WENDY JUNE SPENCER v ROBERT JAMES HUME SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, CLARKE and MEAGHER JJA 16 May 1991, 16 May 1991 [1991] NSWCA 255 APPEAL — NEGLIGENCE APPORTIONMENT OF RESPONSIBILITY DAMAGES — INTEREST — INTEREST ON GRIFFITHS v KERKEMEYER, 139 CLR 161, COMPONENT Clarke JA This is an appeal from a judgment of Loveday J in which he found forthe respondent and awarded him damages of $80,242. The case from which the appeal arises concerned a motor vehicle accident which occurred on 7 June 1983 on the Great Western Highway, St Marys. The respondent was at the time a relatively elderly and reasonably severely disabled person. He lived in a house on the northern side of the highway. It was his wish to travel to the southern side of the roadway which required him to traverse two trafficable lanes of traffic. By that I mean the eastbound and westbound lanes of traffic and not the individual lanes, three of which made up the eastbound and three of which made up the westbound lanes. It appears that when the plaintiff started to walk slowly across the road there were vehicles either pulled up at traffic lights 250 metres to his west, or vehicles just starting off from those traffic lights. He had, on any view, about 250 metres of clear roadway on his right and even though he was walking slowly he had a reasonable expectation of getting across the street or to the median strip before the vehicles arrived or, in any event, an expectation that-the vehicles might slow down if they approached more quickly than was expected. In the event, the appellant who was driving one of the vehicles which was in the vicinity of the traffic lights at the time the respondent started his walk struck him. Her evidence was to the effect that she was in the third lane of traffic travelling east, that is in the lane nearest to the median strip. She was beside a yellow vehicle which took off quickly from the lights and took up a position about two car lengths in front of her. She had a clear vision although it was dusk. The evidence was also to the effect that lighting in the area was good. However, when the yellow vehicle took up a position about two or more lengths in front of her it is fairly obvious that there was some obstruction to her view to her left. In any event, after she had been proceeding for some distance she noticed the yellow car suddenly veer to the left and then veer back to the right and at about the same time she saw the respondent in front of her walking towards the median strip; "shuffling" was the word she used. She was, however, travelling at such a speed and was in such close proximity to the respondent that she was unable to avoid him and she knocked him to the ground. As a consequence he received serious injuries. The appellant has not challenged his Honour's finding that she was negligent. She does, however, challenge the finding that the respondent's own negligence should be measured at 25 per cent. According to the appellant's counsel this was an erroneous apportionment of responsibility and failed to take account of the fact that the 2 UNREPORTED JUDGMENTS respondent had been advised by a doctor that if he remained on the northern side of the road the doctor would come and pick him up there. I have listened carefully to the submissions and I have reconsidered the terms of the judgment. Having done that I am quite unable to find any error in his Honour's determination. It seems to me that his Honour got it right, and if I were called upon to apportion responsibility in a case of this nature I would myself have apportioned responsibility to the respondent no higher than 25 per cent. Accordingly, I would reject the first ground of appeal. The second ground of appeal was that his Honour erred in allowing interest in the sum of $3,698 on the Griffiths v Kerkemeyer (139 CLR 161) component of the damages. Counsel submitted that there was a binding decision of this Court to the effect that interest should not be allowed on that component of damages. That decision was Settree v Roberts, (1982) 1 NSWLR 649. The respondent has conceded that that decision is against him and his counsel does not seek to argue that the decision was wrong. In other words, he accepts that the damages should be reduced by the amount of $3,698 being the interest on the Griffiths v Kerkemeyer component. That means that it is unnecessary to consider another submission advanced by counsel for the appellant to the effect that interest on the Griffiths v Kerkemeyer component should be awarded at the rate of four per cent or no more than four per cent. Accordingly, I will reserve consideration on that question to another day. The final ground of appeal was that the award of $65,000 for general damages was excessive in all the circumstances. Two specific points were raised in support of this ground of appeal. The first was that the award was designed to compensate the respondent only for the pain and suffering, the effects of the accident and the general interference with his enjoyment of life for a period of eight and a quarter years. That is a period of five and a quarter years between the accident and the trial and the three year period which his Honour found that the plaintiff would live for after the date of the trial. The second submission was that his Honour had failed to give proper weight to the very seriously disabled condition in which the respondent was before the accident. One must accept that the period of eight and a quarter years was a relatively short one. One must also accept in this case that the respondent was in a poor state of health, at the least, prior to the accident. It may be that an adjective other than "poor" could be used but I think it adequately describes his situation. For instance, the respondent's daughter gave evidence that although her father was not a well man he could do everything for himself because he lived with another chap. He did his own shopping. He would go down to her_place for weekends. He would go up to her brother's place for weekends by public transport. He would go and watch football games, he would do his own shopping, washing and he could, as she said, do it all. However, even if one accepts the poor state of his pre-accident health and the length of time covered by the award of general damages, I do not think it was outside the range available to his Honour. His Honour was required to compensate the plaintiff for the impact of the injury suffered in this accident upon his already disabled condition. It cannot be said, in my view, that his Honour was unaware of the fact or failed to take account of the fact that the respondent was in a poor way prior to the accident. He set out those factors in his judgment. When he came to look at the aspect of general damages he said this: URJ WENDY JUNE SPENCER v ROBERT JAMES HUME (Meagher JA) 3 "The effects of the injuries sustained in the motor vehicle accident have however changed him from a person who was, despite his disabilities, able to care for himself into someone who has little now to enjoy. He cannot get about, he requires a considerable amount of domestic assistance even for such things as cutting his toenails. He requires assistance to be rubbed to avoid pressure sores. He requires assistance to get about and generally speaking it is clear that his enjoyment of life has been diminished to the point where it is very low indeed." This was, in my view, an appropriate summary of the impact of the accident. It took from the respondent most of his remaining enjoyment of life. It did not, of course, convert him from a person in good health to one seriously disabled but it took from him the ability to do things independently, the ability which he had enjoyed prior to the accident to do things independently of his family and diminished greatly his capacity to enjoy the remaining years available to him. In these circumstances, while the figure is a relatively high figure I do not think it can be said it was without the bounds available to his Honour. There is one final matter which must be mentioned and that is the cross-appeal by the respondent. That cross-appeal was limited to the interest awarded on the general damages. It was said in written submissions that his Honour had erred in allowing interest at too small a figure. However, in discussion with counsel that point was abandoned and there is no need to say anything more about it. Accordingly, in my opinion the following orders should be made: 1. The appeal should be allowed. 2. The cross-appeal should be dismissed. 3. The judgment of Loveday J should be set aside and in lieu thereof judgment entered in the sum of $77,318.14. Samuels JA I agree. Meagher JA I agree. (Counsel addressed on costs) The orders of the court are those which Judge 1 Clarke JA has proposed, adding that there will be no order for the costs of the appeal or the cross-appeal. Counsel for the Appellant: CT Barry Counsel for the Respondent: R Wood Solicitors for the Appellant: GE Lazar Solicitors for the Respondent: Maddocks Cohen and Maguire