CRASTI v HEITMANN SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, HANDLEY JA and Cripps JA 10, 13 September 1993 [1993] NSWCA 77 The appellant and respondent were in an accident involving a collision between a car and a motor bike. The appellant was found 75% negligent and the respondent was found guilty of contributory negligence 25%. Both the appellant and respondent appealed against liability, apportionment and quantum, including interest on past general damages and the amount allowed for future care and assistance. The trial judge's decision was given before the High Court's decisions in Gogic and Van Gervan. Held: The trial judge did not err in his findings as to liability. The Court should not interfere in the trial judge's assessment of apportionment it not having been demonstrated that the trial judge erred. The trial judge did not err in his assessment for future care. (per Cripps JA, Clarke JA dissenting): Although the assessment of damages was not in line with Gogic and Van Gervan, this error should not be allowed to be raised in the appeal. (Per Handley JA): A change in the law after the date of trial does not entitle a party as of right to have the Court correct the trial judge's decision in a case where no other error is established. MPB(SA) Pty Limited v Gogic (1991) 171 CLR 657 Van Gervan v Fenton (1992) 175 CLR 327 Pennington v Norris (1956) 96 CLR 10 Piening v Wanless (1968) 117 CLR 498 Clarke JA. The Court is ready to deliver judgment. I will ask Cripps JA to deliver the first judgment. Cripps JA. On 6 December 1980 Mr Heitmann was seriously injured when a motor bike he was riding came into collision with a motor car driven by Mr Crasti. He sued Mr Crasti in the Supreme Court for damages for personal injuries arising out of the accident. On 12 October 1990, Mr Justice Finlay directed the entry of judgment for Mr Heitmann in an amount of $237,045. Finlay J found Mr Crasti was negligent and Mr Heitmann was guilty of contributory negligence. Mr Heitmann was found to be seventy five per cent responsible for his injuries and Mr Crasti twenty five per cent. As a result, the total assessment of damages was reduced from $984,108 to $237,045. Mr Heitmann and Mr Crasti have appealed. Both appeals are directed to liability and quantum. On the issue of liability, although Mr Crasti in his Notice of Appeal asked for an order that judgment be entered in his favour, Mr Shore, on his behalf, conceded that if the relevant grounds of appeal are established, the result must be a new trial. That is because the error which he seeks to establish was that Finlay J adopted an impermissible process of reasoning which deflected him from his judicial duty. Mr Shore acknowledged that this Court must pay due respect to the advantage enjoyed by the trial judge, and that there was evidence from a witness or witnesses which entitled the learned trial judge to come to the 2 UNREPORTED JUDGMENTS conclusions which he did. However, he has submitted that Finlay J's initial acceptance of one particular witness thereafter blinded him to inconsistencies between that witnesses" evidence and other facts found by his Honour. Mr Crasti has also submitted that Finlay J erred in his calculation of interest on past general damages and on so much of his assessment of damages as allowed, before reduction, $80,000 for future care and assistance. Mr Shore submits that the amount was excessive in all the circumstances and based on an application of incorrect principles. Mr Crumpton submitted that his Honour's award of interest on past general damages was erroneous, Finlay J having made his determination prior to the decision of the High Court in MPB(SA) Pty Ltd v Gogic (1991) 171 CLR 657. If there is to be no new trial, Mr Shore has invited the Court to reassess the damages applying proper principles. Mr Heitmann has also appealed alleging that the apportionment was unduly favourable to Mr Crasti and that Finlay J's assessment of $80,000 for future care was inadequate and that his allowance for an amount for past care was erroneous because Finlay J reduced the cost of the provision of that care by the amount of taxation the provider of that care was required to pay. This approach, although representing what was believed to be the law at the time Finlay J gave his decision, has since been rejected by the High Court (see Van Gervan v Fenton (1992) 175 CLR 327). Mr Crumpton, on behalf of Mr Heitmann, submitted that Mr Crasti should not be entitled to raise on appeal the excessive claim made by his Honour for interest on past economic loss because it was not raised before Finlay J. Similarly Mr Shore, on behalf of Mr Crasti, submitted that Mr Heitmann should not be permitted to argue that the provision made by his Honour for past care was inadequate because it was not raised at the trial. The accident occurred at about 3.50 pm on Saturday, 6 December 1980 at the intersection of Woodward Road and Summer Street, Orange. Woodward Road runs north and south and Summer Street runs east and west. Woodward Road was, at the relevant time, approximately twenty twometres wide and Summer Street about the same. Immediately prior to the accident, Mr Heitmann was riding a 55S cc motor bike in Woodward Street travelling south. His motor bike came into collision with a car driven by Mr Crasti which, immediately before the accident, had been travelling west in Summer Street. The weather was fine and the road was dry. The precise point of impact was not capable of being assessed because police records have, apparently, been lost and the police traffic accident information form made no reference to it. It is apparent, however, that it occurred in the western carriageway of Woodward Road and the southern carriageway of Summer Street towards the centre of the intersection. At the time of the accident both vehicles were on the correct side of the road. Finlay J found that Mr Crasti was negligent because, to use his Honour's words, he 'completely failed to see the plaintiff's motor bike coming from his right on a fine afternoon' in circumstances which, had he seen Mr Heitmann, would have enabled him to avoid the collision. Mr Heitmann's contributory negligence arose from the circumstance that he failed to have regard to a Give Way sign on the north eastern corner of the intersection and passed, albeit remaining on his correct side of the road, a stationary vehicle facing south in Woodward Road at the entrance of the intersection. At the date of trial in October 1990, the intersection was a roundabout. At the time of theaccident, the Give Way sign was, as his Honour found, 'relatively inconspicuous' and that there were no broken lines in its vicinity but there was URJ CRASTI v HEITMANN (Cripps JA) 3 a faded broken line approximately five metres south of it. They were described by the learned trial judge as worn and 'not very obvious'. Mr Crasti maintained at trial that Mr Heitmann must have been travelling at an excessive speed in the circumstances, and that his failure to see him prior to the accident was excusable because of the stationary car facing south referred to above. Mr Heitmann alleged that Mr Crasti was travelling too fast and that there was no stationary vehicle at the intersection to impair his vision. Mr Heitmann had no recollection of the accident. The conclusions he asked Finlay J to draw derived from the evidence of Stephen and Stuart Laughton who were following in a utility. There were at least six people present at the time of the accident. They were Mr Heitmann (the plaintiff), Mr Stephen Laughton and his brother, Stuart, Mr Crasti (the defendant), Ms Lawford, a passenger in a white Torana car pulling a box trailer travelling west in Summer Street just in front of Mr Crasti's vehicle, Mrs Osborne, the driver of a motor vehicle stationary in Woodward Road at the southern side of the intersection and facing north, and the unnamed driver of the stationary motor vehicle at the mouth of the intersection facing south. Only two witnesses actually saw theimpact, Mr Stephen Laughton and his brother, Stuart (excluding Mr Crasti, who saw Mr Heitmann as he hit him). Mr Heitmann had no recollection of the accident. Karen Lawford and Mrs Osborne did not see the impact. The driver of the stationary car facing south was not called. Mr Heitmann's case at trial was that Mr Crasti was travelling too fast in all the circumstances and failed to keep a proper lookout. Mr Crasti's response was that Mr Heitmann had disobeyed a Give Way sign, was travelling too fast, and had overtaken a stationary car at the mouth of the intersection. Finlay J found, as he was entitled to, that although Mr Crasti was travelling faster than Mr Heitmann, he was not travelling at an excessive speed. He also found, contrary to the case attempted to be made by Mr Heitmann, that Mr Heitmann passed a stationary vehicle facing south. That is to say, he accepted the evidence of Mrs Osborne, the driver of a vehicle stationary on the southern edge of the intersection and facing north. Stephen Laughton was called by Mr Heitmann and Stuart was called in Mr Crasti's case. Mr Stephen Laughton said that the utility in which he and Mr Stuart Laughton were travelling was approximately seventy metres behind Mr Heitmann as he approached the intersection. He said he saw Mr Heitmann's brake light come on and he almost stopped at the intersection. He then accelerated into the intersection and was travelling at between twenty and thirty kilometres per hour when his motor bikewas struck by Mr Crasti's car. Mr Stuart Laughton said he thought the utility was about 150 metres behind the motor bike. He also saw the tail light of Mr Heitmann's bike come on and the bike slow down and that it 'accelerated slowly' into the intersection. He said he could not be sure how fast the bike was travelling at the point of impact. Karen Lawford, who was a passenger in the white Torana vehicle which was travelling ahead of the defendant, said that as the white Torana made a left hand turn in Woodward Road to travel south she saw Mr Crasti's car continue on. In the course of the appeal, Mr Shore, on behalf of Mr Crasti, sought to amend the Notice of Appeal to include a ground that Finlay J erred in rejecting the tender of paragraph 19 of the P 4 Traffic Information Form. Paragraph 19 of the Form in Sergeant Hunt's handwriting (I infer) stated that Mr Heitmann's speed was seventy kilometres per hour and Mr Crasti's thirty miles per hour. Leave was granted to Mr Shore to raise the point on appeal but, after hearing further 4 UNREPORTED JUDGMENTS argument, leave was revoked. That happened because the source of the statement "seventy kilometres per hour' was unclear. Presumably it came from either Stuart Laughton or Stephen Laughton. If it was Stephen, it would have been unfair to the plaintiff to allow it to be tendered because he was not given the opportunity to explain any inconsistency between his sworn evidence and whatappeared on the P 4 Form. If it was the statement of Stuart Laughton, no explanation was furnished as to why Mr Crasti's counsel did not seek to tender it at the trial. For all this Court knows, it may have contained information prejudicial to the case sought to be made out by Mr Crasti. Accordingly, leave was granted. The circumstance that Mr Stephen Laughton did not see (or at all events could not recall seeing) the stationary car or the white Torana car would not, of itself, mean that his observations concerning the driving of Mr Heitmann's motor vehicle would have to be rejected. Although the matter is not elaborated on in his Honour's judgment, I have no doubt that Mr Stephen Laughton's failure to recollect the other two motor vehicles would have been drawn to his attention. That being so, I am not persuaded that the learned trial judge misused the advantage he had to assess Mr Stephen Laughton's evidence. Nobody asked Stuart Laughton about these matters. Having found that Mr Crasti was travelling faster than Mr Heitmann, but that neither was travelling at an excessive speed, the learned trial judge concluded that Mr Crasti was negligent because he failed to see the motor bike until 'it was right in front of him' and that the accident could have been avoided by 'the slightest slackening of his speed or touch of the brakes to have enabled Mr Heitmann's bike to pass in front of him'. The speed of Mr Heitmann's bike was estimated by Mr StephenLaughton and Mr Stuart Laughton to be slow. Indeed at trial Mr Crasti's counsel sought to use the relatively slow speed of Mr Heitmann's vehicle to dispel the suggestion that Mr Crasti's vehicle was travelling at an excessive speed in the circumstances. lam of the opinion, therefore, that no appellable error has been established and that it has not been shown that Finlay J erred in holding Mr Crasti guilty of negligence. Mr Shore has submitted without, I think, great enthusiasm, that even if negligence was established, the learned trial judge's apportionment of twenty five per cent blame to Mr Crasti was too high. Mr Crumpton, on behalf of Mr Heitmann, has submitted it was too low. In my opinion, it has not been shown that this Court should interfere with the learned trial judge's apportionment. Mr Crumpton concedes that Mr Heitmann's responsibility must be at least sixty per cent. As the High Court pointed out in Pennington v Norris (1956) 96 CLR 10 at 15, the trial judge is entrusted with the discretion of making an apportionment of blame and latitude must be allowed to his or her decision in arriving at a judgment as to what is just and equitable. I am not persuaded that it has been demonstrated that Finlay J erred. Mr Crasti was negligent. His 'blame' however, was not as great as Mr Heitmann. Neither, of course, saw the other. However,Mr Heitmann disobeyed a Give Way sign and passed a stationary vehicle. In my opinion, both the appeal and cross appeal on the question of liability should be dismissed. As I said earlier, by reason of the decision of the High Court in Van Gervan and Gogic, the submission has been made that the learned trial judge made errors. It is not correct, as was suggested by both parties when the appeal was being heard, that if both errors were corrected, there would only be a matter of a few hundred dollars. In fact, if the interest component had been assessed in accordance with URJ CRASTI v HEITMANN (Clarke JA) 5 Gogic, and the assessment for past care had been made in accordance with Van Gervan, the original total assessment would have been $909,093 and not $948,180 with the result that on a seventy five to twenty five per cent apportionment of blame the plaintiff would have received $227,273.25 and not $237,045.00. In my opinion, neither ground should be allowed to be raised. Each counsel has taken the objection that the other's argument should not be raised. Both sides had an opportunity to raise the matter before Finlay J and I do not think it is proper that they should be allowed to raise these matters now. As will be seen, I am of the opinion that the other grounds of appeal on quantum are also to be dismissed so the Court will not re-assess damages. The grounds should not be allowed to be raised,bearing in mind they could have been raised at the trial but were not. It remains, therefore, to consider whether the learned trial judge erred in an assessment of $80,000 for future care. Mr Shore has submitted it is excessive. Mr Crumpton has submitted it is too low. There was evidence entitling Finlay J to conclude that Mr Heitmann would, in the future, require assistance beyond three and a half hours per week to attend to domestic chores that are presently beyond him. That evidence was available from Dr Chinnery. That doctor thought that there was a possibility that his condition would worsen. Her opinion was admitted without objection. The weight to be attached to it was a matter for the learned trial judge. It is plain that he did not attach that weight to it that Mr Heitmann would have wished, or else his assessment would have been much higher than $80,000. On any view of the matter, Mr Heitmann was entitled to $55,104 for future care. As I have said, it was within his Honour's province to conclude that Mr Heitmann's condition might worsen. If it did not worsen, he would still have more difficulty in the future as he got older. Finlay J was entitled to come to the conclusion he did. I do not think the Court should accede to Mr Crumpton's submission that the sum was manifestly too low. As the learned trial judge said: The assessment of need for future care does not permit the use of a formula which is intellectually satisfying. In the end it has tobe a matter of judgment endeavouring to take all relevant considerations into account. His Honour referred to a number of possibilities set out in Dr Chinnery's report including a worst possible case scenario which would have resulted in the sum of $230,972 being allowed for past and future care. But these do not really assist Mr Crumpton's argument. Dr Chinnery expressed a wide range of possibilities. Plainly the learned trial judge accepted the one that led to a component of $80,000 for future care. The learned trial judge was not required, as Mr Crumpton's submission appears to suggest, to take the average between the worst and the second worst case scenario referred to by Dr Chinnery any more than he was bound to reject her opinion that the respondent's condition might worsen. lam of the opinion, therefore, that both the appeal and the cross appeal should be dismissed and I propose that each be dismissed with costs. Clarke JA. I agree with what Cripps JA has said on the issue of liability. I do hold the view that the changes in the law since the date of the judgment under appeal should lead the Court to reassess the interest on past general damages and the allowance for past care. Subject to that reservation, I also agree with Cripps JA on the question of damages. Because my view on the question of the issue of damages is a minority one, and because it would have a very limited 6 UNREPORTED JUDGMENTS effect on the award received by the respondent, I think it is unnecessary to expand on myconclusions. In all the circumstances, I would agree with the orders proposed. Handley JA. I agree with Cripps JA. The High Court decision in Piening v Wanless (1968) 117 CLR 498 establishes that a change in the law after the date of trial does not entitle a party as of right to have this Court correct the trial decision in a case where no other error is established. This principle applies in the present case. Clarke JA. The order of the Court is that the appeal is dismissed with costs and the cross appeal is dismissed with costs. Appeal dismissed with costs; cross appeal dismissed with costs. Counsel for the appellant: H Shore Solicitors for the appellant: G M Meadows Counsel for the respondent: J A Crumpton QC/ J N Williams Solicitors for the respondent: Bull: Son and Schmidt