HERBERT v WATERS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MEAGHER JA, HANDLEY JA and BEAZLEY JA 18 November, 4 December 1997 [1997] NSWCA 147 MOTOR ACCIDENTS ACT — contributory negligence — no question of principle The defendant appealed from a verdict in a motor vehicle case. The collision occurred on a bend in a dirt road. The appellant, aged 17 and licensed, was driving a Ford Falcon. The respondent, aged 14 and unlicensed, was riding a motorcycle. The collision occurred on the defendant's side of the road. The trial Judge found for the plaintiff and held that there was no contributory negligence. The respondent sought to lead further evidence about the effect of his injuries on his job prospects. HELD: (1) The finding that the defendant was negligent could not be disturbed. He was travelling at a dangerous speed and did not keep a proper lookout. (2) The plaintiff was guilty of contributory negligence. The motorcycle cut the corner and was travelling on the wrong side of the road. The plaintiff was travelling at an excessive speed and had not slowed down when he became aware that a car was approaching. Responsibility should be apportioned 40% to the plaintiff and 60% to the defendant. (3) The additional evidence should not be admitted as it concerned the area of uncertainty as to the plaintiff's future in which the trial Judge had made an estimation in assessing damages. Doherty v Liverpool Hospital (1991) 22 NSWLR 284 applied. (4) The Judge's assessment of the plaintiff's damages should not be disturbed. Meagher JA. I agree with Handley JA. Handley JA. This is an appeal by the defendant from the judgment of Sidis DCJ in a motor vehicle case. The accident occurred at about 5.30 pm on 1 February 1993 on Norman Henry Drive, an unsealed bush road on a mountain overlooking the city of Lithgow. It was daylight, the weather was fine, and the road was dry. Photographs in evidence revealed a reasonably well-formed road, with vegetation growing to the edge. Senior Constable Lintott measured the road and found that it was 4 metres wide. It is evident from the photographs which showed tyre tracks in the centre of the road, on either side of the crown, that this is where the traffic was concentrated. Visibility in some sections was obscured by bends in the road and vegetation. The accident involved a collision between a motor cycle driven by the plaintiff, then aged 14 and unlicensed, with Mr Saywell as pillion, anda Ford Falcon driven by the defendant, then aged 17 and licensed, with Miss Cherie Sheather as a passenger. The Judge found that the collision occurred in a bend where the defendant had reasonable vision ahead. She held that the defendant was negligent because he approached the bend at an excessive speed and failed to keep a proper lookout so that he did not see the motor cycle until it was too late. She also found that the plaintiff had not been cutting the corner, and that his reaction to the sudden crisis did not make him guilty of contributory negligence. She assessed damages at $ 95,385.80. 2 UNREPORTED JUDGMENTS The defendant appealed, challenging the findings on negligence and contributory negligence. This provoked a cross-appeal by the plaintiff which challenged the Judge's awards for non-economic loss ($ 56,660 based on 28% of a most extreme case) and for future economic loss ($ 35,854). The plaintiff applied to adduce additional evidence in the appeal. This comprised a further medical report by Dr Millroy dated 22 October 1997 about the condition of the plaintiff's left thumb, evidence of the award wages for motor mechanics and average weekly earnings for adult males, and an affidavit by the plaintiff about the difficulties he had experienced during the second year of his engineering course at Hervey Bay Senior College, and since, in attempting to obtain work and work as a motor mechanic or labourer. The trial Judge accepted the plaintiff's evidence as to his disabilities at the time of the trial, and the reports of Dr Marnie, who had qualified for the plaintiff. She said: He is currently undertaking a course in mechanical engineering with the intention of working as a motor mechanic. He described the course as substantially practical so that he is frequently working with engines. He is therefore aware of the effects which his disabilities will have in the course of his work. To date he noted that he suffers back problems bending over motor engines, and he has to brace himself against the structure of the vehicle to compensate for the instability of his knee ... Dr Marnie states that Mr Waters" physical disabilities will preclude him from heavy manual labour. On this basis it is suggested that Mr Waters has suffered a loss of future income earning capacity for which a lump sum should be awarded ... I find that Mr Waters" ongoing disabilities are likely to affect his productive capacity as a motor mechanic and will disadvantage him when he is competing for employment against able bodied applicants on the general labour market. Against this I weigh, to his credit, his obvious determination to manage his disabilities so that they are of the least possible effect. Assessment of this loss is difficult in the absence of evidence of likely future earnings and the state of the employment market for motor mechanics. As is evident, the plaintiffs claim at the trial for future economic loss was 'a general claim' based on his disability. The principles which guide this Court in the exercise of its discretion to receive further evidence on appeal, under s 75A of the Supreme Court Act, were examined in Doherty v Liverpool District Hospital (1991) 22 NSWLR 284. No reason appears, consistently with those principles, for the discretion to be exercised to allow the plaintiff to tender in this Court evidence of the award wages of motor mechanics and the average weekly earnings of adult males. Likewise no reason appears for admitting the updated medical report of Dr Millroy, which shows that his earlier prognosis for the plaintiff's left thumb has been borne out by subsequent events. The plaintiffs own affidavit which would tend toestablish that he was over optimistic in his evidence at the trial about the effect of his injuries encounters the principle endorsed in Doherty v Liverpool Hospital at 295 that 'fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty in which the trial Judge's estimate has previously been made'. For these reasons the Court declined to receive the additional evidence and the appeal proceeded on the evidence that had been before the trial Judge. The Judge's decision that the defendant had been negligent was based on her findings that he had driven at an excessive speed, greater than the 40 kph that he claimed, and had failed to keep a proper lookout. The latter finding was inescapable in view of his own evidence that he did not see the motor cycle until URJ HERBERT v WATERS (Handley JA) 3 it was 4 metres ahead of him as it was swerving across the front of the car to its incorrect side of the road. He said he swerved to the right but could not avoid a collision. He did not attempt to apply his brakes, but apparently accelerated in order to get out of the way. These findings cannot be disturbed and her decision that the defendant had been negligent must therefore be affirmed. On the other hand I have arrived at a clear conclusion that her decision on contributory negligence must be set aside. Senior Constable Lintott said the approximate point of impact was about | 1/2 metres in from the edge of the northern side of the road. This was the correct side for the defendant but the incorrect side for the plaintiff. The plaintiff's mother confirmed this evidence. The constable also observed a single tyre mark on the road which was straight and some 60 metres in length, evidentlymade by the plaintiff's motor cycle. The tyre mark terminated at the approximate point of impact. This indicated that the plaintiff had attempted to cut the corner and this had brought him on to his incorrect side. The collision occurred on the near side front of the defendant's car, the damage being clearly shown on a photograph in evidence. This confirms the plaintiff's position on his incorrect side, and demonstrates that there was sufficient room on his correct side to have passed with safety. Both vehicles, especially the car, must have generated significant volumes of dust. The plaintiff said he saw the car roof and dust generated by the car through the trees a number of seconds before he could see the car itself. He was travelling at 40-50 kph but did not reduce speed. When he saw the whole car it was then only 25 to 30 metres away and by then, as the tyre mark demonstrated, he was committed to cutting the corner, and a collision was inevitable. The pillion passenger said that he saw the car when it was 100 metres away. The trial Judge held that the plaintiff's spur of the moment decision to attempt to pass the car on its correct side of the road was made in the agony of the moment and did not constitute contributory negligence. I agree, but in my judgment a finding of contributory negligence is nevertheless inescapable. The plaintiff was aware of the approach of the car and had the opportunity to slow down but did not do so. If he hadreduced speed in all probability he could have passed the car in complete safety on his correct side of the road. This brings me to the question of apportionment. Both vehicles were travelling at excessive speeds and the defendant failed to keep a proper lookout. On the other hand, the plaintiff in attempting to cut the corner took an obviously risky course which brought him onto his incorrect side of the road. These factors call for a substantial apportionment of responsibility to the plaintiff, but a further factor justifies apportioning less than 50% to him. The defendant was driving a large car which at any substantial speed was a potential instrument of destruction for persons on a motor cycle approaching from the other direction. The plaintiff was careless of his own safety but his position and speed posed a relatively minor risk to persons in the Ford Falcon, compared with the potential risk that the speed of the Falcon created for the plaintiff. If the defendant had been travelling at a slower speed, or had reduced speed, the force of the impact would have been significantly reduced, and the plaintiff would have had more time and space for evasive action. On the probabilities his injuries would have been less serious and he may have avoided injury altogether. In these circumstances the appropriate apportionment is 40% to the plaintiff and 60% to the defendant. 4 UNREPORTED JUDGMENTS The plaintiff cross-appealed from the Judge's awards for non-economic loss and future economic loss. He was 17 at the date of trial and will be living with his injuries for a long time. Mr Drummond argued thatthe award for non-economic loss based on 28% of a most extreme case was vitiated for factual error or was wholly erroneous. His attempt to demonstrate that the Judge had overlooked material evidence on the issue failed for reasons which were sufficiently exposed during oral argument. The plaintiff undoubtedly suffered serious injuries and has significant continuing disabilities in his left leg and knee. Most of his other injuries had resolved, and it was thought that his headaches and low back pain would shortly follow the same course. The award was probably in the bottom half of the available range, but that does not authorise appellant intervention. There is no single correct amount for an award for non-economic loss and differences of opinion within the available range are just that. They do not establish error. In my judgment the plaintiff's challenge to this part of the award must fail. The Judge awarded $ 35,854 for future economic loss, there being no claim for such loss in the past. At the date of trial, the plaintiff had a working life expectancy of 46 years so the award is a modest one. Her Honour said: I find that Mr Waters" ongoing disabilities are likely to affect his productive capacity as a motor mechanic and will disadvantage him when he is competing for employment against able bodied applicants on the general labour market. Against this I weigh, to his credit, his obvious determination to manage his disabilities so that they are of the least possible effect. Assessment of this loss is difficult in the absence of evidence of likely future earnings and the state of the employment market for motor mechanics. On this basis, she awarded $ 50 per week, discounted by 25% for vicissitudes. This discount was not directly challenged and I thought originally that it may have been too high but, on reflection, the plaintiff's age at trial, the long period to be considered, and his continuing fondness for riding motor cycles did justify a higher discount than usual. The plaintiff's case at trial was based on his own optimistic assessment of his capacity for work as a motor mechanic and medical evidence partly based on the same assumption. The plaintiff led no evidence to suggest that he would have any significant difficulty in obtaining or keeping a job as a motor mechanic. The claim made on his behalf was for a lump sum 'cushion' to reflect his reduced capacity. Such claims normally result in a modest award and this case was no exception. It will be unfortunate if the plaintiff's strong motivation and optimism result in him being under-compensated, but courts do not make cases for parties, but rule on cases that the parties have brought forward for adjudication. In my opinion the challenge to this component also fails and the following orders should be made: (1) Appeal allowed with costs. (2) Cross-appeal dismissed with costs. (3) Judgment for the plaintiff for $95,385.80 set aside. (4) In lieu thereof substitute judgment for $57,231.48 and costs with effect from 27 September 1995. (5) Respondent to have a certificate under the Suitors" Fund Act in respect of the costs of the appeal. Beazley JA. I agree with Handley JA. (1) Appeal allowed with costs. (2) Cross-appeal dismissed with costs. URJ HERBERT v WATERS (Beazley JA) 5 (3) Judgment for the plaintiff for $95,385.80 set aside. (4) In lieu thereof substitute judgment for $57,231.48 and costs with effect from 27 September 1995. (5) Respondent to have a certificate under the Suitors' Fund Act in respect 5 of the costs of the appeal. Counsel for the appellant: R C Tonner Solicitors for the appellant: Turner Whelan 10 Counsel for the respondent: J S Drummond Solicitors for the respondent: Beilby Poulden Costello