URBAN TRANSIT AUTHORITY OF NEW SOUTH WALES v RUZ-CANALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER, POWELL and COLE JJA 8 February 1995, 10 February 1995 [1995] NSWCA 479 MOTOR VEHICLE — duty of care — contributory negligence — damages The respondent was involved in a collision between him and a motor vehicle on 1 May 1986 after alighting from a bus owned by the appellant. Proceedings were bought by him to recover damages for injuries suffered as a result of the accident. The appellant challenged dlree aspects of the trial judge's findings; his decision that a duty of care was owned and had been breached, the apporhonment for contributory negligence and the quantum awarded for general damages and past and future economic loss. On appeal the Court found that a duty of care was owed by the driver of the bus to the respondent and that there had been a breach of that duty. It refused leave to the appellant to argue that as the driver's breach of Reg34(1)(b) of the Passenger Transport Regulations was pursuant to the request of the respondent there was a "joint breach" and the appellant had not breached any duty of care. The appellant further argued that as the driver acted upon the request of the respondent there was no breach of duty. This argument was rejected in accordance with the decision of the trial judge. In relation to the issue of apportionment for contributory negligence, the Court found that the trial judge's apportionment of one third of responsibility against the respondent was a proper exercise of his discretion. In respect of the challenge to the amount of damages awarded tot he respondent, the Court found that the amount awarded by the trial judge for general damages was within the range of a proper exercise of discretion and should not be set aside. The Court considered that the discount of 7.5 percent for adverse contingencies on the amount awarded fro past economic loss was appropriate and found no basis to interfere with the amount awarded. The challenge to the award for future economic loss was rejected. The Court found that the deduction of 15 percent for contingencies and the use of a 3 percent discount rate were appropriate. Sheller, Powell and Cole JJA Urban Transit Authority of New South Wales appeals from judgments of Finlay J given as to liability on 2 June 1993 and as to damages on 3 June 1993 in proceedings brought by the respondent, Fernando Firman Ruz-Canales, to recover damages for injuries suffered by him as the result of a collision between him and a motor vehicle in Goulburn Street, Sydney at about 6 am on | May 1986. His Honour gave judgment for the respondent against the appellant in the sum of $161,552 comprising: 1. Out-of-Pocket Expenses 12,490 2. Past Wage Loss 64,542 3. Interest on Relevant Past Wage Loss 29,697 4. Future Economic Loss 70,000 5. General Damages 60,000 6. Interest on Past General Damages 5,600 2 UNREPORTED JUDGMENTS Total $242,349 Less: One-third Contributory $161,592 Negligence The appellant appeals against the finding of liability both as to the existence of any duty and a breach of it, the apportionment for contributory negligence and the quantum awarded for general damages and past and future economic loss, on the ground the awards were excessive. It asks for judgment in the proceedings or alternatively a re-assessment of damages. At the time of the accident it was still fairly dark. The respondent alighted from the front door of a bus owned by the appellant which was then stationary in the third lane of traffic in Goulburn Street, Sydney, facing west at traffic lights controlling the intersection of that street and Elizabeth Street. The bus was only about a quarter full. After the respondent alighted from the bus he took one or two steps and was then struck by a vehicle, LSH 458, driven by Mr Graham Lucre which was passing the bus and travelling west in the second lane, that is to say on the left of the bus. Mr Lucre claimed that he had no chance to stop and the trial judge accepted his account of the accident. Before alighting from the bus the respondent had a conversation in broken English with the driver of the bus, Mr Recep, in which he indicated that he wanted the door open and wanted to leave the bus. It was only after that that the driver acceded to his request and opened the door. His Honour said that the driver may well have told the respondent to be careful. It was unlikely that the respondent understood this. Certainly he made no meaningful acknowledgment of it. A passenger in the bus, Mr Kaffa, gave evidence of a detailed conversation but his Honour did not accept that the conversation took that detailed form. The respondent sued the appellant and the Government Insurance Office of New South Wales which was the authorised third party insurer of the vehicle driven by Mr Lucre. On the respondent's claim against the Government Insurance Office Finlay J found a verdict for the Government Insurance Office which is not challenged in this appeal. In fact the Government Insurance Office was joined as the second respondent although no relief on the appeal was sought against it. The Government Insurance Office having been joined, counsel attended and asked that the appeal be dismissed and for costs and sought to be and was excused from further attendance. In his statement of claim the respondent particularised the negligence of the appellant by its driver, Mr Recep, as follows: a. failed to drive the omnibus to the kerb of Goulburn Street but allowed instead the Plaintiff to alight from the omnibus whilst it was standing in the third lane away from the said kerb; b. failed to keep a proper lookout for any oncoming vehicles along the nearside of the omnibus before allowing the Plaintiff to alight; c. failed to heed the presence of the Gemini motor vehicle, registration No LSH 458; d. in the circumstances, exposed the Plaintiff to a risk of injury, loss and damage which could have been avoided by the exercise of reasonable skill and care." The appellant alleged contributory negligence on the part of respondent in failing to keep a proper lookout, failing to stop and allow the driver's vehicle to pass and moving into the path of an oncoming vehicle. Cross claims were filed with which we are not concerned. WARBAN TRANSIT AUTHORITY OF NEW SOUTH WALES v RUZ-CANALES (Shelle& Powell and Cole JJA) The respondent was born in Chile on 6 September 1943. He was forty-two years of age at the time of the accident and was a single man living with his brother, whom he had joined on migrating from Chile the previous year. He had only commenced work in Australia some three weeks before the accident on 8 April 1986 when he obtained employment as a press operator with United Rubber, a firm having its business at that time in Annandale. The respondent could not read or write English and spoke it very little. His employment application form noted nothing unfavourable about his health but indicated that he was unable to communicate in English. The respondent left school at the age of seventeen. After completing a three year apprentice course as a mechanic in copper mines, he worked at Utah Mining and then again in copper mines before migrating to Australia. His first and only job since arrival in Australia was as a press operator with United Rubber. This job required him to spend the day standing at a machine operating a pedal with his foot whilst working quickly placing pieces of metal in and out of a machine. The manufacturing manager of his employer confirmed that the operator performing that work "would not be able to sit while carrying out this activity." As the result of the accident the respondent suffered a comminuted pertrochanteric fracture of the neck of his left femur. The initial findings in casualty were that the respondent's left lower limb was externally rotated, shortened and abducted movements caused pain in the left hip region. There was also evidence of abrasion over the left knee with swelling on the medial side of that joint. An x-ray revealed the comminuted fracture. X-ray of the left knee showed no bone or joint abnormality. Initial treatment was with a seven pound Hamilton-Russell traction. The respondent developed central and right chest pain with the result that surgery was delayed for a week until the chest pain seffled down. On 7 May 1986 he was taken to theatre. Surgery was performed involving open reduction and internal fixation of the fractured neck of the left femur. Following his discharge he complained of pain, primarily in his left knee. On 19 May 1986 he was transferred to Royal South Sydney Hospital Rehabilitation Department. At that stage he was non-weight bearing using a walking frame. The fractured neck of the left femur gradually healed. The respondent had left knee pain with some tenderness, although further x-rays failed to demonstrate joint or bone abnormality. As at November 1986 he was still complaining of pain primarily in the left knee and was described as having difficulty on mobilising after sitting or kneeling an difficulty on stairs having to use the hand-rail for support. The operating surgeon said that he felt the clinical picture at that time was of "patella-femural pain syndrome". He performed an arthroscopy but that revealed no abnormality. When reviewed by the surgeon in November 1988 he was still complaining of some persistent ache in the left knee. The surgeon described him as tending to walk with a slight limp and with external rotation of the lower limb. There was 4 cm of quadraceps wasting in the left knee with minor retro-patella tenderness and yet full range of stable knee movement with no patella apprehension although there was crepetis on patella-femural joint movements. There was virtually full range of left hip movement with no fixed flexion deformity and only slight limitation of extremes of rotation. November 1987 x-rays showed the fracture to be healed and the plate in an excellent position. In his report of 20 November 1987 the treating surgeon said that the fracture had left the respondent with little in the way of permanent disability. 4 UNREPORTED JUDGMENTS Finlay J found that whilst there was some residual disability, it was not gross, and was encompassed within the description of a minor restriction with his hip, and some subjective leg pain. The learned trial judge stated his conclusion on negligence in the following terms: "The driver had control of the situation. He allowed the plaintiff to alight by opening the doors when it was dangerous to do so. He quite failed to see the approaching car. It was, as I have said, a straight open roadway behind him. The plaintiff has clearly established negligence on the part of ie bus driver entitling hirn to a verdict." He said that the bus driver in opening the door for the respondent to exit, when there was a car closely approaching, was in clear breach of his duty to take reasonable care for the safety of the plaintiff. However, while his Honour accepted that the respondent wrongly believed the bus was standing at the kerb, he was satisfied that the respondent was guilty of contributory negligence in not looking and observing that the bus was in fact standing three lanes out from the kerb and that Mr Lucre's vehicle was closely approaching. Accordingly he found contributory negligence established. On the question of apportioning responsibility his Honour referred to the well known passage in the High Court's judgment in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494. He undertook the comparison required by that passage both of culpability and the relevant importance of the acts of the parties in causing damage. He concluded that the greater proportion of the culpability was on the part of the bus driver and apportioned the responsibility for the damage at one third against the respondent and two thirds against the appellant. In his second judgment on damages his Honour said that he was satisfied that since the accident the respondent had not been fit to resume the work carried out by a press operator at United Rubber. That work was described in evidence in the following terms: "A press operator spends the entire shift loading/unloading moulds and pushing/pulling moulds into - from the press slots. A press operator is required to stand all the time and although he can conceivably sit whilst working it would be totally impractical and would reduce his efficiency by an extremely significant amount." His Honour carefully reviewed the medical evidence which for the most part, but not exclusively, consisted of reports prepared by doctors. He said, however, that he accepted the opinion of Dr Rowe, the only orthopaedic surgeon to examine the respondent in the eighteen months prior to the trial. Dr Rowe, who first saw the respondent in May 1992, made his first report on 24 June 1992. In that report he said: "Mr Ruz-Canales may have suffered the fracture of the neck of the left femur as claimed and this has been appropriately treated. He has some residual organic pathology by way of shortening, wasting and weakness of the left thigh and some aches. Superimposed upon this there seems to be an element of exaggeration. There is no evidence of pathology in the knee. There should be no late sequelae from this injury and specifically there should be no arthritis in the hip as the fracture did not involve the joint surface of the hip. It is possible that he may choose to have the metal removed but there is no firm indication for this and as it has not been removed in the last six years it is unlikely that he will have it done at all. Mr Ruz-Canales is fit for selected work but may not be able to cope with WARBAN TRANSIT AUTHORITY OF NEW SOUTH WALES v RUZ-CANALES (Shelle§ Powell and Cole JJA) work requiring heavy lifting, squatting, stairs or ladders. Outside these restrictions he should be able to do virtually anything." Subsequently material about the nature of the respondent's work as a press operator at United RuWer and videos taken on separate occasions of the respondent in April 1992 and April 1993 were provided to Dr Rowe. On 14 July 1992 having seen this material Dr Rowe observed: It is considered that Mr Ruz-Canales should be able to cope with this work without restriction. He should be given a trial of the work but of course he would be slow to start with as he has not done it for some time and also he would need to slowly build up his strength to former levels. Ideally he should be able to start on part time work and gradually and progressively build up to full time work in this capacity. Dr Rowe saw the respondent again and on 23 March 1993 made a third report in which he said "My assessment of Mr Ruz-Canales remains as in my previous report. He presents again with a mixture of genuine pathology plus some exaggeration which is considered to be related to cultural factors and lack of education rather than a deliberate attempt to deceive. His fitness for work is as previously discussed. No active treatment is required." The above passages from the reports were set out in his Honour's judgment together with Dr Rowe's conclusion that if the respondent could obtain some part tirne work, to help condition and strengthen him, then he would be able to perform the work that he had formerly done. His Honour said the problem was how could this be achieved by a person such as the respondent. The out-of-pocket expenses, the past wage loss for the period from 1 May 1986 to 26 September 1986 and the net comparable for the period from 27 September 1986 to 31 May 1993 were agreed. Dealing with the period up to trial his Honour said that whilst the respondent had had a capacity for light work ands if given the opportunity to lead into it, for work as a machinist, the fact was he had not obtained any such work. The place where he would have been most likely to have had an opportunity to recommence it, namely his former employer, had not provided it to him. The Commonwealth Employment Service had been unable to find him such employment. The respondent was a migrant with all the problems involved for such a person. In the circumstances his Honour did not consider it appropriate to reduce past wage loss on the basis of unexercised capacity to earn. He made a discount of 7.5 per cent for adverse past contingencies. He took into account that the employer had moved the venue of their operations from Annandale to St Marys and that the respondent had only a short three week working history. Turning to future economic loss his Honour said that there was a further 15.25 years until the respondent's sixty-fifth birthday. He applied a discount rate of 3 per cent for that period, used current net weekly earnings of a comparable worker and deducted 15 per cent for adverse contingencies. Accepting Dr Rowe's opinion that it was likely that the respondent would have difficulty in getting back into the work force he assessed his residual earning capacity for the future at two thirds. In doing so he said that it was likely that the respondent's return to the work force would be on a part time or casual basis but that he would progressively be able to do full time work in his former capacity. Finally his Honour assessed general damages at $60,000. Before coming to the submissions made on behalf of the appellant we refer to some other of the findings made by the trial judge. The respondent was in good physical condition prior to the accident. He had had no injury or problems with 6 UNREPORTED JUDGMENTS his left leg. Finlay J described him as a simple man. He was of a short build but wide, quite strongly built, but, at the time of the trial, overweight and with a stomach no doubt due to lack of exercise. He presented as a pleasant person, not unnaturally concerned that the doctors who examined him and the Court which saw him should appreciate the gravity of his position as he saw it. The pain in his leg he described as being very strong with changes of weather. It was painful when he walked. His early problems in this regard appeared to be mainly related to the left knee. One of the orthopaedic surgeons iought this to be referred pain. In 1986 he received physiotherapy which continued until December. Speaking from 1988 onwards he said that there was pain from the left hip to the left foot and that every second month or so he would stay in bed because of the pain. He denied iat he had ie capacity to walk. He said that he was taking a great deal of pain relieving medication prescribed by Dr Ipp, his general practitioner. The video tapes of the respondent's activities were put in evidence. Finlay J described them in his judgment. They showed the respondent sweeping the footpath outside his premises without any sign of restriction of movement and to be walking quite freely. His Honour accepted the evidence of Dr Rowe that there was exaggeration by the respondent of his symptoms but that that was related to cultural factors and lack of education rather than a deliberate attempt to deceive. The respondent did not drink alcohol and at the time of the trial did not smoke. The respondent gave evidence through a Spanish interpreter. At the time of the accident he had little fluency in English. In a report from the Rehabilitation Centre at South Sydney of the position as at 26 November 1986, the rehabilitation specialist said an English course might give him better employment prospects. Subsequently he did a five month course in English which he said improved his English but mainly in writing. The respondent said he could no longer enjoy the social activities he used to take part in such as social soccer, dancing and bike riding. In 1987 the Commonwealth Employment Service was unable to find him a job. He returned, he thought, in 1988 to United Rubber but they were unable to offer anything to him. He said that the different jobs that he sought to find were such as mechanical assistant or cleaning jobs, indeed any job he could do without damaging his leg any more. He had not worked since the accident. His employment with United Rubber was terminated on 1 November 1986 and he had been receiving unemployment benefits since January 1987. Before the trial he had been required to attend the Commonwealth Employment Service office every fifteen days and to supply details of jobs for which he had applied. He was required to apply for two jobs per week. He said that he had complied with this requirement and continued to receive unemployment benefits. Neither he nor the Commonwealth Employment Service had been able to find him any employment. Of his work at United Rubber he said that he was going to stay with that employment "for some time and then I was iinking about going back to my old job" referring to working in a copper mine of which he had prior experience. His Honour did not regard the differential between the award rate for such work and what the respondent would have received if still employed as a press operator significant enough to take into account in his assessment of damages. The appellant first challenged the finding of liability. As part of this challenge the appellant sought to assert that the driver of the bus had breached Reg34(1)(b) of the Passenger Transport Regulations 1990 and that since this was done at the request of the respondent there was a "joint breach" which meant the appellant was not in breach of any duty of care. This argument has obvious problems not WARBAN TRANSIT AUTHORITY OF NEW SOUTH WALES v RUZ-CANALES (Shellez, Powell and Cole JJA) least what was said by four members of the High Court in Gala v Preston (1991) 172 CLR 243 at 253. These difficulties were enhanced when it was pointed out that the regulation relied upon was not in force at the time of the accident though, no doubt, there were in force regulations to like effect. However the point was not taken at trial. Nothing said on behalf of the appellant persuades us that had the issue been raised below evidence could not have been given which might have prevented the point from succeeding; Coulton v Holcombe (1986) 162 CLR | at 7. Accordingly we refused leave to the appellant to rely upon this point. Even so the appellant urged that once the respondent had requested the driver of the bus to open the door, if the driver acted upon that request, there was no breach of duty in respect of the consequences to the respondent. The argument can be disposed of in the language of the trial judge with which we agree. The driver had control of the situation. He allowed the respondent to alight by opening the doors when it was dangerous to do so. In our opinion quite clearly the driver owed a duty of care to his passenger. To open the doors in the circumstances described was clearly a breach of that duty. The appellant submitted that the respondent had a greater opportunity to observe any traffic coming from the direction that Mr Lucre's vehicle came. There is nothing in the evidence to support this proposition. No doubt the appellant's vehicle was equipped with rear-vision mirrors. What the driver could see, had he looked, was not explained in the evidence. However in the report of accident form of the appellant in the course of describing the accident, ie bus driver acknowledged that he should not have opened the door. The appellant submitted that the trial judge's apportionment of only one third of responsibility against the plaintiff was manifestly inadequate. A finding on a question of apportionment is a finding upon a question not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion as to which there may well be differences of opinion by different minds. Such a finding, if made by a judge, is not lightly reviewed; Podrebersek v Australian Iron and Steel at 493-494 quoting British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. The appellant points to the facts that the respondent attempted to leave the bus between stops, failed to heed the driver's warning, failed, if he did not understand the warning, to indicate to the driver that he did not understand what the driver had said, and failed to observe that the bus was three lanes out from the kerb and that Mr Lucre's vehicle was closely approaching. Again the appellant submitted that the respondent was in a far better position than the driver to see the vehicle. While we acknowledge that had we been hearing the matter at trial we may have apportioned responsibility differently, we do not think that his Honour's conclusion that the greater proportion of culpability was on the part of the bus driver demonstrated any error on his part or the proportion fixed strayed outside the appropriate range available on a proper exercise of his discretion. In our opinion this ground of appeal fails. The appellant argued that the amount of damages was beyond the range of a proper exercise of discretion and should be set aside. The appellant submitted that the upper limit of the range was $50,000. It was accepted that in a careful judgment his Honour took account of all matters relevant to this assessment. Again it may be that if this Court had the task of assessing general damages it might have come to a lower figure. The assessment was made by a common law judge of great experience taking account of the matters set out in his judgment 8 UNREPORTED JUDGMENTS many of which we have summarised. We are not satisfied that the amount awarded for general damages is such as to demonstrate error. In our opinion this ground of opinion fails. The appellant challenged the amount awarded for past economic loss on the ground that the discount of 7.5 per cent for adverse contingencies was too little. It was suggested that the evidence did not entitle the trial judge to assume that the respondent, had he remained uninjured, would have continued to work for the same employer or altematively, have continued to eam wages at the rate eamed by a comparable employee. Reference was made to the asserted desire of the respondent to get back into mining. His Honour proceeded on the basis that, having obtained a good job some months after his arrival in Australia, the respondent would have stuck with it. His Honour took into account that the employer moved its venue of operations from Annandale to St Marys but there was nothing to suggest that this move would have affected the respondent's employment. The appellant submitted that his Honour should have reduced the past wage loss on the basis of unexercised capacity to eam. But the evidence is overwhelming that the respondent made all reasonable efforts to obtain employment. In this endeavour he had consistently failed. It is quite true that Dr Rowe expected him to be able to retum to full time work in his capacity as a press operator. But this would involve a slow start so that the respondent could build up his strength to former levels. It was thought that he should be able to start on part time work and gradually and progressively build up to full time work in this capacity. His Honour identified the problem of deterlnining who was to give the respondent a work trial. There was nothing to suggest that prior to the hearing there was any such opportunity which had not been availed of. It was suggested that the respondent had not taken sufficient steps to rehabilitate himself to return to the work force and in particular to improve his English. This contention is contrary to the evidence. The respondent had undertaken a course to improved his English. In our opinion no basis is shown for interfering with the award made by his Honour in respect of past economic loss. We take the same view about the challenge made to his Honour's assessment in respect of future economic loss. There is no reason to suppose on the evidence that, uninjured, the respondent would not have remained working as a press operator with his employer at least until such time as he found other equally or more rewarding work. The deduction of 15 per cent for contingencies is generally regarded as being appropriate no less in this case than others. In light of Dr Rowe's evidence we do not think that his Honour's conclusion about residual earning capacity demonstrates any error. The appellant submitted that Finlay J erred in law in using a 3 per cent rather than 5 per cent discount rate. Reliance was placed upon Pt3A of the Motor Vehicles (Third Party Insurance) Act 1942 as in force at the relevant times. However this Part applies to and in respect of an award of damages payable out of the Transport Accidents Compensation Fund and does not cover the damages payable by the appellant; s35A(b). In the absence of a statutory provision fixing the discount rate at 5 per cent the appropriate rate is 3 per cent; Todorovic v Waller (1981) 150 CLR 402. It should be added that this point was not as it could have been, raised with the trial judge at the time he delivered judgment. It may be that in truth the Urban Transit Authority was not the appropriate defendant to the plaintiff's action and that if the appropriate defendant had been joined the statutory provisions relied upon would have applied. However none of these WARBAN TRANSIT AUTHORITY OF NEW SOUTH WALES v RUZ-CANALES (Shelle@ Powell and Cole JJA) points was taken at trial and it is too late to raise them now. In our opinion, the challenge to the assessment of damages for future economic loss fails. In the result the appellant's appeal against Mr Ruz-Canales is dismissed with costs. Its appeal against the Government Insurance Office must also be dismissed. The Government Insurance Office asked for an order for costs. It must be remarked that a communication between that respondent and the appellant prior to any steps involving cost being taken by the Government Insurance Office would probably have made plain that it was unnecessary for the Government Insurance Office to incur them. It is not satisfactory, in the absence of any communication and in the circumstances of this case when no relief is claimed on the appeal against the Government Insurance Office, that costs should be wasted by the attendance of legal representatives at the hearing of the appeal. However, the Government Insurance Office was joined as a respondent and no steps were taken by the appellant to indicate that there was no reason for its attendance at the hearing of the appeal. Accordingly we think it follows that the appeal against the Government Insurance Office should be dismissed with costs. The orders of the Court are that the appeals against both respondents are dismissed with costs. Appeals dismissed with costs. Counsel for the Appellant: GB Hall QC/PR Sternberg Instructed by: Gordon and Johnstone Counsel for Ist Respondent: BG McManamey Instructed by: Evan A Kontoulos and Assoc Counsel for 2nd Respondent: HJ Mater Instructed by: Government Insurance Office