TSEKOURAS vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and MEAGHER JJA 27 April 1994, 14 July 1994 [1994] NSWCA 323 FACTS: Appellant struck by motor vehicle whilst crossing a road under the influence of alcohol. The result at trial was a verdict in his favour for $179,552.00, reduced by 40% to $107,731.20 to account for contributory negligence. Appeal on liability and quantum. HELD: (1) The appeal succeeded in part only, damages being allowed for lost tips as a component of future wages. However, errors in calculating future wages and interest on past wage loss led to a corrected award of $103,885.20. The finding of 40% contributory negligence was not disturbed: Padrebersek v Australian Lever and Steel Pty Ltd (1985) 59 ALJR 492, followed. ORDERS: 1. Appeal allowed; 2. Verdict and judgment set aside; 3. In lieu of judgment, order the respondent to pay the appellant the sum of $103,885.20, such judgment to take effect as from 19 November 1991; and 4. No order as to costs. Mahoney JA I agree with the orders proposed by Meagher JA, whose judgment I have had the advantage of reading. Mr Gross QC, in his submissions for Mr Tsekouras, submitted that, in finding the plaintiff guilty of contributory negligence, his Honour had made two main errors. He submitted that his Honour erred in holding that the plaintiff had gone to the median strip in the road and in holding that the taxi cab in question had been going north. I am not satisfied that his Honour erred in these respects. But, however that be, I do not think that the judge was wrong in finding contributory negligence. Whatever view one takes of the events of the evening, Mr Tsekouras took less than proper care for his own safety. The extent of the contributory negligence is, of course, affected by what precisely he did. But, on any view of the facts, a reduction of the damages by forty per cent was in my opinion not an error. It must have been plain to the plaintiff that vehicles driven by Mr Peck and the other driver would create danger for him if he remained on or came out onto the road. It was not contested that Mr Peck was negligent. In my opinion, the extent of his responsibility for what occurred was certainly no higher than sixty per cent. A driver on a public street must, day or night, keep a proper lookout for pedestrians who are on the road. There are difficulties in seeing pedestrians at night. A driver must take this into account. But it is proper that a pedestrian also recognise that at night there may, for example, be a delay in the process of perception that the pedestrian is on the road. In this case, Mr Peck said that, in effect, Mr Tsekouras came into his vision when he came from in front of the line of approach of a vehicle further down the road than Mr Peck was. There was, he said, little chance of him avoiding Mr Tsekouras. I do not depart from the judge's findings in this regard. 2 UNREPORTED JUDGMENTS Notwithstanding the submissions by Mr Gross QC, I would not disturb the apportionment of responsibility made by Badgery Parker J. Mr Gross's main submissions in respect of damages were directed to the plaintiff's compensation for loss of earning capacity. He submitted that his Honour's treatment of the effect of alcoholism upon what the plaintiff, uninjured, could have earned involved error. The assessment of the plaintiffs future in that regard was difficult. His Honour sought to assess the likelihood of the plaintiff giving up alcohol and he used that as a basis for calculations. Notwithstanding what Mr Gross QC submitted, I see no appealable error in what the judge did. His Honour was impressed by the plaintiff's prior history of alcoholism and, I think, he was not wrong in being so. Nor do I see appealable error in his Honour's treatment of the earnings of another ("comparable") employee. His Honour endeavoured to assess the plaintiff's capacity, uninjured and injured. Subject to the error to which Meagher JA has referred, I would not interfere with this aspect of the judgment. In view of the argument of Mr Shore, I agree with the other matters of adjustment to which Meagher JA has referred. Priestley JA I agree with Meagher JA. Meagher JA This is an appeal by a plaintiff, Mr Tsekouras, from a verdict and judgment of Badgery Parker J in his favour in the sum of $107,731.20. His Honour found that the damages suffered by Mr Tsekouras were $179,552 and then reduced them by 40% because of his contributory negligence. The undisputed facts are that Mr Tsekouras was knocked over by a motor car at a point close to the intersection of Anzac Parade and Meeks Street in a Sydney suburb called Kingsford early on the morning of Sunday, 13 January 1986, at about 12.15 am. There was a 60 kph speed limit. At the place of the accident the road was curved and not straight. Anzac Parade is a main road which was level, sealed and dry. It was a dark night, but there was a good deal of local lighting at the place of the accident. The weather was fine. The accident happened outside the Castellorizian Club, which is on the eastern side of Anzac Parade. The motor car which knocked him down was driven by a Mr Peck, for whose behaviour the defendant/respondent is responsible. Mr Tsekouras's injuries were very serious. Anzac Parade at the point in question consists of six lanes, three on each side of a significant median strip. For the purposes of these reasons I shall refer to the lane closest to the footpath as the first lane, to the intermediate lane as the second lane, and to the lane closest to the median strip as the third lane. Mr Tsekouras had spent the four hours preceding the accident drinking at the Castellorizian Club. He was a very old man, being born in 1933. He arrived in Australia in 1952. He has had various jobs, at the time of the accident being a waiter at the Mandarin Club. A year before the accident he had injured his right foot at work at the Mandarin Club. There was a variety of accounts about how exactly the accident occurred, although upon analysis this does not seem to me to matter greatly. The policeman who attended at the scene of the accident, a Constable Johnson, said that Mr Peck struck Mr Tsekouras in the middle of lane 2; that fits in with the bulk of the evidence, and his Honour, unsurprisingly, believed it. Mr Tsekouras's version of the facts was that, in an effort to hail a taxi cab which he saw proceeding south west, went into lane 1; he remembers nothing after that; he rather doubted ever getting as far as lane 2. Bearing in mind the place of impact this version could not be correct. Mr Peck's version was that he was travelling home in lane 3, when UBEKOURAS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Meagher JA) the car in front of him suddenly braked and stopped, forcing him to swerve into lane 2 to avoid hitting the stopped car; when he did so Mr Tsekouras was in the middle of lane 2, and by the time Mr Peck saw him it was too late to do anything about it. Miss Penglis was driving the car in front of Mr Peck. She was driving home in lane 3, when she suddenly saw a man on the dividing line between lanes 2 and 3; she stopped suddenly to avoid hitting him. The story which Mr Tsekouras told Constable Johnson at the time differs from all the above in one significant report: according to this Mr Tsekouras said he went onto the median strip to hail a cab which was going northwards; and, when he failed to attract its attention, he began to retrace his steps towards the footpath. This was the version which appealed to his Honour. Bearing in mind the limitations placed on overruling a trial judge's findings mainly based on credibility, there is no way this finding can be reversed, particularly, if I may say so, as it would seem to be the most obviously likely version. There is another major aspect of the accident: the question of alcohol. A blood alcohol test of Mr Tsekouras at 1.30 am showed a reading of 0.106 grams, which according to the expert evidence would have indicated a reading of 0.12 at the time of the accident. Since Mr Tsekouras admitted drinking at the Club from 8 pm onwards, he must have consumed 9 or 10 middies to get this reading, not the 2 middies to which he confessed. At 0.12, a man, whilst not drunk, has not got all his wits about him. But things were worse still. At the time of the accident he was not only much affected by alcohol (to which he was no stranger) but was also suffering from cerebellar degeneration. Since an attack has been launched on his Honour's findings on this matter, it is well to recapitulate the evidence on the point. Before 1984 he had experience in what he called the "St Vincent's Hospital drunk ward". In 1981, he began to find pain in his legs, which were weak. In April 1984 Dr Tahmindjis diagnosed decreased vibration sense in the foot and no ankle jerks. Dr Tahmindjis referred him to Dr Sharpe, who diagnosed cerebellar degeneration. In May 1984 Dr Sharpe noted his complaint that he was walking in an odd fashion, particularly when descending stairs and carrying a tray, as he had to when a waiter; he could not walk in a straight line. In July 1984 a Dr Teychenne told him his condition would deteriorate unless he stopped drinking entirely. In July 1984 Mr Tsekouras complained of a lot of giddiness, saying that unless he took Vincents or Bex he could not walk at all. In September 1984 Dr Cole reported that Mr Tsekouras's ataxia was interfering a little with his ability to work. In October 1984 he told Dr Teychenne that he might lose his job, and Dr Teychenne thought he could not continue to be a waiter for long. There is more evidence to the same effect, Mr Tsekouras continuing to take alcohol up to the time of the accident. The significance of this evidence is twofold: first, as to liability - it enabled his Honour to find heavy contributory negligence; and one would have thought, with reason; for a man who had difficulty in walking at the best of times to get himself half drunk and then wander onto the middle of a main road on a dark night is hardly taking care of himself; and secondly, as to quantum of damages, which his Honour assessed on the basis that Mr Tsekouras had a working life of but three years unless he abandoned alcohol, if the accident had not happened. There never was any question but that Mr Peck's behaviour was negligent, and hence there had to be verdict for the plaintiff against the defendant. Nor, at the trial, was there any question but that the plaintiff, Mr Tsekouras, was guilty of contributory negligence; although one ground of appeal, not seriously pursued, 4 UNREPORTED JUDGMENTS was that his Honour erred in finding that any contributory negligence existed. His Honour assessed that contributory negligence at 40%. Mr Gross QC, learned senior counsel for the appellant, submitted that his Honour's assessment of contributory negligence at 40% was excessive. In this respect, he challenged many individual sentences in his Honour's judgment, although most of them at a purely verbal level. The only successful attack of any substance was on his Honour's finding that the traffic at the time was heavy, whereas the evidence was that it was light to moderate. In my view, however, this minor error would hardly alter his Honour's final conclusion. It is clearly established law that it requires an extremely powerful case to overturn a trial judge's assessment of the percentage of a plaintiff's contributory negligence. Common sense would dictate that this must be so; but in any event the High Court has said it: Padrebersek v Australian Lever and Steel Pty Ltd (1985) 59 ALR 492. In the present circumstances such a powerful case does not exist, even if one takes into account the judge's one erroneous statement. The damages found by his Honour were as follows: 1. Loss of past and future wages $52,800.00 2. Out of pocket expenses $ 4,412.00 3. Interest on past wage loss $32,340.00 4. General damages $90,000.00 5. Interest on past general damages $ 5.700.00 The arithmetical total of these items is $185,252.00, (although because of the operation of s35D of the Motor Vehicles (Third Party Insurance) Amendment Act 1984, judgment was entered on the basis that the total was $179,552.00). The appellant's attack on liability chiefly consisted of an attack on the item chosen by his Honour for loss of past and future wages. However, bearing in mind Mr Tsekouras's frail medical condition and dismal work prospects at the time of the accident, in any view his Honour's conclusions are overly generous to the plaintiff, if anything be wrong with them. There were, nonetheless, three adjustments which must be made to his Honour's figure. The first concerns the calculation of loss of future wages. Mr Gross QC, complained that his Honour at one stage used a figure of $260.00 instead of $280.00. Mr Shore, who appeared for the respondent, conceded that this was so, but submitted that the appellant had led his Honour into error. Be that as it may, to rectify the error will involve adding another $800.00 to the total damages. The second, the subject of the respondent's cross appeal, related to interest on earnings last between January 1987 and January 1989. In this regard his Honour calculated that $33,000 at 18% for 3.5 years amounted to $32,340.00. In fact it does not, it amounts to $20,790.00. This means the verdict ought to be reduced by $12,210. The third concerns the question of tips. Mr Tsekouras in his evidence said that in his occupation he was paid tips. He estimated them at $100.00 a week. If he worked as a waiter at a club, it is entirely probable that he would have been paid tips. The Court can, I think, take judicial notice of that. After all, the Mandarin Club is not the Australian Club. But his Honour allowed Mr Tsekouras nothing on this account. This is because his Honour said, in effect, but not so brutally, that he did not believe a word he said. His Honour did not disbelieve Mr Tsekouras's evidence that he was paid tips, but he did disbelieve him on the quantum. Mr UBEKOURAS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Meagher JA) Tsekouras is therefore in the position of claiming a head of damages which he is unable to quantify with any precision. Still, in my view, he ought be awarded something. That something is an amount so modest that it could not possibly be considered excessive. In my view such an amount would be $5,000. In my view, therefore, the following orders should be made: 1. Appeal allowed; 2. Verdict and judgment set aside; 3. In lieu of judgment, order the respondent to pay the appellant the sum of $103,885.20, such judgment to take effect as from 19 November 1991; and 4. No order as to costs. 1. Appeal allowed; 2. Verdict and judgment set aside; 3. In lieu of judgment, order the respondent to pay the appellant the sum of $103,885.20, such judgment to take effect as from 19 November 1991; and 4. No order as to costs. Counsel for the Appellant: B GROSS QC/ H KELLY Instructed by: TAYLOR AND SCOTT Counsel for the Respondent: HG SHORE Instructed by: SOLICITOR FOR GIO