GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v KHATOUKI; KHATOUKI v GOVERNMENT INSURANCE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, HANDLEY and POWELL JJA 27 September 1994, 27 September 1994 [1994] NSWCA 110 MOTOR VEHICLE COLLISION AT TRAFFIC LIGHTS — NEGLIGENCE — PLAINTIFF HELD TWO-THIRDS AND DEFENDANT ONE-THIRD RESPONSIBLE — WHO WAS DRIVING PLAINTIFF'S VEHICLE? — PLAINTIFF HELD DRIVER Appeal from District Court — Motor vehicle collision — Plaintiff s vehicle turned right at traffic lights against green light — Defendant's vehicle in kerbside lane drove through intersection on green light — Held verdict that plaintiff two-thirds responsible and defendant one-third responsible correct. Who was driving plaintiff's vehicle? — Trial judge held plaintiff was driver — Finding upheld on appeal. ORDER Appeal dismissed with costs. Mahoney JA This case arises out of a motor vehicle accident that occurred on the Pacific Highway at the Telegraph Road intersection on 4 March 1986. The accident arose when - I shall use these terms as a matter of convenience - the Marshall car, that is the car driven by Mr Marshall, ran into the Khatouki car, the car driven by Mr Tony Khatouki. Mr Tony Khatouki sued the Government Insurance Office of New South Wales in the District Court in respect of the injuries which he suffered in the accident. On 21 June 1990 his Honour Judge Bell gave judgment for the plaintiff Mr Khatouki. He assessed Mr Khatouki's damages at $107,303; but he reduced the amount to be awarded to him by two-thirds upon the basis that Mr Khatouki had been the driver of the Khatouki vehicle and that he had been two-thirds responsible for his own injuries within the terms of the legislation in question. He therefore gave judgment for Mr Tony Khatouki for $35,767. An appeal was brought against his Honour's judgment both by the defendant, the Government Insurance Office, and by Mr Tony Khatouki. Mr Tonner, who appeared for the Government Insurance Office in its appeal, made two main submissions. Firstly, he submitted that Mr Marshall, who was driving the Marshall vehicle at the time, had not been guilty of negligence. Secondly, he submitted that if he was guilty of negligence, his Honour's apportionment, as I shall describe it, of responsibility of one-third to Mr Marshall was erroneous and the responsibility apportioned to him was too high. The basic facts were short and simple, and I shall describe them in the terms that his Honour used in his judgment. His Honour said that on the morning of the day in question Mr Marshall was driving south on the Pacific Highway in lane 1, that is the traffic lane closest to the kerb. The traffic in lanes 2 and 3, that is the 2 UNREPORTED JUDGMENTS two lanes going south on his right-hand side, were banked up for some considerable distance on both the northern and southern sides of the intersection. The leading cars in those two south-bound lanes were stopped at the lights. The lights were green in favour of south-bound traffic, and the reason the cars had stopped was simply that the traffic jam would have prevented them crossing the intersection. His Honour concluded that lane 1, that is the lane in which Mr Marshall was driving, was clear and that there was no reason why Mr Marshall could not proceed across the intersection. The Khatouki vehicle was proceeding north and was proposing to turn right into Telegraph Road. His Honour said that the driver had waited at the north-bound lane for one full cycle of traffic signals, but had been unable to turn because of the continuous flow of south-bound traffic. He concluded that when the break in the traffic occurred, in the circumstances to which he had referred, the driver of the Khatouki vehicle "took a chance" and began his turn just as Mr Marshall appeared in lane 1. His Honour's comment was, "the collision was by then unavoidable". His Honour accepted that Mr Marshall was approaching the intersection at about 40 to 50 kilometres per hour and that he had his first sight of the Khatouki vehicle as it passed in front of him about two car lengths away. The Marshall vehicle struck the Khatouki vehicle at about the nearside front door. The plaintiff s, that is Mr Tony Khatouki's, view was restricted in the same way as Mr Marshall's, by the stationary vehicles in the lanes 2 and 3 to which I have referred. These were the circumstances of the accident. His Honour's conclusion was that Mr Marshall was both an honest and an accurate witness, and his Honour accepted his evidence. His Honour's conclusion in relation to the matter was that, although Mr Marshall had the right of way in the sense that the green lights were in his favour, when approaching the intersection in the circumstances obtaining at the time, he "should have approached with great caution, anticipating that some impatient north-bound driver might seize the opportunity of making a right-hand turn into Telegraph Road". That, of course, is what, as his Honour found, actually happened. The question then is whether 'in the circumstances his Honour's finding that Mr Marshall was negligent was accurate. In my opinion, his Honour's finding as to negligence, that is that Mr Marshall drove without the proper regard to the circumstances to which his Honour referred, was correct. I would come to the same conclusion. I see no reason to differ from what his Honour said. To drive across the intersection at the speed that Mr Marshall did and in the circumstances he did was to show insufficient care for the dangers which might well exist - the dangers which, in fact, did exist on the day and which led to the collision. Mr Tonner has said all that could be said in the circumstances; but in my opinion his Honour's finding in that regard is correct. Mr Tonner then submitted that the apportionment of the one-third of the, as I have described it, responsibility for the accident to Mr Marshall was excessive. I do not think that this Court should interfere, for two reasons. First, I think that his Honour's assessment was correct. Were I dealing with the matter as the trial judge I would have come to the same assessment. I think that the lack of care displayed by the driver of the Khatouki car in making the right-hand turn across the traffic in circumstances when he could not see fully what was happening further back in the number I lane of south-bound traffic was significantly negligent. I think it was, as his Honour concluded, more negligent, showed more \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v KHATOUKI; KHATOUK3 v GOVERNMENT INSURANCE OF NEW SOUTH WALES (Mahoney JA) lack of care, than was shown by Mr Marshall in proceeding at the pace that he did through that intersection. I would not interfere with that finding. But in any event the authorities establish, in my opinion, that the Appeal Court should, in approaching the apportionment of responsibility in a case such as this, interfere only with caution. Reference has been made on many occasions to what has been said in the High Court in Pennington v Norris (1956) 96 CLR 10. It has been suggested that in later cases this principle, the principle there enunciated, has been qualified; and I am conscious that in this Court on occasions the Court has interfered with the assessment of contributory negligence in circumstances perhaps not completely consistent with the precise terms of Pennington v Norris. It has been said that the later decisions of the High Court have warranted more ready interference. However that be, and without attempting to quantify the discretion available to this Court in such cases, I do not think that this is an appropriate case within the authorities in which the Court should interfere. For these reasons I do not accept the submissions made by Mr Tonner for the Government Insurance Office in respect of each of these matters. I would dismiss that appeal. I come now to the appeal by Mr Tony Khatouki, the plaintiff in the proceedings. This appeal raised essentially two questions: firstly, whether his Honour was correct in concluding that Mr Tony Khatouki was the driver of the vehicle at the time; and, secondly, if he was, whether his Honour's assessment of damages was in error. The evidence given by Mr Tony Khatouki, the plaintiff, was that at the relevant time the car was being driven not by him but by his father. The case advanced by the defendant, the Government Insurance Office of New South Wales, was that the car was being driven by Mr Tony Khatouki and that the father was a passenger in the front seat of the vehicle. It is not necessary to recite the competing versions in the evidence in this regard. Reference is made to the facts by his Honour in his judgment. The evidence given by Mr Marshall was that as the Khatouki car crossed his path immediately before the accident he "clearly saw a middle-aged man with grey hair looking at him through the nearside front window". Mr Marshall said that subsequently he saw Mr Tony Khatouki "leaving the car by the driver's door'; but he swears that the face that he had seen through the nearside window was not that of the plaintiff. It is common ground that Mr Tony Khatouki did alight from the driver's door; but he said that he did so because he feared that there was a leak from the boot of the car and that there were consequences which might follow from that, and that his father was injured and lying, as I understand it, across the steering wheel. He climbed over his father in order to get out of the car. Mr Marshall was, as his Honour described it, adamant that he was not mistaken in what he saw. He admitted that "anything was possible", but was firm in his evidence that what he saw was a man, who may be taken to be the father of the plaintiff, in the passenger seat at the time. If this be accepted then, of course, that is evidence strongly favouring the conclusion that the plaintiff, Mr Tony Khatouki, was in fact driving the car at the time. As his Honour indicated, it is not possible to come to a conclusion beyond any doubt in relation to this matter. It was the duty of the judge at the trial level to come to the conclusion which as a matter of probability the evidence warranted. His Honour came to the conclusion that Mr Tony Khatouki was, in fact, the driver of the vehicle. He qualified his conclusion in the manner set forth in the judgment 4 UNREPORTED JUDGMENTS and to which I need not refer in detail. I say this in deference to Mr Tony Khatouki's position. His Honour, having accepted Mr Marshall as a witness of truth, found that on the balance of probabilities Mr Tony Khatouki was the driver of the vehicle. His Honour also said subsequently that he had "formed an unfavourable view of the plaintiffs credibility". Upon this basis, it is difficult for Ms Ryan, on behalf of Mr Khatouki, to upset the judge's conclusion and to persuade this Court to come to a different conclusion. The decision of the High Court in Abalos v Australian Postal Commission (1990) 171 CLR 167 and in other cases makes it clear that where a finding is made in the circumstances in which this finding has been made, this Court should not interfere, except in the particular circumstances to which the High Court has referred in those and other cases. Those circumstances do not, I think, exist in the present case. If then the matter be approached upon the basis that Mr Marshall was "not only honest, but an accurate witness", then I think the task facing Ms Ryan on behalf of Mr Khatouki is an impossible task. I do not think that this Court should interfere with the findings of the judge in this regard. On that basis I do not think that on issues of liability and apportionment the Court should interfere. In coming to this conclusion I have not referred to the other matters to which his Honour referred in his judgment which would support the conclusions at which he arrived. These matters relate to, as it was suggested, an admission by Mr Tony Khatouki, and there are other matters to which the judge referred. It is not necessary for me to extend this judgment by reference to them. I come then to the submission made in relation to damages. In the Notice of Appeal there are grounds dealing with the issue of damages. The grounds are singularly unforthcoming. They allege merely that his Honour effed in awarding an inadequate amount for general damages, past wage loss and in making an inadequate allowance for future economic loss. In the written submissions furnished, little was said in that regard. The claim of inadequacy was merely reiterated. Ms Ryan sought to develop the matter further; but in the circumstances, and paying due regard to her argument, I do not think that the matter can be taken beyond what his Honour said. Mr Tony Khatouki was, as his Honour said in the judgment, at the relevant time a twenty-eight year old tiler. He had come from Lebanon in 1984. His Honour detailed the injuries which he suffered and I shall not lengthen this judgment by referring to them. There was however a contest between the medical witnesses as to the true condition of the plaintiff. Dr Bannister's evidence for the plaintiff suggested that he was more seriously injured than I think his Honour accepted. His prognosis in 1989 was good; in 1990 the prognosis was said to be "fairly good". There were other doctors to whom he was referred by his solicitor who concluded "that he has suffered musculo-ligamentous strain and is unfit for heavy work at present and will remain so for an indefinite period". His Honour noted: "He has been seen for the defendant by Dr Marsden and Dr Bornstein. Both of them think there is little if anything wrong with him. Dr Marsden thinks he is fit to be a tiler. Dr Bornstein thinks that is probably so, and is also convinced that the plaintiff is doing more physical work than he admits to be the case". Having cited those views his Honour said: \GROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v KHATOUKI; KHATOUK v GOVERNMENT INSURANCE OF NEW SOUTH WALES (Powell JA) "As already indicated, I have formed an unfavourable view of the plaintiffs credibility. I am prepared to accept that he was totally unfit for a period and partially fit for a further period. The precise dates are necessarily somewhat arbitrary, but I propose to allow eighteen months total incapacity with a further eighteen months fifty per cent incapacity". His Honour calculated damages on that basis. I do not think that this Court should interfere with his Honour's assessment in this regard or generally. It may be inferred that the position of the plaintiff and the judgments formed in relation to him by his medical witnesses were apt to be affected significantly by what he told them. The weight of them was therefore likely to be affected by the view taken of his credibility. His Honour was indicating, I think, the effect of his finding as to credibility upon his assessment of damages. In all the circumstances, I do not think anything has been shown which would warrant this Court interfering with the verdict. In these circumstances the appeal by Mr Tony Khatouki should be dismissed. As both appeals have been dismissed, the question arises as to what order for costs should be made. Counsel have not addressed upon the matter. I would propose that they be given the opportunity to address upon the matter. Prima facie an appropriate order for costs would be that each party should bear his or its own costs. However, I would propose that the Court allow counsel to address briefly upon that matter. Otherwise the appeals should be dismissed. Handley JA I agree. Powell JA I also agree. (Counsel addressed) MAHONEY JA: The order of the Court is that the appeals be dismissed and that each party in the proceeding should bear his or its own costs. Appeal dismissed with costs. Counsel for GIO: RC TONNER Instructed by: GM MEADOWS Counsel for Mr Khatouki: I RYAN Instructed by: BRYDEN DOHERTY AND SHEAD