KING v FLAVIANO SUPREME COURT OF COURT NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, HANDLEY and COLE JJA 17 March 1998, 17 March 1998 [1998] NSWCA 122 NEGLIGENCE — RUNNING DOWN CASE — NO QUESTION OF PRINCIPLE Handley JA This is an appeal by the defendant from a decision of Gibb ADCJ who determined issues of liability and damage arising out of a motor vehicle accident which occurred on 30 August 1991. The accident occurred on the Hume Highway on the northern outskirts of Mittagong. It involved the plaintiff, a truck driver in the Army Reserve, and a Pioneer passenger coach driven by the defendant. The plaintiff was the driver of an Army truck which was one of a convoy taking schoolboys to a cadet camp near Moss Vale. The convoy had stopped on the northern outskirts of Mittagong and the vehicles had parked in a parking lane adjacent to the first lane for southbound traffic. The drivers left their vehicles and conferred with the officer-in-charge, Captain Blackman. A decision was then made to press on to the camp site. The plaintiff returned to his truck, which was parked behind Capt Blackman's car and in front of the last truck in the convoy. It was about 8pm at the time. It was dark, the weather was cold, the traffic was heavy and the road surface was wet as it had only recently stopped raining. There was street lighting in the area which was not of high quality and it was within the 60 kilometre an hour restriction zone. The plaintiff was injured when he was getting into his truck on the off-side. It appears that he had a foot, probably his right one, on the step of the truck and was getting into the cabin. He was therefore elevated above the road surface when he was struck by the rear vision mirror which stood out from the near-side of the passenger coach. Counsel for the plaintiff acknowledged at the trial that at the time of the accident Mr Flaviano's body would have been projecting into the near-side traffic lane, along which the defendant was driving the passenger coach. Both sides called expert evidence and it was common ground that Mr Flaviano's truck was approximately 2.48 metres wide and was parked in the parking lane which was 2.65 metres wide. The passenger coach was 2.4 metres wide, occupying a traffic lane which was 3.25 metres wide. In view of the conclusions which I have reached, it is not necessary to go into all the dimensions in the detail that would have been appropriate at the trial. There was not a great deal of room for the plaintiff to get into his truck as he did and leave room for the passenger coach to pass by in safety. There was some difference of opinion among the experts as to the extent to which Mr Flaviano did intrude onto the traffic lane. Mr Kiernan, called for the defendant, said that he was likely to have intruded by up to 400 mm. Mr Brown, called for the plaintiff, suggested Mr Flaviano may have intruded by as much as 650 mm. 2 UNREPORTED JUDGMENTS There was acceptable evidence that the accident did not involve any metal-to-metal contact between the vehicles. Mr Brown's evidence was that the truck with its off-side door fully opened and its door handle extended was 3135 mm wide. This, in my view, supports Mr Brown's opinion that the plaintiff when entering his truck may have indeed intruded by as much as 650 mm or approximately two feet into the traffic lane. Mr Kiernan's estimate does not appear to be consistent with the objective facts relating to the distance that the door was extended when fully opened and the fact that there was no metal-to-metal contact. The important findings by the Judge were that Mr King, the driver of the coach, had ample time to move towards the right hand extremity of his traffic lane when he observed the convoy on the side of the road and realised they were Army trucks likely to be carrying troops or cadets. Mr King acknowledged that this is what he should have done, but he did not do this. It is likely that had Mr King done so the accident would have been avoided. No great deflection of the coach was required to avoid contact between Mr Flaviano and the rear vision mirror and, on the expert evidence, Mr King could have moved to the extreme right hand edge of his lane without intruding onto the other southbound lane. The other important finding by the trial Judge was that Mr King should have seen the plaintiff. She was not satisfied that Mr King saw the plaintiff at all prior to the collision. and this is not surprising in view of the conversation which he had with Miss Pond after the accident when he asked her whether he had hit anybody (p121 AB). Miss Pond and another passenger, a Miss Wallin, were sitting in the front seats on the near-side of the coach. Miss Wallin saw the movement of the plaintiff. She did not see the truck door open and she said that she saw the plaintiff moving when she was approximately the length of two vehicles and the first of the Army trucks away from the plaintiffs truck. The Judge thought that this was more than 25 metres back from the point of impact. Miss Pond first noticed the movement of the door and then noticed the movement of the plaintiff. The Judge found, as I have said, that the defendant was not keeping a proper lookout and she also found that if he had been doing so he would have observed the plaintiff in time to take appropriate evasive action. There was evidence to support this; indeed the evidence of Mr King was that he had a better view ahead than Miss Pond and Miss Wallin. It is true that Mr Flaviano was dressed in Army uniform, camouflage drill, and the circumstances were unfavourable so far as the time of night, the lighting and the weather conditions were concerned; but these matters did not stop Miss Wallin seeing the plaintiff when she was the best part of four vehicle lengths away from him. Indeed, it is implicit in the Judge's findings that the driver should have seen the plaintiff before Miss Wallin did. In cases such as this it is sometimes difficult for a plaintiff to discharge the onus of establishing that the keeping of a proper lookout would have enabled the driver to avoid the accident. However, in this case the accident occurred inside the 60 kph zone and the driver said he was travelling between 40 and 50 kph. At one point he said he was travelling at only 40 kph. There is no suggestion that he was travelling at an excessive speed and there was other evidence that the traffic had slowed down after it had entered the 60 kph zone. This materially increased the driver's prospects of avoiding the accident if he had been keeping a proper URJ KING v FLAVIANO (Handley JA) 3 lookout. He said he applied his brakes but the Judge did not accept this finding, no doubt partly because of the conversation with Miss Pond after the accident. In my view the finding that the defendant was not keeping a proper lookout cannot be disturbed and amply supports the Judge's findings of negligence against the defendant, subject of course to questions of causation. The Judge found that the coach could have avoided Mr Flaviano and her findings in this regard were as follows: "T also find that if Mr King had taken the evasive action that, on his own testimony, a prudent driver would have taken when he saw the parked Army convoy, Mr King would have avoided the accident. In any event, if Mr King had seen the truck door open or Mr Flaviano at least when Mr King's passenger Ms Wallin saw both the door and Mr Flaviano, Mr King could have avoided the accident". Unless those findings can be disturbed, the Judge's findings of negligence must be supported. The evidence of Mr Brown and Mr Kiernan supported the view that allowing for a reaction time of 1-12 seconds, at between 40 and 60 kms an hour, the driver had time from the moment Miss Wallin saw the plaintiff to move his vehicle further to his right and in all probability this would have avoided the accident. These findings were not directly challenged. Indeed the driver said that it was likely that he could have avoided the accident had he observed the plaintiff beforehand. I would therefore affirm the trial Judge's finding that the defendant was guilty of actionable negligence. The trial Judge found that the plaintiff had failed to take reasonable care for his own safety and she assessed his responsibility at 5 percent. The Judge's findings which supported her conclusion on contributory negligence were that he had placed himself in a position of potential danger in part of the nearest traffic lane on a major road. The extent to which the plaintiff intruded onto that traffic lane has already been referred to. Her Honour also found that "at worst Mr Flaviano simply did not look when a reasonably careful man would have looked". In my judgment these findings seriously understate Mr Flaviano's contribution to his injuries. He agreed that after the conference he walked to the front of his truck, then round to the driver's side when he was facing the oncoming traffic on the Hume Highway. The Judge found that the traffic was heavy, and that is consistent with the probabilities. Whatever difficulties there may have been in detecting the presence of this large passenger coach among the other traffic, the evidence of Miss Wallin means that the plaintiff should have been aware of its presence when Miss Wallin could see him. If he did not observe the passenger coach at that point he was being seriously delinquent in looking after his own safety, bearing in mind his position on the edge of the Hume Highway and the fact that he would have to intrude up to two feet or so into the nearest traffic lane when getting into his vehicle. In these circumstances it seems to me that, with respect, the trial Judge misunderstood the facts relevant to the assessment of the plaintiff's contributory negligence and that this Court should set aside her apportionment and reassess. Given the two opportunities that the defendant/driver had to avoid the accident, first when he observed the convoy parked on the side of the road and later when 4 UNREPORTED JUDGMENTS he should have observed the plaintiff. the preponderant apportionment must be against the defendant. This is supported by the principles stated in Pennington v Norris (1956) 96 CLR 10 at 16. Doing the best I can in making what is essentially a discretionary and impressionistic assessment, I would substitute a finding of 15 percent for that made by the trial Judge and allow the appeal to that extent. Mr Garling SC also challenged the award of damages. The Judge determined that the appropriate assessment for non-economic loss was 53 percent of a worst case. Mr Garling submitted that this was excessive and invited this Court to substitute a figure of 35 percent or thereabouts. No express error of fact or principle was identified or sought to be identified on the face of the Judge's reasons. The only submission was that 53 percent was appealably excessive. Ihave not been persuaded that the Judge fell into error in her assessment. The plaintiff was right hand dominant and, according to Dr Bleasel, had lost 50 percent of the effective use of his right arm, and had lost his right thumb. Other evidence supported findings that the plaintiff had lost 30 percent of the effective use of his back, and 5 percent of the effective use of each of this legs. There was an impairment of his sexual function, he suffered serious pain. there was a risk of the earlier onset of arthritis and there was the prospect of future surgery for a shoulder replacement. Bearing in mind the plaintiff's age, I consider that the Judge's assessment was within the range of a sound exercise of her judicial discretion. The next item challenged was the award for future economic loss. The Judge found that the plaintiff had some residual earning capacity but concluded that this was unlikely in practice to be productive of any significant income. Both parties had confidence in the same expert, Mr De Giovanni, and each tendered reports from him. Mr De Giovanni's conclusions were that employment for Mr Flaviano after whatever retraining was available was "theoretically possible but practically unlikely". I need not expand on this finding. The relevant details are set out in her Honour's reasons on this part of the case. In the light of the ultimate findings as to the prospect of Mr Flaviano ever putting his residual working capacity to economic advantage, it seems to me that the Judge's assessment of his future economic loss cannot be disturbed. She found that he was about to undertake retraining as a forklift driver and had excellent prospects of being employed in that capacity if he had not been injured. However, she increased the usual allowance for contingencies to 25 percent to reflect the uncertainty of his economic future in seeking, gaining and retaining employment in this new capacity. Ihave not been persuaded that there was any error of fact or principle involved in quantifying the deduction for contingencies that her Honour made. The final matter relates to the Judge's allowance for future economic expenses. The Judge noted that the plaintiff claimed for the prospects of future expenditure for surgery to his back, replacement of his right shoulder, provision of a TENS machine, psychiatric support and counselling, physiotherapy and the pain-killing pharmaceuticals. The estimate for the cost of the future replacement of the right shoulder varied between $13,500 and $18,950 with $13,500 being supported by a majority of the doctors. If this was the only item involved it would, of course, have been wrong to allow the $25,000 that she did and the future cost of that procedure would have to be discounted to a present value. URJ KING v FLAVIANO (Gleeson Cu) 5 However, the plaintiff was in his early forties at the time of trial and faced a considerable number of years in which the risks of further treatment were all too obvious. In these circumstances the Judge was entitled to allow an amount by way of cushion against future medical expenses. This is what the Judge did. although she did not describe her award in that way. She said she allowed a figure of $25,000 for the "cost of future hospital, specialist medical treatment and pharmaceutical costs". Having regard to the plaintiff's age and life expectancy, I have not been persuaded that an allowance of this amount was inappropriate or beyond the range of the trial Judge's discretion. In those circumstances I would propose that the appeal be allowed in part; that the judgment of the trial Judge, except as to costs, be set aside; and that there be substituted judgment for the plaintiff for $558,898 with effect from 4 April 1997. The appellant has succeeded substantially in money terms but compared with the case that the appellant brought to this Court has also substantially failed. In those circumstances I would propose that the respondent pay one-half of the appellant's costs and have a certificate under the Suitors' Fund Act. Gleeson CJ I agree. Cole JA I also agree. Gleeson CJ The order of the Court will be as proposed by Handley JA. (1) Appeal allowed in part. (2) Judgment of Gibb ADCJ set aside except as to costs. (3) Substitute a judgment for the plaintiff for $558,898 with effect from 4 April 1997. (4) The respondent pay one-half of the appellant's costs and have a certificate under the Suitors' Fund Act. Counsel for the appellant: P R Garling SC/J M Morris Solicitors for the appellant: Hunt & Hunt Counsel for the respondent: B M J Toomey QC/A Stone Solicitors for the respondent: Beilby Poulden Costello