SCHEMBRI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and POWELL JJA 19 April 1995, 19 April 1995 [1995] NSWCA 418 MOTOR VEHICLE ACCIDENT — CONTRIBUTORY NEGLIGENCE — motorist with right of way bound to act reasonably The plaintiff appealed from findings by a Master as to liability and damages awards resulting from three motor vehicle accidents. The appellant challenged the Master's apportionment of his responsibility for the second accident at 30% when the defendant was found to have gone through a red light. He argued that the apportionment was too high for someone travelling on a main thoroughfare with lights in his favour, that it was not unreasonable for him to have assumed that other vehicles would obey the traffic lights, and that he had not failed to take reasonable care for his own safety. He also challenged the Master's findings of fact, his reliance on the P4 accident report and his awards for past and future economic loss - Held: (1) The appellant on entering the intersection was bound to act reasonably and was not entitled to simply rely on other motorists obeying the traffic regulations. Sibley u Kais (1967) 118 CLR 124 applied. (2) The Master was correct in allowing the defendant to make use of the P4 accident report as the plaintiff had tendered it without limitation. Walker u Walker (1937) 57 CLR 630 applied. (3) The Master did not err in preferring the evidence of Constable Colman and in the P4 report, to that of the plaintiff. (4) Although high the Master's apportionment of 30 percent responsibility to the plaintiff could not be disturbed. (5) Given the Master's findings as to the plaintiff's poor reliability and credibility the Court was not entitled to set aside his findings as to the nature and extent of his back injury, or his findings about the plaintiffs fitness for work. Meagher JA I will ask Handley JA to give the first judgment. Handley JA This is an appeal by a plaintiff from a decision of Master Malpass who was called upon to decide questions of liability and damages arising from three motor vehicle accidents. The first occurred on 14 March 1982 and liability was not in issue; the second occurred on 9 September 1983 and liability was and remains in issue; the third occurred on 4 July 1984 and liability was not in issue on this appeal. The Master awarded the plaintiff a total of $126,000 damages for all three accidents. The appeal as to damages relates to the award in respect of the second accident which was by far the most severe. The Master formed a poor opinion of the plaintiffs reliability and credibility for reasons which he set out at some length and which in substance have not been challenged on the appeal. It is convenient to deal firstly with the appellant's challenge to the Master's finding that the plaintiff was responsible to the extent of 30 percent for the second accident. This occurred in daylight at the intersection of William and Riley Streets, East Sydney. The plaintiff was travelling west in William Street in the second of the four westbound lanes. The defendant was travelling south in Riley Street and was found by the Master to have entered the intersection with a red light against him. It appears he was travelling in the second lane from the eastern 2 UNREPORTED JUDGMENTS kerb. There was no dispute that the off-side front of the plaintiff's vehicle came into contact with the near-side rear of the defendant's vehicle in the accident. The relevant evidence was given by the plaintiff and Constable Colman and there was also the P4 accident report. Mr McGovern who appeared for the appellant but did not appear at the trial submitted that the Master's apportionment of 30 percent to the plaintiff who was travelling in a main thoroughfare with the lights in his favour was too high. However, the Master held that the plaintiff had a clear view to his right of traffic entering from Riley Street which might attempt to run the lights; that he failed to keep a proper lookout and this formed the basis of his apportionment. He also concluded that the defendant had not been travelling at a greatly excessive speed. The plaintiff gave evidence he had not seen the defendant until immediately before the impact when he saw a sudden flash of blue colour. The objective evidence including that of Constable Colman and the P4 report indicates as I have said, that the vehicles only just managed to make contact with each other, the defendant's vehicle having almost succeeded in passing in front of the plaintiff's having crossed the four eastbound lanes and two of the westbound before coming into contact with the plaintiffs vehicle. The challenge made by Mr McGovern to the Master's assessment was based on two points - the first was that it had not been unreasonable for the appellant to proceed through the intersection on the assumption that vehicles in Riley Street would obey the traffic lights and the relevant regulations and that the plaintiff had not failed to take reasonable care for his own safety. The Master referred to and relied on Sibley v Kais (1967) 118 CLR 124 as authority for the proposition that a motorist entering an intersection was not entitled to rely upon the performance by other motorists of their duties under the traffic regulations and that the common law duty to act reasonably in all the circumstances remained paramount. In that case the High Court refused to disturb an apportionment of 25 percent against a plaintiff who had entered an intersection with the right of way under the relevant regulations. I would therefore reject the appellant's first submission. Mr McGovern also challenged the use which the Master made of the P4 accident report in deciding in which lanes the vehicles were travelling and the probable point of impact. The report was tendered by counsel for the plaintiff. Counsel for the defendant successfully objected to the material in boxes 26, 27 and 28 and this was not admitted. The material admitted included the speeds of two vehicles, the lanes in which they were travelling and the probable point of impact. Mr McGovern submitted that this part of the P4 document was not available in support of the defendant's case of contributory negligence especially since the defendant himself was not called. However, in my opinion the document having been tendered without any limitation by counsel for the plaintiff became evidence in the case for all purposes in accordance with the principles established by Walker v Walker (1937) 57 CLR 630. The second challenge to the Master's finding of contributory negligence therefore also fails. This conclusion also disposes of the remaining challenge to the Master's fact finding on this issue. Mr McGovern submitted the Master erred in preferring the plan shown on P4 (Exhibit F) to that prepared by the plaintiff which became Exhibit A. The plaintiffs plan showed his own vehicle in lane 2 but showed the defendant's in lane 4 in Riley Street. Having regard to the availability of Constable Colman's direct evidence as to the lane in which the defendant was \EHEMBRI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Handle? JA) travelling and the statements in the P4 report, I am clearly of the view that the Master did not err in preferring this evidence to the plaintiff's and the plan he had prepared. This disposes of the various challenges to the Master's fact finding on the apportionment issue. Given the extent to which the defendant's vehicle was able to cross the intersection immediately in front of the plaintiff before the collision, the evidence as to traffic conditions, and the unobstructed view the plaintiff had of the intersection it seems to me that the apportionment of 30 percent responsibility to the plaintiff, although high, cannot be disturbed by this Court. I would therefore reject the appeal against the Master's apportionment. The remaining challenges relate to the Master's assessment of damages flowing from the second accident which as I have said was the most severe of the three. Mr McGovern submitted this court was in a position to review the Master's findings in relation to the state of the plaintiff's back and his capacity for work since no question of credibility was involved and this Court was in as good a position as the Master to form its own opinion on the documentary medical evidence. Iam unable to accept these submissions. This was a case where the evidence of frank injury was modest and there was clear evidence that the plaintiff was affected with mental problems. In such a case his reliability, accuracy and credibility as a historian were fundamental to the medical issues. Dr Harrison saw the plaintiff on 20 September 1983 shortly after the second accident and continued to see him from time to time until 24 January 1987 but at each stage he was largely dependant on the history and symptoms given to him by the plaintiff. He was told at the initial consultation about the first motor vehicle accident but not about a still earlier accident in 1980 which also involved an injury to his back and neck. When Dr Harrison saw the plaintiff on 4 May 1984 he received for the first time a history of back pain since 1980 aggravated by the second accident. Given the Master's finding as to the plaintiff's credit I have not been persuaded that this Court can properly set aside his findings as to the nature and extent of the back injury. In my view the advantages which Dr Harrison undoubtedly had as a treating doctor between 1983 and 1987 are not sufficient in this case to entitled this court to displace the credibility based findings of the Master. The remaining submission is the Master erred in finding that the plaintiff had recovered his capacity for work by a date in 1986. The principal matter relied on in support of the appellant's challenge to this finding was Dr Harrison's report of 24 January 1987. However, in that report Dr Harrison's conclusion was expressed thus: "This man's ability to use his undoubted skills as a valuer in the business world should remain an appropriate vocation when he feels he could cope once again with the realities of life and the regular hours necessary, combined with travel." He stated that the appellant's disability "from the pure orthopaedic viewpoint as expressed as persisting neck pain and restriction of movement, can be equated to a five per cent loss in the functionally efficient use of the whole of the person as a representation of that disability when he was last seen." The latter finding is dependent upon the reliability of the plaintiffs account of his persistent neck pain and the associated restrictions of movement. In the light of the Master's credibility based findings, the opinion of Dr Harrison based as it was upon the plaintiff's own account of his symptoms and movement restrictions cannot entitle this court to displace the Master's conclusions about the plaintiff's 4 UNREPORTED JUDGMENTS fitness for work. The first statement quoted from this report does not support a finding of lack of capacity. Dr Harrison appears to base his opinion on the subjective approach of the plaintiff to future employment and he expressed the view that work as a valuer would remain an appropriate vocation for the plaintiff when he "feels" he can cope with the work. This is not it seems to me an expression of opinion by the doctor as to the medical matters but merely a repetition of a view communicated to him by the plaintiff that he cannot cope with the work coupled with the doctor's own view that if the plaintiff had an appropriate positive attitude he would be able to return to work. In these circumstances I have reached the conclusion that the Master's finding on the plaintiff's capacity for work should not be disturbed. It follows that in my opinion the appeal should be dismissed with costs. Meagher JA. I agree. Powell JA I also agree. Meagher JA: The order of the Court therefore is the appeal be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: DB McGOVERN Solicitors for the appellant: MICHELL SILLAR Counsel for the respondent: RC TONNER Solicitors for the respondent: HENRY DAVIS YORK