GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v HENG CHIENG LAI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY; PRIESTLEY and SHELLER JJA 1 April 1992, 1 April 1992 [1992] NSWCA 86 MOTOR VEHICLE ACCIDENT — CONTRIBUTORY NEGLIGENCE — DAMAGES — FUTURE ECONOMIC LOSS — MEANING OF MASTER'S JUDGMENT APPEAL from Common Law Division — Motor vehicle accident. CONTRIBUTORY NEGLIGENCE — Whether driver making a right hand turn from centre of the road is required to maintain constant lookout to the rear — No contributory negligence. DAMAGES — Future economic loss — Meaning of Master's judgment. ORDER Appeal dismissed with costs. Mahoney JA The plaintiff, Mr Heng Chieng Lai, came to Australia in November 1980. He had a more or less continuous work history until 8 July 1986 when he suffered the accident which is the subject of the present proceedings. The accident occurred when he was some twenty-six years of age. On 3 April 1987 proceedings were commenced to recover damages for the accident and on 24 October 1990 Master McLaughlin gave judgment for the plaintiff in the sum of $320,049. The defendant, the Government Insurance Office of New South Wales, has appealed to this Court against that judgment. The appeal as originally laid was brought on a number of grounds and in respect of a number of matters. However, Mr King informed the court today that the appeal would be pressed only in respect of two matters, the issue of contributory negligence and an aspect of the award of future economic loss included in the judgment. (Mr King, in abandoning the other grounds of appeal, has not abandoned anything of significance for his client). In order to determine the issues it is necessary to refer briefly to the facts of the matter. The facts were found by the Master and his findings are not the subject of attack, at least to any extent relevant. The Master stated his findings in the following form: "On the date of the accident the plaintiff had what was known as a flexi day, and was not himself working at the factory. However, he received a telephone message from his sister-in-law, who was also an employee at the factory, requesting that he collect her there when she finished work for the day. The plaintiff, who was wearing a seatbelt and was alone in the motOr car, was driving along Seville Street with the intention of collecting his sister-in-law at Steric, when the collision occurred. It was the evidence of the plaintiff that at about 4.20 pm as the car approached the factory premises, which were situated on his right, the plaintiff observed a number of vehicles parked in front of the factory, on both sides of the roadway. He said that as he approached the driveway of Steric he indicated an intention to turn to the right into the factory driveway and that he slowed down for that purpose. He could not recall his speed but it was his recollection that he was driving slowly. Whilst driving into the entrance driveway of Steric his vehicle 2 UNREPORTED JUDGMENTS was struck by another motor car. The plaintiff did not see that other motor car before the impact. The plaintiff said that he had actually completed his right turn into the driveway of Steric when he felt the impact. He said that immediately upon the impact he felt very sore and dizzy, and that for a period of fifteen to twenty minutes he was unconscious." The Master indicated also that following the accident one of the witnesses, a Mr Colohan, whose evidence he appeared to have accepted, said that he saw marks on the roadway which were described as skid marks. The witness said, as the Master recorded, that he saw the skid marks for a length of about 30 or 40 metres being two parallel skid marks going either right up to or almost to the other vehicle. Mr Colohan said, as the Master recorded, that the skid marks were on the correct side of the road then they veered across to the middle of the road and continued across to the point of impact more or less straight, but tending to an arc. It remains to note only that the driver of the defendant's vehicle, Miss Selby, was shown not to have a licence and she was not called to give evidence in the proceedings. The evidence as to how the accident occurred was the subject of contest but as Mr King rightly accepted the plaintiff having been accepted as a witness of truth the matter is to proceed for present purposes substantially on the basis of what the plaintiff said. The plaintiff's evidence was, as the learned Master recorded it, that his vehicle was going more or less along the centre of the road but on the plaintiff's correct side of the road until it came towards the entrance driveway of the relevant premises. He gave an indication that he was proceeding to turn right and driving slowly he did so. It was, to quote the Master's finding, "Whilst driving into the entrance driveway" of the premises on the right-hand side of the road, that the collision occurred. The submission made by Mr King was put shortly and succinctly. It was that the plaintiff had conceded that he had not seen the defendant's vehicle before the accident. It followed from this he had not looked to the rear either in his rear vision mirror or in any other way. The submission was that this constituted a failure to take appropriate care for his own safety and therefore a finding of contributory negligence should be made against him. The road was a completely straight one and the plaintiff was driving slowly and in a straight line until he commenced to make the turn that he indicated he would do. I do not think that a plaintiff is entitled to ignore the possibility of traffic coming from behind but on the other hand he is not required to keep a constant lookout in circumstances such as the present against the possibility that a vehicle may come from behind and coming from his right-hand side run into him as he is making his intended right-hand turn. What is required in this regard may appropriately be assessed by reference to what in relation to negligence was said in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8 by the present Chief Justice. One looks to what a reasonable person would do in the circumstances. I do not think that a reasonable person would in those circumstances and at the relevant time and place have been looking to see what was behind him. I therefore reject the submission that there was contributory negligence in the presence case. The second issue raised related to the award of future economic loss. This was a substantial award. The Master had found that the injuries to the plaintiff had produced serious disability to the extent he was not capable of undertaking a substantial amount of the work which previously he had undertaken. The Master said: \WGROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v HENG CHIENG LAG (Mahoney JA) "T am satisfied from the medical evidence that as a result of the accident the plaintiff is suffering from a permanent disability to his lower back, which will only increase as time progresses. That disability will preclude the plaintiff from any forms of physical occupation which require agility, or involve any heavy lifting or involve standing or sitting for protracted periods." The Master then indicated that although Dr Searle, who had given evidence for the plaintiff, had been of the opinion that the plaintiff was permanently unfit for all forms of work, he did not accept that view. He pointed out that the plaintiff does not speak English as his native tongue and that his education in his own language was interrupted by the necessity to leave his homeland. He concluded: "\.. From a practical point of view it may well be that the plaintiff is presently unfit for all types of work." Nevertheless the Master came to the conclusion that the plaintiff was the kind of person who would continue to make efforts to obtain gainful employment. He referred to the fact that presently the plaintiff was attempting to work with his brother and "learn the rudiments of the jewellery trade". He took this as an indication that at some time in the future, presumably if he had obtained additional skills, the plaintiff would find and follow remunerative employment. In these circumstances the Master made an award for future economic loss in the following form: he awarded the plaintiff loss as on complete incapacity for a period of five years at $438 per week. This amounted on the present value tables to the sum of $101,397. He then, upon the assumption the plaintiff would thereafter find remunerative work, awarded him $100 per week for the following thirty years of his working life. That amount had a present value of $65,410. The total amount for future economic loss was therefore $140,936. The submission that Mr King made was in substance that the Master had found that the plaintiff would find some form of employment "within the next five years" and that therefore an award on the basis of complete incapacity for the total of five years was wrong. If the Master's language be taken literally as it is stated in the judgment, then to give compensation for five years on the basis of total incapacity when "within" that period permanent employment would be found would be wrong. But I do not think that that was what the Master intended. I think the Master was taking the five year period, as necessarily he had to do, as a general indication of the period by the end of which permanent employment would be found. I do not think that he was attempting to fix precisely the date, in terms of months or years, within which that employment would be found. He was approaching the matter on the basis of a general assessment appropriate to the uncertainties of the case. However that be, it is proper, as Mr Morrison pointed out, to take into account that the plaintiff, having been injured as he was, would no doubt continue to suffer pain and disability and would have difficulty in standing or sitting for a substantial length of time. This would affect his capacity to work, for example, in the jewellery manufacturing business to which reference was made. Account would have to be taken of the possibility of loss of working time during the period of his working life up to the end of that five year period. I think the Master applied, as he was entitled to do, a broad measure of the plaintiff's loss in estimating the amount to be awarded for compensation for future economic loss. In the circumstances, I would see nothing wrong in what the Master did. If there be an error in principle, the result at which he arrived is one to which I would arrive, applying the principles strictly in accordance with the terms of the Master's judgment. In all the circumstances, I do not think that the submission in 4 UNREPORTED JUDGMENTS relation to future economic loss should be accepted. The result in my opinion is that the appeal should be dismissed with costs. Priestley JA I agree. 5 Sheller JA I agree with Mahoney JA. Mahoney JA: The appeal is dismissed with costs. Appeal dismissed with costs. 10 Counsel for the appellant: L King Solicitors for the appellant: GM Meadows, GIO Counsel for the respondent: AS Morrison 15 — Solicitors for the respondent: Michell Sillar McPhee Meyer