CLEUR v COLE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, HANDLEY and SHELLER JJA 16 November 1994, 3 April 1995 [1995] NSWCA 78 NEGLIGENCE — DAMAGES — NO QUESTION OF PRINCIPLE The defendant appealed from a judgment in a running down case, challenging the findings of negligence, the degree of contributory negligence, and the award of damages. The trial judge had found that although the appellant's injuries affected his ability to gain other employment his resignation from work had been the result of his own misconduct - therefore damages for economic loss had been awarded on a conservative basis HELD: (1) The finding of negligence could not be disturbed. (2) The apportionment for contributory negligence could not be disturbed. Pennington v Norris (1956) 96 CLR 10 applied. (3) There was no ground for challenging the general damages. (4) The awards for past and future economic loss were not outside the range of what was appropriate, Medlin v SGIO (High Court not yet reported) applied. Mahoney JA On 25 February 1981 the plaintiff was knocked down by the defendant's car when he was crossing Dunmore Road, Wentworthville at about 9-9.30 pm. He was significantly injured. He sued the defendant for damages. On 22 February 1991 his Honour Judge Barbour gave judgment for the plaintiff in the sum of $88,582.58. The defendant has appealed to this Court against his Honour's judgment. Mr Russell, who appeared for the defendant on the appeal, made six submissions, which he described as "three weak and three which are arguable". He submitted that his Honour's finding against the plaintiff's credibility should be set aside. He referred to what the plaintiff had said about the course of the accident and other matters. It is sufficient to conclude, as I do, that there is in the evidence nothing, within the principles referred to Voulis v Kozary 180 CLR 177; Abalos v Australian Postal Commission (1990) 171 CLR 167, which would warrant this Court coming to a different conclusion. I agree with the judgment of Handley JA that Mr Russell's submissions as to negligence and contributory negligence should not be accepted. The defendant continued on his course down the road because he assumed that the plaintiff would stop and allow his vehicle to pass. In the circumstances he was not entitled to make that assumption. Similarly, the plaintiff saw the vehicle some distance before the impact but continued on because he thought the vehicle would stop. To do that showed lack of care for his own safety. Mr Russell's main submissions were directed to economic loss. Having regard to the plaintiffs injuries, the amounts awarded were, at first sight, less than might have been expected. But it emerged that, following the accident, the plaintiff was in employment but, contrary to his original assertion, he left the employment for reasons not attributable to the accident. In argument, counsel indicated the basis on which the judge adopted the "conservative approach" to which reference has been made in the assessment of past and future economic loss. I agree with Handley JA that the appeals in this regard should not succeed. 2 UNREPORTED JUDGMENTS I agree with the orders proposed by his Honour. Handley JA The defendant appeals from a judgment for the plaintiff for $88,582.58 entered by Barbour DCJ in a running down case. The appeal challenged the judgment on grounds going both to liability and quantum. The first challenge was to the finding that the defendant had been guilty of negligence in the driving of his motor vehicle. The accident occurred on the night of 25 February 1981 at about 9 or 9.30pm in Dunmore Road, Wentworthville opposite the main entrance to the Wentworthville Memorial RSL Club while the plaintiff was crossing the road. The judge found that the defendant had been negligent in the driving of his motor vehicle but that the plaintiff had been guilty of contributory negligence and he reduced the damages by twenty per cent. The judge accepted the plaintiff's evidence in preference to that of the defendant. The appellant submitted that the plaintiff's credibility had been so effectively destroyed by cross-examination directed to an issue relevant to damages that his evidence should also have been rejected on liability. However the only point on liability on which the plaintiff's evidence differed significantly from the defendant's was whether the plaintiff was jay-walking. The defendant's evidence on this point was inconsistent with his statement to the police and with the statement of his brother who had been a passenger, was present at court, but was not called. This Court cannot interfere with that finding. The appellant then submitted that he was entitled to assume that the plaintiff had seen him and would stop to allow him to pass safely. I would reject that submission. He was not entitled to make any such assumption because of the obvious risk of serious injury to the pedestrian if the assumption was incorrect. He did not flash his lights or sound his horn to warn the plaintiff nor did he brake or otherwise reduce his speed until it was too late. The finding of negligence cannot be disturbed. The judge found the plaintiff guilty of contributory negligence and assessed his responsibility at twenty per cent. The appellant challenges this as inadequate. I would reject that submission also. The apportionment of responsibility by a trial judge involves a discretionary judgment of a complex kind. If the trial judge's apportionment is not shown to have been vitiated by any error of fact or law it can only be disturbed by an appellate court if the appellant can demonstrate that it falls outside the range of a sound exercise of the judge's discretion. See Pennington v Norris (1956) 96 CLR 10 at 15-16. The same case establishes that the culpability of a motorist in circumstances such as the present is far greater than that of the pedestrian whose conduct did not endanger the defendant or anyone else (at 16-17). His Honour's apportionment cannot be disturbed. The appellant challenged the judge's award of $40,000 for general damages but this submission was barely pressed by experienced counsel and, in my opinion, this ground also fails. However the remaining grounds directed to his Honour's awards for past and future economic loss raised matters of substance. The plaintiff was fifty one at the date of accident and sixty one at the date of trial. At the time of the accident he was employed by the Liverpool RSL Club as an assistant secretary/manager. He returned to work three weeks after the accident and remained in full time employment until 28 September 1982 when he resigned for reasons which he initially claimed were related to his injuries. However in cross-examination he conceded that his resignation was prompted by other factors. URJ CLEUR v COLE (Handley JA) 3 The plaintiff left school without obtaining his Intermediate Certificate. He followed a variety of unskilled occupations prior to obtaining employment with the club as a cleaner. He remained at the club, being promoted successively to cellarman, then bar steward and finally to managerial positions. The judge found that the plaintiff could have continued in that type of work although not without difficulty. However after resigning he was only able to work intermittently, sometimes as an employee and sometimes on his own account. At the date of trial he was working as a real estate consultant earning a modest income from commissions and was also receiving unemployment benefits. The judge said that counsel for the plaintiff had put his claim for past economic loss "on a down-to-earth... commendably conservative basis" at $27,275. This treated the plaintiff as having been unemployed for a total of two years which were accident related, allowing the plaintiff's loss at $350 per week net and deducting the sum of $9,124.12 for unemployment benefits. The figure of $350 per week net was based on the plaintiff's earnings of $357.27 net as the assistant secretary/manager of the club between March 1981 and September 1982. The trial took place in December 1989, the judge's reserved judgment being delivered in February 1991. Although the sum of $350 per week is based on the plaintiff's earnings in a job from which he resigned in September 1982, that figure was not adjusted for inflation over the period from September 1982 until February 1991. Mr Lidden for the respondent relied on a schedule of the plaintiff's wage loss produced at the trial. He submitted that this showed that the plaintiff had had thirty five months out of work, that the judge had allowed only two years of this period, producing a figure of $36,400 and he had then, at the suggestion of plaintiff's counsel, deducted the unemployment benefits. He submitted that this indeed was a conservative figure which should not be disturbed. An examination of the schedule undertaken since the Court reserved its judgment has revealed that it only covered the period to 27 October 1987 (51 weeks from 3 November, 1986). It therefore did not include any claim for the period of two years and five weeks thereafter to the start of the trial or the year and two months during which judgment was reserved. This matter had not been drawn to the Court's attention during argument. The plaintiff was out of work during most of 1987 (34). He obtained employment as a part time barman and doorman at the Cabarita Beach Bowls Club on 3 December 1987. He left this position in August 1988 when he and his wife commenced managing the Burleigh Backpackers' Holiday Units. They remained in that position until May 1989 when they had to give it up because of his wife's poor health. In that position he received $175 net a week (35). Between July and December 1989 he was employed part time on commission as a real estate salesman. His income from commission during this period totalled $2,302 net or $100 per week. The plaintiff resigned from his position with the Liverpool RSL Club on 28 September 1982. The period from then until judgment comprised eight years five months or approximately 438 weeks. If the amount of $350 per week net had been allowed for the whole of this period without any deduction the award would have been $153,300. The wage loss schedule shows that the plaintiff was able to earn $350 per week or more on only two occasions, three days in November 1984 when he was employed as a bar manager with the Palm Beach and Currumbin Bowls Club and twenty six weeks during 1985 when he was employed as secretary of the Beverley Park Golf Club. Up to the trial he had been unemployed 4 UNREPORTED JUDGMENTS for some 101 weeks giving a loss assessed by the judge at $36,400. He had been self-employed for two periods in 1984-1985 and 1985-1986 for a total of 137 weeks but had not managed to earn anything like the $350 per week accepted by the judge. He then had part time employment in various positions from December 1987 until trial but again did not earn anything like $350 per week. According to his tax returns and group certificates he earned $197 per week with the Cabarita Club between December 1987 and June 1988 and $83.25 a week in July and August 1988. Then, until 17 May 1989 he received $175 a week net for his employment at the Backpacker Hostel. During his periods of self employment the plaintiff suffered a loss of earnings of $37,000 against the judge's benchmark of $350 per week. During his periods of part time employment to the date of trial totalling 99 weeks his loss, on the same basis, was $19,126. Assuming in the defendant's favour (a generous assumption in view of the economic circumstances at the time) that the plaintiff continued to earn commissions which averaged $100 a week net between the date of trial until judgment, his loss during this period would have been $15,000. Accordingly a proper calculation of the plaintiff's prima facie loss of earnings from the date of his resignation to the date of judgment based on $350 a week net is as follows: Periods of total unemployment $36,400 Periods of self-employment $37,000 Periods of part time employment $34,126 Total $107,526 However the judge allowed only $27,275 or 25 per cent of this figure which as previously mentioned made no allowance for inflation and assumed continuity of part time earnings between trial and judgment. The plaintiff's resignation from his position at the Liverpool RSL Club was the result of his own misconduct which was unrelated to his injuries. It is clear that the defendant cannot be responsible for the financial consequences flowing from the loss of this employment. However this does not mean that the plaintiff is not entitled to damages for his past and future economic loss. He sustained serious injuries which affected his ability to obtain employment both in the general labour market and in the particular areas where he had acquired skills and experience. If he had not been injured he would in all probability have been able to find other employment without delay and his loss may have been much less. The question, in the light of the recent decision of the High Court in Medlin v SGIO (16/2/95 not yet reported) is whether the premature termination of the plaintiff's employment with the club was caused by his loss of earning capacity although it came about as a result of his own decision to resign (at 9). The plaintiffs resignation was not voluntary in any true sense, and his injuries played no part in the decision. The judge was therefore correct in holding that his damages for past and future economic loss had to be assessed on "'a conservative basis". There was no cross-appeal by the plaintiff from these awards. The question for this Court is whether in all the circumstances an award for past economic loss equivalent to only 25 per cent per cent of what the plaintiff would have earned had he retained his job with the club without any allowance for inflation is outside the range of an appropriate award. I do not think it was. URJ CLEUR v COLE (Sheller JA) 5 If that is so, it follows that the judge's award of $7,500 for future economic loss cannot be disturbed either. In my opinion, the appeal should be dismissed with costs. Sheller JA I agree with Handley JA. Appeal dismissed with costs. Counsel for the Appellant: DJ RUSSELL 10 'Instructed by: PANDRESAKIS (GIO) Counsel for the Respondent: AJ LIDDEN Instructed by: [AND R BRYDENS LAW OFFICE