EYLES vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and POWELL JJA 11 April 1997, 7 May 1997 [1997] NSWCA 105 Negligence — two accidents occurring within two months — liability of plaintiff/appellant — award of damages FACTS The Appellant appeals two verdicts, of $42,564 and $17,608 for accidents only a few months apart. The second verdict reflected a finding of 65% liability against the appellant, coupled with his reluctance to seek medical advice about his injuries in this second accident. Further, the medical evidence accepted by his Honour in respect of the injuries allegedly sustained, was that damage was a probable result of degenerative changes within the appellant. HELD (1) In respect of the finding of 65% liability against the appellant in the second accident, a trial judge's apportionment of liability cannot be disturbed except in extra-ordinary circumstances, and the facts of this case support the trial judge's finding. (2) The basis upon which his Honour allowed for the gradual effects of congenital cervical spondylosis were reasonable. Priestley JA The substantial grounds of appeal are described in the reasons of Meagher JA where the facts are also set out. I do not think the appellant's arguments can overcome the conclusions which the trial judge in my opinion reasonably arrived at on the basis of facts he found which there is no basis for this court disturbing. Although this leaves the appellant with a judgment for a sum much less that he probably expected, I agree with Meagher JA that the appeal is one which the court must dismiss, with costs. Meagher JA Smart J, in hearing two cases brought by the appellant(plaintiff), against the Government Insurance Office (respondent/defendant), awarded him two verdicts, $42,564 and $17,608. This appeal related to both matters, but particularly to the second matter, when it has been strenuously submitted that the verdict is far too slight. In the former case, the accident in question occurred on 1 August 1985; in the latter case, the date of the accident was 28 December 1985. In the former case, liability was admitted; in the latter case, it was warmly contested. Accordingly, it is only in respect of the second action that it is necessary to examine the facts relating to the actual accident. The second accident occurred about 2am. The night was very dark and there was heavy rain. The plaintiff, Mr Eyles, a panel beater, was driving from north to south along Botany Street, Bondi Junction. The driver for whose conduct the respondent is responsible, a Mr Stephen Kiosides, was driving from west to east in Allens Parade, Bondi Junction. Bondi Junction is a suburb of Sydney. Mr Kiosides vehicle ran straight into Mr Eyles's car, hitting it on the front passenger side. As it happened, Mr Eyles had a passenger, a Miss Irene Stephens. 2 UNREPORTED JUDGMENTS From that simple recital of the facts, one can sympathise with the police, whose P4 report indicates that they thought Mr Eyles was wholly responsible for the action and should be prosecuted for failure to give way to the vehicle on his right. Hence, it is a tad surprising to find Mr Eyles suing as plaintiff in respect of the accident. However, his Honour heard all the evidence in detail relating to the accident and came to the conclusion that both drivers were negligent. His Honour found that Mr Eyles was negligent in the following respects: (a) He drove at a speed which was excessive in the prevailing circumstances (60 kph). In this respect his Honour disbelieved Mr Eyles' evidence that he was driving at 10 kph. He was therefore unable to accommodate any emergency which arose in areas of limited visibility. (b) He failed to give way to a vehicle on his right which had the right of way; (c) He did not keep a sufficiently good lookout for other traffic; his excessive speed contributed to that. (d) He proceeded upon the bases that there was a "stop" sign and "stop" line in Allens Parade without checking whether that was the position on the night; his speed made it hard to check. (e) He did not allow for problems or emergencies arising in areas where his visibility and that of other drivers was limited. In respect of item (d), it should be said that he was under the impression (and, presumably bona f de so) that there was a stop sign at the intersection of Botany Street and Allens Parade which could have made east-west traffic halt. Much was made of this on appeal; but I am unable to see the force of the contention. One must take the roads as one finds them: it can be no excuse that one imagined to exist signs which did not exist. In respect of Mr Kiosides, his Honour found that he was negligent in (a) failing to keep a sufficient lookout, although travelling at a very low speed, and (b) not allowing for problems when his visibility was impaired. His Honour held that Mr Eyles was 65% responsible and Mr Kiosides was 35% responsible. Learned senior counsel for the appellant, Mr Neil QC, submitted that these proceedings were wrong because they paid insufficient attention to Mr Eyles' beliefs about the "stop" sign. This argument must be rejected, both because of the High Court's insistence that a trial judge's apportionment of liability be not disturbed except in the most extraordinary circumstances, and because Mr Eyles's behaviour obviously cries out for an apportionment of at least 65% liability. He did not have the right of way; and he apparently took the view he could drive along the street of a high-density suburb on a dark rainy night without a care. An examination of Mr Eyles's injuries is very difficult. There is the usual difficulty of trying to reconcile many different medical opinions; this is rendered even more difficult than usual by the circumstance that the two accidents were only a month or two apart; and all these difficulties are compounded by the fact that, for whatever reason, Mr Eyles was reluctant to see his doctors about the second accident. Nor are matters made any easier because the predominant medical opinion (which his Honour accepted) was that substantial degenerative changes had occurred even before the first accident. His Honour's ultimate conclusion is set out in the following passage: URLES v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Meagher JAB "It is probable that prior to 1 August 1985 there were some degenerative changes present in the cervical and dorsal spines. These changes were probably a little more marked at the c5/6 level. The two incidents aggravated the condition. With the trauma they hastened and intensified the degenerative changes. The combination of the effects of the trauma and the degenerative changes have led to the plaintiff haying to work extended hours and lighten his workload. However, with the plaintiff performing heavy duties and his back condition it was merely a matter of time before his condition would have degenerated to a state where his back in the cervical region would have become more sore and troubled him. Mr Eyles would have endured quite a bit of discomfort before eventually having to transfer to -lighter work or obtain assistance. He would never have been out of work. "The first accident activated the neck problems and the second accident compounded them. Both played a part in accelerating and increasing the degenerative condition. "The two accidents probably contributed approximately equally to the neck problems. It is probable that the shoulder problems resulted mainly from the second accident. Without the two accidents the plaintiff would probably have coped for about another 10 years before being subject to the pain and the restrictions which affected him from about February 1986. Gradually his condition would have worsened. Another incident could really have acted as a trigger. The combined effect of the neck and shoulder conditions has proved difficult to assess. The situation is capable of giving rise to over refined and unrealistic calculations. I propose to take a broad approach. I hold that the first accident contributed 45% to the plaintiff's overall disabilities as accelerated by the two accidents and that the second accident contributed 55%. The difference is due to my view that the shoulder problems probably mainly resulted from the second accident." It was against this background that his Honour had to arrive at figures for past and future economic loss. His Honour had several problems to overcome. One was his finding that Mr Eyles was not a creditable witness. Another was that he had, apparently, never filed an income tax return. Another was that his accountant, who gave evidence of how to arrive at appropriate figures, was using a methodology which his Honour - very properly - found unacceptable. His Honour's figures were, therefore, necessarily debatable. So much so that I would have thought that legal reasoning degenerated into mere guess-work. I should have thought the correct answer would have been to award nothing for economic loss, past or future, Mr Eyles having failed to discharge the onus of proving such damage existed. But, as there was no cross-appeal on the point, one can hardly espouse that viewpoint. The figures found by his Honour were attacked on two bases. The first was that future damages were calculated on the basis that degenerative changes would have within ten years operated to reduce the plaintiff to the same condition as he was because of the accidents. It was submitted strongly that there was no basis for this conclusion. Mr Neil QC asserted that a person with marked degenerative changes can remain asymptomatic for the rest of his life. However, there is a logical basis for his Honour's calculations. Dr Kwok said: "it is not unusual for people with employment involving heavy work to develop cervical spondylosis of the degree seen in Mr Eyles." In 1989, Dr J. B. Lawson wrote that in his view the accidents and injuries were "a source of aggravation only" and that "the restriction effecting whole person impairment is basically due to the aging 4 UNREPORTED JUDGMENTS degenerative process." On this basis his Honour obviously thought it would be reasonable to give the plaintiff a ten-year period from the date of the original injury whereupon the gradual effects of congenital cervical spondylosis would take its toll. I cannot see that this is unreasonable. The second was that the amount for general damages, $35,000, was too little - a mere bagatelle, it was said. But we cannot interfere with a trial judge's assessment of general damages except for very persuasive reasons. Moreover, to most people, including the holders of judicial office, the sum of $35,000 constitutes Midas-like riches. I would dismiss the appeal with costs. Powell JA I have read, in draft the Judgment which has been prepared by Meagher JA, in which Judgment his Honour has set out the basic facts giving rise to, and the principal questions requiring to be determined upon, this appeal. Although it seems to me that there is much to be said for the view that the Appellant ought to have been held wholly responsible for the December 1985 accident, the view which Smart J took was, in my view, one which, in the circumstances, was open to him, and is, in any event, not challenged by the Respondent. So, too, it seems to me that, although minds may differ as to the manner in which responsibility for that accident ought to have been apportioned as between the Appellant and Mr Kiosides, the view adopted by Smart J was, in my view, one which, in the circumstances open to him to adopt. It is my understanding of the-authorities (see, for example, British Fame (Owners) v Magregor (Owners)!; Ingram v United Automobile Service Ltd2; Pennington v Norris3; Sinclair v William Arnott Pty Ltd4; Podrebersek v Australian Iron & Steel Pty Ltd5; Nicholson v Nicholson®) that it is only in exceptional circumstances that an appellate court will be justified in setting aside such an apportionment made by a Judge at first instance, such cases, for the most part, being limited to those in which an error of fact or law can be identified. No such error on the part of Smart J having been identified, is Honour's apportionment is, in my view, unassailable. Given the unsatisfactory state in which the evidence was left, a similar approach, in my view, should be taken to the assessment of damages made by Smart J. The conclusions reached by his Honour seem to me to have been open to him to reach, and, no error of fact or principle having been identified, those conclusions, in my view should not be disturbed. I agree that the appeal should be dismissed with costs. Appeal dismissed with costs. 1. [1943] AC 197 2. [1943] KOB 612 3. (1956) 96 CLR 16 4. (1963)64 SR 88 5. (1985) 59 ALJR 492 6. (1994) 35 NSWLR 308