ISHERWOOD v. FLAVIN [2000] NSWCA 232

New South Wales Court of Appeal

CITATION : ISHERWOOD v. FLAVIN [2000] NSWCA 232 revised - 26/04/2007 FILE NUMBER(S) : CA 40318/99 HEARING DATE(S) : 28/03/00 JUDGMENT DATE : 1 September 2000

PARTIES : Peter Isherwood (Appellant/Opponent) Carol Louise Flavin (Respondent/Claimant JUDGMENT OF : Mason P at 1; Powell JA at 2; Fitzgerald JA at 45

LOWER COURT JURISDICTION : District Court LOWER COURT DC 6375/97 FILE NUMBER(S) : LOWER COURT Boland A-DCJ JUDICIAL OFFICER :

COUNSEL : P.R. Garling SC (Appellant/Opponent) B.H.K. Donovan QC (Respondent/Claimant) SOLICITORS : Hunt & Hunt (Appellant/Opponent) Stern & Tanner (Bondi Junction) (Respondent/Claimant) CATCHWORDS : NEGLIGENCE - Road accident case - Plaintiff's vehicle in process of making right-hand turn into another street - Plaintiff's vehicle struck by defendant's vehicle travelling in opposite direction in street from which plaintiff's vehicle turning - Whether defendant negligent - Whether plaintiff guilty of contributory negligence - Apportionment of liability D DECISION : Reasons for Judgment delivered. (By Majority); Orders as proposed by Fitzgerald JA (see paras. 51-53)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40318/99 DC 6385/97 MASON P POWELL JA FITZGERALD JA

1 September 2000 ISHERWOOD v. FLAVIN

JUDGMENT 1 MASON P: I agree with Fitzgerald JA.

2 POWELL JA: There were listed together an appeal from a Judgment delivered, and verdict found, by Boland A-DCJ in the District Court on 18 December 1998 and an application for leave to cross-appeal out of time in respect of that Judgment and verdict. In the appeal the Appellant, who was the Defendant at first instance, sought, first, to have the verdict against him set aside and in lieu thereof a verdict found in his favour; or, alternatively, to have the apportionment of liability between himself and the Respondent which had been made by Boland A-DCJ following her finding that the Respondent had been guilty of contributory negligence altered in such a way as substantially to reduce the amount of the verdict which had been found in favour of the Respondent. The basis upon which the Respondent sought leave to cross-appeal out of time was that, after Boland A-DCJ had delivered judgment - in which Judgment, rightly regarding herself as bound by the Judgment of this Court in Burnicle v. Cutelli [1], her Honour rejected the claim which had been made by the Respondent - which claim was based on the Judgment of the High Court in Griffiths v. Kerkemeyer[2] - for the cost of providing to the Respondent domestic assistance to care for children - this Court delivered its Judgment in Sullivan v. Gordon [3] in which it held that a person who has lost the capacity to care for a child or children is, in an appropriate case, to be compensated on the same basis as a traditional Griffith v. Kerkemeyer claim. 3 As the Respondent's Notice of Motion had been filed only shortly before the date fixed for the hearing of the appeal; as the appeal books which had been prepared did not contain the materials which were relevant to the cross-appeal if leave to cross-appeal were granted; as the Appellant, although content to argue the question whether leave to cross-appeal should be granted was not in a position then to argue the merits of the cross-appeal; and as, in any event, the Appellant wished to submit that, in the event of leave being granted and of the cross-appeal being upheld, the appropriate order would be to direct a new trial limited to damages; the Court directed that the Motion stand adjourned so that it might be dealt with in a proper way concurrently with any appeal which would follow the grant of leave (T. 57). 4 Although it has no bearing on the fate of the questions debated on the hearing of the appeal, I record that, after the conclusion of the hearing of the appeal, Mason P granted the Appellant leave to amend his Notice of Appeal so as, in the event that leave to cross-appeal be granted, and the Respondent's claim for future care for her children be allowed pursuant to the Cross-Appeal, it would be open to the Appellant on any new trial limited to damages to raise the matters referred to in the grounds which were added to the Respondent's original Notice of Appeal. 5 The Respondent's claim for damages arose out of a motor vehicle accident which occurred on 17 May 1994 when the Leyland Mini motor vehicle, Registration No. SJW918, which the Respondent had driven in a North-Westerly direction from her home in Guinea Street, Kogarah and was in the process of making a right-hand turn from Guinea Street into Kitchener Street, Kogarah, was struck by a 1974 model Holden HQ Kingswood sedan, Registration No. KGU 380, then being driven by the Appellant in a South-Easterly direction in Guinea Street. In the collision, the front off-side of the Appellant's motor vehicle struck the front near-side of the Respondent's motor vehicle. As a result of the collision the Respondent's vehicle was rotated in a clockwise direction through 180 degrees and came to rest approximately in the centre of the carriageway of Guinea Street and at a point about 10 to 15 metres South-East of the point of impact while the Appellant's vehicle swerved to its left and partly mounted the kerb on the North-Eastern side of Guinea Street about 10 metres to the South of the point of impact. The point of impact was measured by Constable A. Butler, who was stationed at Kogarah Police Station and who attended the scene of the accident, as being 3½ metres West of the Eastern kerb of Guinea Street and 1 metre North of the Southern kerb of Kitchener Street (Blue AB 53, 58). 6 As the result of the collision, the Respondent suffered significant injuries of which, for present purposes, one need only note a closed head injury involving a dissection of the left internal carotid artery with distil embolisation resulting in a middle cerebral artery infarct. In consequence of that injury the Respondent developed a dense right hemiparesis and a wide variety of cerebral deficits including agnosia, aphasia, apraxia, expressive dysphasia and diminution of higher intellectual functioning. 7 Although others came upon the scene shortly after the collision, the only witnesses to what occurred leading up to the collision were the Appellant and the Respondent and, as a result of the Respondent's injuries, the evidence which she was able to give - which evidence needed to be taken in short periods spread over three days - was rather less than might otherwise have been the case. The evidence of the Appellant and the Respondent was supplemented by the evidence of the Respondent's husband who came on the scene a few minutes after the collision, the evidence of the Appellant's father who attended the scene later that day and on the following day and made certain measurements and prepared a sketch of the scene of the accident, and the evidence of two engineers, Mr. Bailey, who was called on behalf of the Respondent, and Mr. Jamieson who was called on behalf of the Appellant, each of whom, on the basis of materials which had been placed before him prepared a report or reports containing calculations directed towards establishing what had occurred in the moments leading up to the collision. One of the difficulties one has in assessing the evidence, in particular, of Mr. Bailey and Mr. Jamieson is that there appears no unanimity between them as to the dimensions of the carriageway of Guinea Street and Kitchener Street, while another of the difficulties which one has in dealing with the evidence of Mr. Bailey and Mr. Jamieson is that, in the various calculations which they have made, they have adopted differing methodologies. 8 With that preface, it is necessary now to give some of the background facts before proceeding to deal with the evidence as to what occurred on the day of the collision. 9 As I have previously indicated, Guinea Street, in which, at the time of the collision, the Respondent then lived, runs in a direction from roughly South-East to North-West. The photographs comprising Exhibit D (Blue AB 4-9) and those incorporated in Mr. Jamieson's report of 28 June 1996 (Exhibit 4 - Blue AB 63-89) indicate that Guinea Street is inclined uphill from the South-East to the North-West. Guinea Street is met on both its Eastern and Western sides by parts of Kitchener Street. However, the two parts of Kitchener Street do not form a conventional intersection with Guinea Street, as the carriageway in Kitchener Street on the Eastern side of Guinea Street is located about 16-17 metres to the South-East of the carriageway in Kitchener Street on the Western side of Guinea Street. It is difficult to be certain as to the correct dimensions of each of Guinea Street and Kitchener Street. If one can accept as correct the scaled plans appearing in Mr. Bailey's reports (see, for example, Blue AB 31) the road reserve in each of Guinea Street and Kitchener Street appears to be approximately 18 metres in width, the carriageway being approximately 11.4 metres in width. In his report (Blue AB 68) Mr. Jamieson says that Guinea Street is "approximately 9.5 metres between the kerbs". In a plan (Exhibit 1 - Blue AB 62) drawn by the Appellant's father on the day following the collision, Kitchener Street is depicted as having a width between the kerbs of 12 metres. 10 As I have indicated, the point of impact recorded by Constable Butler was 3.5 metres to the West of the Eastern kerb of Guinea Street and 1.5 metres to the North of the Southern kerb of Kitchener Street. The home in which, at the time of the collision the Respondent lived was located on the Eastern side of Guinea Street and about 70 metres to the South-East of the point of impact. About 70-80 metres to the North-West - that is, the direction from which the Appellant was driving - of the point of impact was a slight crest. A photograph, part of Exhibit D, taken at a point about 115 metres to the North-West of the point of impact (Blue AB 4, 8) - that is, beyond the crest to which I have just referred - would indicate that the view, at that point, which a driver proceeding South-East in Guinea Street would have of a vehicle travelling North West in Guinea Street and approaching that part of Kitchener Street to the East of Guinea Street would be partly obscured. 11 On the day of the collision, the Respondent, who was then aged 24 years, and who held the degree of Bachelor of Nursing and held a Diploma in Applied Science Health Information, left her home at approximately 7.30 a.m. with a view to driving to the Masonic Hospital at Ashfield where she was employed as the Librarian and Administrator of Medical Records. It was the Respondent's intention to drive to Ashfield in the Leyland Mini to which I have earlier referred, which vehicle was owned by her husband. 12 The vehicle was said (Black AB 10) then to have been about 16-18 years of age and had been owned by the Respondent's husband for about 18 months previously. In the course of his evidence in chief, Mr. Flavin gave the following evidence (Black AB 10): "Q. And about how often have you driven it yourself? A. Four or five times a week. Q. Had you driven it during colder months such as May? A. Yes sir. Q. And had you driven it in the early morning, say 7-7.30? A. Yes sir. Q. When you had driven it, what did you have to do to get it started? A. The choke had to be taken all the way out; the key turned; care taken not to flood the engine; once the engine did start, the choke was put back in a little. I normally then turned on the car wireless and listened to a song or two, normally 5 or 6 minutes before driving off. If I failed to do that the car would accelerate very poorly and often stall. Q. Now after the 5 or 6 minutes when you drove off, in what position did you put the clutch - clutch I'm sorry - the choke? A. The choke would normally be about half way when I would start and over the following, depending on the conditions, maybe a kilometre or two, the choke would be returned all the way in. Q. And what did you observe about the car - let us say on the first block after you'd driven away, after you drove away? In terms of ability to accelerate? A. Sluggish would be a fair description."