GARDINER v WHEARE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, HANDLEY JA and SHELLER JA 10 November 1993 [1993] NSWCA 105 The respondent when aged eleven was struck by a motor vehicle owned by the first appellant and driven by the second appellant. At trial the second appellant was found negligent, and the respondent contributorily negligent to a degree of 10 percent. The respondent sustained serious injuries and had difficulty in obtaining employment. He was awarded $316,175 for impairment of future earning capacity. The appellants appealed on the grounds that the award for future economic loss was excessive and the percentage reduction for contributory negligence should have been greater. Held: No ground was shown for interfering with the verdict which involved no error in principle or in findings of fact. Sheller JA. On 24 August 1978 at about 8.30 pm a motor vehicle driven by the second appellant, Stanley Mervyn Flanagan, and owned by the first appellant, Ralph Gardiner, while travelling east on Allenby Avenue, Forest Hill struck the respondent, Duane William Wheare, while he was crossing the roadway from south to north. At the time the respondent was eleven years old. He suffered injuries and sued the appellants to recover damages for negligence. The accident occurred at a point approximately 250 metres east of the intersection of Allenby Avenue and Smith Street. The proceedings came on for hearing before Wood J at Wagga Wagga on 26 June 1991. His Honour found negligence on the part of the second appellant involving a failure by him to keep a proper lookout ahead or respond properly when he saw a movement in front of him. His Honour also found a degree of contributory negligence but, as his Honour said, not a very great degree of negligence, on the part of the respondent. On the question of damages his Honour found that the respondent sustained what could only be described as very serious injuries in the accident. He was left with a laceration to his head, a traverse fracture of the neck of the left humerus, fractures of theribs on the left, fracture of the pelvis involving the left pubic rami and a fracture of the ischium extending into the articular surface of the hip joint. This injury to the hip involved a rotation of the fragment associated with the acetabulum and also a femoral head rotation. The respondent additionally suffered an injury to his back which seems to have been of a soft tissue nature and suffered a period of loss of consciousness. He received stitches to the back of the head, his left shoulder was placed in a sling and he was treated for the hip injury by traction and bed rest. His Honour described in detail the period spent by the respondent in hospital and then on his return home up to the time in February and March of 1979 when he developed a limp which resulted in a diagnosis of a form of Perthe's Disease. This required further treatment in Sydney in 1980 which extended through to 1982 during which time the respondent was confined in various types of splints. His Honour went on to describe the difficulty that the respondent faced in 2 UNREPORTED JUDGMENTS schooling and in life and limitations on his physical activities. His Honour dealt with the respondent's schooling and training after he left school in 1983. The details of his Honour's judgment show that the respondent undertook a number of training courses in rural pursuits and also in an attempt to work in the hotel industry. The respondent from 1984 to 1987 worked for various short periods in a number of occupations. He received considerable encouragement in his endeavours from his mother and father. His Honour accepted that the respondent found real difficulties with labouring and rural work particularly with shearing, rouseabouting and wool-classing, all of which activities require a good deal of bending, lifting, moving over uneven surfaces, twisting and turning and the like. An attempt was made in 1989 by the respondent to engage in security work but the respondent again experienced difficulty in standing around and in activities which caused him pain in the hip. For a time the respondent was employed at a service station at Lindfield and he said that that work caused him pain in the hip and he found it necessary to cease work. It was after that that he undertook training in bar services and kitchen-assisting but once again occupations based upon this training proved difficult for the respondent. He was registered with the Commonwealth EmploymentService for a lengthy period but that service had been unable to find any employment for him and he had found none by his own inspection of job boards. About the medical evidence there was little dispute. His Honour reviewed it in detail and said that there could be no dispute on the medical evidence concerning the respondent's physical condition. He suffered severe injuries which had left him with a permanent hip disability which grossly interfered with his ability to undertake manual labour and will progressively degenerate to a point where a total hip replacement is required. There was some psychiatric evidence which suggested that it was not unreasonable to ascribe some difficulties in maturing to problems that flowed from the accident. Having gone through this evidence his Honour came to the assessment of damages and awarded a total amount of $564,405 which he then adjusted by 10 percent for contributory negligence, leading to a verdict in the sum of $507,965. Amongst the components of the award of damages was an amount of $316,175 for impairment of future earning capacity. The appellants appeal from Wood J's decision on three grounds. The first is that the award for future economic loss was excessive on the evidence. The other two grounds amount to a claim that his Honour should have allowed more than 10 percent on account of contributory negligence. The arguments in support of the appeal have been put at their highest by Mr Elkaim who appears for the appellant. In substance the first ground of appeal amounts to saying that the award for impairment of future economic capacity was excessive. Mr Elkaim suggested that a projection of a loss of capacity of two-thirds for the whole of the future period of forty-one years is not justified. It is suggested that a more appropriate figure would be 50 percent. It is not suggested, nor could it be, that there is any error in principle in his Honour's approach to the case nor are his Honour's findings of fact challenged. I have carefully considered the judgment and for my part I agree with the reasoning which led Wood J to the conclusion that he reached on the impairment of future earningcapacity and the amount that he awarded for that head of damages. In my opinion no ground is shown for interfering with this part of the verdict. URJ GARDINER v WHEARE (Clarke JA) 3 Similarly, when Mr Elkaim turned to the ground of appeal relating to contributory negligence, in substance, having regard to some of the facts which I will deal with briefly, it is said that an adjustment of greater than 10 percent should have been made. It is pointed out that the point at which the accident took place was at the end of a straight stretch of road approximately 250 metres in length, that it was lit by a fluorescent light. It is pointed out that the lights of the car were turned on, that the respondent was walking at a brisk pace and that he failed to see the oncoming car. It is submitted that up to this point there is a balance in the degree of fault between the failure of the driver to keep a proper lookout and the failure of the respondent to see the car. It is then said that the matters that favoured a reduction below 50 percent to something less in terms of contributory negligence are the respondent's age and the fact that the driver was driving what was described as a dangerous weapon. In the course of his judgment Wood J very carefully reviewed the evidence and the case law. Of particular significance was the age of the respondent and that he was walking across the road in an area where it was well-known to the driver that children played. His Honour also adverted to the fact that at the point from which the respondent looked to see if there was any oncoming traffic he was under a fluorescent light looking west into the night. The appellants have not suggested and again in my opinion nor could they that there was any error in principle in his Honour's approach nor any error in his findings of fact. In my opinion, bearing that in mind, the appellants have failed to make out what it seems to me is essential to the success of the appeal that the amount allowed for contributory negligence was so out of balance that it must have involved some error in approach. In my opinion the 10 percent adjustment was well within an appropriate range. Accordingly, I think that the second and third grounds of appeal also fail. I would propose that the appeal be dismissed with costs. Clarke JA. I agree with the reasons and orders of Sheller JA and I would add only this. Mr Elkaim presented the arguments in an attractive and persuasive way. Unfortunately for him there was simply no substance in the appeal. Handley JA. I agree and in particular I agree with the further comments by the presiding judge. Clarke JA. The appeal will be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: M Elkaim Solicitors for the appellant: Roslyn O'Reilly: Solicitor for Government Insurance Office Counsel for the respondent: B Toomey QC/P Hennessy Solicitors for the respondent: Walsh and Blair