Wood v Giorgi No. Scgrg-98-164 Judgment No. S6676

[1998] SASC 6676

WOOD  v  GIORGI

Full Court
Coram:  Prior, Olsson and Perry JJ

Perry J   (ex tempore)

This is an appeal and cross-appeal against the judgment entered in the District Court following a trial of the appellant's claim for damages arising out of a road accident which occurred at about 12.25 am on 1 January 1994.

The appellant was almost 31 years old at the time of the accident.  While walking in Port Road towards the intersection of North Terrace and West Terrace he was struck by a motor car, which was a taxi driven by the respondent.

The learned trial judge apportioned liability for the accident as to 55% against the appellant and 45% against the respondent.  He assessed the damages for non-economic loss at $12,870, special damages at $14,305, loss of past earning capacity at $3,000 and loss of future earning capacity at $35,000, a total of $65,175.

After allowing for $5,368 paid by the defendant's insurer before trial and a small amount for interest, and after applying the apportionment to which I have referred, he pronounced a net judgment in favour of the appellant against the respondent in the sum of $24,068.75.  He further ordered that the respondent pay the appellant's costs of action up to fourteen days after 25 June 1997, but that the appellant pay the respondent's costs of action thereafter, except for the costs of the respondent associated with the calling of a witness, Dr James.

In his notice of appeal the appellant challenges the finding that he was guilty of any contributory negligence, and contends that the respondent should have been held wholly responsibility for the accident.

In his cross-appeal the respondent asserts that the appellant should have been held wholly responsible, or alternatively, that the appellant should have been held liable to a greater extent than 55%.  The respondent also challenges the allowance made by the learned trial judge for future economic loss, and the order as to costs.

On New Year's Eve, that is during the night before the accident, the appellant attended a concert with friends at the Old Adelaide Gaol.  Shortly after midnight he and others in his party decided to walk into the city.  At least some of the group intended to attend Heaven nightclub, which is part of the Newmarket Hotel complex on the corner of the intersection of North Terrace, Port Road and West Terrace.

So it was that the appellant found himself walking towards the intersection of North Terrace and West Terrace with his group of friends.  The learned trial judge found that as the group approached the intersection they walked across that part of the road intended for vehicles travelling from Port Road into North Terrace.  He found that they mounted a long triangular shaped traffic island.   They walked along the traffic island intending to cross to the Newmarket Hotel at the traffic lights situated on the corner.

The learned trial judge found that at a point about halfway along the traffic island, the plaintiff “either stepped off the traffic island on to the roadway or slipped off the kerb and moved on to the roadway while trying to regain his balance”.

At the same time, the respondent had been driving along Port Road in the left hand lane, intending to turn right into West Terrace.  He was travelling at a speed of 60 to 65 kilometres per hour.  The respondent's evidence, which the learned trial judge accepted, was that he saw the appellant near the kerb of the island and then saw him stumble into the roadway.  He braked immediately and tried to steer around the appellant, but was unsuccessful as the brakes “locked up”.  In the result, the plaintiff walked into the left hand side of the taxi near the front.  He went up onto the bonnet, hit and broke the windscreen, dented a visor above the windscreen and was thrown off the car.

While he generally preferred the evidence of the respondent to that of the appellant as to the immediate circumstances of the accident, the learned trial judge rejected the evidence of the respondent that the distance separating the front of the car and the appellant when the respondent first saw the appellant leave the traffic island was between 1.5 metres and 4 metres.

Instead, he found that the respondent must have been “considerably more” than 4 metres from the appellant when he first noticed him, at least 30 metres, “probably more”.  He specifically found:

“.... that the defendant braked and attempted drive around the plaintiff and that the front of the defendant's taxi had, in fact, just passed the plaintiff when his continued stumbling made him collide with the left hand side of the defendant's taxi near the front.”

Neither party to the appeal challenges the essential factual findings made by the learned trial judge, at least those to which I have so far referred.

The appellant had been drinking during the course of the evening leading up to the time when he left the concert.  Evidence was given by two other members of the appellant's group of friends as to his sobriety.

One of the witnesses, Ms Joanne Richards, described him as:

“Tipsy, happy drunk, not slobbery, you know, we could talk, you could understand him.  He wasn't disoriented from being tipsy.  It was just a tipsy thing ....  He was just tipsy, taking it easy.  He was more tired than anything.”

Another witness called by the respondent, Ms Elizabeth Sorensen, described the appellant as “happy and boisterous”.  She said that “he was getting drunk”.  Elsewhere she said:

“He was stumbling along, he was kind of keeping up.  He would probably have been the worst for wear in the group .....  he was getting unsteady on his feet.”

She also described him as leaning on her and touching her from time to time during the evening.  As to that she said:

“When people are getting wobbly on their feet and using other people to lean on, to stand up, usually means they are getting drunk.”

She also said that she could smell alcohol on him.

The learned trial Judge described Ms Sorensen as a much more impressive witness than Joanne Richards.  It was clear enough that he preferred her evidence as to that aspect of the matter.  While the learned trial judge made no specific finding as to the degree of intoxication, he observed:

“It seems likely to me that the alcohol that the plaintiff had consumed may have contributed to him slipping from the kerb and also the difficulty he had in regaining his balance. .....  I accept the evidence of Ms Sorensen that the plaintiff was behaving in the way that she thought was consistent with excessive consumption of alcohol.”

In my opinion, despite the attack made by Mr Coppola for the appellant on that finding, it was clearly open on the evidence for the learned trial judge to reach that conclusion.  Having reviewed the evidence for myself, I would have come to a similar conclusion.

I have explained that when the appellant slipped or stumbled from the traffic island on to the road he did so from the kerb of the traffic island.  There was no obvious reason why the appellant was walking on the kerb of the island.  The appellant admitted that he had slippery shoes on and that he slipped on what he described as “gravel” when he was walking across that part of Port Road which crosses the bridge over the railway line.

In the course of cross-examination he said:

“Q.... If you knew that your shoes were slippery why were you walking on the guttering.

A...... Because he we were in a hurry to get where we were going.

Q...... How would walking on the guttering make you go any faster.

A...... It would stop me from slipping, wouldn't it.

Q...... What do you mean by that.

A...... Just what I said, it would have stopped me from slipping.”

He went on to say that he was walking quickly.

In the notice of appeal the appellant complains that the learned trial judge erred in holding him to be negligent “for wearing shoes with slippery soles”.  But that was not the finding which the learned trial judge made.  I have already referred to the fact that the learned trial judge found the appellant was negligent in walking along the kerbing of the traffic island “especially knowing that his shoes had slippery soles”.

In my opinion there is no reason to interfere with that finding.

But I would, with respect to the learned judge, characterise the negligence of the appellant in a slightly different way.

While it was negligent to walk along the kerbing, the critical act of negligence of the appellant was in stepping or stumbling off the traffic island into the path of the respondent's taxi.  The evidence was that, not surprisingly, given the fact it was just after New Year's Eve, there was a considerable volume of traffic on the roadway.  Furthermore, the appellant was on a part of the roadway which was not an appropriate place at which a pedestrian should attempt to cross it.  The appellant clearly breached his duty of care by putting himself into that position, and then allowing himself to come on to the carriageway into the path of a approaching traffic, whether by stepping or stumbling from the traffic island.

There is no doubt that, given those circumstances, the appellant was guilty of a substantial degree of contributory negligence.

However, the argument advanced by Mr Ward for the respondent that the appellant was solely to blame, in my opinion, cannot be sustained.  The respondent's negligence was in driving too fast, given the presence of a group of pedestrians on the traffic island, which was lit by street lighting and by the lights of a approaching traffic.  The presence of a group of pedestrians at that time of the night, just after New Year's Eve, and allowing for the fact that it was not an appropriate place for pedestrians to be walking on or from which to be attempting to cross the road, should have prompted the respondent to moderate his speed.   It would have been prudent also for him to have moved into the centre lane.  There was no traffic in the centre lane to prevent him from doing so.

He did neither of those things but maintained his speed, which was excessive in any event.  Although he braked, the respondent conceded his speed would have been about the same, that is, 60 to 65 kilometres per hour at the point of impact as his brakes had locked and his skidding did not, prior to impact, reduce his speed significantly, if at all.

It would be wrong to approach the apportionment of liability in a case such as this by making any assumption that the driver of a motor vehicle must necessarily be held liable to a greater extent than the pedestrian with whom he collides.  Situations vary enormously, and in some cases it may be proper to hold the driver of a motor car which collides with a pedestrian wholly blameless.

Both counsel referred to a number of authorities in which the courts had approached the question of apportionment.  I do not derive a great deal of assistance from such authorities, as it seems to me that every case depends on the peculiar combination of factual circumstances in which the respective negligent acts occurred.

Although Mr Coppola has said everything that could be said in favour of this aspect of this matter, in my view, and while opinions may differ as to the approach of apportionment, I am not satisfied that the apportionment arrived at by the learned trial judge was erroneous.

I would dismiss the appeal and cross appeal in so far as they attack the learned trial Judge's apportionment of liability.

I turn to the cross-appeal as to the assessment of future economic loss.

In the course of his judgment the learned trial judge referred to the appellant's rather unsettled work history before the accident.

He left school at the age of 15 when he worked as a porter in New Zealand for about seven  months.  Subsequently, he was employed at the Victoria Hotel in Melbourne for about two years as a trainee manager, following which he ran his own business as a lawn mowing contractor.

After coming to Adelaide in 1982 he resumed work in the hotel industry, and obtained a job at the City Hotel.  He did a correspondence course on hotel management.  Three years later he obtained work as a night porter, a cleaner and a barman in Melbourne, and at the Hilton Hotel, setting up function rooms.

In 1989 he moved to Brisbane, but he was unable to obtain employment there and returned a year later to Melbourne, where he worked in a foundry as a labourer for about eighteen months.

He returned to Queensland in 1992, and until February 1993, obtained work as a landscape gardener.  He then turned his hand to casual work with Brisbane Export Corporation unloading shipping containers.  At the end of 1993 he came to Adelaide for a holiday, during which the  accident in question occurred.

About three months after the accident he was able to resume employment at Brisbane Export Corporation on light duties.  In June 1994 he returned to Adelaide but was unemployed for about twelve months, despite making any applications for jobs.

In November and December 1994 the appellant worked as a mail sorter, and later, in mid 1995, as a packer for Cosmo Foods, with whom he worked for about eighteen  months.

He also found casual work at the Leg Trap Hotel and at the Adelaide Entertainment Centre.

As at the date of trial he had been unemployed for about three months.

The appellant's injuries suffered in the accident included a compound fracture of the right tibia and fibula, a left pneumothorax, and soft tissue injuries to his face above the right eye.  Healing of the fractures was delayed by the onset of osteomyelitis caused by staphylococcal infection.

Mr Robert Bauze, orthopaedic surgeon, examined the appellant in December 1994 and August 1996, on instructions from the respondent.  He expressed the view that the appellant had made what he described as “an extraordinarily good recovery from the fracture that he sustained”.  He assessed the permanent disability at 10% loss of function of the right shoulder, and 15% loss of function of the right lower limb below the knee.

There was no significant disagreement as to that assessment between Mr Bauze and an orthopaedic surgeon whose reports were put in by the plaintiff, namely, Mr David Hall, although Mr Hall described somewhat different percentages for his assessment of the residual disability.

There was, however, significant disagreement between two psychiatrists on the question of whether or not the appellant was suffering from a post-traumatic stress disorder.  The two psychiatrists were Dr Tingay, whose reports were tendered by the appellant, and Dr Scanlon, whose reports were tendered by the respondent.  The learned trial judge resolved the differences between those two specialists in favour of the evidence of Dr Scanlon who had expressed the view that the appellant was not suffering from a post-traumatic stress disorder related to the accident in question.  The learned trial judge further found the appellant had not suffered from depression which was related in any way to the accident.  Those findings as to that aspect of the matter were not challenged by Mr Coppola on the hearing of the appeal.

I should add as part of the background to the assessment of the amount to be allowed for loss of earning capacity that there was a considerable volume of evidence before the learned trial judge indicating that the appellant had had difficulties with excessive drinking and drink driving, culminating in the indefinite suspension of his driver's licence on 10 November 1997.  As the learned trial judge pointed out, the suspension, which was an event unassociated with the accident in question, would operate to prevent the appellant from taking up any employment involving driving.

He also commented that the suspension would give rise to problems with transport, which in turn might restrict his ability to take up jobs which he might otherwise have been able to obtain.

The learned trial judge's conclusion as to loss of earning capacity appears in the following passages of his judgment:

“The spasmodic nature of the plaintiff's employment between accident and trial, and the periods of unemployment that he may well have experienced anyway, make it difficult to assess his past economic loss.  It is certainly not amenable to any precise arithmetical calculation.”

His Honour went on to allow the sum of $3,000 for past loss of earning capacity.  As to future loss of earning capacity, His Honour continued with the following observations and findings:

“As far as the future is concerned, the position regarding the plaintiff's employment seems to be little different from before the accident.  However, the range of jobs that he would be capable of undertaking is a little restricted because of his injuries.  He does have some loss of function assessed by the two orthopaedic surgeons as ten per cent of the right shoulder and fifteen per cent of the right lower limb below the knee.  Mr Bauze considered that the plaintiff would be able to perform any sedentary duties full-time, and he could also perform full-time duties in which he was able to walk and stand and sit at will, providing the walking was on flat and even ground most of the time.  It seems unlikely that the plaintiff would be able to perform the full range of duties involved in landscaping gardening.

The plaintiff expressed a preference for working in the entertainment industry (croupier, barman, waiter, steward), and agreed that his injuries would not cause any problem with that sort of work.

Again, the future loss is not capable of arithmetical calculation simply by determining the present value of the loss of so many dollars per week.  It is more an indication of providing some sort of compensation to the plaintiff for loss of opportunities.  I must also take into account the fact that the plaintiff's past work record suggests that, even without the accident, he would have continued to have periods of unemployment from time to time.

Furthermore, when the plaintiff was recently charged with drink driving (with a blood alcohol concentration of .227, that he did not dispute that he did not dispute), it was put to the court by the prosecution (and, again, not disputed) that he suffered from alcoholism and had a compulsive habit of drinking alcohol in quantities likely to produce a blood alcohol concentration of .08 per cent or more.  There is no suggestion that his alcoholism is related to the accident.  However, it is likely that makes it difficult for him to find and maintain employment in some fields.

Taking all these factors into consideration, I assess damages for the plaintiff's future loss of earning capacity at $35,000.”

It is clear from that passage that the learned trial judge quite properly treated the case as one in which he thought it appropriate to assess the allowance for future loss of earning capacity on a global basis related to his overall assessment of the prognosis for the plaintiff in terms of his earning capacity, but in that process allowing for the various discounting factors.  Those factors were unrelated to the accident and might be thought to impair the plaintiff's future working capacity in any event.

After carefully considering this aspect of the matter and the learned trial judge's reasoning, in my opinion there is substance in the respondent's complaint as to the allowance on this head.  It is true that the appellant is still relatively young, being 34 years of age at the time of trial, but the relatively good recovery which he has made from the accident injuries, the relatively minor residual disabilities, the spasmodic nature of his pre-accident employment, and his problems with drinking, lead me to the view, notwithstanding Mr Coppola's arguments, that the amount of $35,000 is so substantially higher than the amount which could reasonably have been allowed as to this aspect of the plaintiff's claim, that this court should interfere.

While there are the usual difficulties associated with determining a lump sum for allowing for future losses of this kind, in my opinion, the highest amount which could be justified on the evidence on this head is $25,000.

The final matter to be dealt with is the cross-appeal as to costs. I have already referred to the order made by the learned trial judge as to costs. That order was a product of his consideration in the first place, of s42(2) of the District Court Act.  That section provides:

“If the plaintiff recovers less than an amount fixed by the Rules for the purposes of this paragraph, no order for costs will be made in favour of the plaintiff unless the court is of the opinion that it is just in the circumstances of the case that the plaintiff should recover the whole or part of the costs of action.”

The amount fixed by the Rules for that purpose is $30,000.

It was incumbent upon the learned trial judge then to give separate consideration to the operation of Rule 101.1(b).  Pursuant to that rule, in actions for damages for personal injuries, a plaintiff is deprived of costs altogether or may recover only part of the costs if he or she has failed to submit at least 90 days before the institution of proceedings a detailed claim in writing together with documents of the kind described in the rules.

The plaintiff in this case failed to comply with the rule in the sense that no such claim was advanced or formulated before the action was brought.  There was an indication in the correspondence passing between the solicitors at that stage that the plaintiff felt unable to formulate a claim then, having regard to the fact that he had not fully recovered from his injuries, and his prognosis in that respect was still unstable.

However, the plaintiff did in fact formulate a claim early last year well ahead of the trial.  The amount of the claim is, for the purposes of the rule, irrelevant.

The learned trial judge heard full argument on the manner in which both of the provisions to which I have referred were operating.  The amount of the judgment was, of course, after allowing for the apportionment, less than the $30,000 limit, and there had been a technical non-compliance with

Rule 101.1.

I should say that a third consideration was that there was a Rules of Court offer made in June of last year by the defendant which was more than the amount that the plaintiff ultimately recovered.

It seems to me that in all the circumstances this was a case in which the appellant was justified in instituting proceedings in the District Court.

Further, it seems to me that with respect to the argument that has been put to this court on the question of costs, it was open for the trial judge to steer the middle course which he appears to have steered on this aspect of the matter.

In all of the circumstances, in my opinion, he is not shown to have erred in exercising the various discretions which were called into play in the making of the order as to costs.  I would dismiss the cross-appeal in so far as it challenges that order.

In the result, then, I would dismiss the appellant's appeal.

I would dismiss the respondent's appeal as to the question of costs and on the issue of liability, but I would allow the respondent's appeal with respect to the quantification of damage.  I would substitute for the assessment of $35,000, the sum of $25,000 by way of an allowance for future loss of earning capacity.

I would direct the entry of a judgment which gave effect to the working out of the application of the apportionment, having regard to my view as to the appropriate adjustment to be made with respect to the allowance for future loss of earning capacity.

PRIOR J:  I too am not satisfied that the apportionment arrived at by the learned trial judge was erroneous.  I would dismiss the appeal for the reasons Perry J has given.

The cross-appeal should be allowed, but only to vary the award of damages for future economic loss for the reasons given by Perry J.  I agree that an appropriate award under that head is $25,000.

I agree with Perry J in relation to the challenge to the costs order made by the judge in the court below.

OLSSON J:  I agree with what has fallen from my brethren.

PRIOR J:  The orders of the court are:

1. Appeal dismissed.

1. Cross-appeal allowed solely for the purpose of substituting for the sum of $35,000 assessed as future economic loss, the sum of $25,000, with consequential amendments to the judgment to be entered for the appellant, given the apportionment of responsibility made by the trial judge and confirmed in this court.

1. As to costs, one order that the appellant pay 50% of the respondent's costs of the appeal and the cross-appeal, to be taxed.