CATCHWORDS Appeal - defence of volenti non fit injuria ~ rejection of defence - contributory negligence - apportionment of liability - grounds for interfering with apportionment - role of appelIate court Damages - appeal against quantum ~ no new question of principle Law Reform (Miscellaneous Provisions) Ordinance 1955, s.15(1) Australian Capital Territory Supreme Court Act 1933, s.53A{(1) Whim Creek v. Federal Commissioner of Taxation (1977) 17 ALR 421 Roggenkamp v. Bennett (1950) 80 CLR 292 Pennington v. Norris (1956) 96 CLR 10 Watt v. Bretag (1982) (1982) 41 ALR 597 Unwin v. Clarke (unreported, 18 April 1984) Combridge v. White (unreported, 22 March 1985) O'Brien v. McKean (1968) 118 CLR 540 Griffiths v. Kerkemeyer (1977) 139 CLR 161 Hodges v. Frost (1984) 53 ALR 373 KEVIN BOLTON v. MARIO PANGALLO MARIO PANGALLO v. KEVIN BOLTON A.C.T. No. G.24 of 1986 A.C.T. No. G. 26 of 1986 Coram: Gallop, Neaves and Spender JJ. Date: 24 April 1987. Canberra. FEDERAL COURT OF AUSTRALIA \ PRINCIPAL, REGISTRY IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ee Ee ee ee SS Oe ee No. ACT G24 of 1986 DISTRICT REGISTRY GENERAL DIVISION we ww SS ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: KEVIN BOLTON Appellant AND: MARIO PANGALLO Respondent No. ACT G26 of 1986 BETWEEN: MARIO PANGALLO Appellant AND: KEVIN BOLTON Respondent ORDER Judges Making Order : Gallop, Neaves and Spender JJ. 24 April 1987. Date of Order Where Made Canberra. THE COURT ORDERS THAT: (1) The appeal be dismissed with costs. (2) The cross-appeal be dismissed with no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. ' Fe er aS Van, meee eet EU ~ alan ee IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G24 of 1986 DISTRICT REGISTRY eee Ow GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: KEVIN BOLTON Appellant AND: MARIO PANGALLO Respondent No. ACT G26 of 1986 BETWEEN: MARIO PANGALLO Appellant AND: KEVIN BOLTON Respondent CORAM: Gallop, Neaves and Spender JJ. DATE: 24-April 1987. REASONS FOR JUDGMENT GALLOP J. The unsuccessful defendant in an action for damages for personal injuries has appealed against the judgment of the Supreme Court of the Australian Capital Territory (Kelly J.). The action was heard on 15, 16, 17 August 1984 and 21 September 1984 and judgment was delivered on 29 April 1986. The successful plaintiff has cross-appealed against that part of the judgment by which 2. the plaintiff was found to be contributorily negligent. His Honour the trial judge assessed damages at $376,883.55 made up as follows: General damages $ 50,000.00 Past economic loss 90,000.00 "Loss of earning capacity 145,000.00 Interest in respect of past general damages and past loss of earnings 56,000.00 Past and future expenses for care 25,000.00 Agreed out of pocket expenses 10,000.00 Total $376,883.55 His Honour found contributory negligence on the part of the plaintiff and reduced the assessed sum by 30%. Rounding the resultant figure off, his Honour entered judgment for the plaintiff for the sum of $263,800. The defendant has contended on the hearing of the appeal that the defence of volenti non fit injuria should have succeeded and that there ought to have been judgment for the defendant. Alternatively, it was submitted that the reduction of the assessed damages by only 30% because of the Plaintiff's contributory negligence was manifestly too low on the evidence. The defendant also has contested the trial judge's assessment of damages in certain respects. By way of cross-appeal, the plaintiff has contended that the finding of contributory negligence was wrong in law and seeks restoration of the full award of damages. The plaintiff's claim for damages arose out of a motor vehicle accident on Saturday, 11 March 1978. The > 3. plaintiff was injured when the motor vehicle driven by the defendant with the plaintiff as passenger collided with a tree in Northbourne Avenue, Canberra, shortly after 10.00 pm that night. The trial judge found that at hotel closing time the plaintiff and the defendant had decided to go on to a club 1n a vehicle which the plaintiff had borrowed. They went out to that vehicle. The plaintiff tried to start it, but was unable to do so and the defendant suggested that they go to the club in his vehicle. His Honour found that, when the defendant left the hotel and entered the subject motor vehicle, he was under the influence of intoxicating liguor to such an extent that it was unsafe for him to drive the motor vehicle, as he was unable properly to control the vehicle. Having left the hotel with the plaintiff as passenger, the defendant drove his vehicle at an excessive speed along Northbourne Avenue, lost control of the vehicle and eventually collided with a tree on the eastern side of the road. His Honour found that the defendant was negligent and that that negligence was the cause of the accident and hence the injuries sustained by the plaintiff. He also found that the intoxicating liquor which the defendant had consumed contributed to the accident. His Honour was not satisfied that, in agreeing to ride with the defendant, the plaintiff£ not only perceived the existence of danger, but also fully appreciated it and voluntarily accepted the risk. He found that the plaintiff did not know how much the defendant had had to drink and did not fully appreciate what 4. the defendant's condition was. He heid that the defendant had not established that the plaintiff fully appreciated the extent of the risk which driving with the defendant in his then conditon entailed and voluntarily accepted the risk. However, he went on to find that the plaintiff should have appreciated the risk he was taking in riding with the defendant, ought to have realised that he was engaged in a perilous journey and taken measures to stop it. Accordingly he found that the plaintiff was 30% responsible for his injuries and resultant damage. In the exercise of its jurisdiction to hear and determine appeals from judgments of the Supreme Court of a Territory pursuant to s.24 of the Federal Court of Australia Act 1976, this court 1s to have regard to the evidence given in the proceedings out of which the appeals arose and has power to draw inferences of fact and, in its discretion, to receive further evidence (S.27). It may, in the exercise of its appellate jurisdiction, inter alia, affirm, reverse or vary the judgment appealed from and give such judgment or make such order as in all the circumstances it thinks fit or refuse to make an order (s.28(1)(a) and (b); Whim Creek v. Federal Commissioner of Taxation (1977) 17 ALR 421. In support of the ground of appeal that the defence of volenti non fit injuria should have succeeded and that there ought to have been judgment for the defendant, he relied upon the evidence of the accident itself, his own insobriety and the plaintiff's knowledge of his condition. With regard to the accident itself, the plaintiff gave evidence at the trial that on leaving the hotel the > 5. defendant drove down Northbourne Avenue and proceeded on past the lights at the intersection where the Rex Hotel was located. The defendant was driving on the righthand side of the carriageway adjacent to the centre nature strip. The ear hit the kerb on the righthand side of the carriageway and went over to the lefthand side and hit a tree. In cross-examination the plaintiff gave evidence that he did not know why the vehicle hit the kerb and that he had no idea of the speed they were doing at that time. The distance travelled from the hotel to the point of the accident was about two miles. The defendant gave evidence that the distance travelled was probably a mile and a half. An independent witness, Mr T.J. Hosking, gave evidence at the trial that at about 10.30 pm on 11 March 1978 he was standing in front of the Parkroyal Motor Inn near the footpath taking down the flags that fly outside the Motor Inn. He worked there as a casual waiter. He saw the defendant's vehicle travelling south on Northbourne Avenue. It collided with the kerb on the righthand side of the southbound''lane, the two wheels on the righthand side of the car mounted the median strip and down again, the car slid sideways and he then lost sight of it. He heard a crash. He went up to the car and saw that 1t had collided with a tree. He had noticed that the vehicle was travelling a lot faster than the general traffic on Northbourne Avenue and later said "twice as fast as normal traffic". In cross-examination he said that his impression at the time was that the vehicle was going very fast. 6. The statement of another independent witness, Mr R.A. Souter, was put in evidence. In the statement he said that he had been travelling in a southerly direction in Northbourne Avenue in the centre lane at about 60 kilometres per hour. The weather was fine and the road surface was ary. About 50 metres ahead of him he had seen a van travelling in the same lane and at about the same speed or perhaps a little faster. He saw the vehicle change into the righthand lane, hit the kerb on the righthand side of the three southbound lanes and bounce off the kerb. He saw the van "fishtail" in the centre lane, swerve left off the roadway and collide head on with a tree outside NRMA House in Northbourne Avenue. Constable Keelty gave evidence that he inspected the scene of the accident about 10.40 pm on 11 March 1978. He gave evidence of the tyre marks on the roadway which indicated that the defendant's car had travelled a distance of 36 metres along the median strip and then another 49.2 metres to where it collided with the tree. A sketch drawn by Constable Keelty and indicating the marks on the roadway was also in evidence as Exhibit 3. His Honour's findings of fact concerning the circumstances of the accident were as follows: "I am satisfied that on leaving the hotel the defendant drove his vehicle at an excessive speed south along Northbourne Avenue. Near the Parkroyal Motor Inn the defendant's vehicle collided with the right hand kerb of the southbound carriageway of Northbourne Avenue in which he was travelling. The vehicle mounted the kerb and travelled for some distance along the median strip between the two carriageways of Northbourne Avenue. The defendant was unable to regain control and the vehicle eventually collided with a tree on the eastern side of the road." fe ots ated tea! . . 2 N 1 ee ee | ° | 7. With regard to the insobriety of the defendant, Sergeant Lawler of the Australian Federal Police gave | evidence at the trial that he attended the scene of the accident at about 10.40 pm. Concerning his observations of the defendant, he said that he noticed the defendant displayed the symptoms of intoxication, which were speech quite blurred, eyes bloodshot and watery and a strong smell of intoxicating liquor on him. Sergeant Lawler formed the eo eee ee opinion that the defendant was well under the influence of ; intoxicating liquor at the scene of the accident. Later that night he saw the defendant at hospital and made further observations of him there. He concluded from the defendant's behaviour at the hospital that the defendant was well under the influence of intoxicating liquor. Returning to the evidence of Constable Keelty, on the subject of the defendant's insobriety Constable Keelty said in evidence that at the scene of the accident the defendant was well under the influence of intoxicating liguor. Later, at the hospital, he noticed that the defendant had a smell of intoxicating liquor on his breath, | and his eyes were watery and bloodshot. ' In a certificate under the Motor Traffic Ordinance 1977 Constable T.J. Clarke noted the observations that he had made of the defendant at 12.15 am on 12 March 1978, including that the breath of the defendant had a strong odour of alcoholic liquor, that the eyes were bloodshot and heavy lidded and that the speech was slurred. In his own evidence at the trial the defendant admitted to having drunk five to six middies of beer between 8. 5.30 pm when he arrived at the hotel and 7.30 pm when he went home, had a meal and came back, and another six middies or so between when he returned to the hotel and finally left the hotel that night, making a total of 12 middies of beer. He said in evidence in chief that as he got into the vehicle before driving away from the hotel he felt alright. Asked whether he felt in any way affected by what he had drunk, he said he did not and repeated that he felt "alright". As indicated above, his Honour found that when he left the hotel and entered the motor vehicle shortly before the accident the defendant was under the influence of intoxicating liquor to such an extent that it was unsafe for him to drive. With regard to the knowledge of the plaintiff concerning the defendant's intoxication, the plaintiff said in chief that he had been talking to the defendant at the hotel and did not notice anything unusual about him. They were talking football all the time and there did not seem to him to be anything wrong. In cross-examination the plaintiff said that he had been talking and drinking with the defendant for half to three-quarters of an hour just before closing time. He had not enguired at any stage of the defendant what he had been doing that day, how long he had been in the hotel or whether he had been drinking. He said he knew that the defendant had been at the hotel longer than he had been. As they left the hotel he had asked the defendant whether he was coming with the plaintiff. The defendant . 9. indicated that he would travel with the plaintiff. When the plaintiff's vehicle would not start, the defendant suggested that they travel in his car. They went around to the front of the parking area to the defendant's panel van. The plaintiff said in evidence that he remembered saying to the defendant "Are you right?", to which the defendant replied "Yeah, I'm right". The plaintiff did not ask the defendant whether the defendant wanted the plaintiff to drive. The plaintiff could not offer any reason why he had asked the defendant that question, except that he used to ask everyone. He said that it did not occur to him that the defendant might not be fit to drive. He had not asked the question for the reason that he thought the defendant might be affected by alcohol. He denied that when he accepted the lift he knew that he was less affected by liquor than the defendant, or that he could see that the defendant was intoxicated. He said he had not noticed anything at all that had caused him to ask the defendant the question. The plaintiff also maintained that between the hotel and the accident he had not noticed anything untoward about the defendant's driving. He re-iterated that before he entered the motor vehicle he did not know that the defendant was obviously untoxicated. On the subject of the plaintiff's knowledge of the defendant's intoxication, Sergeant Lawler gave evidence that at the Royal Canberra Hospital the plaintiff had said to him "Why did I let the bugger drive? Why did I let him drive?" a ew ee tan TT me et 10. There was no evidence that the plaintiff himself was so affected by intoxicating liquor that he was unable to make a proper assessment of the defendant's condition. The evidence was that he had drunk three middies of beer in a period of one and a half hours. It was submitted that the plaintiff had had ample opportunity to assess the defendant while drinking with him in the hotel for at least half an hour and walking with him to where the vehicles were parked in the parking area. Further, it was submitted that his inquiry of the defendant indicated some concern on the plaintiff's part that the defendant was affected by intoxicating liquor and on receipt of the reply assumed the risk of travelling with the defendant as driver with full knowledge of the risk he was taking. His Honour correctly applied the principles laid down by the High Court in Roggenkamp v. Bennett (1950) 80 CLR 292 to the effect that in order to establish the defence the plaintiff must be shown not only to have perceived the existence of danger, but also to have fully appreciated it and voluntarily accepted the risk. It 1s true that those principles cast a very heavy evidentiary onus upon a defendant seeking to establish the defence. The increasing stringency with which the requirements of knowledge of the danger and full appreciation of the risk are applied by courts has probably contributed as much as anything to the contemporary eclipse of the defence (The Law of Torts: Fleming, 6th Ed., at p.272). 11. The trial judge has not heen shown to have misapprehended the evidence in any way and he was entitled to accept the evidence of the plaintiff, whom he saw and heard, to the effect that the plaintiff had not perceived the existence of danger when he entered the defendant's motor vehicle. There is no proper basis for interfering with the trial judge's rejection of the defence. I turn to the ground of appeal that the trial judge was wrong in his apportionment of only 30% of liability to the plaintiff on account of contributory negligence. It was submitted that the apportionment of 30% was manifestly erroneous as being too low. Section 15(1) of the Law Reform (Miscellaneous Provisions) Ordinance 1955 provides: "15. (1) Subject to this section, where a person suffers damage as the result partly of his own fault and partly of the fault of another person or other persons, a claim in respect of that damage is not liable to be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect of the damage shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage." The principles to be applied by an appellate court on an appeal as to apportionment of liability were laid down by the High Court in Pennington v. Norris (1956) 96 CLR 10 at pp.15-16, where the High Court (Dixon C.Jd., Webb, Fullagar and Kitto JJ.) said: "Much latitude must be allowed to the original tribunal in arriving at a judgment as to what is just and equitable. It 1s to be expected, therefore, that cases will be rare in which the apportionment made can be successfully challenged." More recently in Watt v. Bretag (1982) 41 ALR 597 the High Court (Gibbs C.J., Mason, Murphy and Brennan JJ.) 12. said, in dealing with the Wrongs Act 1936-1975 (S.A.), at p.599: "Section 27a of the Wrongs Act gives a very wide Giscretion, and much latitude must be allowed to a trial judge in deciding what is just and equitable (Pennington v. Norris, at 15-16). It is only in exceptional circumstances that it is right for an appellate court to interfere with a trial judge's apportionment, as this court said in A V Jennings Construction Pty Ltd v. Maumill (1956) 30 ALJ 100 at 101: 'Accordingly jurisdiction 1s subject to the limitations imposed by the principles which govern all appeals against judgments given in the exercise of discretions, principles which this court has stated repeatedly in recent cases. Consequently, as Lord Simon remarked in [British Fame (Owners) v. Macgregor (Owners) [1943] AC 197] at 198-9, "the cases must be very exceptional indeed 1n which an appellate court, while accepting the findings of fact of the court below as to the fixing of blame, none the less has sufficient reason to alter the allocation of blame made by the trial judge".' he same approach has been adopted by the Privy Council: Ramoo son of Erulapan v. Gan Soo Swee [1971] 3 All ER 320 at 327, per Lord Cross." Those principles have been applied by this court in Unwin v. Clarke (unreported decision of 18 April 1984) and Combridge v. White (unreported decision of 22 March 1985). I am not satisfied that it would be right for this court to interfere with the trial judge's apportionment of 30% on account of the plaintiff's fa1lure to appreciate the risk he was taking in accepting the defendant as his driver. It has not been demonstrated that the trial judge misunderstood or failed to appreciate the evidence which was before him. Likewise no ground has been established for interfering with the trial judge's finding of contributory negligence. There was evidence to support the finding. His Honour accepted the evidence and applied the correct principles of law. . 13. The defendant has also appealed against the assessment of damages made by the trial judge in respect of the amounts awarded for past economic loss, interest on the assessments for past general damages and past loss of earnings, and the assessment for domestic care. , In relation to the claim for past economic loss, his Honour treated the plaintiff's earning capacity as equivalent to that of a journeyman painter employed under the relevant award. Using as a guide the figures provided by an actuary and making due allowance for contingencies and some residual capacity to earn, at least since the accident, and for the national wage increases of 2.6% and 3.8% awarded on 6 April 1985 and 5 November 1985 respectively, his Honour fixed an amount of $90,000 for economic loss from the date of the accident to the date of judgment. The defendant made no submission to this court about his Honour's finding that the plaintiff's earning capacity during the relevant period would have been equivalent to that of a journeyman painter employed under the relevant award. The submission was that the trial judge did not make sufficient allowance for adverse contingencies between the date of accident and the date of judgment and for a residual work capacity of 30%. The uncontested figures of the actuary estimated the net wage loss from the date of accident to 30 June 1984 at $75,652. As previously stated, judgment was not delivered until 29 April 1986, 22 months later than the date adopted by the actuary. A further amount should have been added to the actuary's figure of $75,652 to bring the estimated past wage loss based upon the relevant award up to 14. the date of judgment. The evidence established that the net earnings of a journeyman painter from 1 July 1983 to 30 June 1984 would have been $15,014. The figure which might have been added to the actuary's total figure up to 30 June 1984, making allowance for the national wage increases taken into account by the trial judge, is in the order of $30,000, making a total of about $105,000 for past economic loss. In relation to the plaintiff's residual earning capacity the trial judge made the following findings of fact: "In the result, I am satisfied that the plaintiff suffers disability from his chest, back and neck, disability I find to be not totally incapacitating. I think his condition 1s such that he will no longer be able to carry out alli that would be involved in painting, the trade 1n which he was engaged before the accident. The fumes of the paint trouble him and, leaving that aside, I am satisfied too that he would be unable to paint above his head because of his neck condition. Because of his limited education and work experience I do not think he would be able to obtain work on the ordinary labour market in competition with men who are fully fit. At the same time I think he could engage in lighter work and I am satisfied that 1£ his physical fitness can be increased, as I think it can, with a programme of rehabilitative exercises he wlll be capable of carrying out some work requiring relatively little physical effort. I instance driving aS a courler although account must be had of the possibility that prolonged sitting in a car would cause him incapacitating back pain. On all the evidence I think he retains an earning capacity which I estimate at 303." His Honour did not make a finding of fact about how long the plaintiff had had some residual capacity to earn prior to the date of hearing. He stated that he took into account some residual capacity to earn "at least since the hearing". It is implicit from those findings of fact that the trial judge regarded the plaintiff as being totally 15. incapacitated for most of the period between the date of accident and the date of hearing. At the same time, he foreshadowed that if his physical fitness could be increased the plaintiff would be capable of carrying out light work requiring relatively little physical effort. Looked at in that way, his Honour's award of $90,000 for past economic loss is not manifestly wrong and is supported by the evidence. As damages are calculated as at the date of judgment, it 1s a reasonable figure for loss of earnings over a period of 8 years 1 month. The provision for interest on an award of damages is s.53A(1) of the Australian Capital Territory Supreme Court Act 1933 which reads: "53A. (1) In any proceedings for the recovery of any money (including any debt or damages or the value of any goods) the Supreme Court or the Judge shall, upon application, unless good cause is shown to the contrary, either ~ (a) order that there be included in the sum for which judgment is given interest at such rate as the Court or the Judge, as the case may be, thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date as of which the judgment 1s entered; or (b) without proceeding to calculate interest in accordance with paragraph (a), order that there be included in the sum for which judgment 1s given a lump sum in lieu of any such interest." It appears that his Honour did not calculate interest in accordance with paragraph (a) above but proceeded to order that the sum of $56,000 be included pursuant to paragraph (b). A reasonable way of testing the reasonableness of the award of $56,000 for interest would be to apportion some part of the general damages of $50,000 to the past, say $30,000, add that figure to the assessment for 16. past economic loss, which yields a total of $120,000, apply the usual interest rate of 14% adopted in the Supreme Court of the Australian Capital Territory, halve the resultant figure to arrive at the appropriate amount of interest for one year, which figure in turn would be multiplied by the number of years involved, namely 8 years. This calculation yields a figure of $67,200, from which it would be appropriate to deduct the amount of $12,258.59 received by the plaintiff by way of sickness benefits for various periods between the date of accident and the date of trial. That calculation renders a figure very close to the trial judge's lump sum for interest. It is regrettable that the delay between the completion of the hearing and the delivery of judgment has inflated the appropriate award for interest, but as damages are calculated at the date of judgment (O'Brien v. McKean (1968) 118 CLR 540, per Barwick CJ at 545) the award is nevertheless appropriate. Finally, it was submitted on behalf of the defendant that the trial judge's assessment of $25,000 for domestic care, past and future, was not supported by the evidence. His Honour said: "I think the amount originally claimed for care during the plaintiff's recurrent bouts of pleuro pericarditis (see paragraphs 2.1(e) and 6.1 of Exhibit "L") to be much exaggerated. Compare Dr Cassar's report of 3 July 1984. I assess $25,000 as the appropriate figure for this item, past and future. I do not think the plaintiff has established any need for the services of a housekeeper as a result of his injuries." The evidence relating to this head of damages was. that of the plaintiff, Mrs Kuleas and Dr E.J. Cassar. As a . 17. guide to calculating damages, the trial judge also had in evidence the actuarial report of Messrs E.S. Knight & Co. dated 15 March 1984. One of the injuries sustained by the plaintiff, as found by the trial judge, was a crushed chest with pulmonary contusions. His Honour found that the plaintiff "suffers disability from his chest, back and neck" not totally incapacitating. The plaintiff's evidence was that since his discharge from hospital he had suffered a very deep sort of pain going through the left side of his chest. He said that he gets the condition for about 1-2 days about 3-4 times per year, which causes him to go to bed for 1-3 weeks at a time. When he gets these attacks he gets feverish with pain right through the back of his neck down to the top of his left shoulder. He said that in the 4-5 months prior to giving evidence on 15 August 1984 he had suffered a few bad recurrences in his chest and that Mrs Kuleas had been looking after him for about 3-3} years. Mrs Kuleas, who gave evidence on behalf of the Plaintiff,'said that she had met the plaintiff about 12 months after the subject accident. She said that she had noticed that from time to time he suffered attacks when he would have trouble with his breathing. They would vary from 1 or 2 Gays to 2 or 3 weeks. When that happened, he would either stay at his parents' or his sister's or with Mrs Kuleas. Someone had to ensure that he had plenty of liquids and was taking the right medication. She said that she had been doing that since 1979, she said that at the date of trial the plaintiff was mainly living at her place and that when he had his chest problems she would change the linen 18. very regularly, because the plaintiff got feverish, and do his cooking for him. She has had to do that in periods lasting from 1-2 weeks. She said that during these periods of illness the plaintiff would not be able to look after himself because he 1s 1n pain. Over the 5 months prior to giving evidence she had spent 1-2 days per month on average nursing the plaintiff. In his report of 3 July 1984, referred to by the trial judge, Dr Cassar stated: "THE DISABILITIES: 1. Stable and permanent loss of lung function to an amount of 50% since 1982, increasing to its present extent in the period 1978 to 1982 based on recurrent pleuropercarditis, the frequently of pleurisy being stable in the past two years and amounting to no more than 3 or 4 attacks per year, the attacks putting your client to bed for a period of at least 7 days at a time when anti-inflammatory agents and antibiotics have proved necessary. His lung function tests have been stable in the past two years with spirometry tests FEVI reading 2.5 litres as against predicted value of 3.7 litres and forced vital capacity reading 2.95 litres as against predicted value of 4.4 litres. There has been agocumentation of definite reduction in lung volumes and gas transfer consistent with lung volume loss each and every year of review and this stabilised 1n 1982 to present level of incapacity. No further deterioration is expected. It 1s mot (Sic) unlikely that any improvement will ever be seen." The proper approach to an award of damages for gratuitous services was 1aid down in the well known passage in Griffiths v. Kerkemeyer (1977) 139 CLR 161 at 168-9 by Gibbs J. (as he then was): "Pirst, 1s it reasonably necessary to provide the services, and would it be reasonably necessary to do so at a cost? If so, the fulfilment of the need is likely to be productive of financial loss. Next, is the character of the benefit which the plaintiff receives by the gratuitous provision of the services such that it ought to be brought into account in relief of the wrongdoer? If not, the damages are recoverable." 19. It was submitted on behalf of the defendant that there was no medical evidence before the trial judge specifying the care required either in terms of its nature or duration, no evidence as to the commercial cost of any relevant care, no evidence that any cost had been incurred and no medical or other evidence establishing that the services went beyond the mere re-arrangement of domestic chores or the tender attention to comfort that can be expected in an affectionate environment (Hodges v. Frost (1984) 53 ALR 373 per Kirby J. at p.380). In my view the above evidence sufficiently established that it had been reasonably necessary to provide services to the plaintiff and that 1t would have been reasonably necessary to do so at cost. Accordingly, the fulfilment of the need would have been likely to be productive of financial loss. The character of the services which the plaintiff received was in the nature of nursing care and, if those services had been incurred at a cost, the cost would have been recoverable from the defendant. The calculation of the compensation was made difficult by the absence of any evidence of the charges made for the supply of such services on a commercial basis. But such evidence, though desirable, 1s not essential. As Kirby J. observed in Hodges v. Frost (supra, at p.381), the calculation of compensation with reference to charges made for the supply of services on a commercial basis may not always be appropriate. Services provided by relatives and friends may not be exactly the same as those provided by 20. commercial agencies. Commercial agencies will necessarily have an element of profit in their charges. On the other hand, relatives and friends may provide services in a more cost-effective, intensive and prolonged manner, thereby reducing the pain, suffering and general damages of the accident victim. The actuarial figures were based upon an assumption that the plaintiff would require fulltime care for 10 weeks each year for life and the amount calculated was $68,302. Again, the trial judge has not indicated what proportion of the award of $25,000 relates to the past and what amount relates to the future. The periods of illness total in the order of 8 to 10 weeks per year. Although he did not say so, it is obvious that the trial judge accepted the contents of Dr Cassar's report of 3 July 1984 set out above and his evidence that the plaintiff has, as a result of the accident, permanent left lung disease which will cause recurring chest pains and chest infections and generally difficulty 1n breathing at rest and under exercise. As the plaintiff was only 34 years of age at the date of judgment (born 6 July 1952) the cost of future care when the plaintiff suffers recurrences of his chest symptoms 1s very significant. Looked at in that way the award of $25,000 for past and future care is not excessive and is reasonable on the evidence. For these reasons I would not be prepared to conclude that his Honour's assessment of damages in each of ""—— . -.* . eye - 2 we Toe 21. the respects contested by the defendant was outside the appropriate range of damages. The orders I propose to make are that the appeal be dismissed with costs and that the cross-appeal be dismissed but with no order as to costs. JC I certify that this and the preceding pezes are a true copy of the Reasons for Judgment herein of his Konour 2 ra Mr. Justice Galley Vy Cuteslhn Associate Dated: 24" Aart, 97 | cee LORE Fm mere As arene ct com maaan Counsel for the appellant: Mr T. Studdart Q.C. and Mr P.M. Hall Solicitor for the appellant: Crossin & Co. Counsel for the respondent: Mr P.L.R. Sheils Q.C. and Mr P.L. Dodson Solicitor for the respondent: Pamela Coward & Associates Dates of hearing: 29 and 30 October 1986 IN THE FEDERAL COURT OF AUSTRALTA AUSTRALIAN CAPITAL TERRITORY No. ACT G24 of 1986 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : KEVIN ROLTON Appellant AND: MARIO PANGALLO Respondent No. ACT G26 OF 1986 BETWEEN : MARIO PANGALLO Appellant AND: KEVIN BOLTON Respondent CORAM: Gallop, Neaves and Spender Jd. DATE: 24 April 1987. REASONS FOR JUDGMENT SPENDER J.: I have had the opportunity of reading in draft form the Reasons for Judgment of Gallop J.. I agree with the orders that he proposes for the reasons which he gives. I certify that this page is a true copy of the Reasons for Judgment herein of His Honour Mr. me 24 April 1987 wal "associate IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISTON ) ) ) ) No. ACT G 24 of 1986 ) ) ) ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: AND: BETWEEN : AND: KEVIN BOLTON Appellant MARIO PANGALLO Respondent No. ACT G 26 of 1986 MARIO PANGALLO Appellant KEVIN BOLTON Respondent CORAM: Gallop, Neaves and Spender JJ. DATE: 2& April 1987 NEAVES J. I have had the benefit REASONS FOR JUDGMENT judgment prepared by Gallop d. reading the reasons for I agree with the orders he proposes and with the reasons advanced in support thereof. I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves,. Very Brown, Associate Dated: 24 April 1987