New South Wales Court of Appeal CITATION : Dunbar v. Brown [2004] NSWCA 103 HEARING DATE(S) : 10 March 2004 JUDGMENT DATE : 2 April 2004 JUDGMENT OF : Mason P at 1; Beazley JA at 2; Young CJ in Eq at 33 DECISION : 1. Grant leave to amend the Notice of appeal.; 2. Appeal allowed in part.; 3. Set aside the judgment for the respondent against the appellant in the sum of $162,780.04.; 4. Confirm the verdict in favour of the respondent against the appellant.; 5. Order Judgment for the respondent in the sum of $138,363.03; 6. Otherwise dismiss the appeal.; 7. Order the respondent to pay 40% of the appellant's costs of the appeal. Respondent to have a certificate under the Suitors' Fund Act (NSW) 1951 CATCHWORDS : NEGLIGENCE - Duty of care of tow-truck operator - Breach of duty - Use of vehicle-owner to assist. - CONTRIBUTORY NEGLIGENCE. - DAMAGES - Serious injury - Good recovery but ongoing disability - Whether assessment of 33% of a most serious case appropriate - Future economic loss - Impact of injury upon remaining working life - Whether buffer appropriate. LEGISLATION CITED : Civil Liability Act 2002 PARTIES : Wayne Dunbar (Appellant) Julie Rosaleen Brown (Respondent) FILE NUMBER(S) : CA 40378/2003 COUNSEL : S. Campbell SC/D. Cutler (Appellant) C. Hoeben SC/K. Thompson (Respondent) SOLICITORS : Curwood & Partners (Appellant) Carroll & O'Dea (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT CLD1790/2002 FILE NUMBER(S) : LOWER COURT Walmsley DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40378/2003 CLD 1790/2002 MASON P BEAZLEY JA YOUNG CJ in EQ 2 April 2004 DUNBAR v. BROWN Facts The respondent was injured when she was pinned between her motor vehicle and the wall of a carport whilst assisting a tow-truck operator (the appellant's agent) to move the car from the carport to the road by releasing the handbrake. At first instance, Walmsley DCJ found that the appellant had been negligent in two respects: first, reasonable care required the tow-truck driver to obtain the assistance of a tow-truck offsider for the purposes of moving the vehicle and secondly, the tow-truck driver's direction to the respondent to release the handbrake was inappropriate. HELD per Beazley JA (Mason P and Young CJ in Eq agreeing): (i) Given that the tow-truck operator was aware of the slight slope in the carport floor, he failed to give sufficiently clear or precise directions to the respondent in relation to releasing the handbrake. (ii) There was no breach of duty in not conducting the tow-truck operation with an assistant, nor was it inappropriate to obtain the assistance of the owner of the vehicle to manoeuvre the vehicle into the appropriate position to be towed. (iii) By releasing the handbrake of the car on a slope, (the existence of which she ought to have been aware), when she was not in control of the vehicle, the respondent contributed to the accident. (iv) The respondent's contributory negligence should not be assessed any higher than 15% since even though she ought to have been aware of the slope, it was not in the consciousness of any of the persons involved in the relevant operation. (v) Given the nature of the respondent's injuries, an assessment of the respondent's injury as being 33% of a most serious case was not outside an appropriate discretionary range. (vi) In light of the impact that the respondent's injuries are likely to have on her present occupation and her future working life, there was no error in awarding a small buffer by way of damages for future economic loss nor in the amount awarded by his Honour. Orders 1. Grant leave to amend the Notice of Appeal. 2. Appeal allowed in part. 3. Set aside the judgment for the respondent against the appellant in the sum of $162,780.04. 4. Confirm the verdict in favour of the respondent against the appellant. 5. Order judgment for the respondent in the sum of $138,363.03. 6. Otherwise dismiss the appeal. 7. Order the respondent to pay 40% of the appellant's costs of the appeal. Respondent to have a certificate under the Suitors' Fund Act (NSW) 1951 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40378/2003 CLD 1790/2002 MASON P BEAZLEY JA YOUNG CJ in EQ 2 April 2004 DUNBAR v. BROWN Judgment 1 MASON P: I agree with Beazley JA. 2 BEAZLEY JA: The appellant appeals from the decision of Walmsley DCJ in which his Honour held the appellant was liable in negligence for injuries sustained by the respondent when she was pinned between her motor vehicle and the wall of a carport on 15 May 2001. 3 At the time of the accident the respondent lived in home unit premises at Wollstonecraft and normally garaged her car in a carport which was positioned at right-angles to the driveway into the premises. The evening before the accident, she had reversed her car into the carport in accordance with her usual practice, engaged it in the "park" gear and put on the handbrake. When she attempted to start her car the following day, it would not start. She called the NRMA who arranged for a tow truck to attend to tow it away. The appellant is a tow truck operator. His driver, Mr. Keats attended at the respondent's premises to tow away the respondent's vehicle. 4 When the tow truck driver ascertained that the vehicle was an automatic vehicle, he informed the respondent that it would be necessary to tow it by its rear end. As it was not possible to attach the vehicle to the tow in the driveway he told the respondent that "[w]e will have to push the car to the road" (Red 20) where he had positioned his tow truck. In response to a request by the tow truck driver, the respondent sought the assistance of her boyfriend, Mr. Lally, who was still in the unit. The driver requested Mr. Lally to go to the back of the car. Mr. Lally, after having first put on his shoes, went and stood at the back of the car as requested. At this time, Mr. Keats who was standing in front of the car, instructed the appellant to the effect "Could you take off the handbrake" or "release the handbrake" (CB 17). The respondent said that as she understood what was to happen with the vehicle, Mr. Lally was to push the car forward out of the carport but that she had not anticipated that that was going to happen immediately or as part of the process of her releasing the handbrake. 5 The respondent was near the doorway that led from the garage to the unit when she was given the instruction to release the handbrake. She walked around to the front of the car and opened the driver's door (CB 18). Having done that, she said to the appellant "Are you ready?" or "Are you right" to which he nodded. The appellant then leant into the car and released the handbrake. The car immediately commenced to roll forwards towards the right and trapped the respondent between the pillar of the driver's door and the car body, the door having hit the wall of the carport as it slowly scraped along it. The respondent estimated that this happened very quickly, over a period of "a second" (CB 19). 6 The floor of the carport was on a very slight slope, declining by about the height of half a brick from the back of the carport to the front. The respondent gave evidence however that although she had lived in these premises for about 6 months and parked her car in the carport daily during that period, she had not previously been aware of the slope (CB 52). 7 Mr. Lally gave evidence to similar effect. He said that he heard Mr. Keats say to the respondent "I want you to go over to the driver's side and take off the handbrake of the car". He said that when he went to the back of the car as requested, and the respondent went to the driver's side of the vehicle, Mr. Keats had walked around to the front end of the car "[s]o he was at the bonnet of the car" (CB 69). He said that they were in those positions for a second or two when he heard the respondent ask the appellant "Do you want me to take off the handbrake now?". She was standing at the open door of the vehicle at that point (CB 70). He too described the accident as happening quickly. He said "The car rolled forward and basically the open driver's door hit the wall of the carport and squeezed [the respondent] in between the inside of the open door and the column where the door actually closes into". Mr. Lally also understood that he was going to be requested to push the car "at some stage" (CB 88). He also said that he had not previously been conscious of the fact there was a slope in the floor of the carport (CB 91). He said "I don't think anybody thought the car was going to move" (CB 91). 8 A neighbour who saw the incident gave similar evidence (CB 102). 9 Mr. Keats gave a very different version. He said that Mr. Lally had told the respondent to get into the driver's seat, which she did. Mr. Lally then directed her to put the car into neutral and release the handbrake. Mr. Keats said: "[T]he car began to roll, [the respondent] panicked, jumped out of the car and got stuck between the … [car] door and the pillar of the vehicle." [ CB 105] 10 He also said he was aware that the floor of the carport sloped down slightly to the driveway [CB 114]. 11 The trial Judge accepted the evidence of the respondent and Mr. Lally and rejected that of Mr. Keats. No challenge is made to his Honour's credit finding. 12 The trial Judge found that it was Mr. Keats "Who suggested the method of moving the car out of the carport" (Judgment p. 7) (Red Book 24). It followed on his Honour's finding that having instructed the respondent in the way set out above "[t]he car might move forward or do something of the kind which it did" (Judgment 7) (Red Book 24). In making that finding, his Honour considered that Mr. Keats ought to have known that the carport floor was on a slope. The evidence in fact was that Mr. Keats knew that there was "a very slight incline". His Honour further found that the appellant had directed the manoeuvre and the respondent had "put herself in his hands" for this purpose (Judgment 7) (Red Book 24). 13 Having made those findings of fact, his Honour held that the appellant was negligent in two respects. First, he held that reasonable care in all the circumstances required Mr. Keats to obtain the assistance of an offsider for the purposes of moving the vehicle. His Honour held that using the respondent and Mr. Lally "as his breakdown operator … offsiders" was in breach of his duty to the plaintiff. 14 His Honour further held that Mr. Keats had taken upon himself the task of directing this procedure, "including giving direction to the plaintiff" (Judgment 8) (Red Book 25). His Honour held that in the circumstances the direction he gave was "quite inappropriate". It is clear from his Honour's Judgment that he found this to be a further breach of the appellant's duty of care. 15 In the original Notice of Grounds of Appeal, the appellant claimed that the trial Judge "erred in finding [the appellant]" negligent. His Honour's essential finding of fact that Mr. Keats had instructed the respondent to release the handbrake without first getting in to the vehicle, was also challenged as being erroneous. 16 At the commencement of the hearing of the appeal the appellant sought leave to amend the Notice of Appeal. The proposed amendments challenged his Honour's finding of duty of care, standard of care, breach of duty, causation and the failure to find contributory negligence. As the matter was argued, senior counsel for the appellant conceded that his essential challenge to the judgment was in respect of his Honour's findings of breach of duty and his rejection of the appellant's claim that the respondent was contributorily negligent. The respondent was not prejudiced by these proposed amendments and accordingly, I am of the view that leave should be granted to the appellant to argue those additional grounds. The issue of breach in any event was the substantial claim in the more imprecise challenge to his Honour's finding of negligence. 17 Senior counsel for the appellant correctly conceded that there was no basis upon which he could challenge his Honour's acceptance of the evidence of the respondent and Mr. Lally. That being so, it was necessary for the appellant to challenge the verdict against him on the basis that Mr. Keats had in fact directed the manoeuvre which was to take place so as to move the vehicle from the carport down to the street. Senior counsel for the appellant sought to do this by submitting, in effect, that it was sheer folly for the respondent to release the handbrake whilst standing outside the vehicle. He said that Mr. Keats was entitled to assume that the respondent would take reasonable care for her own safety and that a person so acting would not have released the handbrake without being in the car. 18 Although this submission had the dual attraction of brevity and apparent commonsense, it failed to take account of the evidence of the respondent and her witnesses that Mr. Keats' direction was only the first stage in the process of moving the vehicle. As senior counsel for the respondent pointed out, no one, including Mr. Keats, was expecting the vehicle to move at this point. The respondent on her evidence was not. She thought that something else was going to happen, such as Mr. Lally being given a direction to push the vehicle. Mr. Lally likewise was waiting for such a direction. And, it appears, Mr. Keats did not expect the vehicle to move as he was standing in front of it. 19 It seems to me, in those circumstances, that Mr. Keats failed to give sufficiently clear or precise directions to the respondent in relation to releasing the handbrake. This is even more so, when on his evidence, he knew that the carport floor had a slight slope on it. It follows, therefore in my opinion, that the second basis upon which his Honour found that the appellant had breached his duty of care to the respondent was open to him. 20 I do not consider, however, that the first basis upon which he found negligence was open. There was no evidence that tow truck operators should always conduct their operations with an assistant or that it was inappropriate for a tow truck driver to require the driver of a vehicle to manoeuvre it into the appropriate position in order for it to be towed. To the extent that there was any evidence on this it was that of Mr. Keats who said it was not usual to have an assistant and it was usual practice to have the driver get the car into position to be towed. This, I think, would accord with known practice. 21 His Honour rejected the appellant's argument that the respondent was contributorily negligent. I do not agree with his Honour's conclusion. The case was conducted both before his Honour and in this Court on the common ground that the carport floor did slope, albeit slightly. Although the appellant said that she was not conscious of the slope, it seems to me, given her familiarity with the premises she ought to have known of it. Accordingly, in releasing the handbrake of the car on a slope, in circumstances where she was not in control of the vehicle, she contributed to the accident. I would assess her contributory negligence at 15%. I do not consider any higher contribution is warranted because, even though Mr. Keats said he appreciated the floor sloped, he must have overlooked that even for a short period, given that he placed himself in front of the car. Accordingly, although I consider the respondent should have been aware of the slope, it appears that it was not something that was in the consciousness of any of the persons involved in this particular operation at the critical moment when the respondent released the handbrake. Appeal on damages 22 The appellant also challenges his Honour's assessment of general damages and future economic loss. It was submitted that the injury was not so serious as to warrant a finding that the respondent's relevant disability was 33% of a most serious case. This requires some consideration of the evidence which is not in dispute and which was reviewed fully by his Honour. 23 The appellant sustained a non-displaced fracture to the right iliac wing which extended to the sciatic notch. There was associated with that a slightly impacted fracture through the lateral right sacrum. In addition, she had a minimally displaced fracture to the anterior aspect of the right acetabulum (CB 185). She was hospitalised for a period of 11 days and, during the last five of those, underwent a programme of physiotherapy and hydrotherapy. She was discharged on 25 May 2001, initially on crutches. She continued a programme of hydrotherapy for a further five weeks. When reviewed on 22 August 2001 she was fully ambulant and able to touch her toes. However, further physiotherapy was recommended at that time. 24 The respondent was reviewed by Dr. Wallace, orthopaedic surgeon, for the purpose of these proceedings. He estimated that she had suffered a permanent impairment of her back of 5% and a permanent impairment of her pelvis of 12% directly attributable to the accident. He considered that her symptoms would persist despite further conservative treatment but did not believe operative intervention was indicated at that time. 25 In a report obtained shortly before the hearing Dr. Wallace expressed the opinion that he considered that the respondent was suffering from significant on-going disability at her lumbar spine and pelvis and that she would not be fit for activities requiring repetitive bending or twisting movements of her lumbar spine, sitting or standing for prolonged periods and repetitive lifting above 10 kilograms. He also considered that there would be difficulties with working in confined spaces, with prolonged driving and prolonged periods of walking or stair climbing. He considered that the respondent had a small risk of developing osteoarthritic degeneration of the right hip within the next 10-15 years. He said that if that condition did develop then she might require a right total hip replacement. 26 Dr. Buckley, rehabilitation specialist, was also of the view that there was a likelihood of osteoarthritic changes to the right hip joint. 27 In addition to persistent disability, the medical evidence indicated that the respondent may have some difficulties during any pregnancy and for that reason might require additional gynaecological attendance during the course of her pregnancy. 28 The appellant submitted both at trial and on the appeal that although the injuries were serious, the respondent had made a very good recovery so that an appropriate award under s. 15 of the Civil Liability Act (NSW) 2002 was between 20-22%. His Honour held that that assessment was "quite unrealistic" (AB 30). He considered that the respondent's injuries were serious and that the respondent would have problems for the rest of her life involving pain and disability. He accepted that there would be difficulties during any pregnancy. He also accepted that it was possible that she would have osteoarthritic changes and he made an allowance for hip replacement surgery "between the sixth and seventh decades". He considered the restrictions which she continues and will continue to have to be "significant". He also accepted that she would need additional treatment from time to time. 29 In my opinion, I do not think that, on those findings, his Honour's assessment of the plaintiff's injury as being 33% of a most serious case to be outside an appropriate discretionary range. Future economic loss 30 The trial Judge allowed loss of future income for a period of 16 weeks to allow for the time that the respondent would be off work if she underwent hip replacement surgery. That award is not challenged. His Honour also held that there would be other absences from work from time to time due to the problems which the respondent would continue to have as a result of her injuries. He did not consider that such absences would be "significant" and therefore considered it appropriate to allow "a buffer" to take account of that prospect. He made an allowance of $15,000.00 in this regard. 31 This amount is challenged, the appellant contending that there was no basis upon which that award could have been made. I do not agree. The respondent, at the time of trial, had a remaining working life of 30 to 40 years. At the time of the trial she was working as a counsellor and was undertaking a masters degree in Psychoanalytical Psychotherapy at Trinity College, Dublin (CB 207). Her complaints included pain with prolonged sitting, e.g. during lectures. On the assumption that she practices in the field in which she is presently studying, her work will involve her in sitting for long periods without moving. Her disabilities could also affect her in her present occupation. It was open for his Honour to find that it was possible in a long working life that the plaintiff will require time off work on occasions because of the degree of pain. His Honour also found that she would on occasions in the future require physiotherapy, which in itself could involve time off work. In the circumstances, given that the award was modest, there was no error in awarding a buffer as his Honour did or in the amount of the buffer. 32 Accordingly, I would propose the following Orders: 1. Grant leave to amend the Notice of Appeal. 2. Appeal allowed in part. 3. Set aside the judgment for the respondent against the appellant in the sum of $162,780.04. 4. Confirm the verdict in favour of the respondent against the appellant. 5. Order judgment for the respondent in the sum of $138,363.03. 6. Otherwise dismiss the appeal. 7. Order the respondent to pay 40% of the appellant's costs of the appeal. Respondent to have a certificate under the Suitors' Fund Act (NSW) 1951 33 YOUNG CJ in EQ: I agree with Beazley JA ********** Last Modified: 04/05/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.