COLE v PEARCE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and MEAGHER JJA 14 August 1989, 14 August 1989 [1989] NSWCA 40 NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — APPEALS ON TRIAL JUDGE'S FINDING ON CREDIBILITY, APPORTIONMENT, DAMAGES FOR LOSS OF EARNING CAPACITY AND GENERAL DAMAGES ORDERS Appeal dismissed with costs. Meagher JA In this matter the appellant was injured in a motor car accident when her car collided with the car driven by the respondent at the corner of Hill Street and Gardener Road, Orange, on 21 March 1978. She sued the defendant in negligence and the matter was heard by his Honour Judge Shannon in the District Court, his Honour giving judgment on 2 June 1982. His Honour found that the plaintiff was successful in proving negligence in the defendant, and that finding is not in dispute. His Honour also found that the defendant, who is now the present appellant, was guilty of contributory negligence. He apportioned the negligence as 25 per cent, and he found for her in the sum of $17,282.37. That figure represented an out of pockets component, a component for past loss of wages and a component for general damages. Nothing was given for impaired earning capacity. Two features arise out of that matter. One is that his Honour found it very difficult, although the accident seemed a simple one, to make the relevant findings of fact in view of the fact he had to give judgment on matters which had occurred four years before he delivered judgment. The matter is compounded in this court where it has taken the appellant seven years to bring on this appeal. The other factor to which I should refer is that his Honour the trial Judge in effect largely disbelieved the appellant's account of the accident and found her an unconvincing witness. In these circumstances, Mr Serisier has with great skill undertaken what must be the very difficult task of disturbing factual findings made seven years ago, based as they are largely on credibility. He first submitted to us that there was no justification for any finding by his Honour that the appellant was guilty of contributory negligence at all. However, the evidence of the respondent and the evidence of an independent witness, perhaps even evidence of the appellant herself, provide ample justification, in my view, for his Honour's finding that the appellant was travelling at an excessive speed and that she had failed to keep a proper lookout, in particular in the circumstances where the road was already wet and slippery, and that to her knowledge. I see no reason why this court should disturb his Honour's finding that there was contributory negligence. On the question of apportionment, this question is a peculiar matter for the trial Judge who has heard the relevant parties and who is in charge of making the findings of the facts. Appellate courts have said repeatedly, and in my view, perfectly correctly, that no appellate court should disturb a trial Judge's finding on the question of apportionment unless it is transparently obvious such an 2 UNREPORTED JUDGMENTS alteration to his Honour's view is justified. In the present case I see no reason why his Honour's apportionment of 25 per cent should be set aside. That leaves the question of damages. There is no contest as to the out of pockets. They were engaged in the figure of $7,211.93. There is no contest as to the loss of past wages which were agreed at a figure of $1,831.23. There is contest, however, on two other issues. One is the issue of impairment of future earning ability, that is loss of economic capacity for the future, on which his Honour found that the plaintiff was not entitled to anything. In this regard, it must be borne in mind that the appellant had a somewhat complicated medical history., In 1971 she suffered an injury to her lower back, and then she suffered some further type of injury in 1974 as a result of a lifting operation which she performed in the course of her work and which considerably exacerbated her 1971 injury. The 1974 injury resulted in court proceedings which were not settled until about May 1979. The result of the 1974 injury, as found by one of the doctors, was that she was reduced to the state where she was permanently limited to a sedentary occupation. That was the evidence of Dr Greer on 22 June 1976, and his Honour accepted that evidence, as he was entitled to. I might add that in his Honour's findings on the issue of credibility his Honour looked only at the medical reports and not at the appellant's own evidence in assessing these matters. Certainly in the accident in question, the 1978 accident, she did suffer injury, and severe injury, but it was not an injury which impaired her future economic capacity. She continued on at work at the same wage. There was no alteration to her pre-accident work duties, and there was no threat to her future employment. In addition, there was medical evidence, which his Honour presumably accepted, that by 1981 she was asymptomatic. In these circumstances it seems to me that his Honour was justified in not awarding any sum to the appellant for impairment of her earning capacity. As to general damages, his Honour did in fact make an award of $14,000. The appellant, as a result of the accident in question 1978, suffered a whiplash injury to the cervical spine, with right brachial plexus nerve root irritation. She underwent a series of treatments at the hands of various doctors in this regard, and eventually her doctor, Dr Fernside, performed an anterios-vital discectomy and an interbody fusion at the C6-7 level. Obviously she must receive general damages as a result of that history, and his Honour, as I said, did award general damages in the amount of $14,000. When one reminds oneself those $14,000 are in the currency of 1982 and not in current currency, it seems to me that this court was not in a position to vary his Honour's award. In those circumstances, in my view the appeal should be dismissed with costs. Mahoney JA I agree. The court has had the benefit of written submissions by both counsel and oral elaboration on them by Mr Serisier. Taking into account all of those matters, I do not think the appeal should be upheld. The apportionment that his Honour made in respect of contributory negligence was on the basis, I put it broadly, that the defendant was three times more responsible for the accident than the plaintiff, using the term in the sense used in the authorities. I find that assessment correct. I would not interfere with it. His Honour relied upon Dr Fernside's evidence in relation to the plaintiff's present condition. Insofar as it departed from what the plaintiff had said, his Honour, having had the advantage of seeing the plaintiff, saw fit to accept Dr Fernside's assessment. I do not think this court can interfere with what his Honour did. The amount awarded for general damages is not large. As Mr Justice URJ COLE v PEARCE (Clarke JA) 3 Meagher has said, the plaintiff was entitled to an appropriate sum because of the peculiar facts of the accident, I think what his Honour awarded, on the basis Mr Justice Meagher has referred to, was within the grounds of the discretion of the Judge. I see no reason for interference. I agree with the orders proposed. Clarke JA I agree with the judgments which have just been delivered. The order of the Court therefore is that the appeal be dismissed with costs. Counsel for the Appellant: L Serisier Solicitor for the Appellant: Peter Boyde and Associates. Counsel for the Respondent: P Bell Solicitor for the Respondent: Mr G Leeds, Parramatta.