Taylor v Scriven
[2007] WASCA 208
•10 OCTOBER 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TAYLOR -v- SCRIVEN [2007] WASCA 208
CORAM: WHEELER JA
PULLIN JA
BUSS JA
HEARD: 5 JUNE 2007
DELIVERED : 10 OCTOBER 2007
FILE NO/S: CACV 47 of 2006
BETWEEN: TAYLOR (an infant) as the son of the late BARRY JAMES TAYLOR by his next friend ANITA WEINBRECHT
Appellant
AND
RYAN BARRY JONATHON SCRIVEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :MARTINO DCJ
Citation :TAYLOR (an infant) as the son of the late BARRY JAMES TAYLOR by his next friend ANITA WEINBRECHT -v- SCRIBEN [2006] WADC 54
File No :CIV 2639 of 2004
Catchwords:
Appeal - Negligence - Motor vehicle accident - Claim for damages under Fatal Accidents Act 1959 (WA) - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr D I Connor
Respondent: Mr M A G Jenkin
Solicitors:
Appellant: Hoffmans
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Taylor v Scriben [sic Scriven] [2006] WADC 54
WHEELER JA:
The appeal
This is an appeal by an infant in relation to findings made by the learned trial Judge that the negligence of the infant's father contributed to that father's death, and that therefore the damages to be awarded to the infant under the Fatal Accidents Act1959 (WA) should be reduced to reflect an apportionment of liability between the deceased father and the respondent. There is also a question concerning the quantum of damages.
The appeal is concerned purely with questions of fact; there does not appear to be any dispute between the parties concerning the relevant legal principles. Given that the respondent recognised that the appellant's careful submissions, criticising aspects of his Honour's findings, had considerable force, it is unfortunate and perhaps a little surprising that the matter was not able to be settled. It is difficult to see how the interests of the respondent were advanced by its formal opposition to all of the appellant's grounds of appeal.
Findings at trial
The background to the matter is briefly as follows. At approximately 8 pm on Tuesday, 2 January 2003 (that is, about half an hour or so after dark), the late Mr Barry Taylor was riding his motorcycle on Roe Highway in Forrestfield. He had been travelling north when he turned left into Berkshire Road. On Berkshire Road, his motorcycle collided with a parked Mitsubishi Sigma sedan, which had been left there by the respondent. It had been necessary for the respondent to leave his car where he did because his left front tyre had become flat while he was driving along the road at roughly 5 pm in the afternoon. The respondent did not realise at the time that there was no street lighting provided for in the area where he had parked his car. The learned trial Judge's conclusion that the respondent was negligent is not challenged.
The finding that the appellant's father had been guilty of contributory negligence arose from two matters. His Honour's findings in that respect are at [72] and [73] of his reasons for decision (Taylor v Scriben [sic Scriven] [2006] WADC 54), and read as follows:
I am however satisfied that Mr Taylor was negligent in two respects. The first is that he failed to keep a proper lookout. In my view if he had paid attention to the road in front of him he could have seen Mr Scriven's car in sufficient time to avoid the accident by stopping or swerving to avoid the parked car.
The second is his failure to secure his helmet. The severe pelvic injuries that Mr Taylor suffered would not have been reduced by wearing a helmet, but his head injuries would have been, and his head injuries were a contributing factor to his death.
His Honour went on to apportion liability 55% to the appellant's father and 45% to the respondent. Both aspects of the finding of contributory negligence are challenged by the appellant, as is the apportionment. For reasons which follow, it is not necessary to deal with the apportionment question.
Failure to fasten helmet
Turning to deal with the helmet issue first, there are some aspects of the appellant's grounds which are effectively conceded by the respondent. It is alleged, in par 3.4 of the grounds of appeal, that the evidence before his Honour did not allow findings to be made concerning the medical cause of the deceased's death, about whether the deceased would have died as a result of blood loss whether or not he had suffered a head injury, and about whether fastening his helmet would have prevented death by head injury.
There was evidence which would have entitled his Honour to conclude that the deceased had not fastened his helmet. There was evidence suggesting that, for that reason, the deceased's head was not protected by his helmet at the time at which he struck the ground. That, of course, was not the end of the inquiry.
There was also evidence of severe pelvic injury, and bleeding from that injury. In order for his Honour to make a finding about whether the deceased's failure to fasten his helmet had contributed to his death, it would have been necessary for his Honour to determine, based on admissible evidence, what role each of the head injury and the pelvic injury played in the death of the deceased and, assuming that the head injury was a contributing cause to the death, there would need to be a finding as to whether or not wearing a helmet would probably have made any material difference in the circumstances of the particular injury.
The evidence in relation to these issues was scanty. There was in the parties' agreed book of documents, a set of emergency department case notes. They revealed that, upon admission, the deceased was observed to have pelvic and facial injuries. It is clear that he suffered from bleeding to the extent that it was not possible to maintain his blood pressure in the emergency department and that, despite massive transfusions of fluids, blood and plasma, his condition never became stable. The notes include the entry:
Initially we felt that controlling intracranial bleed was a priority however it became clear that a major pelvic [injury] was the predominant source of bleeding.
Arrangements were made to attempt immobilisation of pelvic [injury] bleeding points while waiting for the interventional radiology team to arrive we transferred patient to theatre.
An external fixation device was applied and the ora pharyngeal [?] bleeding was packed with no improvement in haemodynamic stability.
By this stage the patient was requiring massive doses of adrenalin in the form of boluses. Both pupils were fixed and dilated.
[After consultation] it was decided that further resuscitation was futile and therefore should be ceased.
The impression given by the notes is that death resulted from an inability to stabilise the deceased's condition because of his massive bleeding and that both the head and pelvic injuries were a source of bleeding, with the predominant source being the pelvic injury. It is not, in my view, possible from the notes to form a conclusion as to whether the pelvic injury on its own was sufficient to cause death, or whether it was a combination of the two injuries which had that effect.
There was also in evidence a report from forensic pathologist, Dr Cadden. In answer to questions put to him, Dr Cadden's letter says, in relation to the cause of death:
The cause of death is as stated - 1(a). Pelvic and head injuries. He would appear to have been clinically assessed as having severe pelvic injury and this was certainly confirmed on autopsy. His head injury was also severe with features such as the skull fracturing and the brain appearances being of the type encountered in fatal head injury. I would require to review the hospital notes again to chronicle the exact clinical course of events however I would not put the onus of the cause of death solely on the head injury.
Reading these observations with the hospital notes, it is not possible to determine whether the pelvic injury on its own would have been sufficient to have caused death, or whether death was caused by an interaction between the bleeding from the pelvic and head injuries.
Dr Cadden was also asked about the degree of protection that would have been afforded to the deceased had his helmet been secured to his head. That is, he was specifically asked: "Would the injuries have been the same/less if the helmet had been secured?" It is important to note that the first part of Dr Cadden's answer to this question was "Essentially the same to answer 2(a)". The answer to 2(a) was "This is not a medical issue and is more in the expertise of a crash investigator or crash experimental scientist". As I understand it, the thrust of Dr Cadden's answer was that the answer to the question was not within his area of expertise. The remainder of his observations were therefore not, strictly, admissible.
Dr Cadden went on to say, "There is an element of common sense that a securely protected head could be less vulnerable to injury than a lesser protected (unsecured helmet) head in a high velocity impact". However, in relation to a further question about whether the type of head injuries observed by Dr Cadden were consistent with the deceased having worn a helmet or otherwise, the answer was, "It would be fair to say that one sees a spectrum of head injury in people with protection by a helmet and that spectrum would include the type of injuries seen in Mr Taylor". That is, it was Dr Cadden's experience that some persons would, in some types of accident, sustain head injuries of the type seen in the deceased even if wearing a securely fastened helmet.
As the respondent's counsel recognised in argument before us, there was really no evidence which would have entitled his Honour to draw either of the conclusions set out in [73] of his Honour's reasons. That is, although it is possible that his head injuries would have been reduced if his helmet had been secured, there was no evidence from which it was open to conclude that such an outcome was probable. Further, the medical evidence was ambiguous on the question of whether the head injuries were a "contributing cause" for the death of the deceased in the sense of being, together with the pelvic injury, a necessary cause, or whether they were simply one of two independent causes of death, either of which would on its own would have been sufficient to have caused the deceased's death. I would set aside his Honour's findings on the helmet issue.
Failure to brake or take evasive action
Turning to the question of the deceased's alleged failure to keep a proper lookout, there was evidence which would have entitled his Honour to draw the conclusion, which is found in [60] of his Honour's reasons, that the deceased attempted neither to apply the brakes on his motorcycle, nor to swerve to avoid the parked vehicle. That evidence was fairly slight, and there may have been competing interpretations of it. However, it is not possible to sustain his Honour's finding that if the deceased had paid attention to the road in front of him, he could have seen the parked vehicle in time to take action by stopping or swerving (at [72]). That is, it was not possible, having regard to his Honour's conclusions about the evidence, to form the view on the balance of probabilities that the deceased had any opportunity to take any action to avoid the accident.
The question of whether the deceased could have taken action to avoid the accident comes down to one of simple mathematics. The speed limit in the area was 80 kilometres per hour before the turn onto the accident site and 70 kilometres per hour shortly after the accident site. His Honour concluded that there was no evidence that the deceased was travelling at an unsafe speed. The expert evidence suggested that the deceased had been travelling at a speed somewhere between approximately 50 and approximately 70 kilometres per hour (at [47] and [49]) and his Honour considered that it was not possible to make any precise conclusion about the speed (at [54]). It seems to me that his Honour must, having regard to the evidence, have accepted that the speed was somewhere between 50 and 70 kilometres per hour.
The evidence as to visibility was to the effect that it would have been possible for the deceased to have seen the parked Sigma somewhere between 20 and 60 metres ahead, and his Honour accepted that 40 metres was a "reasonable estimate" (at [56]). In using the expression "reasonable estimate", I would understand his Honour not to be making a precise finding, so that it is necessary to assume that visibility may have been somewhat greater or somewhat less than 40 metres.
Neither of the expert witnesses was really qualified to assess reaction time, his Honour found, although each referred to the fact that there had been studies on reaction time (at [61]). His Honour accepted that it was not possible to reach any precise conclusions as to reaction time (at [63]). The range of estimates of reaction time of an average driver was from about a second up to two and a half seconds (at [61] and [62]).
Taking all of the above evidence, and making simple calculations, a speed of 50 kilometres per hour gives a distance travelled of 13.88 metres per second, while a speed of 70 kilometres per hour gives a distance travelled of 19.44 metres per second. On those calculations, then the very shortest distance which the deceased's motorcycle could have travelled, at a reaction time of one second, would have been 13.88 metres, before the deceased reacted. However, at a speed of 70 kilometres per hour, and a reaction time of two and a half seconds, then the deceased's motorcycle would have travelled 48.6 metres, before the deceased reacted. The only evidence about stopping distances was to the effect that a motorcycle of the kind driven by the deceased should have been able to stop from 50 kilometres per hour relatively quickly, and perhaps in something approximating 13 metres (green AB 278).
If one accepts a distance of 40 metres as being the distance at which the deceased would have seen the vehicle, then it is clear that at 50 kilometres per hour and a one second reaction time, he could have had a reasonable opportunity to stop his vehicle, or perhaps to swerve, assuming he saw the Sigma at the first available opportunity. Even if fleetingly distracted by, for example, looking at his speedometer or noticing some other object on the road, then it would appear that it would still have been possible for him to stop or to slow significantly, or perhaps to swerve. However, at a speed of 70 kilometres per hour, and at a reaction time of anything over approximately one and a half seconds, there would apparently not have been sufficient time for the deceased to have avoided the accident. At a reaction time of two and a half seconds, he would not have even been able to begin to take such action, but would have collided with the Sigma almost as he became aware of its presence.
It follows from the calculations outlined above, that, having regard to the range of possibilities before his Honour, about which he was, quite correctly, unable to form a concluded view, it was simply not possible to conclude that it was more probable than not that the deceased would have been in a position to take evasive action in relation to the Sigma. I would add, that even if it be assumed that the deceased could have taken some evasive action, there was very scanty evidence about what evasive action would have been open to him, and whether it would have enabled him to avoid the accident, or would have reduced its severity.
The only evidence in relation to the deceased's ability to stop the motorcycle is as I have mentioned. There was no evidence at all, it seems, about what room for manoeuvre it would have required for the deceased to swerve around the Sigma, and the distance from the Sigma at which it would have been necessary for him to commence that manoeuvre. It should also be noted, of course, that it would have been necessary for the deceased, assuming that he saw the Sigma in time, to have chosen between swerving and applying his brakes, since it would not have been possible for him to do both. The necessity of making that choice, in an emergency, might reasonably be expected to delay, even if only very slightly, any reaction by the deceased.
It follows from what I have said above, that the appeal must succeed in relation to the findings of contributory negligence. There was no evidence from which his Honour was entitled to make the findings which he did, and it follows that there should have been no apportionment between the deceased and the respondent.
Quantum of damages
Turning to the question of damages, the infant appellant was born in 1995. His mother and the deceased lived together for some five or six years and separated in about 1998 or 1999. The appellant lived with his mother. Her evidence, which was accepted by the learned trial Judge, was that from about the age of five, the appellant and the deceased were very close. For some time in 2002, she had gone to the north of the State to work and the deceased had stayed in her house and looked after both the appellant and his half‑brother for approximately two months. The deceased had lived close to her house.
The deceased was required by the Child Support Agency to pay child support. He was said not to be a "good payer"; because he had so much contact with the appellant it seemed he did not feel that it was necessary for him to make all the payments he was required to make. I would note, however, that he was, of course, under a legal obligation to do so, and that there are various mechanisms open to the Child Support Agency to recover outstanding payments.
The amounts which he paid varied from $399.67 per month in the period 1 January 2001 to 31 March 2002, up to $615.67 per month from 1 January 2000 to 30 June 2000. The amounts varied according to the deceased's income. His occupation had been a machinery operator in earthworks. At the time of the accident, he was about to commence work in a new job in regional Western Australia. It was also the evidence of the appellant's mother that the deceased purchased clothing for the appellant and gave gifts to him from time to time.
His Honour estimated the total of financial support and gratuitous services and support at $400 per month. He made no deduction for contingencies. This finding is attacked on the basis that there is no reasoning in support of it. In my view, that criticism is correct.
Reconstructing the way in which his Honour may have reasoned, the sum of $400 appears to be the most recent amount of child support paid by the deceased, rounded‑up by a few cents. However, it is accepted on both sides that the quantum of the liability to pay child support is directly related to the payer's taxable income in any particular year, and the evidence clearly was that the deceased's taxable income varied. It had been higher in the past and, as I have noted, he was about to commence a new job at the time of his death. Having regard to his occupation, it is unlikely that the deceased would have been unemployed in Western Australia at any time in the near future.
In my view, assuming that his Honour did adopt the most recent child support figure, he was in error. That error has two aspects. First, as the appellant points out, the average of the monthly rates of child support paid by the deceased in the past was $491.61 per month. It is suggested therefore that approximately $480 per month would have been a more appropriate base figure for the calculation of past and future lost child support.
It is also submitted that his Honour erred in making no allowance for gratuitous services, having regard to the uncontested evidence of the appellant's mother about gifts which had been made to the appellant in the past, and having regard to the close relationship between the appellant and the deceased. I accept that some allowance should have been made in this latter respect. His Honour gave no reason for failing to do so.
There was a real chance that the deceased might, for significant periods, have assumed a greater responsibility for the appellant's care. In addition, there are a significant number of ways in which a parent, who is close to a child, even if they live apart, is likely to be providing assistance to that child. As the deceased apparently did, the parent may pick the child up after school, or take the child on excursions. As a child grows older, gifts of books or computer equipment to assist with the child's education, gifts of clothing and sporting equipment, and - if the parent is able to afford to do so - assistance with the purchase of a vehicle, or assistance with small amounts of furniture and the like when the child leaves home, are forms of material assistance which might well be provided.
These last are, of course, material gifts, rather than "services" and might be considered to fall to be assessed as part of the loss of dependency which is here quantified by reference to loss of child support. However, they, in my view, in a case such as the present, form part of a broader category of loss of "gratuitous" services and support, the quantity and value of which will depend upon the relationship between parent and child.
The point I am endeavouring to make is that, given that the appellant's mother and father had terminated their relationship, the amount of child support, which he would be legally required to pay, can be fairly readily quantified, while it was possible that any other support or service, which he was not legally compelled to provide, might vary from none (if, for example, the parents lived a considerable distance apart, and the deceased did not maintain contact) to very significant. Quantification is therefore particularly difficult where, as here, the parties are separated and the child was fairly young at the date of death. It may be as the respondent submits, that if the deceased had gone "up north" to work, as he planned, he might for some time have provided no gratuitous services. However, in the present case, the deceased had a good relationship with the appellant, a cordial relationship with the appellant's mother, and was involved in the care of the appellant. Rather than attempt the artificial precision of calculation, I would simply award $15,000 under this heading.
In relation to past and future child support, using the multiplier which is agreed between the parties to be the correct one, a figure of $480 per month gives a figure for past financial loss of $18,700, interest at $1,821, and future financial loss of $35,091. That is a total of $55,612. I would not make any deduction for contingencies, on the basis that the figure of $480 per month is slightly less than the average of the figures paid by the deceased in the past, and having regard to the fact that there are a number of potentially favourable future contingencies for which I would also not allow. Those future contingencies would include a significant increase in the deceased's income, having regard to his occupation, and the possibility, adverted to by the appellant's mother in the course of her evidence, that the deceased would become more involved with the care of the appellant, which might have extended to having the appellant living with him on a permanent basis. The total amount which I would substitute for the award made by his Honour would therefore be $70,612.
Conclusion
I would allow the appeal, set aside the orders made by his Honour, and in lieu thereof order that the respondent pay the appellant's damages in the sum of $70,612.
PULLIN JA: The grounds of appeal shorn of particulars read:
1.The learned judge erred in law in holding the Deceased was negligent in failing to keep a proper look out and in finding that if
he had done so he would have been able to avoid colliding with the Respondent's parked car by stopping or swerving in that there was insufficient evidence to support such a finding.
2.Alternatively to Ground 1 herein, if it was open on the evidence for the learned judge to find the Deceased had failed to keep a proper lookout, the learned judge erred in law in failing to state:-
2.1his findings of fact regarding the Deceased's pre‑collision speed or likely reaction times;
2.2his reasons for making findings of fact in relation to speed and reaction time.
In those circumstances the learned judge erred in law by not providing adequate reasons for his decision.
3.The learned judge erred in law in failing to apply the correct test for causation in the contributory negligence case, alternatively he made a finding that the Deceased's failure to fasten his helmet was causative of his death when there was insufficient evidence to make that finding.
4.The learned judge erred in law in apportioning liability between the Deceased and the Respondent 45%/55% against the Appellant.
5.Alternatively, if the learned judge's apportionment was within a sound discretionary range, he erred in law in failing to provide any reasons for the apportionment.
6.The award of damages prior to the apportionment was in the sum of $52,225.00 comprised of:-
6.1Past loss of dependency in the sum of $15,584.00 with interest at 3% per annum in the sum of $1,518.00.
6.2Future loss of dependency in the sum of $35,123.00.
Both the said sums were inadequate and ought to be increased.
The finding challenged by grounds 1 and 2 appears in [72] of his Honour's reasons which read:
I am however satisfied that Mr Taylor was negligent in two respects. The first is that he failed to keep a proper lookout. In my view if he had paid attention to the road in front of him he could have seen Mr Scriven's car in sufficient time to avoid the accident by stopping or swerving to avoid the parked car.
This was preceded by paragraphs earlier in his judgment which read:
Joy Beatrice Kelly and her husband were walking their dog on Berkshire Road, heading towards Roe Highway. As she was walking along Berkshire Road Mrs Kelly heard a motorcycle approaching from Roe Highway. The following paragraph appears in her statement:
'At the time of hearing the motorcycle approaching, the sound of the motor was accelerating and the noise was continuous until the sound of a loud bang, there was no screech of brakes or anything like that.' [18]
The loud bang Mrs Kelly heard was Mr Taylor's motorcycle colliding with Mr Scriven's car. Mrs Kelly was approximately 150 metres from the accident scene. [19]
…
Mrs Kelly described the conditions at the time of the accident as follows:
'The weather conditions at the time was (sic) fine and it was a clear night, the roads were dry and the visibility in the area was alright other than it is a dark road as there isn't any street lighting in this area until Ashby Close.' [22]
…
There is no evidence from the marks at the accident scene nor the sounds heard by the witnesses at the scene that Mr Taylor attempted to apply the brakes on his motorcycle, slow down or swerve to avoid the Sigma and I conclude that he did not do any of those things. [60].
In my opinion, his Honour's conclusion that the deceased failed to keep a proper lookout was open on the evidence referred to above and, in my opinion, there is nothing to lead to the conclusion that his Honour erred. A driver is supposed to pay attention to the road ahead and to drive in accordance with the conditions. There was some evidence that the curve of the road may have thrown the deceased's headlight beam off to the side of the road but if that is so, a person must be more attentive so that they do not risk colliding with an unexpected object. The evidence of Mrs Kelly and her husband supports a conclusion that the deceased was not riding to the conditions, that he did not see the vehicle on the road before colliding with it and it follows that the deceased did not keep a proper lookout.
Ground 2 should be dismissed because his Honour set out the evidence which supports his conclusion.
I would uphold ground 3 for the reasons given by Wheeler JA.
Ground 4 challenges the trial Judge's apportionment of liability at 45%/55% against the appellant. His Honour said:
The making of an apportionment of liability between Mr Scriven and Mr Taylor involves an assessment of both their culpability and the relative importance of their acts in causing Mr Taylor's death: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529. It is my view that the appropriate reduction for contributory negligence of Mr Taylor in failing to keep a proper lookout and failing to fasten his helmet is 55 per cent, so that the plaintiff is entitled to damages of 45 per cent of the loss suffered by the death of his father. [74]
Because ground 3 has succeeded, his Honour's apportionment must be set aside because his Honour relied upon the failure to fasten the helmet as one of the factors leading to the apportionment that he made.
The deceased was failing to keep a proper lookout, but what he failed to contend with was the unexpected location of the vehicle. In my opinion, liability should be apportioned 25%/75% against the respondent. In leaving the car where he did, the respondent was more culpable than the deceased. The culpability of the deceased was his failure to keep a proper lookout while riding in accordance with the conditions, but the dangerous conditions were created by the respondent.
That means that ground 4 should be upheld. It is not necessary to deal with ground 5.
I agree with Wheeler JA in relation to the quantum issue and therefore ground 6 should be upheld.
I would therefore allow the appeal and award the appellant 3/4 of the quantum figure arrived at by Wheeler JA, plus funeral expenses of $2,753.04 arrived at in the following way. The expenses were $6,670.73. After allowing for contributory negligence, the award would be $5,003 in round terms. The compulsory insurer has paid $2,250 and therefore the award for funeral expenses is the figure of $2,753.
BUSS JA: I agree with Wheeler JA.
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