MARK HILDER v TODD BEEVERS [1999] NSWCA 150

New South Wales Court of Appeal CITATION : MARK HILDER v TODD BEEVERS [1999] NSWCA 150 revised - 02/06/99 FILE NUMBER(S) : CA 40759/97 HEARING DATE(S) : 29 March 1999 JUDGMENT DATE : 25 May 1999

PARTIES : MARK WILLIAM HILDER v TODD CLAYTON BEEVERS JUDGMENT OF : Mason P at 1; Meagher JA at 36; Sheppard AJA at 37

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : 20546/95 LOWER COURT JUDICIAL OFFICER : Master Harrison

COUNSEL : A J Black (Appellant) R S McIlwaine (Defendant) SOLICITORS : Henry Davis York (Appellant) Stacks - The Law Firm (Respondent) CATCHWORDS : NEGLIGENCE - Contributory negligence - Motor vehicle accident; DAMAGES - Award of damages for future care - Basis of calculation DECISION : Allowed in part

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40759/97

MASON P MEAGHER JA SHEPPARD AJA

Tuesday 25 May 1999

MARK WILLIAM HILDER v TODD CLAYTON BEEVERS

JUDGMENT

1 MASON P: This is an appeal from the judgment of Master Harrison in proceedings under the Motor Accidents Acts 1988. The appellant is the defendant, who was found liable in the sum of $981,873. Negligence was found against the appellant on the basis that he did not keep a proper look out for oncoming traffic while making a right hand turn. This finding is not challenged. 2 Only two grounds of appeal were pressed: the finding that there was no contributory negligence, and a partial challenge to the award of $318,282 for future care. Circumstances of the accident 3 The accident occurred at the intersection of Sparkes Road and Warnervale Road, Warnervale on 6 October 1994. It was 6.45pm. Darkness had fallen, but it was fine. Sparkes Road runs in an east-west direction and forms the top of a "T" intersection where Warnervale Road joins it from the south. The intersection was lit by a single overhead light. As one proceeds westwards along Sparkes Road (in the direction followed by the respondent/plaintiff) the road is straight. It falls fairly gently from a crest approximately 200 metres east of the intersection. 4 The traffic was light and the respondent was driving a sedan vehicle within the speed limit at between 90 and 100 kms per hour. The respondent has no memory of the accident, in which he was seriously injured. 5 The appellant was driving a prime mover transporter with six vehicles on a trailer. He was proceeding eastwards along Sparkes Road, ie in the opposite direction to the respondent's vehicle. He wanted to turn right into Warnervale Road. An oncoming car meant that he had to stop at the intersection before making the turn. He started to turn right when he noticed a car on his right in Warnervale Road approaching the intersection. This car was driven by Ms Taylor. Because of its approach the appellant had to adjust the radius of his right hand turn, moving the prime mover a fraction further before he could turn right. 6 At the point of impact, the appellant was looking down Warnervale Road, observing Ms Taylor's car and taking care that the trailer did not go onto the wrong side of Warnervale Road. 7 The appellant's right hand turn into Warnervale Road crossed in the path of the respondent's westbound vehicle proceeding along Sparkes Road. The appellant was about quarter to half way into the main westbound lane in Sparkes Road when the respondent's car collided with the right hand front corner of the truck. Obviously the respondent had endeavoured to pass around the front of the appellant's truck. Near the intersection, Sparkes Road broadens into two lanes with the left hand lane designated as a turning lane for traffic intending to turn left into Warnervale Road. The respondent diverted from the main lane into this left hand lane but was, unfortunately, unable to pass around the front of the appellant's truck. It smashed into the front of the truck (on its right hand side) and then careered across Warnervale Road. 8 There was a significant issue at trial as to the lighting on the respondent's car. Members of the respondent's family, who had observed the respondent driving earlier that evening, said that his headlights were fully illuminated. The appellant said that he did not think that the respondent's car had any lights on at the time of the accident. This was his explanation for not having noticed the respondent's vehicle until it was too late. This conflict was resolved on the basis of a finding that the respondent had only his parking lights on. That is no longer in issue. Contributory negligence 9 The learned Master declined to find contributory negligence. She accepted that the respondent was travelling within the 100kpm speed limit. And she accepted the evidence of the appellant's expert that the respondent's parking lights were visible from about 200 metres, ie from the crest of the hill. Her conclusion was that, as the appellant did not see the respondent's vehicle until the point of impact, the fact that the respondent had only his parking lights lit did not contribute to the accident. 10 The Master also rejected the submission that contributory negligence was established because of the respondent's failure to brake or take adequate evasive action before the accident. There were no skid marks on the road. The Master concluded that: The plaintiff may have expected the defendant to see his (the plaintiff's) vehicle and to stop making the right hand turn, but even if the plaintiff at some stage realised the defendant was not going to stop, it is more likely than not there was no room for the plaintiff to veer to the left to avoid the defendant. 11 In my view the appellant's challenge to the finding of no contributory negligence has been made good. 12 The appellant's expert was Mr Moir, a consulting engineer. His written evidence stated that, if the plaintiff's headlights had been off, a motorist standing at the intersection and facing west (sic) would, almost certainly, be unaware of the plaintiff's car until it was very much closer than 200 metres, even if its parking lights had been turned on (Blue AB 466). In cross-examination, he accepted that the driver of the truck would have been able to see the plaintiff's vehicle with parking lights on 200 metres away, compared to 220 metres for headlights (Black AB 168). This is the material upon which the Master based her finding that the appellant would have seen the respondent's vehicle at 200 metres, ie from the top of the crest. 13 I agree with the appellant's submission that this finding elides the mere capacity to see and the full opportunity to see which would have been available had the respondent's lights been fully illuminated (as they were required to be under Reg 95 of the Motor Traffic Regulations). Without overlooking the finding of negligence against the appellant, it must be borne in mind that the appellant was executing his turn slowly. I do not think that the expert's evidence can be used to negate entirely the causative impact of the respondent's failure to have had his headlights illuminated. 14 Nor can I accept the finding that the respondent had no effective opportunity to brake and/or take evasive action. Mr Moir's unchallenged evidence was that the respondent would have had approximately 12 seconds from the point when he could first have seen the slowly turning truck pass across his path to the point of impact (Blue AB 462, Black AB 163, 171). This offered the respondent ample time to stop and/or divert, as he belatedly attempted to do. Mr Moir suggested a reaction time of 1½ seconds (Black AB 171). 15 The situation of danger was created by the appellant, who must bear by far the greater responsibility. But the facts which I have summarised indicate that the respondent would probably have avoided the accident had he exercised greater care and attention, and driven with his headlights illuminated. I would reject the appellant's submission that the damages should be reduced by a factor of 30%. But I would reduce them by a factor of 20%. Damages for future care 16 The only component of damages which is challenged is future care, and the sole basis of challenge is the rate allowed. 17 The Master calculated future care at two hours of domestic assistance per day for the rest of the respondent's life. She allowed the rate of $23.52 per hour, two hours per day, seven days per week at $329.28 per week. The respondent was 28 at the date of trial with a life expectancy of 48 years (to age 76). Using the 5% table of multipliers, 48 years equated to 966.6 - $329.28 x 966.6 = $318,282.04. 18 The respondent left school in Year 11 in 1984. He held various positions, as a general nursery worker, as a stock keeper, as a machine operator, as a casual process worker and as a Telstra technician. He was a responsible employee and apparently well motivated. He played a number of sports. 19 There was a work incident in August 1992 which led to the respondent's admission to the Palmerston Psychiatric Clinic at Hornsby Hospital. He was diagnosed as suffering from manic-depression (Bipolar disorder). He was prescribed medication and discharged from hospital after 10 days. There was a second breakdown, apparently in consequence of the respondent trying to reduce his medication. Nevertheless, he held his position at Telstra and achieved promotion to a higher level of technician. There was, however, evidence that his bipolar condition and its consequences were causing stress and difficulty in coping with work. 20 Immediately after the accident on 6 October 1994 the respondent was in intensive care at Gosford Hospital for nine days. He transferred to a ward for about another two weeks and thereafter went to his parents' house to convalesce. He has stayed there ever since. (Prior to this time he had acquired a home at Gorokan and he used to spend periods of time living there, returning to his parents' home occasionally.) 21 The award made by Master Harrison on 20 October 1997 in relation to past care is not challenged. Accordingly I confine the judgment to the findings relating to disabilities as they presented at the time of trial. 22 The plaintiff lost his spleen and right kidney as a result of the accident. This requires a change in eating habits because he must be on a salt free diet. Without a spleen, the respondent is more susceptible to contracting infections. And the loss of the kidney and spleen means that the respondent requires blood tests every six months to ensure that the medication he is taking for his bipolar disorder is not having a detrimental effect on him. 23 The respondent suffers bad headaches and needs medication to get to sleep. His vision in the right eye is reduced. There is neck and back pain. 24 Apart from personal hygiene, the respondent's mother does everything for him. He is physically able to make meals and attend to personal needs such as cleaning his room, doing his washing and ironing, but he lacks the motivation to care properly for himself. The accident has left him feeling lonely and isolated. 25 The Master accepted psychiatric evidence that the respondent had suffered a significant closed head injury. His symptoms of memory disturbance, attention difficulties and lack of motivation were found not to be symptoms of bipolar disorder, but consequences of the accident. 26 In particulars filed pursuant to Part 33 r8A the respondent claimed separately for past and future care. As to the past, the claim was made on the basis that the care had been provided by the respondent's parents. It was calculated by reference to the average weekly total earnings of all employees in New South Wales, as required in accordance with s72(3) of the Motor Accidents Act 1998. 27 But the particulars of claim for future care calculated the damages on a commercial basis. It was this calculation that was adopted by the Master. 28 The appellant does not challenge the finding, based upon the report of Dr Buckley, that the respondent required two hours daily assistance and supervision for the rest of his life. But the challenge is made, on appeal, to an award based upon commercial rates. The appellant submits that the component of future care should have been calculated by reference to average weekly total earnings, as stipulated in s72(4). Reliance is placed upon s72(1A) which provides: Compensation, included in an award of damages, for the value of services of a domestic nature or services relating to nursing and attendance: (a) which have been or are to be provided by another person to the person in whose favour the award is made, and (b) for which the person in whose favour the award is made has not paid and is not liable to pay, must not exceed the amount determined in accordance with this section. 29 No submission to this effect was made at trial. The respondent's calculations as set out in his Particulars were accepted in their entirety. On appeal, the appellant sought to have future home care damages calculated at the statutory rate of $15.28 per hour as distinct from the rate of $23.52 per hour adopted at trial. 30 The appellant seeks to overcome the consequences of its stance at trial by pointing to the Master's finding with reference to another head of damages (namely for handy man and gardening assistance). The Master said: The plaintiff has claimed four hours of handyman assistance per week and relies on Dr Buckley's report in this regard. The plaintiff says that professional handyman tasks would be minor repair jobs, gardening and lawnmowing. The plaintiff lives at home, and from the evidence this is unlikely to change unless his parents become, with the effluxion of time, unwell and unable to have him reside with them. It is my view, that the plaintiff does not require a handyman on a weekly basis because his parents look after their house and garden and the plaintiff can do some minor chores. I will allow a sum of $20,000 on the basis that his parents may be unable to care for him in the future and he will need someone to do some jobs around the house in the future. 31 It is true that this passage contains a finding that the respondent is unlikely to leave his parents' home unless and until his parents become, with the effluxion of time, unwell and unable to have him reside with them. But this is not the same as a finding that the respondent "has not paid and is not liable to pay" for the two hours of domestic assistance per day required. Indeed the reference to the future incapacity of the parents upon whom the respondent is presently dependent shows that the time will come when the respondent will have to pay for such services, or forego them. During argument, the appellant acknowledged that no evidence was led on the issue of when this time was likely to occur. Indeed, there is no evidence of the age of the parents. Nor was evidence called or arguments raised at trial as to the prospects or capacity of other family members to step in as substitutes for the respondent's parents now or in the future. 32 Confronted with these evidentiary difficulties, the appellant sought a new trial on this item of damages. 33 This is a classical case where the appellant should be held to the position adopted at trial. There appears to have been no contest about calculating future home care damages at commercial rates. And vital evidence necessary for determining whether and how long the statutory formula would properly be engaged was not adduced. 34 The second ground of appeal should be rejected. 35 The parties should bring in Short Minutes that give effect to this judgment, including any consequential matters arising out of the fact that the full sum awarded by the Master may have been paid and may have to be partially returned. The appellant should have the costs of the appeal, but the respondent should have a certificate under the Suitor's Fund Act if qualified. 36 MEAGHER JA: I agree with Mason P. 37 SHEPPARD AJA: In this matter I have had the advantage of reading the judgment to be delivered by Mason P. I am in agreement with his Honour's reasons and conclusions and with the orders which he proposes. 38 In this matter, for reasons which were apparent at the time, I was unable to conclude the oral hearing of the appeal. The parties agreed to go on with the bench constituted by Mason P and Meagher JA on the understanding that I would read the transcript of the argument. Before the appeal commenced, I had, of course, read the judgment appealed from and the written outlines of submissions of the parties. At the time I stopped sitting, the appellant's argument on contributory negligence was well advanced and, although counsel for the respondent had not then been heard, the issues in the case had become tolerably clear. After I received the transcript of the argument, I read it and also re-read the judgment and submissions and the material in the appeal book. * * * * * * * * *