THE NOMINAL DEFENDANT v ARIDA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS (1) AP, MAHONEY (2) AND PRIESTLEY (3) JJA 23 August 1989, 23 August 1989 [1989] NSWCA 209 NEGLIGENCE — no question of principle. DAMAGES — quantum — no question of principle. Samuels AP This is an appeal from a judgment delivered by Judge Denton in the District Court on Tuesday 22 September 1987. The facts are these. The plaintiff, the present respondent, was driving a motor vehicle in an easterly direction across a bridge over what is romantically called Duck River, but which is in fact in South Granville. The day of the accident was 26 February 1983. Mona Street, which lies either side of the bridge crossing, that is to the east and to the west, is, it seems, a four-lane highway which narrows in a waist, as it were, to two lanes when Mona Street comes to traverse the bridge. The plaintiff's account of what happened was that, at 8 o'clock on that morning as he drove on his correct side of the road in a easterly direction across the bridge, a vehicle appeared directly in his path, heading towards him, and flashing its headlights. The plaintiff, in order to avoid the head-on collision which would otherwise have ensued, swerved up on to the footpath and collided with the bridge structure sustaining injuries of moderate severity. The vehicle which was said to have caused this accident did not stop; hence the proceedings which were brought against the Nominal Defendant. The plaintiff himself said that he had no recollection of events at the scene following the accident, remembering next waking up in St Joseph's Hospital at Auburn. There is some conflict about this point because a witness, the principal prop of the appellant-defendant's case, Ms Cheeseman, deposed to having spoken to the plaintiff in his car at the scene and indeed made two statements, one contemporary and one later, to the same effect. Moreover, a police constable, Constable Conlon, who came to the scene, ultimately also said that he had spoken to the plaintiff. These conversations were not lengthy, but if believed they at least indicate that the plaintiff was not wholly unconscious, although there is medical evidence, that is the statement of the doctor who treated the plaintiff on admission, that he appears to have had retrograde amnesia for some minutes and post-grade amnesia for about thirty minutes. The learned judge found in favour of the plaintiff and assessed his damages in the total sum of $62,123. The defendant has appealed on the ground that the learned judge was wrong in concluding that the plaintiff had discharged the onus of establishing negligence against the Nominal Defendant. The plaintiff has cross-appealed on the footing that the learned judge's assessment of damages for past and future economic loss was inadequate. Upon the first point, the matter really stands thus. The plaintiff's evidence undoubtedly contains contradictions These mainly refer to his denial that he ever spoke to Constable Conlon at the scene, subsequently retracted when he gave 2 UNREPORTED JUDGMENTS evidence that he had spoken to him at the police station some time after the accident, when he was engaged in the task of gathering the material necessary to sustain formal proof of a case against the Nominal Defendant. In giving that evidence he said that he had reminded the constable that he had told him at the scene that he was forced off the road by an oncoming vehicle. When it was put to him that this could scarcely be so since he had never before spoken to the constable, either at the scene or in the hospital where he had allegedly been unconscious, he had then asserted that he had spoken to the constable in the hospital. As it turns out, accepting the constable, what had happened was that the plaintiff had spoken to Constable Conlon both at the scene and in the hospital. At the scene, the constable said, the plaintiff had delivered to him the whole of his case saying, in response to the question, "What happened?", "come in the opposite direction and caused me to swerve". However, at the hospital he had made a further statement at 8.30 am, that is about half an hour after the collision, which the constable recorded in his notebook but which was not signed, in which the plaintiff is unable to explain how the accident happened. These are contradictions and inconsistencies which are of some importance, it is true, and in respect of his claim of unconsciousness in the hospital as well it must be noted that he shifted ground. But, in addition to Constable Conlon's evidence of the exchange at the scene - which, I might add, was volunteered by the constable and was not given in response to a direct question by counsel for the plaintiff - the plaintiff gave evidence that at the hospital he was visited by a number of people to whom he gave what was his version of the incident to which he deposed at the trial. This evidence was admitted in answer to a case by the defendant of recent invention and the propriety of the admission was not challenged. Further, as my brother Mahoney pointed out during the argument, these witnesses were not cross-examined, and therefore at the trial it was not sought to dispute that the plaintiff had told them what they said he had. Thus, looking at the evidence overall, as a trial judge must, there was a more or less spontanious explanation at the scene to the constable and later perhaps a more measured explanation given to visitors at the hospital and not challenged. Mr Hall contends that his Honour failed to analyse correctly these inconsistencies. However, it seems to me that his Honour was aware of them and treated them with sufficient detail, and I do not think his reasoning fails on this account. No doubt it was a curious case, and it may be, with respect to his Honour, who thought the contrary, that even at 8 o'clock in the morning it is possible for a driver not merely to fall asleep at the wheel but to have his attention distracted by some transient phenomenon sufficient to cause him to lose control. These, however, were matters which fell within the area of advantage enjoyed by a primary judge and denied to an appellate court. It is true that his Honour found both the plaintiff and Ms Cheeseman - who, I should interpolate, saw no vehicle which could have forced the plaintiff off the road, but whose evidence his Honour rejected - to be honest, but Ms Cheeseman to have been mistaken. Although, therefore, the judge did not explicitly rely upon the plaintiff's demeanour or, in a pejorative sense, that of Ms Cheeseman, it can scarcely be doubted that in a case such as this his Honour derived benefits from his general impressior of the witnesses who appeared before him. I cannot see that his Honour palpably misused that advantage, or indeed misused it in any way, or that the contrary view of the evidence is so compelling as to authorise the intervention of this Court. I do not think that any error appears in Judge Denton's reasoning URJ THE NOMINAL DEFENDANT v ARIDA (Samuels AP) 3 to his conclusion, and I do not think that the circumstances do justify our interference. I would therefore dismiss the appeal. As to the cross-appeal, the point is succinctly put. The plaintiff, who was born in 1965 and is thus a young man, sustained a fractured nose, laceration above the left eyebrow and apparently had a degree of haematuria which was thought to be due to seat belt bruising but which has not left any lasting consequence. He suffered from some headache and dizziness, no doubt in consequence of his concussion, and sustained some soft tissue injury to the cervical and lumbar spine. His Honour relied upon a medical report by a Dr Higginbotham which refers to a examination made short before the trial, and in that the doctor assesses the plaintiff as being capable of moderately strenuous physical activities but not capable of heavy lifting or highly repetitive activities with the upper limbs. There was unlikely to be any deterioration, but there was the likelyhood of some continuing symptoms over an indefinate period. I leave out of account other consequences because they do not form any part of the appellant's objection to the assessment. The plaintiff's brother is engaged, apparently, in the retail clothing business and operates two shops. The plaintiff worked for him at the time of the accident but upon a basis close to voluntary employment, it would seem, was off work for a year or thereabouts and had some difficulty for a time in finding employment in the field which I have described. However, in 1986, a year or thereabouts before the trial, he entered into partnership with his brother in the clothing business. There were no figures of partnership profits available at the trial. Mr Leslie QC, for the plaintiff, submits that in those circumstances the judge was bound to provide the plaintiff with some economic cushion against the event that having lost or left his then current employment he was cast upon the open labour market and at a disadvantage produced by his continuing incapacities. The learned judge certainly thought that he had some economic handicap, which he said, "I take into account". With all respect, to my mind this was to overstate the case somewhat. Certainly, there are many in which a plaintiff in employment is entitled to some allowance against the contingencies to which I have just referred. But those cases, it seems to me, arise where there is some possibility that the injuries will handicap the plaintiff in carrying out work which is his normal form of employment or work for which he has some taste or in which it is possible that he would wish to engage at some future time. None of these requirements seems to me to be satisfied in the present case. The plaintiff, indeed, remains capable of undertaking some physical activity, but there was no evidence to suggest that he was ever likely to look for work other than in the general field in which he was employed at the time of the trial. Hence, to my mind the plaintiff has not satisfied the onus - which, of course, rests upon him in the field of damages as much as in the field of liability - and has not shown that there is a possibility of future economic detriment against which the judge ought to have protected him but failed to do so. I would therefore dismiss the cross-appeal. Before parting with the case, I might mention that there appears to have been an assessment of interest which might run counter to doctrine upon the point, but no argument was directed to this. I emphasise that in saying that I am not making the slightest suggestion that the plaintiff's advisers should have mounted such a case, but I merely make the comment because I understand that there is a case pending or reserved before the court in which that matter will be dealt with. 4 UNREPORTED JUDGMENTS Accordingly, I would propose that the appeal and cross-appeal be dismissed with costs. Mahoney JA I agree. Mr Hall has quite properly pointed to the difficulties facing the plaintiff and the learned judge in dealing with the inconsistancies between the plaintiff's account of the accident and that given by the witness Ms Cheeseman. The case has, I think, proceeded upon the basis that what the plaintiff said as to what happened to others outside the court may be taken into account as evidence of the fact. Upon that basis I think that what he said to the police constable and to the visitors to the hospital, both before and at the hospital, weighs heavily in his favour. The learned judge saw it so. In any event, in my opinion, the probabilities are that what the plaintiff said was the true account and I would dismiss the appeal for that reason. I agree with the orders that have been proposed. Priestley JA I also agree. No ground has been shown, either in the appeal or the cross-appeal, for embarking upon any review of what the trial judge did. I agree with the orders proposed. Appeal and cross-appeal dismissed with costs. Counsel for Appellant: PM Hall/A Gerard Solicitors for Appellant: Mr GE Lazar Counsel for Respondent: A Leslie QC Solicitors for Respondent: Paul A Curtis and Co