stationary

on a straight stretch of road facing in the direction in which the plaintiff was travelling. Where it stood

it occupied the whole of the left hand carriageway of the bitumen surface of the road, which was, in all,

some 6 metres wide, with a 4.4m. trafficable gravel shoulder at the left.

The driver, who is the first defendant in the action, had stopped the prime mover and trailer in order to adjust the tarpaulin on the load. He could, as the learned trial judge found, safely have parked the vehicle on the shoulder to the left of the bitumen so as to leave little or none of it projecting on to the

bitumen surface. On the other hand, the judge also found that the rear lights of the trailer were

illuminated at the time of the collision. They consisted of a clearance light, a dim red tail light, two lights

on the rear number plate and another clearance light, which were located across the back of the trailer.

In addition, there were two clearance lights on the prime mover. At the time the headlights of the prime

mover were also illuminated.

The appellant, which is the defendant by election, challenges the judge’s apportionment of

responsibility for the plaintiff’s loss, which attributed 80% of the blame to the defendants and only 20%

to the plaintiff. His Honour considered that there had been contributory negligence on the part of the

plaintiff in not seeing the illuminated trailer lights and slowing down sooner than he did; but leaving the

headlights of the prime mover illuminated might have created the impression in the mind of a following

driver that the prime mover and trailer were not stationary but moving forward along the road. There

was an oncoming vehicle travelling in the opposite direction which passed by the stationary trailer, and

then passed the plaintiff’s vehicle shortly before the collision. It may, his Honour considered, have

diverted the plaintiff’s attention away from the trailer or its rear lights as he approached it. The gravel

shoulder of the road to the left of where the trailer was parked was firm, dry and well compacted. If

the prime mover had been parked there, it would have left the whole, or almost the whole, of the left

hand side of the bitumen unobstructed.

At the time of the collision, the first defendant was either in front of the prime mover or moving

forward to the front of it along the side of the trailer. The first he knew of the collision was when he

heard a bang. Injuries sustained by the plaintiff in the collision left him with no memory of the accident

or events leading up to it. In consequence, any attempt to assess the plaintiff’s response and stopping time on seeing the trailer lights was left to depend largely on inferences derived from skid marks made

by the tyres of the plaintiff’s vehicle on the road surface. Police Sgt. Girling, who measured them on

the day following the accident, said they were 10m. in length. However, the plaintiff’s father, who

photographed the skid marks after first painting them white, produced a map or sketch, which was

admitted at the trial as ex. 19. It shows a set of parallel tyre marks in continuous lines leading up to the

point of collision. Those on the left measured 19.5m and those on the right 17.5m. These

measurements were mentioned by the judge in the course of arriving at his assessment of contributory

negligence.

On appeal, it was submitted that in calculating when or where the plaintiff had first applied his

brakes, it was necessary to allow for the length of the truck itself. If it was taken into account, it would,

it was submitted, show that the plaintiff had begun to brake his vehicle at a point closer to the rear of

the defendants’ trailer than the judge had assumed. On that footing, the extent of the plaintiff’s

contributory negligence was more serious than was found by the judge at the trial. The precise

length of the truck does not appear from the material in the record. As a factor potentially affecting the

calculation of the plaintiff’s braking time or distance, it was a matter that was adverted in the course of

the trial; but counsel for the parties were not in agreement about its significance. The difference was not

resolved at the time the matter was mentioned, and it is not possible, without further evidence, to

determine precisely what it was that Sgt. Girling measured as 10m., or whether the line of skid marks

as painted on the road surface were made by both front and rear tyres combined, or either and which

of them. As so often happens in cases of this kind, skid marks found on the road surface are not

necessarily a reliable indication of the distance over which the brakes were applied. In the present instance, it ought not be assumed from the reference to the measurements in the reasons for judgment

that his Honour adopted them as a basis for his assessment of contributory negligence..

In this state of the evidence before this Court, it is not now possible to reach a firm conclusion

that the plaintiff was any more to blame for the collision than his Honour found him to have been. The

unassailable fact remains that the defendant’s prime mover and trailer obstructed the whole of one side

of the highway and did so under conditions which made its presence there both unexpected and

unnecessary. Had the trailer been driven on to and parked on the left hand gravel shoulder, the plaintiff

could almost certainly have succeeded in avoiding the collision. There is nothing in the particular facts

of the present case that would lead this Court to abandon its conventional reluctance to interfere with

an apportionment based on an assessment at trial of the relative responsibility of two parties for a loss

to which, in some degree, both plainly contributed.

The remaining question on appeal was the quantum of damages awarded. The plaintiff, who

was a member of a grazing partnership was 28 years old at the time of the accident in 1991 and 33 at

trial. He sustained a serious injury to his left leg resulting in a permanent disability assessed by Dr Boys

as amounting to 45% loss of function, and by Dr Clark as likely, in the longer term, to increase to 70%.

The injuries to both his right and left legs aggregated to a loss of total bodily function of 10%. In

consequence his capacity to engage in mustering and the heavier work of a grazier was permanently

restricted. It was also found that he would have to cease work five years earlier than he would

otherwise have done.

As to quantum the defendant’s appeal was confined to the amount awarded for future economic

loss, which was assessed at $173,000. Of this, an amount of $26,400 represented compensation for

the final five year period from ages 58 to 63 during which, on the medical evidence, the plaintiff would be unable to work at all. No criticism was levelled at this component. It was arrived at by ascertaining

the present value of the cost of replacement labour at $400 per week during that period of total

unemployability, which amounted to $26,400.

The appellant’s complaint is directed to the amount of compensation allowed for the intervening

25 year period of partial incapacity from ages 33 to 58, for which $146,600 was awarded. It was

calculated by starting with a replacement labour figure of $200 per week, which was adopted as the

loss to the partnership produced by the cost of employing additional labour to supplement the plaintiff’s

input reduced as it was by his partial incapacity for work during that period. The present value of that

sum was $146,600, giving a total for future economic loss of $173,000.

The criticism made of this component of $146,600 is that it assumes that the plaintiff was

already substantially incapacitated from working at and from the date of trial, whereas his own evidence

was that since December 1993 he had been working a 10 to 12 hour day (which was similar to the

hours he worked before the accident) and was still earning about $20,000 p.a. Of course, he was

unable to do some work, or to do it as efficiently or quickly as before, so that some replacement labour

was needed; but ex. 18, which was a schedule of the cost to the partnership of replacement labour,

suggested a figure of only about $3,000 p.a., which at present value for 25 years came to about

$43,500 and not the $146,600 adopted by the learned trial judge for that period. What in effect the

judge had done, it was submitted, was to over-compensate the plaintiff for the risk that he might have

to cease working, but had treated the risk as if it had already been realised at the date of the trial and

not at some uncertain date in the future. Overall, it was said, the result was to assess the plaintiff’s post-

accident working capacity as diminished by 55% from the date of the trial.

The fallacy, if that is what it is, arises from the judge having adopted as the basis for his

assessment an amount of $200 per week or $10,000 p.a. as the replacement labour cost for the first

25 years from the date of trial, whereas the evidence derived from ex. 18 showed that at the date of trial

the actual cost being incurred on that account was only about $3,000 p.a. The consequence, according

to the appellant, is that the plaintiff had been compensated for the risk of losing his present secure

employment by an award of about $100,000, which was said to be excessive in the circumstances.

An accurate assessment of that risk is necessarily a difficult task. It is not correct, as Mr Pack

of counsel for the respondent urged upon us, simply to say that the plaintiff was being compensated for

his loss of earning capacity rather than his loss of income. The current income being earned by him

provides some evidence of the extent to which, even with his considerable physical disability, the

plaintiff’s present income earning capacity has been reduced. The real problem is to determine the

duration for which the present state of affairs is likely to continue. The partnership is a family business

consisting of the plaintiff’s parents, the plaintiff and his two brothers. The family element reduces the

risk, at least for the time being, that the partnership will be dissolved thus throwing the plaintiff on the

open labour market; but, even allowing for that, it cannot be assumed that all the younger members of

the partnership will continue to acquiesce in carrying the additional replacement labour cost for an

indefinite future period. The business has been affected by the drought in recent times, and to keep it

going it has been necessary to dispose of some capital assets. It is plain that, in assessing the risk that

the plaintiff may be forced to find employment elsewhere, the court should not be ungenerous. Even

if the risk may not be great, its consequences for the plaintiff are likely to be severe.

We were offered an alternative calculation based on the contingency that the plaintiff may be totally incapacitated as much as 10 years before reaching the age of 63 rather than only five. The effect would be to allow $62,240 for that 10 year period rather than $26,400 for five years. Again, this

appears to underestimate the seriousness to the plaintiff of the risk of his being thrown on the open

labour market at some unpredictable future time. All matters considered, the case appears to be one

in which, as Mr Pack suggested, the plaintiff should be compensated by awarding a global figure which

it is not possible to justify by reference to any strict mathematical formula. In the end, we consider that

he should be allowed an amount equal to about half that awarded at trial for future economic loss, or

about $90,000 in all.

The appeal should be allowed with costs and the judgment varied by reducing that component

in the assessment from $173,000 to $90,000. The total damages would then be diminished from

$337,778 to $254,778 which, after allowing for 20% on account of the plaintiff’s contributory

negligence, would produce a judgment sum of $203,822 in place of $270,228.80 in the court below.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2648 of 1996

Brisbane

[Suncorp Insurance & Finance v. Fitchett]

BETWEEN:

SUNCORP INSURANCE AND FINANCE

(Defendant by Election) Appellant

AND:

NORMAN FITCHETT

(Plaintiff) Respondent

McPherson J.A.
Davies J.A.

Mackenzie J.

Judgment delivered 6 May 1997

Judgment of the Court

APPEAL ALLOWED; JUDGMENT AWARDED BELOW FOR FUTURE ECONOMIC LOSS REDUCED TO $90,000 PRODUCING A JUDGMENT SUM OF $203,822 IN PLACE OF THE $270,228.80 AWARDED IN THE COURT BELOW.

CATCHWORDS:	CIVIL - INSURANCE - Motor vehicle accident -Future economic loss - Quantum.
Counsel:	Mr P. Ambrose for the appellant Mr B. Pack for the respondent
Solicitors:	Morrell Stephenson for the appellant Gilshenan and Luton for the respondent
Hearing Date:	7 April 1997