MOWLEM v CHISHOLM SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE JA, COHEN and Simos AJJA 13 December 1996, 18 December 1996 [1996] NSWCA 373 ABSENCE of procedural fairness — new trial ordered — mathematical factors in general assessment — Robinson v Riley (1971) 1 NSWLR 403 applied. Cole JA The correctness of findings on both liability and quantum are raised by this appeal and cross-appeal. The appellant, Joseph Mowlem, contends that the finding of Sinclair DCJ that he was negligent in driving his motor vehicle on 3 June 1979 when the vehicle struck the respondent Scott William Chisholm, then aged three years seven months, should be set aside upon the ground that the basis of negligence found by the trial judge, namely that he was travelling too close to a line of parked cars from between two of which the respondent ran, was not a ground of negligence pleaded, addressed in evidence, or argued in submissions prior to counsel for the respondent raising the matter in address in reply. Accordingly he contends that the issue upon which he was found to be negligent was not in truth litigated at the trial and procedural fairness requires that the verdict in favour of the respondent be set aside. He seeks, alternatively, a verdict in his favour, or a new trial on that issue of liability. The respondent seeks to uphold the finding of liability upon two grounds raised by a notice of contention. The appellant further contends that, in his assessment of damages, Sinclair DCJ erred in one respect, namely, the calculation of damages for future attendant care upon the basis of $15 per hour. He contends that the evidence established rates only of $12.50 or alternatively $11.60 per hour and has argued that, accordingly, the sum awarded for future attendant care of $600,000 should be reduced by 20% to $480,000 reflecting a calculation for future attendant care based on $12 per hour. By notice of cross-appeal the respondent contended that the learned trial judge had inadequately assessed the allowance for future attendant care in respect of the period when the respondent will be aged between fifty and seventy-four years, and consequently had provided inadequate fund administration costs. He sought an additional $137,068 for attendant care and an additional $11,036.46 fund administration costs in addition to the sum of $161,040 awarded in that respect at trial, THE LIABILITY APPEAL At about 11.55am on Sunday, 3 June 1979, the respondent was struck by the defendant's vehicle in Oxford Street, Cambridge Park. The roadway of Oxford Street is 11 metres wide with a footpath about 4 and a half metres wide on the southern side and 4 metres wide on the northern side. On the north side is a football ground. On the southern side there are a number of shops including a milk bar and fish and chip shop. At the time of the accident there were a number of people on both sides of the roadway and cars were parked along the curb on both sides of Oxford Street The respondent and his mother had been in the milk bar. His two brothers were on the northern side in the park watching football. Unbeknownst to his mother the respondent ran from the shop across the footpath, 2 UNREPORTED JUDGMENTS between two parked cars and out immediately in front of the appellant's vehicle. The point of collision between the vehicle and the respondent was the left near side corner of the vehicle. The appellant was sued in negligence. The particulars of negligence pleaded were: "(i) Travelling too fast in all the circumstances; (ii) Failing to avoid a collision with tbe plaintiff; (iii) Failing to keep a proper look out; (iv) Failing to observe the plaintiff upon the roadway; (v) Failing to give way to the plaintiff upon the roadway; (vi) Failing to control his motor vehicle by steering, braking or otherwise as to avoid colliding with the plaintiff; and (vii) Driving without care or attention." Not all of those particulars were actively litigated. Sinclair DCJ recorded that: "The substance of the plaintiff's case, as pleaded, is that the defendant was driving at an excessive speed in the circumstances and failed to keep a proper look out. The defendant denies negligence and asserts that the child ran out without warning from between two parked cars in circumstances where the defendant had no reasonable opportunity to avoid the child." His Honour stated that: "The most critical facts in issue are: 1. The speed of the defendant's vehicle. 2. The movements of the child before the impact occurred. 3. Whether the defendant was keeping a proper look out in the circumstances. 4. Whether the defendant had no opportunity to avoid the plaintiff." It is to be observed that neither the particulars nor the trial judge's statement of the substance of the plaintiff's case, or the statement of the most critical facts in issue refer to the question whether the appellant was driving too close to the parked vehicles. The trial judge continued: "Tt was also submitted by Counsel for the plaintiff, in his address in reply, that a further possible head of negligence is the position of the vehicle on the road as it travelled along Oxford Street, namely only two feet clear of the parked cars. This particular of negligence was not pleaded. Nevertheless it is submitted by counsel for the plaintiff that it is a conclusion open on the evidence and should be taken into account bearing in mind the width of the road, the circumstances at the time including the fact that there were no other vehicles travelling along that stretch of Oxford Street at the relevant time. Counsel for the defendant objects to reliance on that head of negligence, being raised as it was at the very heel of the hunt, after the evidence was closed, the witnesses released and not raised in the plaintiff's initial address. With some reluctance I have come to the conclusion that if (sic) it is a matter that the court is entitled to and should, take into account. The fact was stated directly by two of the defendants witnesses, the defendant and Mr Turner and arises by inference from the evidence of Mrs Chisholm and Mr Jamieson." Sinclair DCJ found that the vehicle was travelling at a speed of about 40-45 kilometres per hour, the speed limit being 60 kilometres per hour. He also found that: "On a balance of probabilities that when he (the respondent) left the shop he moved straight across the footpath and out onto the roadway passing in front of his mother's vehicle, the front of the vehicle being more or less in line with the western side of the fish and chip shop... and that as he passed in front of his URJ MOWLEM v CHISHOLM (Cole JA) 3 mother's vehicle the view of him from the defendant's vehicle would be substantially impaired. I think it is unlikely that more than the top of his head would be visible to the defendant I also think it is more likely than not that when he had gone no more than one, possibly two paces beyond the off side of the parked car that he stopped." The learned trial judge found that it had not been established that the appellant had failed to keep a proper lookout but continued: "However the Court must also take into account the fact of which I am comfortably satisfied, namely that the defendant was driving his vehicle only two feet clear of the off side of the parked vehicles." Sinclair DCJ found: "T am not satisfied the defendant could have avoided the plaintiff. But that does not conclude the issue of negligence. That the car was being driven only two feet clear of the parked cars is, in my opinion, another critical fact. There was no necessity to be that close to the parked vehicles. In a series of decided cases the Court of Appeal has stressed the special care which drivers must take, when they know, or should know, that children are near the road. The obligation has been explained in terms of implied knowledge of the tendency of children to act in ways which adults might regard as irresponsible. The cases are reviewed in Mitchell v Government Insurance Office (NSW) 15 MVR 369." It was on that narrow basis that the appellant was driving two feet from, and held to be too close to, the parked vehicles that Sinclair DCJ found that he had failed to exercise "the rigorous standard of care expected of the driver of a motor vehicle in the particular circumstances." Procedural unfairness occurs if a party is held liable in negligence upon a basis which was not pleaded or which was not in substance in issue at the trial or addressed in the evidence. Here the question whether the appellant was negligent because he was driving two feet from a line of parked cars, which distance is said to be inadequate so as to constitute negligence, was not in issue at the trial. It was not pleaded, nor was the question whether, assuming it was established as the trial judge found that the appellant was driving two feet from the parked cars, that constituted negligence, the subject of evidence as it might have been, nor addressed in the primary submissions. Even if the position be as the respondent contends that the undisputed evidence establishes by calculation that the appellant was travelling two feet from the parked cars and thus four feet from an imaginary centre line, it is not self evident that so to travel is negligent. Had the question of the distance between the moving and stationary vehicles been an issue at the trial, the appellant may well have been in a position to call evidence touching upon the appropriateness or reasonableness of driving in that manner in the circumstances pertaining. As the trial judge recorded, the contention that so driving constituted negligence was raised only in the address in reply at which time the evidence had been concluded and all witnesses released. If the respondent wished to assert that case, the appropriate course was for him to have sought leave to amend and, had it been granted, for there then to have been an adjournment to permit the appellant to consider his position and determine whether he wished to call additional evidence, whether by way of recalling of witnesses, or the calling of additional evidence. That did not occur because no application to amend to raise the additional particular of negligence was made. It was not a case of negligence which the appellant was called upon to meet at 4 UNREPORTED JUDGMENTS trial. As the majority said in Water Board v Moustakas:! "It is necessary to look to the actual conduct of the proceedings to see whether a point was or was not taken at trial, especially where a particular is equivocal." Here the point was not taken at trial save in address in reply when the appellant could do no more than protest as he did. This is not case "where all the facts have been established beyond controversy or where the point is one of construction or of law";2 rather it is a point taken in address in reply where the matter had not been in issue at trial. It follows in my judgment that the appeal on the question of liability must be upheld. NOTICE OF CONTENTION The respondent has filed a notice of contention seeking to support the finding on liability upon the basis that the trial judge should have found that the appellant was travelling at an excessive speed and had failed to keep a proper look out. There was evidence before the trial judge from the appellant driver that he had slowed down from 50 kilometres per hour to 35 to 40 km/h as he approached the shopping centre. Mr Black, his front seat passenger, gave evidence they were travelling at "about 40-45 km/h". Mr Turner, a rear seat passenger, thought they were travelling "somewhere between 30 and 50 km/h". There was thus an abundance of evidence which would justify the trial judge finding that the vehicle was travelling at about 45 to 50 kilometres per hour. The respondent contends, however, that, based principally upon the circumstance that the respondent's body came to rest approximately 36.5 metres from the point of impact, the trial judge should have accepted the evidence of a traffic expert, Mr Jamieson, that that circumstance was "not consistent with the vehicle travelling only 60 km/h before impact". Reliance was also placed upon statements said to have been given by Mr Turner to an investigator that "we were probably on or about the speed limit", which was 60 km/h. I would reject that submission. The trial judge rejected the calculation of speed based upon the rest position of the vehicle, absent skid marks, and in circumstances where there was evidence that the driver braked but, for reasons given, not heavily. Apart from Mr Jamieson's expression of opinion, there was clear evidence regarding speed to the contrary of his view by persons who were present. It was open to the trial judge to accept that evidence and there is no basis for this Court disturbing that finding of fact having regard to the trial judge's acceptance of the appellant and his witnesses.3 Nor is there any basis for this Court holding, contrary to the trial judge's implicit finding, that a speed of 45 to 50 kilometres per hour in the location of the accident at the time that it occurred was excessive. There is no basis for this Court disturbing the trial judge's finding that it had not been established that the appellant failed to keep a proper look out. There was evidence from the appellant and his two passengers that the only warning of the accident was "a quick flash" darting out from between two parked cars and striking the near front corner of the vehicle. The respondent was then three and a half years old and in the order of a metre tall. The trial judge was not satisfied that the appellant could have avoided the respondent. The two matters raised by the notice of contention thus fail. 1. (1994) 180 CLR 491 at 497. 2. Moustakas at 497. 3. See Devries v Australian National Railways (1993) 177 CLR 472. URJ MOWLEM v CHISHOLM (Cole JA) 5 The question remains whether there should be a verdict for the defendant, or a new trial limited to the question whether the appellant was guilty of negligence in driving too close to a line of parked vehicles. In my judgment there should be a new trial. In Moustakas Gaudron J wrote: "Tn an action for negligence, the denial of a verdict to a plaintiff where the evidence called by a defendant results in a finding of fact disclosing a breach of duty not expressly relied upon by the plaintiff makes the case a 'very exceptional (case) where the interests of justice... require a new trial" as contemplated by Jacobs J in Maloney v Commission for Railways (NSWs."4 Those principles apply here. Accordingly the verdict in favour of the respondent should be set aside and there should be a new trial on liability limited to the allegation of negligence based upon the particular that the defendant was in all the circumstances travelling too close to the parked vehicles, and causation. DAMAGES The appellant contends that the hourly rate for calculation of future care should be $12 per hour not $15 per hour which figure was used by Sinclair DCJ in respect of the period when the respondent was between the ages of twenty of thirty five years during which time three hours per day assistance was found to be necessary, and the period between thirty five years and fifty years during which time thirty hours assistance per week was found necessary. In respect of the period between the ages of fifty and seventy-four, the respondent claimed a "full-time" carer seven days per week at the rate of $961.30 per week being average weekly earnings of $661.30 per week for 40 hours plus $300 per weekend. Regarding the $15 per hour in respect of the first two periods the appellant claims, as is the fact, that the evidence established that the rates current in Western Australia where the respondent lives as at 17 August 1995 were $12.50 per hour for domestic assistance and $11.60 per hour for a carer. In respect of the two periods between the age of twenty and fifty years, Sinclair DCJ awarded domestic assistance, and thus the rate established by the evidence was $12.50 per hour. There is no basis for adopting a greater figure in respect of this period. However the trial judge stated: "Adopting the figures suggested by counsel for the plaintiff, an average of three hours assistance a day, a casual rate of $15 an hour" which suggests that the calculation was based upon counsel's assertion rather than the evidence. The respondent contends that the $15 per hour was a figure agreed between counsel. Any such agreement is not recorded by Sinclair DCJ. Affidavits were received by the Court from both solicitors which suggests there was agreement that the appropriate hourly rate in New South Wales was $15 per hour. It is difficult to understand why agreement regarding this figure would have been reached if it was not relevant to a matter in issue. This Court is not in a position to resolve this question. However, absent acceptance of that agreement by the parties to this appeal, this court must act upon the evidence presented before him, notwithstanding that Sinclair DCJ acted upon $15 per hour. In those circumstances the rate to be adopted in respect of the period between the ages of twenty and fifty years should be $12.50 per hour. Regarding the period between ages fifty and seventy-four, the competing contentions were a full-time carer seven days a week costing $961.30 per week on the one hand, and three hours per week on the other. Sinclair DCJ was not 4. (1994) 180 CLR 491 at 507. 6 UNREPORTED JUDGMENTS satisfied that full-time care was required during this or any other period. He performed a calculation based on thirty hours per week at $15 per hour producing a discounted figure of $166,284 which gave a total future care component from aged twenty of seventy-four of $548,130. Intuitively his Honour increased that sum of $600,000 thus awarding in respect of the period between ages fifty and seventy-four approximately $218,000. The appellant contends the calculation should have been based upon $12 per hour not $15 per hour, whereas the respondent contends, that the sum awarded of $218,154 represents forty hours care per week at $15 per week which is said to be inadequate in light of his Honour's acceptance of the respondent's medical evidence, particularly that of Drs Silberstein and Bleasek which suggested full-time care would be required. In my opinion this Court should not disturb Sinclair DCJ's finding that $600,000 should be awarded for future domestic care. It is possible to assert that in calculating figures for future care, a rate of $12.50 per hour should have been used in respect of the period between ages twenty and fifty for domestic assistance, and a rate of $11.60 per hour thereafter in respect of domestic care, rather than $15 per hour. It is also possible to assert that mathematically the sum of $600,000 awarded displays the allowing of forty hours per week at $15 per hour during the period between ages fifty and seventy-four. It is plain that his Honour did not accept the respondent's claim for "full-time" care in this last period. After rejecting it his Honour did a calculation based on thirty hours care per week at $15 per hour. It seems tolerably clear that his Honour thought the quantum of care needed during this last period exceeded thirty hours per week but was less than full-time seven day care, and less than 40 hours are during the week plus additional care during the weekend. Mathematical calculations are of assistance in determining future care costs. Nonetheless there remains an element of judgment.5 Whilst Sinclair DCJ broke down the period of future care into three segments to disclose his finding of different requirements for care at different times, ultimately his decision in respect of future care in respect of the period between ages twenty to seventy-four was $600,000. It is that figure which this Court must consider on appeal. In my judgment whilst certain inconsistencies may be able to be pointed to in relation to integral calculations in respect of particular segments of future care, error has not been shown in the ultimate sum found by Sinclair DCJ in respect of that period. In my opinion on the evidence led at trial a finding of $600,00 for future domestic care is one which was available to the trial judge and which this Court should not disturb.© Both the appellants and cross-appellant's contentions fail. Accordingly I would propose the following orders: 1. Appeal upheld, verdict and judgment in favour of the plaintiff be set aside. 2. That there be a new trial on the question of liability limited to whether the appellant was negligent in that in all the circumstances he drove too close to a parked line of vehicles, thus causing injury to the respondent, such trial to be upon the basis that, in the event of the respondent being successful on the issue of liability the damages will be $2,086,740. 3. The respondent pay the appellant's costs of the appeal but to have, if qualified, a certificate under the Suitors Fund Act. 5. See Edwards v Society of Graphical and Allied Trades [1971] 1 Ch 354 at 387 quoted in Robinson v Riley. 6. See Robinson v Riley (1971) 1 NSWLR 403 at 407 per Asprey JA, at 408-9 per Moffit JA. URJ MOWLEM v CHISHOLM (Simos AJA) 7 4. The cross-appeal be dismissed with costs. 5. The costs of the hearing at first instance abide the results of the retrial. Cohen AJA I agree with the reasons and proposed orders of Cole JA. 5 Simos AJA I agree with Cole JA. 1. Appeal upheld, verdict and judgment in favour of the plaintiff be set aside. 2. That there be a new trial on the question of liability limited to whether 10 the appellant was negligent in that in all the circumstances he drove too close to a parked line of vehicles, thus causing injury to the respondent, such trial to be upon the basis that, in the event of the respondent being successful on the issue of liability the damages will be $2,086,740. 3. The respondent pay the appellant's costs of the appeal but to have, if 15 qualified, a certificate under the Suitors Fund Act. 4. The cross-appeal be dismissed with costs. 5. The costs of the hearing at first instance abide the results of the retrial. Counsel for the appellant: MJ Neil QC/G Petty 20 Solicitors for the appellant: Booth Mather Blackmore Counsel for the respondent: BMJ Toomey QC/R Letherbarrow Solicitors for the respondent: Adelsteins