SINAK v TESS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER and POWELL JJA 1 March 1995, 15 March 1995. [1995] NSWCA 431 Motor vehicle accident — plaintiff's contributory negligence 15 per cent — Damages — Effect of pre accident susceptibility to symptoms — Reasons What are required — Error in calculation APPEAL from District Court — Motor vehicle accident — Plaintiff's contributory negligence fifteen per cent. CONTRIBUTORY NEGLIGENCE — No error in finding of contributory negligence. DAMAGES — Finding that effects of injuries from accident ceased by 8 January 1990 — Effect of pre-accident susceptibility to symptoms without further trauma and/or as the result of the ordinary trauma arising from work or otherwise. REASONS — What are required — To be measured by, inter alia, the burden imposed on the justice system. ERROR IN CALCULATION — Correction — Effect on costs order. Mahoney JA On 10 March 1983 the plaintiff was injured in a motor vehicle accident. He sued the defendant, the driver of the other vehicle involved. On 21 November 1991 his Honour Judge Pain found that the damages ordinarily to be awarded to the plaintiff amounted to $180,341.96. He found that the plaintiff had been guilty of contributory negligence and for that reason reduced the damages by fifteen per cent. He gave judgment for the plaintiff for $153,290.71. The plaintiff has appealed to this Court against his Honour's judgment. The issues pressed on appeal related to contributory negligence and to the quantum of damages. 1. CONTRIBUTORY NEGLIGENCE: The accident occurred on Thursday, 10 March 1983 at about 4.45 pm. The plaintiff was driving south in Bunnerong Road, Matraville at about sixty kilometres per hour. He was approaching the intersection of Bunnerong Road with Fitzgerald Avenue. There were three traffic lanes proceeding south. The defendant had driven her car north in Bunnerong Road and had stopped at Fitzgerald Avenue preparatory to making a right-hand turn into that street. The defendant saw the plaintiffs vehicle approaching. His Honour accepted that the plaintiff's vehicle was "in the left-hand lane with its left-hand blinker on" and that the defendant "assumed it was intending to enter Fitzgerald Avenue by the left-hand feeder lane provided for south bound traffic". Upon that assumption the defendant "then made a right-hand turn without looking again at the plaintiff's vehicle and was struck at the rear quarter panel by the plaintiff's car in the south bound, left-hand or kerb side lane". 2 UNREPORTED JUDGMENTS The plaintiff was cross-examined as to what, if anything, he could and should have done to avoid the accident. He was asked in particular when it was that he had first seen the defendant's vehicle. The suggestion underlying the questions was, I think, that had the plaintiff seen the defendant's vehicle earlier he would have noticed it at a stationary position and/or moving from a stationary position and commencing to cross in front of him. In fact, it moved from a stationary position to, as the defendant driver said, a speed of about forty kilometres per hour and it had crossed the greater part of the intersection when it was struck by the plaintiff's vehicle. The plaintiffs evidence was that he did not notice the other vehicle until it was passing... in front of me". He said, "I saw it when it was on top of me". Pressed further, he said that he first saw it when it was "passing opposite mine, in front of me". He agreed that it would be "fair to say when you first saw the car it was virtually in front of your vehicle". The judge accepted that the plaintiff did not see the defendant's vehicle until it was "virtually in front" of his vehicle. His Honour's conclusion was: "T am satisfied the defendant was negligent in failing to keep a proper look out and control her vehicle appropriately, and is accordingly liable for the injuries sustained by the plaintiff in the impact. I am further satisfied that the defendant (sic) was, to a degree, 'the author of his own wrong' in failing to keep a proper look out approaching the intersection and I assess his contributory negligence at fifteen per cent." (It is clear that the second reference to "defendant" was a reference to the plaintiff). If the plaintiff was guilty of contributory negligence, his Honour's assessment of his contribution to the accident as fifteen per cent was, in my opinion, correct. Mr Gross QC for the plaintiff directed his submissions before the Court essentially to the question whether the plaintiff was guilty of contributory negligence at all. It is clear that the defendant was the person primarily responsible for what occurred. She assumed that the plaintiff would turn left into Fitzgerald Avenue and accordingly assumed that by turning right across Bunnerong Road she would not drive across his path. She was, of course, wrong to make that assumption: the plaintiff's left-hand indicator had been activated not to signal an intention to turn into Fitzgerald Avenue but to signal an intention to change lanes to his left. His Honour obviously concluded, in my opinion correctly, that had the plaintiff been observant of the defendant's vehicle he would have seen it moving from its stationary position in the centre of Bunnerong Road, to cross the three traffic lanes available to south bound traffic. It is, in my opinion, probable that had he observed this, he could have taken precautions, by slowing and diverging, to avoid the accident. Those precautions would probably have avoided the accident. In the event, as the judge found, the defendant's vehicle was struck "on the rear quarter panel by the plaintiffs car" when it was "in the south bound, left-hand or kerb side lane". Mr Gross QC, in his written submissions and otherwise, stressed the obligations upon a driver who turns right across oncoming traffic. The decision in this case does not suggest that those obligations are the less. But, in the circumstances of the present case, there was a duty upon the plaintiff to keep a look out for vehicles or pedestrians who might, albeit improperly, be crossing the road. The defendant's mistake as to the significance of the operation of the plaintiff's left-hand indicator was understandable though it did not excuse what she did. But, I think, the possibility of misunderstanding illustrates why, in a case URJ SINAK v TESS (Mahoney JA) 3 such as the present, a driver in the plaintiffs position remained under a duty to keep a proper look out and to take precautions against dangers disclosed by it. I do not think that this portion of the plaintiffs appeal should succeed. 2. DAMAGES: The plaintiffs damages were assessed by the learned judge as follows: "Out of pocket expenses $4,960 24 Fox v Wood 1,858.72 General Damages 60,000.00 Interest 10,800.00 Wages loss and interest thereon 102,723.00 Total $180,341.96 Less 15 per cent $153,290 71" When the appeal was opened before this Court, Mr Gross QC indicated that an arithmetical error had been detected in the judge's calculations of the item "Wage loss and interest thereon $102,723.00". It was agreed by Mr Tonner, for the defendant, that such an error had been made. The error affected both the wage loss recoverable and the interest relating to it. It was agreed that the amount to be substituted for $102,723 was $140,300. As a result of this error, the amount of $217,918.96 should be substituted for the amount of $180,341.96 included in his Honour's assessment. The amount of the judgment, accordingly, should be $185,231.00. Mr Gross QC then submitted that his Honour had fallen into an error, presumably an error of law, in failing to provide adequate reasons for his conclusions. In my opinion that submission should not be accepted. The main matter at which the submission was directed was his Honour's conclusion that the effects of the accident upon the plaintiff were "in effect spent" by 8 January 1990. In order to understand the submissions made, in this regard and otherwise in respect of damages, it is necessary to refer briefly to the facts. On 10 March 1983 the plaintiff, as his Honour found, "sustained seat belt bruises to the left chest area and hit his head on the left upper temple area and for the remainder of the day he felt 'not very normal, still in shock' and was not feeling very well. He could not go to work the next day due to headache, feeling dizzy and unwell." Subsequently, he felt "pain in his neck", discovered a fractured tooth, and developed headaches and other symptoms. The judge noted: "After the accident he stopped work for about four months, and then underwent physiotherapy. He continued under the care of Dr Roarty; he also began to suffer low back pain on walking two or three hundred metres a few weeks after the accident." The judge, in a detailed account of what occurred, referred to his condition, his symptoms, and the treatment that he underwent. These were detailed over some two pages of the judge's judgment. Prior to the trial, the plaintiff had suffered three further injuries to which the 1983 injuries did not contribute. On 4 May 1988 he suffered a fractured left ankle at work and was on crutches for several months and off work for six or seven months. In early April 1989 he struck his lower back on a pipe, causing pain and requiring him to wear a corset. He was off work for over four weeks. On 8 4 UNREPORTED JUDGMENTS January 1990 he was involved in a motor vehicle accident and suffered further injury to his neck which exacerbated the pain he suffered in that region. The judge noted that one of the doctors, Dr Mellick, thought that "psychogenic mechanisms may be responsible for the plaintiff's failure to respond to treatment" and he accepted that view. However, he accepted the evidence of Dr Roarty "as to the mechanism by which there was an onset of symptoms after the 1983 accident". Dr Roarty had noted that the plaintiff had a pre-existing condition of spondylitis. This condition affected in particular the cervical region. Dr Roarty, in his written reports and in oral evidence before the judge, gave detailed evidence as to, inter alia, the effect of the spondylitis, its relationship to the 1983 accident, and the effect which the subsequent trauma was likely to have. As I understand Dr Roarty's evidence, it suggested that after 1983 he had advised the plaintiff to refrain from heavy labouring but that the plaintiff had not taken his advice and had returned to heavy labouring work. This, it might be inferred, had worsened the plaintiffs condition. Dr Roarty was asked to express an opinion as to the effects likely to flow from the spondylitic condition absent trauma of the relevant kind. He concluded that it was "inevitable" that he would have cervical symptoms, even without trauma, "sooner or later but nobody could say exactly when". He saw the 1983 accident as "a precipitating injury". He said: "Trauma would be a more significant precipitating factor true but as the years go by with the underlying spondylitis even simple movements, jerking the neck or sudden twisting strain, could precipitate symptoms." The suggestion emerged from the questions put to the doctor that in the absence of the 1983 accident some or all of the subsequent traumas, the fractured ankle, the injured back and the second motor vehicle accident, might well have produced a condition equivalent to that now suffered by the plaintiff. In the course of his judgment, the learned judge said: "T also note, inter alia, from Dr Roarty's evidence in chief in relation to the plaintiff's pre-existing spondylitis, that 'as the years go by, with the underlying spondylitis, even simple movements, jerking the neck or send twisting strain, could precipitate symptoms' (transcript at 47.2), and 'bearing in mind the condition of his cervical spine and that it probably would have given him some pain sooner or later, nobody can say exactly when, I THINK BY NOW IT PROBABLY WOULD HAVE GIVEN HIM PAIN IF HE DIDN'T HAVE THE ACCIDENT AND ALL THOSE OTHER INJURIES HE HAS HAD. So really the injury of March 1983 started off his symptoms' (transcript at 48.3). I note also Dr Roarty's agreement in cross-examination that 'if the underlying condition was rather gross spondylitic changes, the osteophytes actually impinging on the parameter, that is the sort of feature that can become symptomatic with the jerking of the head' (transcript at 54.6). Further, that assuming pre-accident complaints of certain symptoms put to him, they would be indicators that this condition of spondylitis was going to become symptomatic in the not too distant future on an ongoing basis (transcript at 55.8) and that 'like his neck, his lower back was bound to become painful in any event' (transcript at 56.8)." (Emphasis added). His Honour then said: "Having considered the whole of the evidence, including the plaintiff's active pursuit of a strenuous occupation, involving heavy labour which inevitably placed stress and strain on a spine subject to advanced degenerative changes, the URJ SINAK v TESS (Mahoney JA) 5 plaintiffs fracture of his ankle on 4 May 1988, followed by the pipe injury to his back on 6 April 1989, I am satisfied that following the later motor vehicle accident on 8 January 1990, the effects of the earlier motor vehicle accident, were in effect, spent, as against the present defendant." Notwithstanding the detail of the judge's judgment, Mr Gross QC pressed the submission that his Honour had erred in law by not giving sufficient reasons for the conclusions at which he had arrived. The obligation of a judge to give adequate reasons for his final conclusions is clear: Pettitt v Dunkley (1971) 1 NSWLR 376. What is most frequently in question is the extent of the reasons which must be given. This Court has, in a number of decisions, dealt with this question: see, eg, Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378. In Rajski v Bainton (Court of Appeal, 6 September 1991, unreported) I referred at some length to the considerations which give rise to the duty to give reasons and to the objectives sought to be achieved by the giving of reasons. The extent of the reasons to be given may be, if not determined, at least measured against the extent to which those objectives will be achieved by them. There is a further matter which, in my opinion, is to be borne in mind. In determining what reasons are sufficient the Court should bear in mind that - at least in courts below courts of final authority - the purposes of giving reasons are essentially practical. As I indicated in Rajski v Bainton, the reasons required are to be measured against, inter alia, the need of a party to know sufficient to enable him to exercise his legal rights, on appeal and otherwise and the need to maintain public acceptance in the processes of the justice system and the accountability of them. To the extent that these and other matters affect the quality of justice, it is important that they be maintained. But this does not require that what is done satisfy the conceptual aspects of procedures. In this, as in other aspects of the law: see, eg, Jago v District Court of New South Wales (1989) 168 CLR 23; what is to be expected of a justice system may be affected by practicalities as well as by concepts. It is to be borne in mind that judgment writing imposes a burden upon the functioning of the justice system. The benefits of written judgments have a price. The Court is entitled to know that, eg, in cases such as the present, the writing of a judgment ordinarily takes as long as the hearing of the case, or more. To the extent that the burden of judgment writing is increased, the time available for the hearing and determination of cases is reduced. There is, of course, a minimum below which the standards of justice must not fall. But, subject to such matters, the Court, in determining what reasons are to be articulated for its conclusions, can and should take into account the burden which the giving of reasons imposes. In the present case, it is in my respectful opinion clear what the judge's conclusions were and why he arrived at them. I come now to the substantial matter to which, in relation to damages, the argument before the Court was directed. It was submitted that his Honour erred in concluding that by 8 January 1990 "the effects of the earlier motor vehicle accident were, in effect, spent as against the present defendant". Mr Gross QC, in his argument, stressed that the plaintiff's symptoms were manifest as the result of the accident of 1983 and that, if it is contended that the effect of that accident has ceased, the onus lies upon the defendant to establish that fact. He referred to the principles established by Watts v Rake (1960) 108 CLR 158 and Perkess v Crittenden (1965) 144 CLR 164. Reference was made in argument to the recent decision of the High Court in Medlin v The State 6 UNREPORTED JUDGMENTS Government Insurance Commission (High Court, 16 February 1995, not yet reported). These principles were not, I think, called in question on behalf of the defendant. His Honour accepted, I think, that had it not been for the accident of 1983, the plaintiff would not have had the symptoms which, after 1983, he had. But, I think, he concluded that, even had the accident of 1983 not occurred, it was probable that such symptoms would have accrued at some later stage in the plaintiff's life; this was because of the spondylitic or degenerative condition of his spine. That was a conclusion which, in my opinion, was open on and was to be drawn from, inter alia, the evidence of Dr Roarty. It was necessary for the judge to form an opinion as to when, absent subsequent injuries, those symptoms would have emerged. The damage due to the 1983 accident would, in substance, have been the existence of the symptoms between 1983 and the date when, in any event, they would have appeared. It was necessary for the judge to fix that date. He had evidence as to the three events of 1988, 1989 and 1990. On one view, their significance lay in exacerbating temporarily the plaintiff's existing condition. But they were, he might think, the kinds of events which, having regard to the degenerative condition of the plaintiff's spine, would have been apt themselves to trigger the onset of the relevant symptoms. They illustrated that the plaintiff's condition, uninjured, was such that the relevant symptoms could be precipitated by events of this kind. His Honour examined in some detail, at the trial and in the judgment, the nature of the subsequent events. In my opinion it was open to him to conclude, correctly, that absent the 1983 accident, the relevant symptoms would have appeared by 8 January 1990. Ihave referred also to the significance of the fact that, contrary to Dr Roarty's advice, the plaintiff returned to heavy labouring work. This is a matter to which the judge referred in formulating his conclusions. He was, I think, entitled to take into account the effect of heavy labouring work upon the plaintiffs pre-accident condition and, in relation to causation and the like, to take it into account in determining whether the symptoms experienced after 8 January 1990 were in fact caused by the 1983 accident. I am conscious that, in some cases, the condition produced by subsequent traumas may be one in which the final symptoms are caused both by the original accident and by subsequent events. In such a case, a defendant who caused the original accident may continue to be liable for the damages because what she did remains one of the causes of them. Reference was made to considerations of this kind in Medlin. But, in my opinion, the present is not such a case. The present case involves the assessment of the effect of various traumas upon a plaintiff having a pre-existing susceptibility to the symptoms in question, with or without the occurrence of such trauma. I agree with the conclusions in this regard of the learned judge. By 8 January 1990, the symptoms from which the plaintiff continued to suffer were in my opinion those from which he would have suffered because of his pre-accident condition and without the effect of the 1983 accident or any subsequent trauma. They were, in any event, the kinds of symptoms which, because of his pre-accident condition, he was apt to suffer from by reason of the subsequent trauma or other similar incidents of ordinary living. Ihave dealt in terms with the main submissions pressed in argument before the Court. To the extent that other submissions have been made in relation to the quantum of damages, it is sufficient to say that I see no error in what the judge did. URJ SINAK v TESS (Powell JA) 7 Accordingly, subject to the adjustment of the amount of the judgment to take account of the error in calculation to which I have referred, the appeal fails. It will be necessary for the Court to uphold the appeal to the extent required to correct the error in calculation. It is necessary to determine what in those circumstances is the appropriate order for costs. The plaintiff has succeeded in the appeal by reason of the miscalculation. The miscalculation was, it has been suggested, discovered only immediately prior to the hearing of the appeal. No opportunity was given to the defendant to agree to the necessary adjustment of the judgment to take account of the error in calculation. I do not doubt that it would have done so had the error been pointed out to it. In any event, the Court would have been able to make the necessary correction. The substantial cost of the appeal has been incurred by reason of the submissions made touching contributory negligence and the assessment of damages. On these matters the plaintiff has failed. In the circumstances, the appropriate order for costs is that the costs of the appeal be paid by the plaintiff, other than such costs as are directly involved in the correction of the miscalculation. The appeal should be upheld. The judgment below should be set aside and there should be substituted for that judgment judgment for $185,231, the judgment to take effect from the date of the original judgment. Meagher JA I agree with Mahoney JA. Powell JA I agree with Mahoney JA. Appeal upheld. Judgment below set aside and in lieu thereof substitute judgment for $185,231, such judgment to take effect from the date of the original judgment. Appellant to pay the costs of the appeal, other than the costs directly involved in the correction of the miscalculation. Counsel for the Appellant: BJ GROSS QC/LA LEVY Instructed by: CD MEAGHER Counsel for the Respondent: RC TONNER Instructed by: GM MEADOWS