Terry v Leventeris - [2011] SASCFC 26

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
TERRY v LEVENTERIS
[2011] SASCFC 26
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Vanstone)
12 April 2011
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - FINDINGS ON ISSUE OF NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
Appeal against decision of a District Court Judge awarding a plaintiff damages with respect to injuries sustained following a four car motor vehicle collision - where Judge made finding of negligence on the defendant's part - where Judge rejected the defendant's claim that plaintiff had been contributorily negligent - where 15 month period between trial and judgment delivery - where plaintiff died following trial but before judgment delivery - where held that only heads of damage that survived plaintiff’s death were special damages, interest and past gratuitous services (those were services provided by plaintiff's husband) - whether delay should be taken into account when reviewing Judge’s findings - whether Judge erred in finding negligence on the part of the defendant and failing to find contributory negligence on the part of the plaintiff - whether Judge erred in awarding damages for past gratuitous services beyond the first three month period following the collision.
Held: Appeal dismissed - no relevant delay occasioned - in any event, detailed reasons for judgment were provided - it was open to Judge to find negligence on the part of the defendant and to dismiss claim for contribution - findings made were open to the Judge - assistance needed by the plaintiff fluctuated from time to time following the collision - overall assessment of past gratuitous services was within discretion of Judge and was fair and reasonable.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - METHOD OF ASSESSMENT - VOLUNTARY OBLIGATIONS
Cross appeal against decision of a District Court Judge awarding a plaintiff damages with respect to injuries sustained following a four car motor vehicle collision - whether damages awarded for past gratuitous services were inadequate - whether judgment should have been antedated to a date before the death of the plaintiff, in particular to allow for an award for pain and suffering - whether error made in award of interest.
Held: Cross appeal dismissed - award for past gratuitous services was fair and reasonable - as there was no relevant delay on the part of the Court, the circumstances did not call for the exercise of the discretion to antedate the judgment - no error demonstrated on part of the Judge with respect to interest.
Wrongs Act 1936 (SA) s 24H and s 35A(2); Civil Liability Act 1936 (SA) s 58; District Court Rules 1992 (SA) r 84.02; District Court Rules 2006 (SA) r 226(4), referred to.
Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Jones v Hyde (1989) 63 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273; Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; R v Maxwell (Unreported, Court of Criminal Appeal, NSW, Spigelman CJ, Sperling and Hidden JJ, No 60282 of 1998, 23 December 1998); Goose v Wilson Sandford & Co (1998) 142 SJLB 92; Cobham v Frett [2001] 1 WLR 1775; Hadid v Redpath [2001] NSWCA 416; Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] Ch 246; Mugford v Ames [2000] SASC 241; Kambouridis v Heyn [2000] SASC 361; Kosinski v Snaith (1983) 1 DLR (4th) 170; Savini v Australian Terazzo & Concrete Co Pty Ltd [1959] VLR 811; Dingle v Associated Newspapers Ltd [1961] 2 QB 162; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; Kars v Kars (1996) 187 CLR 354; Grincelis v House (2000) 201 CLR 321; CSR Ltd v Eddy (2005) 226 CLR 1; Diamond v Simpson (No 1) [2003] NSWCA 67; Turner v London and South-Western Railway Co (1874) LR 17 Eq 561; Hartley Poynton Ltd v Ali (2005) 11 VR 568; Cumber v Wane (1719) 93 ER 613; In the matter of Prescott, a Practitioner and the Legal Practitioners Act 1981 (2009) 265 LSJS 465; Smolarek v Liwszyc (No 2) (2006) 32 WAR 129; Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164, considered.

TERRY v LEVENTERIS
[2011] SASCFC 26
Full Court: Gray, Sulan and Vanstone JJ
GRAY J:

This is an appeal and cross appeal from a decision of a District Court Judge awarding a plaintiff damages with respect to injuries following a motor vehicle collision. The appeal raises issues with respect both to liability and quantum.
The Trial
On 23 December 2002, Sophia Leventeris, the plaintiff at trial, was involved in a collision involving four motor vehicles. The collision occurred in suburban Adelaide in the vicinity of the intersection of Daws Road and Marion Road, Mitchell Park. All four vehicles were travelling west on Daws Road. The lead vehicle was a Holden Commodore, followed by a Honda, a Subaru driven by Mrs Leventeris and finally, a Nissan driven by the defendant and appellant, Christopher James Terry.
Following the trial and while judgment was reserved, Mrs Leventeris died from causes unrelated to the road collision. The husband of Mrs Leventeris, her executor and trustee, has been substituted as the plaintiff and respondent in these proceedings.
The Judge, having reviewed the evidence, concluded that the Holden, the Honda and the Subaru all travelling west on Daws Road, came to a stop at a red light facing their direction of travel at the intersection of Daws Road and Marion Road. The defendant approached the line of vehicles as they were beginning to move forward after the change of lights. The defendant had been travelling at the speed limit, 60 kilometres per hour, as he approached the intersection and had slowed down as he approached the line of traffic ahead of him. He reduced his speed, possibly to about 35 to 40 kilometres per hour, then became aware of an emergency and braked, but was unable to avoid colliding with the rear of the Subaru.
Apparently a taxi had undertaken a manoeuvre that had caused the Holden vehicle to come to a sudden stop. The Judge found that this in turn caused the driver of the Honda to come to a sudden stop, without at that time, colliding with the Holden. Mrs Leventeris, in the Subaru, came to a sudden stop but was unable to avoid an impact with the rear of the Honda. Following this impact, the defendant’s Nissan collided with the rear of the Subaru. The Judge concluded that Mrs Leventeris had only been driving slowly prior to her collision with the rear of the Honda.
The Judge reached the conclusion that the defendant had driven with a want of due care, and made a consequent finding of negligence on the defendant’s part. The want of care arose as a result of excessive speed and having in the circumstances travelled too close to the vehicle in front. The Judge concluded:
…[The defendant] failed to slow to an appropriate speed. That may be understandable because he was probably expecting that the traffic ahead of him would increase in speed as he approached it. But that expectation does not absolve him from the heavy duty placed upon a following driver to drive at an appropriate speed and at such a distance from the rear of the leading car that the following driver can stop, in an emergency, without colliding with the leading vehicle. In my view, the usual duty applying to a following driver applies in this case and I find that Mr Terry was negligent and was wholly responsible for the collision between his car and Mrs Leventeris’s.
The Judge rejected the defendant’s claim that Mrs Leventeris had been guilty of contributory negligence. It was suggested that she had created an unexpected hazard on the road ahead of the defendant. The Judge reasoned:
It is not uncommon, in a line of cars, that one of them will have to stop suddenly. The duty of each driver is to be able to stop in an emergency without colliding with the car ahead. As to the collision between his car and Mrs Leventeris’s, I find that Mr Terry was wholly liable for the accident. She was not contributorily negligent.
At trial there was a dispute as to whether injuries sustained by Mrs Leventeris had been caused by the collision between the Subaru and the Honda or whether they were caused by the defendant’s negligence. The Judge concluded that it was more likely than not that Mrs Leventeris sustained her injuries when the defendant’s Nissan collided with the Subaru. In the Judge’s view, an important factor was that the Nissan was travelling at a significantly greater speed than the Subaru, Honda or Holden.
The Judge found that Mrs Leventeris sustained injuries to her left shoulder and neck and that these injuries caused her to suffer from a chronic pain disorder. The Judge made extensive findings about Mrs Leventeris’s pre-existing medical conditions, before concluding:
I find that, in the three years or so before the motor vehicle accident, and despite her lower back and heart conditions, Mrs Leventeris was doing most of the housework, some 80% of it. I find that, in that same period, she suffered from lower back pain on occasions. She also suffered from a heart condition which required her to take medication. She adjusted the way in which she did her housework and other chores and the times at which she did them to suit those conditions. I find that, in the three months immediately after the accident, on account of her injuries, Mrs Leventeris was almost totally dependent on her husband, not only for housework and other domestic chores but also for bathing, dressing and grooming. Thereafter, her condition improved somewhat and she resumed some housework and domestic chores but her husband continued to do much of such work, including some cooking. She was able to manage personal grooming. Both Mr and Mrs Leventeris did the housework and other chores significantly more slowly than would a commercial cleaner or cook; he, because he suffered from a back condition as a result of which he received a disability pension; and she, on account of the injuries received in the motor vehicle collision.
I find that, as a result of the defendant’s negligence, Mrs Leventeris became incapacitated to such an extent that she needed the assistance which her husband gave her. The assistance given by her husband was reasonable in the circumstances.
Mrs Leventeris died of a heart attack on Christmas Day 2009. The fact that her heart disease caused her death is irrelevant to her estate’s claim. As I have said, I accept her evidence that she was managing with her heart condition, as she was coping with her low back condition. I find that neither of those conditions, either separately or in combination, contributed to her incapacity after the motor vehicle accident.
[Footnote omitted.]
On the topic of past gratuitous services, the Judge made the following findings:
Mrs Leventeris is entitled to damages for past gratuitous services calculated at hourly commercial rates for the assistance rendered by her husband. What is the extent of that assistance? For the first three months or so after the accident, as I have said, Mrs Leventeris was almost completely dependent on her husband. Had he been unable or unwilling to assist, she would have had to engage someone to attend to most of her personal and domestic needs in that period.
Mr Leventeris’s evidence was that, once his late wife’s capacity had become more or less stable, he was spending about eighteen to twenty hours rendering the necessary domestic assistance. His evidence was necessarily imprecise and, as I have said, a commercial cleaner or “helper” would have done the same amount of work in less time.
I also heard evidence from Mr Richter, a physiotherapist, about the amount of assistance Mrs Leventeris would have needed were she living alone at the time he saw her. He thought that she would then have needed about eleven hours each week. That time allowed for house-cleaning, shopping and laundry and included an hour each day for the preparation of an evening meal, cleaning up after it with perhaps “a little bit of extra work as well”.
I do not find his estimate of future care time of much assistance as it was predicated upon Mrs Leventeris’s having been supplied with particular household equipment and upon her needing to pay specific amounts for irregular services, such as delivered meals. Mr Richter said that the commercial rate for such general household cleaning services would have been, in the future, about $30 per hour.
None of the hourly estimates is especially helpful as Mrs Leventeris’s need fluctuated, depending upon her condition from day to day.
There was much argument about what rate I should use to assess Mrs Leventeris’s damages for past gratuitous services from the date of injury up to the time of trial. And, while there was some evidence about current market rates, there was none about past market rates during the relevant period.
Taking into account Mrs Leventeris’s varying needs, I am of the view that an allowance in the order of 11 hours per week is appropriate. Using Mr Richter’s evidence that current rates are in the order of $30 an hour as no more than a yard stick, I use an hourly rate of $22 over the relevant period of some 354 weeks, being the time between Mrs Leventeris’s injury and her death, less some 10 weeks spent in Greece around the time of her daughter’s wedding.
In the Judge’s view, the claim was restricted to damages for past gratuitous services, special damages and interest. The Judge assessed the damages for past gratuitous services at $86,000.00, special damages in the agreed amount of $5,199.74 and awarded a lump sum of $12,000.00 by way of interest. These amounts led to a total award of $103,199.74 for Mrs Leventeris’s estate.
The Appeal
On the appeal, the defendant submitted that the finding of negligence on his part should be set aside. It was contended in the alternative, that if the finding of negligence was upheld, there should be a finding of contribution on the part of Mrs Leventeris. In the further alternative it was argued that, if the defendant was negligent, then the damages assessment should be set aside as the Judge proceeded to assess damages on a misunderstanding of the legal position, misapplying the principles of causation. It was said that, in any event, the damages were manifestly excessive.
The Approach of the Appeal Court
The powers and functions of a Court of Appeal were discussed by the High Court in Fox v Percy.[1] Gleeson CJ and Gummow and Kirby JJ reviewed the earlier High Court decisions of Warren v Coombes,[2] Jones v Hyde,[3] Abalos v Australian Postal Commission[4] and Devries v Australian National Railways Commission,[5] and observed:[6]
[1]    Fox v Percy (2003) 214 CLR 118.
[2]    Warren v Coombes (1979) 142 CLR 531.
[3]    Jones v Hyde (1989) 63 ALJR 349.
[4]    Abalos v Australian Postal Commission (1990) 171 CLR 167.
[5]    Devries v Australian National Railways Commission (1993) 177 CLR 472.
[6]    Fox v Percy (2003) 214 CLR 118, 126-128.
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes, the majority of this Court reiterated the rule that:
[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.
As this Court there said, that approach was "not only sound in law, but beneficial in ... operation.
After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
[Footnotes omitted.]
I have approached this appeal in accordance with these principles.
The defendant contended that excessive delay occurred between the completion of hearing the evidence at the trial and the date that the Judge delivered judgment - a period of almost 15 months.
In support of the contention that delay should be taken into account when reviewing the Judge’s findings, the defendant relied upon the observations of the Western Australia Full Court in the decision of Mount Lawley Pty Ltd v Western Australian Planning Commission[7] and upon the observations of the Full Federal Court in Expectation Pty Ltd v PRD Realty Pty Ltd.[8] Consideration of those two authorities and the cases considered within, allows for the following summary of principles to be identified in relation to situations where there has been substantial delay in delivering judgment:
[7]    Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, [30]-[34].
[8]    Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [69]-[79].
·Delay in delivery of judgment does not, on its own, constitute a ground of appeal.[9]   However, in certain circumstances, the delay can give rise to a miscarriage of justice or other errors, which constitute a ground of appeal.[10]
·In circumstances where there has been substantial delay in delivering judgment:
·the delay weakens the advantage, as discussed above in Fox v Percy, that a trial judge has over an appellate court;[11]
·appellate courts are to take the delay into account when reviewing the trial judge’s factual findings[12] and when considering the adequacy of the judge’s reasons;[13]
·the trial judge’s reasons should indicate that he or she has fully considered all of the evidence.[14] It is incumbent upon the trial judge to indicate why he or she rejected the evidence of a particular witness and to indicate why he or she preferred one witness’s evidence over another witness’s evidence;[15]
·assertive statements made by a trial judge which would normally be assumed to have been made after the trial judge comprehensively considered the evidence, need to be supported by a more complete statement of the relevant evidence;[16]
·the assumption that a trial judge has considered all of the evidence, albeit not referring to all of the evidence in the judgment, can no longer be made;[17] and
·it is to be borne in mind that disquiet can result in the general public, in the losing party in that they may lose confidence in the correctness of the decision and in the winning party in that they may feel they have had to wait too long for justice.[18]
[9]    Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [69].
[10] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [69]; R v Maxwell (Unreported, Court of Criminal Appeal, NSW, Spigelman CJ, Sperling and Hidden JJ, No 60282 of 1998, 23 December 1998); Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, [30]; Cobham v Frett [2001] 1 WLR 1775, 1783-1784.
[11] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [69]-[70], [78]; Goose v Wilson Sandford & Co (1998) 142 SJLB 92, [113].
[12] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [69].
[13] Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, [30]; see above, Cobham v Frett [2001] 1 WLR 1775, 1783.
[14] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [73].
[15] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [72]; Hadid v Redpath [2001] NSWCA 416, [34], [53].
[16] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [71]; Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, [30].
[17] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [72].
[18] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273; Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] Ch 246; Goose v Wilson Sandford & Co (1998) 142 SJLB 92, [112].

The principles established in these authorities are not directly applicable to the present proceeding. This is so because the Judge was almost ready to pronounce judgment and deliver reasons in January 2010, approximately 6 months after the completion of evidence in the trial. However, the delivery of judgment was delayed due to Mrs Leventeris’s death, of which the Judge was informed on 13 January 2010, as well as the adjournment of subsequent hearings which occurred, at least in part, for the benefit of Counsel for the defendant.
The question of what amounts to substantial or excessive delay is problematic. Much depends on the circumstances of the case and the complexity of legal and practical issues arising. What appears to be clear from the authorities however, is that the longer the delay, the more clarity and specificity needed in the reasons for judgment.
In the within proceeding, and in the circumstances attending it, I would not categorise the delay as a substantial or excessive delay. This is particularly so having regard to the number of and complexity of the issues arising in the trial. In any event, in my view, the Judge, in August 2010, provided clear, detailed and thorough reasons for judgment. The reasons which were delivered by the Judge explained the basis for each of his findings. I reject the defendant’s contention that the Judge’s factual findings were affected by the delay between hearing the evidence and the delivery of his reasons.
Credibility and Reliability
Before coming to discuss the issues arising on the appeal, it is also convenient to outline the Judge’s approach to the witnesses and the evidence in the trial. The Judge heard evidence about the circumstances of the collision from Mrs Leventeris, the defendant, the driver of the Honda, and an accident reconstruction specialist. On the topic of damages, the Judge received evidence from Mrs Leventeris and Mrs Leventeris’s daughter and husband, as well as supporting medical testimony.
The Judge was confronted with a vigorous attack on both the credibility and reliability of Mrs Leventeris. This attack went to the issues of liability and quantum. The Judge explained at some length his reasons for concluding that Mrs Leventeris was an honest witness. However, he rejected her evidence in relation to liability. He reached the further conclusion that, with respect to the injuries she sustained, her evidence was reliable.
The Judge considered the evidence of the accident reconstruction specialist to be of limited value because “he had inadequate information…”. The Judge was justified in this view, particularly having regard to the observations of Callinan J in Fox v Percy[19] concerning the utility of evidence from accident reconstruction experts:
Here [the witness] was described by counsel… as an "accident reconstruction expert". That is an ambitious claim. Three things may be said about the evidence in this case and running down cases generally. Rarely in my opinion will such evidence have very much, or any, utility. Usually it will be based upon accounts, often subjective and partisan accounts, of events occurring very rapidly and involving estimates of time, space, speed and distance made by people unused to the making of such estimates. Minor, and even unintended but inevitable discrepancies in relation to any of these are capable of distorting the opinions of the experts who depend on them. It is also open to question whether variables in relation to surfaces, weather, and the tyres, weight and mechanical capacities of the vehicles involved can ever be suitably accounted for so as to provide any sound basis for the expression of an opinion of any value to a court. The engagement of experts in running down cases, other than in exceptional circumstances, is not a practice to be encouraged.
[19] Fox v Percy (2003) 214 CLR 118, 166-167.
Other important evidence was led, in particular, by the defendant, Mrs Leventeris’s husband and Darryn Richter, an occupational therapist. The Judge generally accepted the defendant’s evidence, preferring it over evidence given by other witnesses in relation to some aspects of the collision. The Judge also appeared to accept the daughter and husband’s evidence as supportive and generally accepted Mr Richter’s evidence. The usefulness of Mr Richter’s evidence, however, is discussed later in these reasons.
The Defence Appeal – Negligence and Contributory Negligence
On the hearing of the appeal, the defendant asked this Court to review the evidence and to overturn the findings of the Judge in his acceptance that Mrs Leventeris had stopped at the intersection at a red light and had moved off slowly. My review of the evidence allows the conclusion that none of the findings made by the Judge are inconsistent with facts incontrovertibly established, are inconsistent with uncontested testimony or are glaringly improbable or contrary to established authority.[20] In short, the findings made by the Judge, were open to him.
[20] See Fox v Percy (2003) 214 CLR 118, 128.
In my view, the Judge’s finding of negligence on the part of the defendant was correct. It was an unsurprising finding. The Judge’s findings as to speed and that the defendant was travelling too close in that circumstance, were plainly open to him. The Judge was correct to identify the heavy duty placed upon a following driver to drive at an appropriate speed and at such a distance from the rear of the leading car so as to avoid a collision in an emergency. This Court has applied and endorsed[21] the following observations of the Saskatchewan Court of Appeal in Kosinski v Snaith:[22]
There is a clear and well-defined standard of care imposed upon the driver of a vehicle which follows another. He must keep a reasonable distance behind the vehicle ahead; he must keep his vehicle under control at all times; he must keep an alert and proper look-out; and he must proceed at a speed which is reasonable relative to the speed of the other vehicle. He must anticipate that, for whatever reason, the vehicle ahead may stop. He need not anticipate the reason. He must proceed with that care which will enable him to avoid colliding with it.
With respect to this standard of care, this Court in Mugford v Ames observed:[23]
There are sound reasons for imposing such a duty of care upon following drivers. It is not uncommon for emergency situations to require a driver to stop suddenly and, importantly, modern traffic controls and conditions frequently require vehicles in a line of traffic to stop. Compliance with the duty of care by the following driver is critical to an orderly and safe flow of traffic.
[21] Mugford v Ames [2000] SASC 241, [42]; see also, Kambouridis v Heyn [2000] SASC 361, [18].
[22] Kosinski v Snaith (1983) 1 DLR (4th) 170, 174.
[23] Mugford v Ames [2000] SASC 241, [42] (Martin, with whom Prior and Williams JJ agreed).
I turn now to address the topic of contributory negligence. It is my view, that it was open to the trial Judge to dismiss the claim for contribution. An emergency arose causing Mrs Leventeris to brake heavily which in turn led to a collision with the Honda. Whether Mrs Leventeris’s brakes brought her to a complete halt or whether a collision did so, does not aid the defendant. It was open to the Judge to conclude that any want of care on Mrs Leventeris’s part was not causative of the collision between the defendant and Mrs Leventeris. There was no basis for the Judge to find that the emergency braking that occurred, of itself, established contributory negligence on the part of Mrs Leventeris. To put it another way, there was no evidence or a factual finding that any act or omission on the part of Mrs Leventeris contributed to the collision between the defendant’s vehicle and the Subaru.
There is a further difficulty confronting the defendant. No plea of contributory negligence appears in the defence. The issue only arose during final addresses. Counsel for the plaintiff informed this Court that had contribution been an issue in the trial, the driver of the Honda would have been joined as a party. This submission was put to the trial Judge, who indicated that he would, if necessary, rule as to whether the issue arose in the trial. No ruling was made. It might be presumed that the Judge considered that no case for contribution had been made out.
The Defence Appeal - Causation
On the appeal, the defendant challenged the factual finding of the Judge that the defendant’s vehicle was travelling at a much greater speed than Mrs Leventeris’s vehicle for the reasons discussed above. I consider this finding was open to the Judge. Once this finding is accepted, it was plainly open to the Judge to conclude that it was probable that the defendant’s negligence was a cause of Mrs Leventeris’s injuries. Although the Judge concluded that the defendant’s negligence was the cause, in my view it would have been sufficient if the finding had been that the defendant’s negligence was a material cause.
Insofar as the defendant submitted that Mrs Leventeris’s injuries were in part a result of earlier injuries and in part the consequence of her vehicle striking the Honda, it was for the defendant to unravel which injuries were caused by which event.[24] As Dixon J observed in Watts v Rake:[25]
…If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred….
[24] Savini v Australian Terazzo & Concrete Co Pty Ltd [1959] VLR 811, 821; Dingle v Associated Newspapers Ltd [1961] 2 QB 162, 188-189; Watts v Rake (1960) 108 CLR 158, 160; Purkess v Crittenden (1965) 114 CLR 164, 171.
[25] Watts v Rake (1960) 108 CLR 158, 160.
In my view, the defendant has not excluded the operation of the collision as a contributory cause.
The Defence Appeal - Quantum
In the Judge’s view, the only heads of damage that survived Mrs Leventeris’s death were the claims for past gratuitous services; that is, services rendered voluntarily, in this case by Mrs Leventeris’s husband, and the claims for special damages and interest.
The defendant, on the appeal, drew attention to the wording of section 24H(3) of the Wrongs Act 1936 (SA). Section 24H relevantly provides:[26]
[26] The Wrongs Act 1936 (SA) became the Civil Liability Act 1936 (SA) in 2004. Section 24H(3) can be found in identical terms, save for the addition of a reference to “domestic partner”, in section 58 of the Civil Liability Act.
(2)Damages awarded to allow for the recompense of gratuitous services of a parent, spouse or child are not to exceed an amount equivalent to 4 times State average weekly earnings.
(3)However, the court may make an award in excess of the limit prescribed by subsection (2) if satisfied that—
(a) the gratuitous services are reasonably required by the injured person; and
(b)it would be necessary, if the services were not provided gratuitously by a parent, spouse or child of the injured person to engage another person to provide the services for remuneration,
but, in that event, the damages awarded are not to reflect a rate of remuneration for the person providing the services in excess of State average weekly earnings.
[Emphasis added.]
The defendant also drew attention to the wording of the precursor section, namely, section 35A(2) of the Wrongs Act. That section provided:[27]
(2)Notwithstanding the limits fixed by subsection (1)(h), if the court is satisfied that by rendering gratuitous services a parent, spouse or child has saved or will save the injured person the cost of engaging another person to provide those services (those services being reasonably required by the injured person), the court may make an award of damages in excess of that limit but the damages awarded in that event must not reflect a rate of remuneration for the person providing the services in excess of State average weekly earnings.
[27] Wrongs Act 1936 (SA) section 35A(2).
The defendant highlighted the different wording between the sections and, in particular, the addition of the phrase “it would be necessary” to section 24H(3). It was submitted that this change in terminology was deliberate and was designed to further restrict the availability of damages with respect to gratuitous services. It was said that there was an evident growing disquiet about this head of damage. Counsel submitted that a number of authorities had described this head of damage as novel and as an anomaly leading to artificiality and absurdity, and in doing so, highlighted a number of High Court authorities.[28] The defendant drew attention to the observations of the High Court in CSR v Eddy. [29] According to the plurality:[30]
Griffiths v Kerkemeyer damages are awarded to plaintiffs to compensate them for the cost (whether actually incurred or not) of services rendered to them because of their incapacity to render them to themselves, not to compensate them for the cost of services which because of their incapacity they cannot render to others.
[28] Kars v Kars (1996) 187 CLR 354, 371, Grincelis v House (2000) 201 CLR 321, 332 per Kirby J (in dissent on the result).
[29] CSR Ltd v Eddy (2005) 226 CLR 1.
[30] CSR Ltd v Eddy (2005) 226 CLR 1, [21]-[23].
Attention was further drawn to the decision of the New South Wales Court of Appeal in Diamond v Simpson[31] where the Court drew the inference from the High Court decisions on the topic that “Griffiths v Kerkemeyer should be strictly confined in its application”.[32]
[31] Diamond v Simpson (No 1) [2003] NSWCA 67.
[32] Diamond v Simpson (No 1) [2003] NSWCA 67, [231].
It was then contended that the only finding of the Judge in the present proceeding that could be regarded as meeting the test “it would be necessary”, was the need of Mrs Leventeris for gratuitous services in the first three months following the motor vehicle collision. Counsel argued that the assessment of damages should be limited to the need for services during this period.
It was submitted in the alternative that the evidence did not establish any substantive change from the pre-accident position. It was said that properly understood, the evidence disclosed that Mrs Leventeris required extensive support prior to the collision because of pre-existing ailments, and that in substance, her position did not change.
Whether or not the amendment to the legislation as set out above, brought about a change of substance or a new change of emphasis, is not to the point. The Judge was required to address the term of the section in force at the time – section 24H(3) of the Wrongs Act. The question to be answered was whether the gratuitous services provided were reasonably required and further, whether if those services were not provided gratuitously by the husband, it would be necessary to engage another person to provide those services for remuneration. In most circumstances one would surmise that if the services were reasonably required it would be necessary to engage a person to perform those services for remuneration.
As extracted above, the critical findings of the Judge were that Mrs Leventeris was almost totally dependent on her husband for housework, domestic chores, bathing, dressing and grooming for three months after the subject accident; that thereafter she required the assistance her husband gave her; that overall an allowance of 11 hours per week would be appropriate; and, that the needs of Mrs Leventeris fluctuated as the effects of her injuries varied from time to time. The Judge further found that an hourly rate of $22.00 over a relevant period of 354 weeks would be appropriate. He arrived at this hourly rate, using as a yardstick, the evidence of Mr Richter that about $30.00 per hour through the use of an agency was the going commercial rate for general household cleaning services. His Honour noted that the hourly estimates given in evidence were of limited use having regard to the fluctuating needs of Mrs Leventeris.
It is implicit in the Judge’s findings that he considered that gratuitous services were provided, that they were reasonably required, and that if the husband did not provide those services it would be necessary to pay a person to provide those services.
The Judge pointed out that the needs of Mrs Leventeris fluctuated and that this factor had to be weighed in a broad manner in assessing damages. The Judge was faced with a difficult assessment to make with regard to past gratuitous services. In my view, the findings made and the assessment that followed were well within his discretion. Ultimately, this Court has to consider the reasonableness of the overall assessment and although arguments might arise as to the particular mathematics used by the Judge in reaching his assessment, I consider that the overall assessment was both fair and reasonable.
The Cross-Appeal - Quantum
The plaintiff cross-appealed, contending that the damages for past gratuitous services were inadequate and that additionally, there was an entitlement to damages for past pain and suffering.
The plaintiff complained about the award for past gratuitous services. It was said that on the Judge’s findings, the award should have allowed for 11 hours of care a week for 354 weeks at $30.00 per hour. This would lead to an award of the order of $117,000.00 together with an award of interest at 4%.
This submission faces a number of difficulties. It fails to bring to account the Judge’s finding that the needs of Mrs Leventeris for support fluctuated. At times she needed little or no support. I do not understand the Judge to have found ongoing need week in week out for 11 hours’ assistance. The Judge, in assessing quantum, did not draw a bright line between the three month period and the residue period and did not make a strict mathematical assessment. Rather, the Judge stood back and made an assessment, taking into account Mrs Leventeris’s fluctuating needs.
In my view the assessment of damages under this head called for a broad assessment having regard to a range of uncertainties and contingencies. I consider that the Judge has made a fair assessment of all factors in arriving at his award.
Cross-Appeal – Antedating Judgment
On the cross-appeal, the plaintiff contended that the Judge should have exercised his discretion to antedate the judgment to a date before the death of Mrs Leventeris pursuant to rule 84.02(3) of the District Court Rules 1992 (SA).[33] Attention was drawn to the observations of the Court in Turner v London and South-Western Railway Co,[34] where it was observed that a court will allow a judgment to be entered after the death of a party nunc pro tunc; a rule which allows a court to order that a judgment operate from a date earlier than the date on which the judgment is actually made. The Court there observed that such an order would be made so as to prevent a party from being prejudiced by an act of the court, such as delay in delivering its judgment.[35] I return to this topic shortly. The provisions of the Survival of Causes of Action Act 1940 (SA) represent the abolishment of the actio personalis rule.[36] The actio personalis rule means that a personal right of action dies with the person. However, the Survival of Causes of Action Act qualifies what damages may be recovered, in particular limiting the availability of damages for some non-economic loss.[37] Accordingly, it was contended that the antedating of the judgment would have allowed the assessment of damages for non-economic loss.
[33] Rule 84.02(3) relevantly provided:
(3) Notwithstanding paragraphs (1) and (2), the Court may order that a judgment or order take effect as of a date earlier or later than the date fixed by these paragraphs.
Now see, District Court Rules 2006 (SA), rule 226(4).
[34] Turner v London and South-Western Railway Co (1874) LR 17 Eq 561.
[35] Turner v London and South-Western Railway Co (1874) LR 17 Eq 561, 566.
[36] Actio personalis moritur cum persona.
[37] Survival of Causes of Actions Act 1940 (SA), section 3.

With few minor exceptions, nunc pro tunc judgments and orders merely overcome procedural irregularities and do not alter the substantive rights of the parties.[38] The power to direct judgment nunc pro tunc after the death of a party, whether plaintiff or defendant, was confined in the common law courts to obtaining the entry of judgment after there had been a verdict or an interlocutory or other step entitling one party or the other to succeed in the cause.[39] The Court in Turner described the basis of the rule in the following way:[40]
In Chitty's Archbold's Practice, Queen's Bench, the rule at law is stated thus: "The Court will in general permit a judgment to be entered nunc pro tunc, where the signing of it has been delayed by the act of the Court. Therefore, if a party die after a special verdict, or after a special case has been stated for the opinion of the Court, or after a motion in arrest of judgment, or for a new trial, or after a demurrer set down for argument, and pending the time taken for argument, or whilst the Court are considering their judgment, the Court will allow judgment to be entered up after the death nunc pro tunc in order that a party may not be prejudiced by a delay arising from the act of the Court." Then it goes on to explain that the Court will not do it where the act arises from the neglect of the party himself in completing the judgment. I need not refer to that. In support of this general statement of the law several cases are referred to, some of them of comparatively modern date. The rule at law is that judgment in certain cases may be entered nunc pro tunc, whatever that may mean.
[Footnote omitted.]
[38] Hartley Poynton Ltd v Ali (2005) 11 VR 568, [73].
[39] Hartley Poynton Ltd v Ali (2005) 11 VR 568, [76].
[40] Turner v London and South-Western Railway Co (1874) LR 17 Eq 561, 566.
In Hartley Poynton Ltd v Ali,[41] the Victorian Court of Appeal recently considered whether an inherent power at common law and an explicit power under Court Rules to antedate a judgment, permitted the entry of judgment as at the last day of trial in circumstances where the plaintiff had died after trial and before judgment. This question arose in the context of section 29 of the Administration and Probate Act 1958 (Vic). That provision permitted personal representatives of the deceased’s estate to pursue the proceedings, but provided that the damages recoverable “shall not include any exemplary damages”. The trial Judge antedated the judgment to the day on which decision was reserved, in order to avoid the limitation on the availability of exemplary damages. On appeal, Ormiston JA, with whom Buchanan and Eames JA agreed, said:[42]
…[t]he issue remains to be resolved whether the policy of the law requires consideration of the statutory restriction placed on the right to sue or whether that restriction should be ignored because of a more general policy relating to the antedating of judgments and orders. I cannot for myself see that the court can ignore the express requirements of Parliament. To do so would be to create (or, more precisely, recreate) a right and to give effect to it by an increased award of damages by enforcing a right which no longer exists and which does not survive in favour of the plaintiff’s personal representative. The practice of the courts in giving judgments or in making orders nunc pro tunc, effectively by antedating them, whether pursuant to the rules or under their inherent jurisdiction, cannot deem something to exist which does not exist and cannot deem something to have remained in existence which no longer remains in existence. …
[41] Hartley Poynton Ltd v Ali (2005) 11 VR 568 whether dependent on the common law: Cumber v Wane (1719) 93 ER 613, or on equity: Turner v London and South-Western Railway Co (1874) LR 17 Eq 561.
[42] Hartley Poynton Ltd v Ali (2005) 11 VR 568, [91].
The conclusion of the Court of Appeal was stated by Ormiston JA as follows:[43]
In the circumstances, the plaintiff’s estate, being no longer entitled in law to claim damages in the form of exemplary damages against the defendant, and not being so entitled at the time the judge pronounced his orders, it was not appropriate artificially to deem the judgment to have been delivered and pronounced at some other date, namely the final day of the trial, in order to resurrect the plaintiff’s right to that kind of damages. Although it is one of the precepts of the law that “an act of the court shall prejudice nobody”, it is likewise a matter of principle that the Court does not recreate substantive rights which no longer exist in circumstances where that recreation of rights will in fact cause prejudice to another party. No order nunc pro tunc should have been made and the judgment ought not to have been antedated to the last day of the trial.
[43] Hartley Poynton Ltd v Ali (2005) 11 VR 568, [93].
Hartley Poynton Ltd v Ali has been consistently followed, including by a Judge of this Court in In the matter of Prescott, a practitioner and the Legal Practitioners Act, 1981,[44] by the Western Australian Court of Appeal in Smolarek v Liwszyc (No 2),[45] and by the New South Wales Court of Appeal in Castle Constructions Pty Ltd v North Sydney Council.[46]
[44] In the matter of Prescott, a Practitioner and the Legal Practitioners Act 1981 (2009) 265 LSJS 465.
[45] Smolarek v Liwszyc (2006) 32 WAR 129.
[46] Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164.
It was said in the within proceedings, that it was fairer that the estate reap the benefit of the pain and suffering suffered, rather than the wrongdoer benefiting from the death of Mrs Leventeris. A difficulty that confronts this submission is that there was no relevant delay on the part of the Court. It is to be recalled that the subject collision occurred on 23 December 2002. Mrs Leventeris initiated the primary action in the District Court just short of three years later. A review of the Court file discloses a number of delays following initiation of the action which did not rest with the Court. The proceedings did not come on for trial for almost seven years and it is evident from the transcript that the Judge was about to proceed to the judgment at a time shortly after the death of Mrs Leventeris. As earlier observed, at this time, some six months had passed since the conclusion of the evidence and final submissions. In my view, this was not an unreasonable delay given the complexity and the number of issues arising in the trial.
Cross-Appeal - Interest
The final matter raised by the cross-appeal concerned the interest award. It was contended that the reasons of the Judge demonstrated that he had used historic market rates when assessing damages rather than the rates at the date of trial. It was said that as a consequence, to only allow interest at 4% would not provide the adequate rate of interest. It was said that a rate of 6 or 6.5% should be used. Reliance was placed on the decision of the High Court in Grincelis v House.[47]
[47] Grincelis v House (2000) 201 CLR 321.
In my view this complaint should be rejected. Although the Judge discussed past rates, he also gave consideration to present day rates. Having regard to all of the contingencies, it is by no means clear that the Judge used past rates when assessing loss. In any event, it is my view that the overall award of $86,000.00 was an appropriate award having regard to money value at the date of trial. In this circumstance, the lump sum award of interest in the amount of $12,000.00 was an appropriate allowance.
Conclusion
For these reasons, I would dismiss both the appeal and the cross-appeal.
SULAN J: I agree with Gray J and the orders he proposes.
VANSTONE J: I agree with the orders proposed by Gray J. I agree with the reasons he has prepared.