DITTON v WHITTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE, BEAZLEY and STEIN JJA 5 September 1997, 5 September 1997 [1997] NSWCA 88 Apportionment of liability — whether liability should be apportioned equally — indemnity costs — offer of compromise — District Court Rules Pt19A r2 and r9 STEIN JA This appeal raises a single issue. Was the trial judge's apportionment of liability between the parties in error? In a decision delivered in the District Court on 21 May 1996 Patten DCJ awarded the plaintiff/respondent, Maria Christine Whitton, the sum of $113,590.60. He apportioned the respondent's liability as 15% and accordingly reduced the assessment of damages from $136,636. It is the defendant/appellant's position that his Honour should have apportioned liability equally between the parties. The accident occurred on Saturday, 4 December 1993 in the following circumstances. The respondent was driving south on Watanobbi Road, Watanobbi on the Central Coast. This road intersects with Casey Drive forming a T-intersection. There is a crest in Watanobbi Road 42m north of the intersection with Casey Drive. There had been drizzly rain and the road was wet. The respondent was familiar with the area and was on the way to hospital to have her son's wound dressed. As the respondent came over the crest travelling, according to her, at a speed of 50kph, she saw the appellant's vehicle was stationary across her side of the road and directly in her path. She braked hard, changed down through the gears, but was unable to avoid a collision. The front of her vehicle struck the appellant's Hi-Lux utility midway along its near side. The appellant had driven his vehicle down Casey Drive to the intersection with Watanobbi Road to make a three point turn in order to travel back along Casey Drive in the opposite direction. He had manoeuvred his vehicle so that its front was near to the eastern kerb of Watanobbi Road. It was stationary in this position when the respondent came over the crest. The appellant said he did not have sufficient time to reverse and there was nothing he could do to avoid the impact. Like the respondent, the appellant was familiar with the area. His Honour had no difficulty finding that the appellant was negligent, as he undoubtedly was. His Honour considered any negligence of the respondent. While rejecting the appellant's claim that the respondent was travelling at 80 kph, the judge said: I am of the view that the plaintiff (respondent) was either driving at a speed which was too fast in the circumstances or was failing to keep a proper lookout. He added: Tam not unmindful of the fact that the more obvious risk would be of a vehicle turning right out of Casey Drive which, of course, would be moving and present less of a danger than the defendant's (appellant) stationary vehicle. His Honour then turned to the apportionment of responsibility. He said: 2 UNREPORTED JUDGMENTS I conclude that by far the greatest responsibility for the accident should be with the defendant (appellant). I attribute the plaintiff's (respondent's) responsibility at 15% and conclude that it would be just and equitable to reduce the plaintiff's (respondent's) entitlement to damages... In Pennington v Norris (1956) 96 CLR 10 the High Court made it clear that a judge is given a very wide discretion in the task of making the apportionment. In the judgment of the court: Much latitude must be allowed to the original tribunal in arriving at a judgment as to what is just and equitable. It is to be expected, therefore, that cases will be rare in which the apportionment made can be successfully challenged... (at 15-16) For a further exposition see Podrebersek v AIS (1985) 59 ALR 529 at 533, and Civic v Glastonbury Steel Fabrications (1985) 59 ATR 80/746. The appellant attempted to face this difficulty by submitting that the final result was so wrong as to indicate error. No issue is taken with the findings of fact. Rather, it is the approach of the judge to the balancing of culpability which is challenged. In particular, it is submitted that his Honour placed disproportionate weight on the danger of the appellant's stationary vehicle on the roadway. It was said that the question of whether the obstruction was stationary or moving was not of such fundamental importance as to distort the balance of culpability to 85%/15%. It is submitted that a proper approach would be to balance culpability equally. The appellant says that both drivers were equally culpable. Did his Honour err in principle, misapprehend or misapply a material fact or was he patently wrong? Was there a flaw in his reasoning process? For my PtI can see no such error. The appellant was undertaking the highly risky manoeuvre of a three point turn within the intersection. He did this being aware that there was a crest 42m to the north limiting visibility for vehicles travelling south towards the intersection and that the road surface was wet. In my opinion this was a highly dangerous procedure laden with the foreseeable risk of an accident. By comparison the negligence of the respondent was slight, albeit as his Honour found, extant. According to the findings of fact, she was not speeding, but was either driving at a speed which was too fast in the circumstances or failed to keep a proper lookout. His Honour made an assessment and comparison of the respective culpability of the drivers. Given his wide discretion, it is impossible to say that his apportionment should be set aside. He did not err in principle, nor did he misapply or misapprehend the evidence. It cannot be said that he was patently wrong in his apportionment. The appeal should be dismissed. Cole JA I agree. Beazley JA I agree, but I understand that there are submissions or that there is an application to be made in respect of costs. COLE JA: Application has been made on behalf of the respondent for an order for indemnity costs. The respondent made an offer of compromise in District Court proceedings. The result of the appeal is that an order more favourable to the respondent than that in the offer of compromise has been achieved by the respondent. There is provision in the District Court Rules which provides for the making of an offer of compromise and which specifies the cost consequences. That provision is found in ptl9A r2 and r9. There is a similar provision in the Supreme Court Rules. URJ DITTON v WHITTON (Beazley JA) 3 The District Court Rules were considered by the Chief Justice and Rolfe J in Palumbo v Izmirlian (Unreported, 6 July 1995). The provisions in the Supreme Court Rules were considered by this Court in Ettinghausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404. The principle that emerges from the latter case is that in accordance with the rules an offer of compromise maintains until the disposition of the claim which is the subject of the proceedings. Accordingly, as a matter of principle the majority in Ettinghausen held that it had application not just to the initial trial but also to the Court of Appeal proceedings and to any subsequent trial. To my mind that means it is clear, whether the offer of compromise be made in the District Court or in the Supreme Court, that any offer of compromise continues to have application pending ultimate disposition of the claim the subject of the proceedings. In those circumstances it seems to me as a matter of principle that the respondent is entitled to the order for indemnity of costs which it seeks. The formal orders or the court are: 1) Appeal dismissed; 2) The appellant is to pay the respondent's costs on an indemnity basis. Counsel for the appellant: P R Hoeben SC Solicitors for the appellant: Curwood & Partners Counsel for the respondent: R E Quickenden Solicitors for the respondent: Nash Allen Williams Wotton