THOMAS v PHANEKHAM SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL POWELL, COLE and BEAZLEY JJA 8 October 1996, 8 October 1997 [1997] NSWCA 315 TRIAL judge's finding of contributory negligence upheld, as was trial judge's awarding of damages — trial judge's award of interest cannot stand as the provisions of s73(4) Motor Accidents Act were not satisfied. Cole JA The appellant and the respondent were involved in a motor vehicle accident at about 9.10am on 26 July 1991 in Narellan Road, Campbelltown. The appellant was driving in a westerly direction approaching the entrance to the TAFE College. Narellan Road there comprised three lanes with the kerbside lane being a turning lane into the TAFE entrance. At the TAFE entrance was a give-way sign requiring vehicles emerging from the TAFE College to give way to vehicles approaching from the east. The respondent's vehicle was stopped at the give-way sign. A number of vehicles ahead of the appellant crossed into the turning lane preparatory to turning into the TAFE College. The appellant then accelerated to a speed found to be about 80 kilometres per hour as he approached the TAFE entrance. He was aware of the entrance, and of the fact that vehicles emerged from that entrance to cross the western carriageway turning right to travel east towards Campbelltown. Judge Holt found that the appellant was negligent in that he did not proceed with adequate caution or at an appropriate speed approaching the TAFE entrance. His Honour also found that the respondent was guilty of contributory negligence in that he failed to give way to a vehicle approaching from his right and proceeded into Narellan Road without adequately ensuring that there were no vehicles approaching from his right. Judge Holt attributed 66% of blame for the accident to the respondent. The appellant has challenged the finding of negligence against him. In essence, the submission put was that the speed of the appellant's vehicle was not causative of the accident. It was put that the respondent's vehicle had travelled only a short distance from the stop sign to the point of collision. In my view it was open to the trial judge to find that it was negligent in the circumstances for the appellant to accelerate approaching a known exit where vehicles might be expected to emerge on to the carriageway upon which the appellant was travelling. This is particularly so given the admissions made by the appellant. he was asked: "Q. Given that you knew that there was an exit from the TAFE and that vehicles might comeout of it would you expect that 80 kilometres would have been too fast to have been travelling along that road at that point? A. I realise that now." I would not disturb the trial judge's finding of negligence nor would I disturb his Honour's assessment of contributory negligence. 2 UNREPORTED JUDGMENTS The respondent was also plainly negligent in that he disobeyed a traffic regulation to give way, and drove out onto a carriageway without having adequate vision and at a comparatively fast speed. Minds may differ as to the percentage of contributory negligence, but in my view the assessment made by his Honour is plainly within the permissible range and is not open to successful appellate challenge. I would accordingly dismiss the appeal concerning liability. Judge Holt awarded the following damages: "Non-economic loss $ 47,220.00 Past economic loss $ 7,000.00 Future economic loss $ 5,000.00 Out of pocket expenses $ 607.05 Total: $ 59,827.05" This was reduced by 66% to result in a verdict of $20,341.19 plus interest. On appeal the appellant has contended that the assessment by the trial judge that the plaintiff has crossed the threshold imposed by s79 Motor Accident Act 1988 in that as a consequence of the motor accident the plaintiff's ability to lead a normal life has been significantly impaired, should not be sustained. Holt DCJ found that resulting from the accident the respondent had increased headaches, an increased anxiety state, and suffered from mild post-concussional syndrome causing memory disturbance and tinnitus. He has ongoing symptoms and pain from his abdomen and urinary and bowel problems. I see no basis for disturbing the trial judge's findings that the threshold has been crossed, nor would I disturb his Honour's assessment that the appropriate percentage for s79 is 26%. To my mind that assessment was plainly within the discretionary range available to his Honour. Similarly no error has been shown in the award of a comparatively small amount for past economic loss or a small cushion for loss of future earning capacity. His Honour awarded interest in the sum of $1,913 without advancing reasons for that award. In my view in light of the provisions of s73(4) that award of interest cannot stand. No endeavour was made to satisfy the provisions of that subsection to justify the award of interest or, at least, there is no evidence before this Court that there was any such endeavour. However, as this is the only ground upon which the appeal should be upheld, I do not think that the appellant should be relieved of paying the respondent's costs. I would propose the following orders: 1. Appeal upheld. 2. Judgment of Holt DCJ varied by deleting the sum of $1,913 awarded for interest on past economic loss. 3. The appellant is to pay the respondent's costs of the appeal on an indemnity basis. Powell JA I agree. Beazley JA I also agree. Powell JA The orders of the Court will be those proposed by Cole JA but with the verdict is to take effect from the date of Judge Holt's original decision. 1. Appeal upheld. URJ THOMAS v PHANEKHAM (Powell JA) 3 2. Judgment of Holt DCJ varied by deleting the sum of $1,913 awarded for interest on past economic loss. 3. The appellant is to pay the respondent's costs of the appeal on an indemnity basis. Counsel for the appellant: J D Hislop QC Solicitors for the appellant: Dunhill Madden Butler Counsel for the respondent: H G Shore Solicitors for the respondent: Hunt & Hunt