NSW INSURANCE MINISTERIAL CORPORATION vy ROBERTSON; VASAILES v ROBERTSON; VASAILES v TANG SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy ACJ, GILES and ROLFE AJJA 25 July 1995, 25 August 1995 [1995] NSWCA 339 NEGLIGENCE — contributory negligence apportionment — challenge to findings of primary judge — abbreviated reasons — adequacy of reasons — ability of CA to draw inferences from findings — held: finding set aside and new apportionment fixed — 80:20 substituted for 50:50. JUDGES — reasons — adequacy of- abbreviated form — necessity to make findings of fact and to record conclusions on credibility — held: CA could draw inferences from judge's abbreviated findings on liability — damages stood over. NEGLIGENCE — contributory negligence — appeal against apportionment by trial judge — abbreviated reasons — interpretation of — oncoming vehicle performs U turn in mouth of side street, re-enters main street and runs into side of vehicle proceeding in opposite direction — primary judge (Leslie AJ) finds each driver guilty of contributory negligence — finds each driver one-half responsible for the collision — enters judgments in respect of each driver reduced by 50% in each case for contributory negligence — on appeal against findings of liability, apportionment and damages JUDGES — reasons — necessity for — duty to record grounds of decision and findings of fact — disputed claims of negligence and damages in motor vehicle accidents — abbreviated reasons of primary judge (Leslie AJ) — whether reasons adequate to permit Court of Appeal to perform its function of reviewing findings on liability, contributory negligence and damages Held: (Giles AJA and Rolfe AJA; Kirby ACJ concurring): (1) An appellate court is extremely hesitant to interfere with apportionments of contributory negligence. Pennington v Norris (1956) 96 CLR 10; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 (HC) applied; (2) Any such disturbance must be made in the light of the findings of the primary judge as to how the collision occurred; (3) No disturbance will be made except for the establishment of error on the part of the primary judge; (4) But in the circumstances, upon the findings made or inferred from the reasons of the primary judge, error was shown; (5) In lieu of the apportionment ordered by the primary judge, an apportionment of 80% contribution by the driver of the turning vehicle and 20% by the driver of the oncoming vehicle should be substituted. Held: (1) From the reasons of the primary judge and the inferences to be derived therefrom, it was open to the Court of Appeal to review his findings on negligence and contributory negligence and the Court should do so; (2) However, it was not open to the Court, in the absence of proper reasons and findings, to review the assessments of damages of the oncoming driver and those assessments must be returned for retrial in the light of the findings on liability made by the Court. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA); Huntsman Chemical Co Australia Ltd and Anor v International Pools Australia Pty Ltd and Ors Court of Appeal (NSW), unreported, 16 March 1995 [1995] NSWJB 29. 2 UNREPORTED JUDGMENTS Motor Traffic Regulation, Reg67. ORDERS 1. The appeal by NSW Insurance Ministerial Corporation against the judgment in favour of Ms Robertson, whereby it was found Mr Vasailes was guilty of negligence be dismissed. 2. The appeal by NSW Insurance Ministerial Corporation against the judgment that Mr Vasailes was guilty of contributory negligence to the extent of fifty per cent be allowed. 3. The appeal by Mr Vasailes against the judgment that he was guilty of contributory negligence to the extent of fifty per cent be allowed. 4. The apportionment of contributory negligence as between Ms Robertson and Mr Vasailes be set aside. 5. In lieu thereof there be substituted an apportionment that Ms Robertson was eight per cent to blame for the accident and Mr Vasailes was twenty per cent to blame for the accident. 6. The appeals as to damages by NSW Insurance Ministerial Corporation and Mr Vasailes, including Mr Vasailes' appeal against Mr Tang, be allowed. 7. The awards of damages be set aside. 8. The issue as to the damages payable by (i) NSW Insurance Ministerial Corporation to Mrs Robertson; and (ii) Ms Robertson to Mr Vasailes; and (iii) Mr Tang to Mr Vasailes 9. Upon the determination of such damages: (i) the amount payable by NSW Insurance Ministerial Corporation to Ms Robertson be reduced by eighty per cent to reflect O.5 hereof; and (ii) the amount payable by Mr Robertson to Mr Vasailes be reduced by twenty per cent to reflect O.5 hereof. 10. Ms Robertson pay the costs of NSW Insurance Ministerial Corporation and Mr Vasailes of the appeals and have a certificate under the Suitors Fund Act if otherwise entitled thereto. 11. Mr Tang pay the costs of Mr Vasailes of the appeal and have a certificate under the Suitors Fund Act if otherwise entitled thereto. 12. The costs of the new trial as to damages be determined by the trial Judge. Kirby ACJ I agree in the judgments of Giles AJA and Rolfe AJA and in the orders proposed by Rolfe AJA. Giles AJA I have had the benefit of reading in draft the detailed reasons of Rolfe AJA. As those reasons demonstrate, the judgment of Leslie AJ was undesirably brief, and at one time I was of the view that the deficiency was such that a new trial on all issues was inevitable. On further reflection, I have concluded that this Court can resolve the appeal on liability. What follows assumes knowledge of the matters canvassed in the reasons of Rolfe AJA. In my opinion, despite the deficiency in the reasons of Leslie AJ it can properly be seen that his Honour - (a) found that Ms Robertson - (i) executed a U-turn in the mouth of King Street, did not stop before re-entering Bennett Street at a modest speed, and ran into the side of Mr Vasailes' car; and (ii) had unobscured vision of Mr Vasailes' car but did not see it; (b) found that Mr Vasailes saw Ms Robertson beginning the turn in the mouth of King Street, recognised it as something other than a normal turn into King Street warranting hesitation and deceleration on his part, but continued on his course without keeping Ms Robertson's car under observation; (c) held that each of Ms Robertson and Mr Vasailes was negligent; and WAR INSURANCE MINISTERIAL CORPORATION v ROBERTSON; VASAILES 3 ROBERTSON; VASAILES v TANG (Giles AJA) (d) held that each of Ms Robertson and Mr Vasailes was equally to blame for the collision because - (i) Ms Robertson was not keeping a proper lookout; and (ii) Mr Vasailes "unreasonably failed to take advantage of his superior position by continuing his course and speed after losing sight of the turning vehicle." I do not think that any reason has been shown to overturn the findings in (a) and (b), each of which was well open on the evidence. Nor do I think that any reason has been shown to differ from the holding in (c): Ms Robertson did not dispute negligence, and while Mr Vasailes did dispute negligence his negligence flows from the finding in (b). The submission by Mr Vasailes was in substance that there was no reason for him to think that he might be assaulted by Ms Robertson's car entering from King Street, but the submission is untenable given the finding in (b). As I understand his Honour's reasons, it was thought that Mr Vasailes was in a superior position to that of Ms Robertson because "The turning driver had to look in more directions than the oncoming driver". As Rolfe AJA has explained, Ms Robertson executed a manoeuvre involving a substantial degree of risk, turning across both lanes of King Street and both lanes of Bennett Street. She had the opportunity to see Mr Vasailes' car not only as she was facing south in Bennett Street just before she began the U-turn but also as she came out of the mouth of King Street in the course of the turn. Perhaps she should not have been executing the U-turn at all, but if she proposed to do so she had to be particularly alert to other cars imperilled by the manoeuvre, and she had to stop in order to assess their presence and to observe any car into the path of which the turn might take her let alone any car into the side of which the turn might take her. Mr Vasailes had a degree of warning that Ms Robertson was in the course of an unusual manoeuvre, but his negligence lay in inattention whereby he did not adequately react to that unusual manoeuvre. I do not think that it was a sufficient, or accurate, summation of the position to say that Mr Vasailes was in a superior position to that of Ms Robertson because Ms Robertson had to look in more directions than he did. There are many statements that latitude must be allowed to the trial judge in arriving at a judgment as to what is just and equitable in the apportionment having regard to the respective shares in the responsibility for the damage. The exercise is normative (sometimes called discretionary), and unless error of principle or significant misapprehension of material facts is shown or can be inferred an appellate court should not second-guess the trial judge. However, in the present case I consider that Leslie AJ fell into appealable error. His Honour was required to compare culpability, that is the degree of departure from the standard of care of the reasonable man, and the relative importance of the acts of the parties in causing the damage: see Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494. His reasons were deficient in this respect, and such reasoning as was indicated was defective as set out above. It is possible for this Court to make an appropriate apportionment, and the matters to which I have earlier referred lead me to the view that Ms Robertson's negligence was of a significantly higher degree than that of Mr Vasailes and was of more importance in the occurrence of the collision. I agree with the apportionment proposed by Rolfe AJA, 80 per cent to Ms Robertson and 20 per cent to Mr Vasailes. 4 UNREPORTED JUDGMENTS The parties had made submissions on damages, although the hearing was confined to the issue of liability before they had fully done so. I agree with what Rolfe AJA has said as to damages. I agree in the orders proposed by Rolfe AJA. Rolfe AJA INTRODUCTION Bennett Street, Waverley runs basically north/south. King Street, Waverley runs basically east/west and forms a "T" intersection with Bennett Street entering from its eastern side. At approximately 11.45 am on 28 April 1986 Tracey Ann Robertson, ("Ms Robertson"), was driving her motor vehicle south in Bennett Street towards the intersection, and Theo Vasailes, ("Mr Vasailes"), was driving his motor vehicle north in Bennett Street towards the intersection. It was a dry, overcast day and Bennett Street, in that area, is basically level and straight so that there was no obstruction of their view along Bennett Street by virtue of the configuration of the roadway. Ms Robertson wished to turn around and drive in a northerly direction in Bennett Street, which she decided to do at the intersection. There was an issue as to the way in which she sought to do this. Her evidence in chief was that she turned into King Street, turned the vehicle in King Street so that it was facing towards Bennett Street, drove to the intersection and stopped there and, thereafter, proceeded to make a right hand turn into Bennett Street. The evidence also provided a foundation for a finding that she veered left into King Street and then right out of King Street on to Bennett Street, with a view to completing a U-turn, and that, in doing, so she did not stop. This involved her driving across both traffic lanes of King Street, the southbound lane of Bennett Street and into the northbound lane of Bennett Street. Whichever way Ms Robertson acted it led, on one view of the evidence, to the front portion of her vehicle colliding with the driver's side of the vehicle being driven by Mr Vasailes at a point where that vehicle was on its correct side of Bennett Street, ie in the westbound lane heading north. There was an issue whether the collision occurred in that way or whether the vehicle being driven by Mr Vasailes collided with that being driven by Ms Robertson, albeit essentially in the western carriageway of Bennett Street. As a result of the accident Ms Robertson and Mr Vasailes alleged they suffered personal injuries and they sued in respect thereof. Ms Robertson's action was brought against NSW Insurance Ministerial Corporation. Mr Vasailes' action was brought against Ms Robertson. In June 1991 a vehicle driven by Mr Eugene Tang collided with the rear portion of a vehicle driven by Mr Vasailes, which was stationery at traffic lights. It was not in issue that Mr Tang was negligent and Mr Vasailes sued him for personal injuries arising out of that motor vehicle accident. The three actions came on for hearing before Leslie AJ on 28 November 1994. Ms Robertson was represented by Miss S Norton of Counsel and NSW Insurance Ministerial Corporation was represented by Mr KJ Kelleher of Counsel. Mr CC Branson of Queen's Counsel and Mr RH Grace of Counsel appeared for Mr Vasailes, in his capacity as plaintiff, and Mr JJ Graves of Counsel appeared for Ms Robertson in her capacity as defendant. Mr AP Quinlivan of Counsel appeared for Mr Tang in the action brought by Mr Vasailes against him. After a hearing, which lasted for four days, his Honour gave judgment in each matter on 5 December 1994. HIS HONOUR'S JUDGMENT ON LIABILITY In dealing with the accident on 28 April 1986 his Honour said: WAR INSURANCE MINISTERIAL CORPORATION v ROBERTSON; VASAILES & ROBERTSON; VASAILES v TANG (Rolfe AJA) "About nine years ago a twenty five years old thespian was injured in a motor accident at a suburban street intersection when a southbound vehicle driven by her made a sweeping right hand turn in the mouth of an easterly intersection with the north-south carriageway, to travel north on that carriageway. The turn was made across the path of an oncoming northbound vehicle with which the turning vehicle then collided. At the same time a twenty three years old painter was injured while driving the oncoming northbound vehicle. The turning driver did not see the oncoming vehicle approach. The oncoming driver saw the turning vehicle commence its turn which he then recognised as the commencement of a right hand turn to travel in the opposite direction. Thereafter, the oncoming driver did not observe the turning vehicle until impact. The turning driver, travelling at a modest speed, was not keeping a proper lookout. The oncoming driver, having seen the commencement of the continuous turn across the path of his oncoming vehicle, unreasonably failed to take advantage of his superior position by continuing his course and speed after losing sight of the turning vehicle, apparently through inattention. The turning driver had to look in more directions than the oncoming driver. Each driver was equally to blame for the collision." The "twenty five years old thespian" and the "twenty three years old painter" were, respectively, Ms Robertson and Mr Vasailes. His Honour found that Ms Robertson was entitled to damages in the sum of $202,214, which he reduced by one half because of her contributory negligence. He found Mr Vasailes was entitled to damages in the sum of $170,191, which he also reduced by one half because of his contributory negligence. In the proceedings between Mr Vasailes and Mr Tang his Honour entered a judgment for Mr Vasailes in the sum of $62,399. THE APPEALS There are three appeals before the Court. NSW Insurance Ministerial Corporation has appealed against the judgment in favour of Ms Robertson. The Notice of Appeal attacks his Honour's finding that Mr Vasailes was negligent and, alternatively, the amount of contribution. It also complains that the damages awarded to Ms Robertson were excessive. Mr Vasailes has also appealed against his Honour's judgment in the proceedings as between him and Ms Robertson. The first ground of appeal is that the award of general damages was inadequate, and the second ground of appeal is: "His Honour erred in finding that the appellant was 50% contributorily negligent as to the cause of the accident." Para3 of the Notice of Appeal alleges his Honour erred in various ways in relation to damages, although in subpara(e) an error is alleged to have arisen: "in failing to give full and sufficient weight to the whole of the evidence in his findings of contributory negligence." The orders sought include: "2. A verdict be entered in favour of the appellant. 3. Alternatively, that this Honourable Court assess the extent to which the appellant was guilty of contributory negligence." Other orders of a consequential nature are sought. 6 UNREPORTED JUDGMENTS Mr Vasailes also appealed on the basis that the damages awarded by his Honour against Mr Tang were inadequate and, in the event of the appeal being allowed, sought an order that the matter be remitted for a new trial. Mr Vasailes did not appeal on the ground that his Honour's reason did not contain adequate or sufficient reasons, although this matter was raised on the hearing of the appeal and the parties had every opportunity to make submissions about it, of which they availed themselves. Ms Robertson did not appeal. On the hearing of the appeal Mr FS McAlary of Queen's Counsel appeared on behalf of Mr Vasailes, Miss Norton appeared on behalf of Ms Robertson, Mr RF Sutherland of Counsel appeared on behalf of NSW Insurance Ministerial Corporation, Mr Graves appeared on behalf of Ms Robertson in her capacity as defendant to the proceedings brought by Mr Vasailes, and Mr Quinlivan appeared on behalf of Mr Tang. THE COURT'S INITIAL REACTION TO THE APPEAL At the commencement of the appeal the Court noted a prima facie view that because of the sparseness of the reasons given by Leslie AJ, both on questions of liability and damages, it would be very difficult for the Court to determine the appeal and to decide the issues raised by the grounds of appeal. The position was aggravated because it did not seem to be really in issue that questions of credit in relation to the way in which the accident occurred and in relation to the assessment of damages necessarily impacted upon each other. Yet his Honour failed to make, at least expressly, findings on many disputed issues, and he made no express findings as to credit. It became apparent, during submissions, that the Court would not be able to re-assess damages and, in the circumstances, the question arose whether the proceedings should be remitted to the Common Law Division, without more, for a re-trial of all issues. Mr McAlary, after taking instructions, informed the Court that was the wish of Mr Vasailes. Mr Sutherland submitted that for the purpose of determining whether Mr Vasailes was guilty of negligence and, if he was, to what extent, the Court could look at "objective matters" and decide that issue. Miss Norton informed the Court that Ms Robertson is impecunious and cannot afford the cost of a new trial, and she submitted that the Court should decide the question of liability. Mr Graves was content to have that matter argued. Mr Quinlivan's client has no interest in the issue. The appeal being before the Court regularly, and the majority of the parties requesting the Court to determine the issue of liability, at least, on the material available, the Court took the view that, notwithstanding the perceived unsatisfactory nature of his Honour's judgments, which failed to disclose, prima facie, the reasons whereby many conclusions were reached, it was appropriate for the Court to embark, in the first instance, on hearing the appeal relating to the question of liability: Tpp 17-18. As I have indicated there was no appeal against his Honour's finding that Ms Robertson was guilty of negligence. The matter argued was whether Mr Vasailes was also guilty of negligence and, if he was, the extent to which each of the parties contributed to the accident. A CONSIDERATION OF THE NEGLIGENCE OF MS ROBERTSON Although it was not in issue that Ms Robertson was negligent, it is, none- the-less, necessary to consider the nature of that negligence to evaluate whether Mr Vasailes was negligent and, if he was, the contribution between the parties. WAR INSURANCE MINISTERIAL CORPORATION v ROBERTSON; VASAILES ¥ ROBERTSON; VASAILES v TANG (Rolfe AJA) I have referred to the competing versions of the way in which Ms Robertson attempted to execute the turn. I do not think it necessary to refer to her evidence further because, in my view, the proper interpretation to give to his Honour's judgment is that he found the turn performed by her was not punctuated by her stopping. The failure by his Honour to make any reference to the competing versions causes some difficulty, but I have come to the conclusion that his references to her making "a sweeping right hand turn", "across the path of an oncoming northbound vehicle" and to her "travelling at a modest speed" are all indicative of a finding that she did not turn into King Street, that she did not make the turn in that street, and that she did not stop at the entrance to Bennett Street. His Honour's finding that Mr Vasailes saw "the commencement of the continuous turn" is consistent with this view. His Honour's findings are only consistent with Ms Robertson having made a U-turn utilising the extra space provided by King Street and without stopping. His Honour's finding that Mr Vasailes was in a "superior position" and that "the turning driver" had to look in more than one direction reinforce the view that he found that she made a U-turn without stopping. The manoeuvre thus undertaken by Ms Robertson involved a substantial degree of risk. She had to turn across both lanes of King Street and both lanes of Bennett Street. She was not keeping a proper lookout and the evidence supports the conclusion that she did not see the vehicle driven by Mr Vasailes approaching from her left. If the version of the accident she gave is correct, ie that she made the turn in King Street, drove back to the intersection and stopped, then her position is made, on one view, worse. In those circumstances she must have been able to see, whilst stationary, any vehicle approaching from her left, ie from the south and proceeding in a northerly direction, and, leaving aside the terms of Reg67, she must have driven out into the path of the oncoming vehicle. This, in my opinion, bespoke even more negligence than that which I think his Honour concluded occurred. Her actions were the more serious when it is appreciated that Reg67 gave Mr Vasailes the right of way. Reg67 operated whatever conclusion was reached as to how Ms Robertson drove her vehicle. However, for the reasons I have given, I think that his Honour rejected this evidence of Ms Robertson. Such a rejection was supported by the evidence that Ms Robertson told the police she did not think she stopped at the intersection and she did not see Mr Vasailes' vehicle "at any time". The way in which the accident occurred, on the findings of fact I think his Honour made, was that Ms Robertson was turning her car across four lanes of two streets without stopping, without keeping a proper lookout and in contravention of Reg67. In the course of doing this she failed to see a vehicle which was undoubtedly approaching and she collided with its driver's side on one version of the evidence. Although it was submitted his Honour made no express finding on this, notwithstanding it was in issue, the preponderance of evidence supports the view that the front of Ms Robertson's vehicle collided with the passenger side of Mr Vasailes' vehicle. Mr Vasailes said this is what happened and the police record confirms it. In my opinion his Honour so found. He said the vehicle driven by Ms Robertson collided with that driven by Mr Vasailes, which, in my opinion, was a finding that the collision occurred in the way for which he contended. Without more her negligence was substantially causative of the accident and, her negligent acts, taken in combination, amounted, in my judgment, to a high degree of negligence on her part. The question then is whether Mr Vasailes was also guilty of negligence. 8 UNREPORTED JUDGMENTS THE NEGLIGENCE OF MR VASAILES Mr Vasailes was interviewed at the scene of the accident and signed the following passage in the Police Officer's notebook, which was tendered, although the officer was not called to give oral evidence: "Q. Can u tell me what happened? A. I was coming down Bennett (indicating N) the girls doing a U ey (in the middle of the road of intersection of King Street) and I hit her. I don't know I just couldn't stop. Then I ended up in that car (indicating CC1479). Q. What speed were u travelling? A. 60 km. Q. How long before the collision did u see the car ODD260 (Q)? A. I DON'T KNOW I JUST SEEN HER IN THE MIDDLE OF THE ROAD, I TRIED TO AVOID HER." (My emphasis.) Ms Robertson said to the police she did not think she stopped at the intersection of Bennett Street and she did not see any car on the other side of Bennett Street as she was travelling south. She said she did not see "the blue car" "at any time". The reference to the blue car was a reference to the vehicle Mr Vasailes was driving. Mr Vasailes described the accident in his evidence in chief, AB93, thus: "Q. Were you approaching an intersection you now know to be King Street, on the right? A. That's right. Q. Do you remember what speed you were going, approximately? A. Roughly sixty kilometres an hour. Q. You were involved in a collision. Do you remember what sort of car it was? A. No, not really, no. Q. Did you see the other car before the collision? A. Yes. Q. What did you see it do? A. I SEEN IT COME UP THE STREET, AND WHEN TURNED INTO THE STREET. I LOST VISION BECAUSE THE CLOSER I GOT, I LOST VISION OF IT. IT HIT ME IN THE PASSENGER DOOR AND THREW ME BACK AND TWISTED RIGHT AROUND. It went flush into a parked car. Q. Before the collision, did you do anything about the speed of your vehicle? A. YES I TOOK MY FOOT OFF ME ACCELERATOR." (My emphasis.) Mr Vasailes said he did not remember whether he tried to brake and, at AB94, he repeated the vehicle driven by Ms Robertson struck the driver's side of his vehicle. He was cross-examined at some length about what transpired. At AB125 he said he saw the vehicle driven by Ms Robertson tum towards King Street and as he got closer his width of version got less. He continued: "Q. Did you see the vehicle actually turn into King Street? A. Yes. Q. Did you see it do a U-turn into King Street? A. Yes. Q. Did you ever see it do a U-turn? A. No. Q. Are you sure about that? A. Yes." He was cross-examined about the conversation he had with the Police Officers and, at AB126. he said: WAR INSURANCE MINISTERIAL CORPORATION v ROBERTSON; VASAILES 9 ROBERTSON; VASAILES v TANG (Rolfe AJA) "Q. Then the answer is written down: I was coming down Bennett the girls doing a U-ey in the middle of the intersection of King Street and I hit her. I don't know. I just could not stop and then I ended up in that car? A. That is correct. Q. You recall saying that to the Police Officer? A. That's right. Q. You told the Police Officers: the girls doing a U-ey in the middle of the road? A. That is correct. Q. You told the Police Officer that? A. Yes. Q. Did you or did you not see them do that? A. To a point, no. It was quite obvious. I mean when I see the girl - there is no way in the world that she could have done a U-turn anywhere else because at the time I would have been past the street, so it was quite obvious that the girl did the U-turn to be able to hit me. Q. So you say you did not tell the Police Officer what you saw? A. It is a long time ago. As I said, I was under shock and I am dyslexic, so it is very hard for me to explain to someone under shock and being a dyslexic to what..." Mr Vasailes was asked again whether he saw the car driven by Ms Robertson doing a U-turn and he denied it, although he agreed he told the police the car did a U-turn. He was further cross-examined and it became obvious, at least from the written word, that what he was asserting was a reconstruction of what he thought must have happened to cause the collision. This was a matter on which, in my opinion, his Honour should have made a finding, because if he believed Mr Vasailes' evidence that what he said was a conclusion from what happened the position would be quite different from that which would obtain if Mr Vasailes had seen what was happening. I shall seek to explain why shortly. However his Honour did not take advantage of his position, having seen and heard Mr Vasailes give evidence, of making a finding. I do not think I can do so merely from reading the transcript. At AB127 he gave this evidence: "Q. How do you know it was done there? A. Because there is no other way she can do it. Q. But you did not see it? A. As I said to you, ON DISTANCE I seen the lady and as I got closer my vision to the side was taken. But there is no way in the world anywhere she could done a U-turn anywhere else bar the mouth because she hit me. Not that I stopped for five minutes allowing her to go down the street and do a U-turn." (My emphasis.) Mr Vasailes agreed he told the police he was travelling at sixty kilometres an hour and, at AB128, he continued: "Q. And at any time before you collided with the Fiat did you brake? A. When the girl was coming up - the angle on how she took King Street MADE ME HESITANT, because she did not come out to go down. She took at an angle. SO I LET OFF MS ACCELERATION and as I got towards King Street that is when she came out and that is when I got hit. Q. Are you now saying you saw her come out of King Street? A. No. Q. When was the first time after she turned left into King Street that you saw her? 10 UNREPORTED JUDGMENTS A. When I was a little bit further up King Street itself. Q. So you were into the intersection of Bennett and King or before? A. Just before. Q. So your car collided with her car? A. No, she collided into my passenger door which forced my rear end to go to the side and hit the parked car side on which was parallel or what you called parked the opposite way to the actual road. It was parked in the driveway." (My emphasis.) At AB133 Mr Vasailes said he did not look into King Street and he denied he told the police he had hit the other motor vehicle. He said if he used those words he meant there was a collision. At AB134 he agreed he said to the police: "the girls doing a U-ey" and: "Q. Did you say to the Police Officer that that was being done in the middle of the road at the intersection of King Street? A. It comes back down to my interpretation, to what actually happened. Might be a little bit confusing." In the light of this evidence it is necessary to repeat his Honour's finding, which was: "The oncoming driver, having seen the commencement of a continuous turn across the path of his oncoming vehicle, unreasonably failed to take advantage of his superior position and by continuing his course and speed after losing sight of the turning vehicle, apparently through inattention." THE CHALLENGE TO HIS HONOUR'S FINDINGS This finding was challenged on the basis that there was no evidence to support it. In my view there was evidence, which I am prepared to assume his Honour accepted, to support the finding that Mr Vasailes saw the commencement of what he considered was a U-turn, which would, unless Ms Robertson had stopped, have brought her vehicle into close proximity to that being driven by him. His evidence that he took his foot off the accelerator and that her actions "made me hesitant" gives rise to the inference that he appreciated her manoeuvre may cause some problem. The critical questions were whether, by failing to slow further or stop his vehicle, he acted "unreasonably" in failing to take advantage of what was described as a "superior position". There were a number of contested factual issues, as to none of which, unfortunately, his Honour made express findings. Such findings would have made the task of deciding this appeal much easier. Firstly, there was no evidence when, in terms of distance or time before the accident, Mr Vasailes first saw the vehicle being driven by Ms Robertson or when he saw it commence to make a U-turn. He undoubtedly saw it at some time and he referred to seeing it "on distance". He was travelling at approximately sixty kilometres per hour, which means he was passing over about sixteen to seventeen metres per second. That would mean he was passing over about three to four car lengths per second. I do not think it can be realistically suggested that he acted "unreasonably" or that he had a "superior position" unless there was some finding as to where his vehicle was, firstly, when he saw the vehicle being driven by Ms Robertson, and, secondly, when he realised it was making or preparing to make a U-turn. On this issue his Honour could not have made any finding, let alone an adverse one to Mr Vasailes, because there was no evidence, which I have been able to find or to which the Court was referred, on this point. Mr Vasailes was not cross-examined to establish those points. The findings that Mr Vasailes acted "unreasonably" in failing to take advantage of the "superior position' which he WAR INSURANCE MINISTERIAL CORPORATION v ROBERTSON; VASAILES 1¥ ROBERTSON; VASAILES v TANG (Rolfe AJA) enjoyed are, in my respectful opinion nothing more than conclusions and assertions. They are unsupported by any reasoning process, which his Honour has disclosed in his judgment, and, essentially, they are unsupported by the evidence. Secondly, there was no finding as to whether his Honour accepted or rejected the explanation Mr Vasailes gave in his oral evidence that he was reconstructing how the accident occurred when he described to the police at the scene of the accident what happened. One must bear in mind the weight the Court will normally give to a contemporaneous statement made at a time when there would be little, if any, time to work out an untrue version. In my opinion if his Honour had found that Mr Vasailes had reconstructed his version of the accident based on what he thought must have happened because of the way the accident happened I do not consider there was any evidence of negligence on his part. In the absence of such an express finding I think the better approach is to conclude that his Honour did not accept that evidence, but, rather that he found that Mr Vasailes failed to keep a proper lookout and his vehicle under proper control in all the circumstances. Mr McAlary and Mr Sutherland submitted it was obvious that Ms Robertson's negligence was the sole cause of the accident. There is no doubt it was, at the least, a cause of the accident and my view is that it was a substantial cause of it. They also submitted that there was no evidence that Mr Vasailes was negligent. I do not agree that there was no evidence of that. On one view there was some evidence, although, in my judgment, it was slight. Mr Graves, whose submissions on this point Miss Norton adopted, submitted that when one reviewed the whole of the evidence given by Mr Vasailes it established clearly that there was negligence on his part and that was the evidence to which his Honour gave effect in making the finding. It was further submitted that a finding of negligence against Mr Vasailes having been made this Court must be very slow to interfere with the apportionment of liability, with which I agree. From this point Mr Graves mounted a submission that before this Court could interfere with his Honour's judgment those attacking it must show error. I also agree with this submission. I think Mr Graves submitted expressly, and if he did not he certainly did impliedly, that mere dissatisfaction with the exposure of his Honour's reasoning process in the judgment was not a basis for setting aside the orders made, if there was evidence to support the findings. I think this is, generally speaking, correct. I take the view that the Court should be slow to find error in the fact finding exercise committed to a trial Judge, with all the acknowledged advantages he or she has in coming to such decisions. However, that approach must be tempered by a requirement that the trial Judge properly performs his or her function by giving a judgment which, in all the circumstances, is sufficient to disclose how he or she arrived at a conclusion. What will be sufficient will vary from case to case, but it is an incidence of the judicial office that reasons are given explaining the basis for the decision, including resolving conflicting evidentiary matters necessary for it. His Honour, in this case, has failed, in my respectful opinion, to fulfil these obligations. I think it also necessary to bear in mind that while there is no appeal against his Honour's judgment on the ground of inadequate or insufficient reasons, the parties were afforded every opportunity to argue the matter on this basis and, as I have said, did so. 12 UNREPORTED JUDGMENTS Essentially I consider his Honour fell into error by failing to identify the acts and omissions of Mr Vasailes, which constituted his conduct "unreasonable" such that he was in a "superior position" of which he failed to take advantage. The error is that his Honour failed to identify the reasons why he concluded Mr Vasailes was guilty of negligence. However I think that there was evidence which would have supported a finding that Mr Vasailes failed to keep a proper look-out and failed to keep his vehicle under appropriate control in all the circumstances and, in my opinion, his Honour must have so concluded. This, in my opinion, would make his driving "unreasonable", although it would not make it "unreasonable" because he failed to take advantage of a "superior position". In my opinion the finding that Mr Vasailes enjoyed such a position was not open on the evidence. Notwithstanding his Honour's failure to make express findings as to the acts and omissions of Mr Vasailes, I consider there was evidence that he was guilty of the negligence to which I have referred. That finding did not justify, in my opinion, the nature and quality of the negligence his Honour attributed to Mr Vasailes, and the evidence did not support the finding of negligence of which his Honour considered Mr Vasailes was guilty. Therefore his Honour fell into error and this error necessarily reflected itself in the way in which he apportioned liability and, therefore, constituted further error in that regard. WHAT FLOWS FROM THIS? It is accepted Ms Robertson was guilty of negligence. For the reasons I have given it was open to his Honour to find that Mr Vasailes was also guilty of negligence of the type to which I have referred, notwithstanding that he appreciated, as is evidenced by his decelerating, some danger. If this analysis is correct Ms Robertson was performing an essentially dangerous manoeuvre but Mr Vasailes, by failing to keep a proper look out and to react more appropriately to what he realised was a potential danger, was negligent. I do not think, in the circumstances, this can be held to have been momentary inadvertence on Mr Vasailes' part. His Honour was of the view that each contributed equally to the accident. Courts have warned frequently against an appellate Court interfering with apportionments of contribution: Pennington v Norris (1956) 96 CLR 10. None-the-less that decision is authority for the proposition that an appellate Court may interfere where it appears that in determining what apportionment is just and equitable the trial Judge has overlooked, or must be assumed to have overlooked, certain elements. At 16 their Honours said: "Here, in our opinion, the negligence of the defendant was in a high degree more culpable, more gross, than that of the plaintiff. The plaintiffs conduct was ex hypothesi careless and unreasonable but, after all, it is the sort of thing that is very commonly done: he simply did not look when a reasonably careful man would have looked. We think too that in this case the very fact that his conduct did not endanger the defendant or anybody else is a material consideration. The defendant's position was entirely different." In so far as other factual situations can be looked at, the facts in Pennington gave rise to similar considerations as in this case. Mr Vasailes was driving in a northerly direction on his correct side of the road at a speed which, save for the actions of Ms Robertson, was unexceptional. Ms Robertson was the author of the accident. At most it can be said that Mr Vasailes' observations and reaction to the situation she created bespoke some negligence on his part. But once it is established, as it was in this case, that Ms Robertson brought about the WAR INSURANCE MINISTERIAL CORPORATION v ROBERTSON; VASAILES 13 ROBERTSON; VASAILES v TANG (Rolfe AJA) circumstances which led to the accident, the actions of the other party, albeit indicating a degree of negligence, cannot be said to have contributed equally to the accident. In so far as his Honour so concluded he fell, in my opinion, into appealable error. Although the failure of his Honour to give adequate reasons makes a determination of the appeal difficult, the issues on liability were fought out fully before him, such that, in my judgment, it is possible for this Court to make an assessment of the degree of culpability to decide a just and equitable apportionment. Indeed the Court was specifically asked to do so on the basis of the material available by those acting for and in the interests of Ms Robertson, and notwithstanding an initial disinclination to engage in that task, which was based expressly on the failure by his Honour to give adequate reasons. In my opinion the evidence discloses that Ms Robertson was eighty per cent to blame and Mr Vasailes was twenty per cent to blame and this apportionment should be applied in lieu of his Honour's apportionment of equal blame. DAMAGES His Honour's findings as to damages cannot, in my opinion, be approached in the same way. Once again his Honour dealt very shortly with the issues. He made no essential findings on credit. He gave no reasons for the conclusions he stated, which would enable the Court to determine whether he was right or wrong. In particular his Honour dealt with Mr Vasailes' claim for future economic loss in a manner I consider to be to inadequate. In providing a figure of $100 per week as a "cushion" against such loss his Honour failed to give effect to evidence which, arguably, would have led to a far higher award. In considering this question his Honour referred to "a difficult social and industrial history" without identifying it further or explaining how, if at all, and, if so, to what extent, it impacted on the award of damages. There are other aspects of the calculations which are puzzling and not explained in the judgment. At the conclusion of submissions on liability Kirby ACJ stated that the Court would treat that issue separately and, in the event of the Court deciding that his Honour's conclusions on that must be set aside, the remaining issues, eg damages, would be sent back for a new trial. His Honour said that if the view was taken "that the judgment is sustained on some basis or that this Court can substitute some other judgment of its own then we will bring the parties back to conclude the submissions on the issue of damages...": Tpp 44-45. Effectively this Court has substituted its own judgment. However, after further considering whether this Court should entertain embarking on an assessment of damages I have come to the conclusion that it should not. As I have said his Honour's reasons are so inadequate that such an exercise, in the performance of the normal appellate process, would not be possible, and, in my opinion, it would be inappropriate for this Court to seek itself to evaluate the evidence to assess damages. It is convenient to return to the issues raised by the Notices of Appeal. NSW Insurance Ministerial Corporation has appealed against the judgment in favour of Ms Robertson, the percentage of her contributory negligence and the amount of damages awarded to her. Mr Vasailes has appealed against the percentage of his contributory negligence qua Ms Robertson and the amount of damages awarded to him. Mr Vasailes has appealed against the amount of damages awarded to him in his action against Mr Tang. THE DUTY TO GIVE REASONS 14 UNREPORTED JUDGMENTS The duty of a trial Judge to give reasons which, are adequate to expose the conclusion reached in a given case, will depend on the circumstances of each case. But the existence of the duty is undoubted: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156 and Huntsman Chemical Co Australia Ltd and Anor v International Pools Australia Pty Ltd and Ors (Court of Appeal - 16 March 1995 - as yet unreported). In the present case his Honour failed in this respect, especially on the issue of damages. PROPOSED ORDERS The orders I propose are: 1. The appeal by NSW Insurance Ministerial Corporation against the judgment in favour of Ms Robertson, whereby it was found Mr Vasailes was guilty of negligence be dismissed. 2. The appeal by NSW Insurance Ministerial Corporation against the judgment that Mr Vasailes was guilty of contributory negligence to the extent of fifty per cent be allowed. 3. The appeal by Mr Vasailes against the judgment that he was guilty of contributory negligence to the extent of fifty per cent be allowed. 4. The apportionment of contributory negligence as between Ms Robertson and Mr Vasailes be set aside. 5. In lieu thereof there be substituted an apportionment that Ms Robertson was eighty per cent to blame for the accident and Mr Vasailes was twenty per cent to blame for the accident. 6. The appeals as to damages by NSW Insurance Ministerial Corporation and Mr Vasailes, including Mr Vasailes' appeal against Mr Tang, be allowed. 7. The awards of damages be set aside. 8. The issue as to the damages payable by (i) NSW Insurance Ministerial Corporation to Ms Robertson; and (ii) Ms Robertson to Mr Vasailes; and (iii) Mr Tang to Mr Vasailes be remitted to the Common Law Division for a new trial. 9. Upon the determination of such damages: (i) the amount payable by NSW Insurance Ministerial Corporation to Ms Robertson be reduced by eighty per cent to reflect O.5 hereof; and (ii) the amount payable by Mr Robertson to Mr Vasailes be reduced by twenty per cent to reflect O.5 hereof. 10. Ms Robertson pay the costs of NSW Insurance Ministerial Corporation and Mr Vasailes of the appeals and have a certificate under the Suitors Fund Act if otherwise entitled thereto. 11. Mr Tang pay the costs of Mr Vasailes of the appeal and have a certificate under the Suitors Fund Act if otherwise entitled thereto. 12. The costs of the new trial as to damages be determined by the trial Judge. 1. The appeal by NSW Insurance Ministerial Corporation against the judgment in favour of Ms Robertson, whereby it was found Mr Vasailes was guilty of negligence be dismissed. 2. The appeal by NSW Insurance Ministerial Corporation against the judgment that Mr Vasailes was guilty of contributory negligence to the extent of fifty per cent be allowed. WAR INSURANCE MINISTERIAL CORPORATION v ROBERTSON; VASAILES 15 ROBERTSON; VASAILES v TANG (Rolfe AJA) en 10. 11. 12. The appeal by Mr Vasailes against the judgment that he was guilty of contributory negligence to the extent of fifty per cent be allowed. The apportionment of contributory negligence as between Ms Robertson and Mr Vasailes be set aside. In lieu thereof there be substituted an apportionment that Ms Robertson was eight per cent to blame for the accident and Mr Vasailes was twenty per cent to blame for the accident. The appeals as to damages by NSW Insurance Ministerial Corporation and Mr Vasailes, including Mr Vasailes' appeal against Mr Tang, be allowed. The awards of damages be set aside. The issue as to the damages payable by (i) NSW Insurance Ministerial Corporation to Mrs Robertson; and (ii) Ms Robertson to Mr Vasailes; and (iii) Mr Tang to Mr Vasailes Upon the determination of such damages: (i) the amount payable by NSW Insurance Ministerial Corporation to Ms Robertson be reduced by eighty per cent to reflect O.5 hereof; and (ii) the amount payable by Mr Robertson to Mr Vasailes be reduced by twenty per cent to reflect O.5 hereof. Ms Robertson pay the costs of NSW Insurance Ministerial Corporation and Mr Vasailes of the appeals and have a certificate under the Suitors Fund Act if otherwise entitled thereto. Mr Tang pay the costs of Mr Vasailes of the appeal and have a certificate under the Suitors Fund Act if otherwise entitled thereto. The costs of the new trial as to damages be determined by the trial Judge. COUNSEL: Appellant (NSWIMC): RF Sutherland Appellant (Vasailes): F McAlary QC Respondent (Robertson CA 40748/94): S Norton Respondent (Robertson CA 40783/94): J Graves Respondent (Tang): AP Quinlivan SOLICITORS: Appellant (NSWIMC): GM Meadows Appellant (Vasailes): GH Healey and Co Respondent (Robertson CA 40748/94): Heenan and Co Respondent (Robertson CA 40783/94): Adelsteins Respondent (Tang): Creagh and Creagh