MEARBANI v STEFFAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and CLARKE JJA 13 July 1990, 13 July 1990 [1990] NSWCA 124 Appeal from District Court — Motor vehicle accident at T-intersection — Liability of defendant admitted — Plaintiff found 40 per cent responsible for accident because of his failure to keep a proper lookout: to his left — Held: (1) Plaintiff was guilty of contributory negligence because of that failure; (2) Responsibility reduced to 10 per cent; (3) Otherwise damages not varied Mahoney JA This appeal arises frorn a motor vehicle accident that took place on 24 August 1983 at the intersection of Carawatha Street and Yugilbar Avenue, Villawood. The plaintiff was driving along Carawatha Street. The defendant was driving out of Yugilbar Avenue, and there was a collision. The defendant has admitted liability in negligence for the collision. The learned judge, on hearing of the plaintiff's claim, held the plaintiff to have been guilty of contributory negligence in relation to the accident and responsible to the extent of 40 per cent. His Honour assessed the damages at $11,205.67 and accordingly gave judgment for the plaintiff for $6723.40. The plaintiff has appealed to this Court against the judgment given. The appeal, as argued before this Court, has related to three issues. The plaintiff has submitted first that there was no contributory negligence; second, that if there was, the assessment of it at 40 per cent was too high; and third, that the award of general damages of $7,000 was appealably low. The evidence discloses, as I have said, that the plaintiff was driving in Carawatha Street, which forms a T-intersection with Yugilbar Avenue. Carawatha Street is the cross arm of the T-intersection. The plaintiff was driving south in that street. The defendant drove out of Yugilbar Avenue from the plaintiff's left side. The point of impact was, as the case was conducted, agreed. It was said that it was approximately 4 metres south of the northern kerb alignment of Yugilbar Avenue and two metres west of the eastern kerb alignment of Carawiltha Street. The plaintiff was essentially going in a straight line and the defendant essentially was doing a right-hand turn across the line of the plaintiff's progress. The plaintiff's evidence was not completely consistent during the course of the whole of it. In chief he said that what had happened was that he had in the car one of his daughters, he was taking her to work, close to his house, driving at about 30 kilometres an hour, "then suddenly I found a car coming from the left, hitting me and then I found myself on the side of the road". Subsequently, in cross examination, it was put in substance to him that he hadn't looked to see whether there was a vehicle coming from the left hand side from Yugilbar Avenue. He said, as I would understand his evidence, and as the learned judge found it, that he really did not see the vehicle coming from the left hand side. Although his evidence varied from time to time, the proper conclusion was, I think, that he really was not looking to see whether there was a vehicle coming from the left. It is not necessary to lengthen the judgment in this case, 2 UNREPORTED JUDGMENTS which has been argued with commendable brevity, by setting out the detail of the cross examination on this point. The learned judge made certain findings. His Honour said: "The plaintiff told the police officer 'A car came out from my Left and I was only going slowly.' The police officer indicated that he had difficulty in obtaining information from the plaintiff because of language problems and he needed the assistance of a third party to obtain the amount of information that he did obtain. The constable said that at the time of the accident, the visiblity was clear; it was daylight; it was fine. He said that each of the streets intersecting were approximately 8 metres wide. The damage to the Gemini - which was the defendant's vehicle - was on the front and offside and the damage to the plaintiff's vehicle - which was a Holden - was on the front and the nearside." His Honour said: "When the plaintiff gave evidence and was cross examined, he was asked a number of questions, the first question being 'How far from the intersection were you when you first saw the other vehicle?' The effect of his answer to that and several other questions was, I conclude, that he did not see the other vehicle until the impact occurred. He was asked whether he looked to his left before proceeding into the intersection and he said that he did but that it was clear 'and the street in front of me was clear'." His Honour then said: "Tt seems to me that there is no doubt that the plaintiff was guilty of contributory negligence in that he failed to see the vehicle approaching, that is the defendant's vehicle approaching the intersection when there was no (in accordance with the evidence of the constable as to the nature of the intersection) impediment to his visibility." It has been submitted by Mr Evatt on behalf of the plaintiff that his Honour was incorrect in drawing the inference that he did from the constable's evidence and that his Honour had misinterpreted that evidence. It is not necessary, I think, to exarnine these matters in detail. Taking the evidence as a whole as it is before this Court, I think the fact is that the plaintiff did not really keep any significant lookout to his left to see whether any vehicle was coming. If the plaintiff did not see the defendant's vehicle and he did not at a relevant time, then there was, in my opinion, a failure to keep a proper lookout. He should have looked to the left, even though a vehicle coming from Yugilbar Avenue had, as I may describe in, the primary duty of a driver coming across a T-intersection that way and making a right hand turn. I think that the plaintiffs failure to look therefore did in the relevant sense contribute to the accident. If the plaintiff had seen the defendant's car coming out there would, I think, have been an opportunity to avoid the accident of at least to minimise the effect of it. If it be accepted, as the plaintiff said, that he was proceeding only at about 30 kilometres an hour, then the plaintiff would have had a real opportunity to stop, or to avoid the accident. I would, therefore, uphold the learned judge's conclusion that there was contributory negligence on the part of the defendant. I come then to the question of what the extent of the plaintiffs responsibility was. The defendant did not give evidence and the court is to decide the responsibility of the plaintiff within the statute upon the basis of the evidence as it is before the court. The principles are not in doubt. As I have said, the plaintiff was in the position where the defendant had the primary responsibility of taking care when coming to the intersection. I mean by that that the plaintiff would normally anticipate (I do not use the word "expect" because that may lead to misunderstanding) that a driver coming from the defendant's direction would URJ MEARBANI v STEFFAN (Mahoney JA) 3 give way to him and allow him to proceed. The is of course not entitled to proceed without taking appropriate precautions even in such circumstances, but the primary responsibility in entering the intersection in the circumstances would be upon the defendant. In all the circumstances, I think that the assessment of responsibility for the plaintiff of 40 per cent is too high. I would accept that the plaintiff did have a responsibility in relation to the accident within the statute, but I would assess that responsibility only as being ten per cent. Icome to the question of damages. The learned judge made findings in relation to the plaintiff's position. He assessed the plaintiffs condition at the time of the trial. A claim had been made at the trial that the plaintiff was entitled to recover for loss of economic capacity. The evidence established that, from reasons that were not given at the trial, since coming to Australia the plaintiff had in fact not used such economic capacity as he might have had for the purposes of deriving income. The learned judge, therefore, did not attribute any significant damages to loss of economic capacity. No appeal has been pressed in that regard. We are concerned only with the assessment of general damages. The learned judge, having detailed the medical evidence and referred to the conflicting medical evidence of what the plaintiff had said, said: "Having considered all the evidence that has been put before me, I come to the conclusion that the plaintiff did in the accident of 24 August 1983 sustain an injury to his lower back and an injury to either the right or the left knee. I have no doubt that he experienced shock. I accept that the plaintiff suffered pain and restriction of movement of the lower back for some time after the accident and it. seems to me that it is more probable than not that the diagnosis made by Dr Malik that the plaintiff had sustained a musculo-ligamentous sprain of his back which aggravated the underlying degenerative changes is a correct diagnosis and it is in fact confirmed by the opinion of Dr Bannister. The final report of Dr Bannister, I have already referred to, suggests to me that the plaintiff has symptoms which are not severe but which may be causing him discomfort but which are not necessarily attributable to the musculo-ligamentous sprain sustained in the accident. " And his Honour added: "As I have already stated, I do not conclude as I am not satisfied that the plaintiff has, as a result of his injuries, suffered any reduction in his earning capacity." On that basis, his Honour came to assess damages. His Honour said: "T will allow the plaintiff that sum together with general damages for pain and suffering and loss of amenities, there being no evidence of any loss of enjoyment of life specifically, other than the complaints made by the plaintiff as to his inability to sit, stand and bend etc, to which reference has already been made. No activities or recreation have been referred to in the evidence, although the defence counsel's cross examination of the plaintiff included a question that inquired as to what way he occupied his time each day prior to the accident. The plaintiff's answer suggested that he had no sporting activities, no forms of recreation that had been impaired as a result of injuries sustained in this accident. It seems to me that in the circumstances, the plaintiff should be awarded, by way of general damages, the sum of $7,000." his Honour was, in my opinion, entitled to assess damages in this way. The views of the medical practitioners were not congruent. The plaintiffs doctors, Dr Malik and Dr Bannister thought that the plaintiff was suffering from injuries 4 UNREPORTED JUDGMENTS resulting from the accident. The defendant's doctor, Dr MacDonald, found that at least at the time that he examined him, he was not. The opinion of Dr MacDonald his Honour set out in the judgment as follows: "The physical signs are very much the same as when I saw him in October 1984 but perhaps even more suggestive of an assumed disability. On his description of the original accident on 24 August 1983, one could not have expected any prolonged disability. It is my belief he is physically fit for all normal activities and has been so for some considerable time. His Honour's conclusions were as I have indicated them. In these circumstances his Honour assessed the award at $7,000. Two things may be said in relation to this. First, his Honour accepted that the plaintiff did suffer pain and restriction of movement for some time after the accident, and second, there was, I think, doubt in his Honour's mind as to the extent to which that conclusion continued to the date of trial. What his Honour said, in the passage to which I have referred, indicated that his Honour may well have accepted there was some continuing discomfort, but if there was, that discomfort was not, in his Honour's opinion, I believe, of great moment. Giving the matter the best consideration that I can, I would agree with the substance of his Honour's findings, as I have stated them. It may well be the plaintiff, if he was suffering something at the date of the trial, was suffering from something which did not arise from the accident. If and insofar as there was something arising from the accident, it was, in my opinion, not of such substance as would involve the conclusion that the award of general damages which his Honour made was beyond the range of a sound discretionary judgment. In my opinion, the appeal in that matter should be rejected. Upon the basis then that the plaintiff was responsible for the accident to the extent of ten per cent, I would assess damages as follows. Ten per cent reduction in the verdict of $11,205.67 involves a reduction of $1,120.50. The reduction therefore would involve a verdict of $10,085.10. I would therefore propose that the verdict and judgment be set aside and there be substituted for his Honour's judgment, a verdict and judgment for the plaintiff of $10,085.10. In my opinion, the appellant is entitled to the costs of the appeal. Kirby P I agree. I would only add that I consider that this is a case in the third class of cases which were referred to in the Court by McCutcheon v Muir, unreported, 1 February 1989; (1989) NSWJB 28, where an appellate court is authorised to intervene in the assessment of the apportionment for contributory negligence. This is a case where the apportionment reached by the trial judge is so manifestly out of harmony with the facts as they were proved as to demonstrate an error even if it is not possible to point with precision to the precise area that occurred. I agree with the reasons of Mahoney JA both as to liability and damages. I therefore agree with the orders which he has proposed. Clarke JA I also agree. 1. Appeal allowed. 2. Judgment of Gallen CJ dated 6 November 1985 set aside; 3. In lieu thereof, enter judgment in favour of the appellant in the sum of $10,085.10, such judgment to take effect from 6 November 1985. 4. Respondent to pay the appellant's costs of the appeal. Counsel for the Appellant: C Evatt URJ MEARBANI v STEFFAN (Clarke JA) Solicitors for the Appellant: Teakle Ormsby and Associates Cousel for the Respondent: KP Rewell Solicitors for the Respondent: Mr J Woolfe