MOATE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and COLE JJA 2 July 1996, 2 July 1996 [1996] NSWCA 368 Cole JA Judge Coleman held that the appellant, a pedestrian, was guilty of contributory negligence of twenty percent when involved in an accident which occurred on 8 June 1987 at about 8pm when the appellant was crossing Coogee Bay Road, Coogee, in a northerly direction. The appellant passed the mid line of the carriageway of Coogee Bay Road when he was struck by a motor vehicle driven by a Ms Lillis, for whom the respondent is responsible, whilst she was reversing her vehicle to occupy a parking spot on the northern kerb of Coogee Bay Road. There was conflict between the account of the accident given by the plaintiff and his witness and that given by Ms Lillis. Judge Coleman rejected the account given by the plaintiff and his witness Mr Butler, accepting Ms Lillis. Accordingly he found that Ms Lillis had moved forward about two car spaces to allow a parked vehicle to leave the parking spot and then had reversed at about five kilometres per hour to occupy that spot once the parked vehicle had left, in so doing she struck the appellant. Although she clearly was negligent the appellant was found to have contributed to the accident by failing to take reasonable care for his own safety because crossing the road he should have observed the stationary and then reversing vehicle of Ms Lillis. It would have been obvious that she was reversing to occupy the vacated space. No attack has been mounted on the trial judges acceptance of Ms Lillis and rejection of the plaintiff and Mr Butler except that it was said that as the collision broke the rear window of Ms Lillis' vehicle the trial judge's finding regarding speed should be rejected. In reality that is to ask this Court to reverse the trial judges' finding of fact and acceptance of Ms Lillis. In my opinion no adequate reasons had been advanced to justify this Court taking such a course. Accordingly there is no basis for disturbing his Honour's finding of fact, nor is there any basis for disturbing his Honour's assessment of contributory negligence, see Southgate v Waterford!. Accordingly grounds one to three inclusive fail. The fourth ground of appeal contended that the trial judge was in error in awarding thirty one thousand two hundred dollars for past economic loss, which sum was calculated on the basis of eighty dollars per week for seven and a half years. It was contended the trial judge should have accepted Mr Palmer's evidence that the appellant was earning four hundred dollars per week and accordingly eighty dollars per week could not reflect actual loss but was a speculative figure. In one sense the figure was a speculative figure derived by his Honour doing the best that he could in circumstances where he found the plaintiff was a person whose credit could not be accepted. He found that the plaintiff had mis- stated his income, lied as to his identity, not submitted tax returns and 1. (1990) 21 NSWLR 427 at 440. 2 UNREPORTED JUDGMENTS engaged in forms of income earning activity which he did not readily disclose. Nonetheless his Honour was not disposed to entirely reject the appellant. Mr Palmer's evidence was merely what he thought the appellant earned. Inconsistent assertions of earnings were given and there was no documentary evidence to support loss of earning capacity. Other factors to which his Honour referred also rendered the task of determining the appellant's real earnings difficult, if not impossible. However, being satisfied objectively that there was some diminution of earning capacity, his Honour assessed as best he could that loss at eighty dollars per week. I see no basis for disturbing that finding. The fifth ground challenged the trial judge's assessment of future economic loss of one hundred dollars per week for twenty five years subject to reduction for contributory negligence. The trial judge was not satisfied that the appellant was exercising his full capacity to earn, was not satisfied concerning his evidence regarding his actual earnings, nor was he satisfied that uninjured his earnings would be those advanced by Mr Palmer of somewhere between seven hundred and one thousand dollars per week. Having regard to those circumstances and again doing the best he could the trial judge assessed the future loss of earning capacity at one hundred dollars per week. In my opinion no adequate reason has been advanced to disturb that finding. Accordingly all grounds of appeal which have been argued fail and the appeal should be dismissed with costs. Meagher JA I agree. Handley JA also agree, I would merely add that the figure of eighty dollars a week for past economic loss reflects a net amount reduced because the trial judge purported to make allowance for social service payments which had been made and he allowed those payments to go in mitigation of the defendant's damages. It is clear therefore that his Honour assessed the loss at more than eighty dollars a week but reduced it to eighty dollars a week on that basis. This method of assessment was not challenged and I make no comment on it. The order of the Court therefore is the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: P Semmler QC and S Kettle Solicitors for the appellant: Leitch Hasson and Dent Counsel for the respondent: HJ Mater Solicitors for the respondent: RJ Walters