Terry Turner v Australian Associated Motor Insurers Ltd & The Roads and Traffic Authority of NSW No. 2

[2006] NSWSC 1295

CITATION:	Terry Turner v Australian Associated Motor Insurers Ltd & The Roads and Traffic Authority of NSW No. 2 [2006] NSWSC 1295 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	21 November 2006
JUDGMENT DATE :	28 November 2006
JUDGMENT OF:	Latham J
DECISION:	(1) I order Judgment be entered for the Plaintiff in the sum of $1,211,287.87; (2) I order indemnity costs in favour of the plaintiff; (3) I order that the second defendant pay the plaintiff's costs on a party-party basis until 26 May 2005.; (4) I order that the second defendant pay the plaintiff's costs on an indemnity basis from 27 May 2005.; (5) I order that the second defendant pay the costs of the first defendant; (6) Payment of the judgment amount is stayed pending the outcome of an appeal by the second defendant.
CATCHWORDS:	Negligence - motor vehicle accident - damages - costs.
CASES CITED:	Bullock v London General Omnibus Company [1907] 1 KB 264 Gould v Vaggelas (1985) 157 CLR 215
PARTIES:	Plaintiff - Terry Turner 1st Defendant - Australian Associated Motor Insurers Ltd 2nd Defendant - The Roads and Traffic Authority of NSW
FILE NUMBER(S):	SC 20307/04
COUNSEL:	Plaintiff - JP Gormly SC / RS Sheldon 1st Defendant - R Cavanagh 2nd Defendant - PR Sternberg
SOLICITORS:	Plaintiff - Carroll & O'Dea 1st Defendant - McLachlan Chilton 2nd Defendant - Hunt & Hunt

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

28 NOVEMBER 2006

20307/04 TERRY TURNER v AAMI LTD & RTA

JUDGMENT ON DAMAGES

1 Following delivery of judgment in this matter on 10 November 2006, the matter was stood over for further submissions in relation to the question of damages and costs. The heads of damage which are outstanding are interest on past economic loss, past loss of superannuation, future economic loss, future out-of-pocket expenses, motor vehicle alterations and future equipment. The principal area of contention resides in the assessment of future economic loss and the exercise of the Court's discretion to make a Bullock order (Bullock v London General Omnibus Company [1907] 1 KB 264) in relation to costs.

2 Having determined the plaintiff's past economic loss at $137,250, the quantification of interest on that loss pursuant to Schedule 5 of the Uniform Civil Procedure Rules results in an additional amount of $6,175 from the date of loss to the date of judgment. Accordingly, I award that amount by way of interest on past economic loss. Similarly, the loss of superannuation which would have been contributed by the plaintiff's employer amounts to $15,193 and I award that amount under this head of damages.

3 The determination of future economic loss is designed to recompense the plaintiff for the loss of earnings in the future, but for the accident. The issue for present purposes is whether that determination should be made having regard to the plaintiff’s chequered work history prior to the accident or whether it should be made having regard to the likelihood that the plaintiff was about to enter a period of stable, semiskilled employment as a carpenter in the South Coast area. In the event that the assessment is made on the latter basis, there is no reason in my view not to accept the evidence given by the plaintiff’s previous employer, Mr Marshall. Mr Marshall ran a building company and would have been prepared to employ the plaintiff had the plaintiff made himself available on a full-time basis. In those circumstances, the plaintiff was capable of earning between $700 and $900 per week net, in addition to 9% superannuation calculated on the gross wage.

4 I am satisfied that the plaintiff would have entered the full-time workforce and maintained permanent employment, although his relatively late entry into the full-time workforce would not, in my view, have entitled him to a weekly salary at the upper end of the appropriate range. The plaintiff's circumstances were somewhat unusual, in that he had entered into a permanent de facto relationship, seemingly for the first time in his life, and had actively sought to improve his skills as a carpenter and his employment prospects. The plaintiff and his partner had also taken steps to investigate the possibility of Ms Clarke bearing children to the plaintiff. These responsibilities and the plaintiff's intention to complete the building of a home for his family establish that the latter half of the plaintiff's life would be far more productive than had hitherto been the case. For these reasons, I regard a weekly amount of $700 net as an appropriate amount for the purposes of assessing future economic loss.

5 Neither of the defendants disputed that the plaintiff presented as a genuine individual who was doing his best to remain usefully occupied and to improve what prospects he had to enter the labour market. The plaintiff undertook a course in land and conservation management with TAFE and was doing voluntary work in bush regeneration in the hope that this qualification and his experience might lead to employment in that field. Notwithstanding the plaintiff's optimism in this regard, the weight of the evidence regarding the plaintiff’s functional ability, his psychological and emotional deficits as a result of the accident, and his lack of tertiary qualifications rendered any significant permanent or long-term employment on the open labour market quite remote.

6 In all of these circumstances, I would assess the plaintiff's future earnings loss at $448,392 plus $49,636 representing future superannuation loss.

7 There is no dispute that the plaintiff requires future treatment by way of regular consultations in the amount of $31,446. There is some dispute however concerning the requirement for future surgery. The evidence concerning the probability that the plaintiff would undergo the amputation of his right arm at some time in the course of his life was equivocal. However, given that the plaintiff is likely to live a further 40 years, the availability of medical procedures, including amputation, could not be said to be so remote that some further allowance should not be made for this eventuality. Accordingly, I accept that a further $20,000 should be awarded for future additional medical treatment, thereby amounting to a total of $51,446 for future out-of-pocket expenses.

8 It is accepted that the plaintiff requires a modification to the steering wheel of his vehicle and that the vehicle should be fitted with automatic transmission. Accepting that the plaintiff will replace his vehicle on average every five years, it is appropriate to allow a sum for the modification of each vehicle over the majority of the plaintiff's remaining 40 years. According to the plaintiff's calculations, which I accept, the approximate weekly cost of modification to the plaintiff's vehicle, following application of the 5% discount factor, results in an additional amount of $9,488.09 for future motor vehicle costs.

9 The plaintiff requires the expenditure of a modest amount for household equipment and aids, set out in the report of an occupational therapist. Once again, I accept the plaintiff's calculations by way of assessing the average weekly cost of those items discounted by 5% to take into account the plaintiff's life expectancy. Accordingly, I award the sum of $3321.13 for home and future equipment costs.

10 Judgment is entered for the plaintiff in the sum of $1,211,287.87

Costs

11 The departure point in the consideration of a costs order in favour of the plaintiff in respect of the first defendant's costs is the decision in Gould v Vaggelas (1985) 157 CLR 215. It is appropriate that the principles there enunciated be revisited.

12 Firstly, "the mere fact that the joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay, directly or indirectly, the costs of the successful defendant." (Gould v Vaggelas at 229 per Gibbs CJ) A Bullock order may be made on the basis that the costs incurred by the plaintiff in pursuing its action against the successful defendant have been reasonably and properly incurred, and that the conduct of the unsuccessful defendant makes it fair to impose upon it some liability for the costs of the successful defendant. (Gould v Vaggelas at 230 and 260)

13 Here there can be no question that there was a reasonable cause of action against the first defendant. There were a number of factors which may have contributed to the plaintiff's accident, including the fact that Ms Clarke allowed the plaintiff to drive a vehicle with unroadworthy rear tyres. The interrelationship of the condition of the surface of the road, the bald tyres and the prevailing speed limit could not be determined without rigorous testing of the expert evidence at trial. A finding of negligence against the first defendant, for which it was wholly or partly liable, was always open. In fact, the first defendant was found to be negligent, but that negligence did not ultimately cause damage to the plaintiff.

14 The plaintiff points to the following conduct on the part of the second defendant in support of the application for a Bullock order :-

(a) the second defendant conceded nothing of substance on liability in its defence or at trial ;
(b) the second defendant vigorously contested its own liability and was unsuccessful on all grounds;

(c) the second defendant actively pursued a verdict against the first defendant and the plaintiff by way of evidence from its officers and expert evidence;

(d) the bulk of the hearing time at trial was spent dealing with the unsuccessful defence of the second defendant. By way of contrast, the first defendant's defence was relatively self-contained, yet the first defendant was required to incur considerable costs at a lengthy hearing because of the contentious aspects of the second defendant’s defence.

(e) the second defendant’s conduct at the trial unduly lengthened the proceedings, in circumstances where the second defendant knew of a number of unfavourable aspects of its case, including the accident history of the site, the unreliability of its own database, the failure to erect appropriate signage, the failure of its officers to examine relevant SCRIM data, the failure to produce records relating to the placement of signage and the attempt by the second defendant to justify its inaction in the face of SCRIM readings that were below standard.

15 I would not regard the fact that the second defendant mounted a vigorous defence of itself sufficient to warrant the making of a Bullock order. Were that so, there would be nothing remarkable about the making of such an order. However, there is considerable merit in my view in the combination of the circumstances enumerated above to justify the imposition upon the second defendant of the costs incurred by the plaintiff as against the first defendant. The hearing extended over a number of additional days in order to allow the second defendant to mount a positive case with respect to the reasonableness of its conduct having regard to the allocation of resources. Regrettably, that evidence tended to reinforce the fact that the second defendant had actual knowledge of the dangers inherent in the relevant stretch of road, yet had failed to respond appropriately over a number of years. In these circumstances, I order the second defendant pay the costs of the first defendant.

16 I order that Judgment be entered for the Plaintiff in the sum of $1,211,287.87

17 The plaintiff, having made an offer of compromise in May 2005 below the judgment amount, I order indemnity costs in favour of the plaintiff.

18 Accordingly, I order that the second defendant pay the plaintiff's costs on a party-party basis until 26 May 2005.

19 The second defendant to pay the plaintiff's costs on an indemnity basis from 27 May 2005.

20 Payment of the judgment amount is stayed pending the outcome of an appeal by the second defendant.

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15/01/2007	-	Part 36 Rule 17 of the Uniform Civil Procedure Rules - Paragraph(s) 16,17,18,19
18/01/2007	-	Amendment to coversheet - Paragraph(s) N/A
16/03/2007	-	Coversheet orders corrected to reflect what is written in the Judgment - Paragraph(s) Amendments only to Coversheet
16/03/2007	-	Amend numbers in coversheet - Paragraph(s) N/A
04/04/2007	-	Paragraph 16 inserted - Paragraph(s) 16
11/05/2007	-	11.5.07 - Last sentence inserted in Paragraph 16 of Judgment and coversheet amended to reflect insertion - Paragraph(s) 16