New South Wales Court of Appeal CITATION: Ranger v Turner [2007] NSWCA 162 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 27 June 2007 JUDGMENT DATE: 27 June 2007 JUDGMENT OF: Tobias JA at 1; Basten JA at 38; Campbell JA at 41 EX TEMPORE JUDGMENT DATE: 27 June 2007 DECISION: Summons for leave to appeal dismissed. The claimant is to pay the opponent's costs of the summons for leave to appeal on the ordinary basis up to and including 15 October 2006, and thereafter on an indemnity basis CATCHWORDS: NEGLIGENCE – Breach of duty – Contributory negligence – Assessment of damages – Where appropriate to apply a "cushion" or "buffer" LEGISLATION CITED: Motor Accidents Compensation Act 1999 CASES CITED: Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 160 PARTIES: Justin John Ranger Scott Turner FILE NUMBER(S): CA 40619/06 COUNSEL: Cl: A Harbin SC / Mr Cullen Opp: B Dooley SOLICITORS: Cl: T L Lawyers, Newcastle Opp: Marshall & Partners, Raymond Terrace LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 8/05 LOWER COURT JUDICIAL OFFICER: McGrowdie ADCJ LOWER COURT DATE OF DECISION: 31 August 2006 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40619/06 TOBIAS JA BASTEN JA CAMPBELL JA Wednesday 27 June 2007 JUSTIN JOHN RANGER v SCOTT TURNER Judgment 1 TOBIAS JA: On 20 March 2002 the plaintiff/opponent was riding his bicycle in King Edward Park, Newcastle, when he turned from a pathway right into Shortland Esplanade (the Esplanade). After travelling a short distance he collided with a motorcycle being driven by the claimant/defendant. The point of impact was approximately 35 metres distant from two bollards which marked the intersection between the pathway and the Esplanade. Both riders were injured, but the opponent more so. On 28 February 2005 he instituted proceedings against the claimant in the District Court pursuant to the Motor Accidents Compensation Act 1999 (the Act) seeking damages in respect of the injuries he had sustained in the accident. 2 At the time of the accident the opponent was 35 years of age and had the sole care of his son Tyson who was then six years of age. He had just picked Tyson up from school but instead of transporting him in a child seat attaching his bicycle he was balancing the child on its front handlebars. Just before impact he "jettisoned" the child to safety. Fortunately Tyson was not injured, but the opponent himself was injured in a number of respects. 3 The proceedings were heard by his Honour Acting Judge McGrowdie who on 31 August 2006 entered judgment for the opponent in the sum of $74,921.50. In so doing his Honour found that the claimant had breached his duty of care in essentially two respects. The first was that he had failed to keep a proper lookout, and the second was that when he saw the opponent's bicycle in or about the middle of the Esplanade, he only applied his rear brake and not his front brake, which caused him to skid for a longer distance than would otherwise have been the case, which prevented him from taking evasive action, thus contributing to the collision. 4 The primary judge also found that the opponent was guilty of contributory negligence to the extent of 50%. 5 There was no claim for non-economic loss as it was accepted that the opponent's level of impairment was not sufficient to meet the threshold under the provisions of the Act. However, his Honour assessed the opponent's past economic loss at $45,590, together with out of pocket expenses, both past and future, totalling $3879, and future economic loss of $100,374, a total of $149,843. After reducing that amount by 50% to reflect the opponent's contributory negligence, his Honour entered judgment in favour of the opponent for $74,921.50. 6 The claimant seeks this Court's leave to appeal against that judgment. The appeal and the application for leave have been heard concurrently. However, for the following reasons in my opinion leave to appeal should be refused. 7 On the issue of liability the primary judge had before him not only the oral evidence of the claimant and the opponent but also a report by a consulting engineer, Mr Fred Schnerring, who was qualified on behalf of the opponent and who was an expert in traffic engineering. He had investigated the subject accident and his resultant report was admitted into evidence without objection. He was not required for cross-examination. 8 Having had a view of the site, the primary judge found that both parties were familiar with the Esplanade and the pathway with which it intersected. He further found that the opponent was aware that The Esplanade was one way and that when he turned right out of the pathway into that road, he was travelling in the wrong direction. 9 The claimant was also aware of the pathway. Being in a park, he knew that it was used, as was the Esplanade, by pedestrians and cyclists, although he had not seen any cyclists entering the Esplanade via the pathway. Nevertheless, his Honour found, and the finding is not challenged, that the claimant was aware of the potential for people to be out walking on the road and for bicycles and children playing in the park to suddenly appear on the roadway so that it might be necessary for him to stop quickly. 10 His Honour also found that immediately prior to the impact the claimant was travelling at forty kilometres per hour, which was the speed limit on the Esplanade at the time. He also found that the claimant had a field of vision of somewhere between fifty and sixty metres from the point from which he ought to have first seen the opponent's bicycle after it had entered the Esplanade from the pathway. 11 Accordingly the primary judge held that as the claimant came around the left-hand bend in the Esplanade leading up to the intersection of that road with the pathway, it was likely that he did not see the opponent at the first opportunity, given that he was preparing to commence making a turn to the right around a bend within which was an area referred to as the rose garden. In his Honour's view, the claimant was probably not keeping a proper lookout. 12 His Honour was further of the view, and so found, that the claimant when he did react to seeing the opponent's bicycle, only applied his rear brake in order to take evasive action but that that was ineffective as a result of which the collision occurred. In this respect there was found by the police to be a skid mark of 12.2 metres in length from the point it commenced to the point of the probable impact between the motorcycle and the bicycle. 13 His Honour considered that the claimant was also in breach of his duty of care by failing to apply his front brake in a manner which would have, according to Mr Schnerring, caused him to stop within a distance of nine to ten metres from where his skid mark commenced. Had he done so and stopped accordingly, he would not have collided with the bicycle although the opponent may still have collided with the motorcycle while it was stationary. 14 On the issue of causation, his Honour said: "By failing to keep a proper lookout and travelling at the speed he was at the time, particularly when his response to seeing the plaintiff's presence on the road was to have inadequately applied only the rear brake, the defendant did not give himself the opportunity to have stopped, or to have reduced speed to a degree to have taken other evasive action to avoid the collision, and this fell short of the standard of care owed by the defendant." 15 In his written and oral submissions on behalf of the claimant, Mr Harben SC submitted that there were three errors committed by the primary judge. The first related to his Honour's finding that the claimant did not keep a proper lookout. It was submitted that in the context of the opponent's evidence, it was probable that after he entered the Esplanade his bicycle may have speeded up from the ten kilometres per hour which his Honour found was the speed at which it was travelling as it passed through the bollards at the intersection between the pathway and the Esplanade. Had his Honour taken account of that evidence and found that the bicycle had in fact speeded up above ten kilometres per hour, he would not have found that the claimant had failed to keep a proper lookout as the relative positions of both the bicycle and the motor cycle would have changed. 16 One of the difficulties facing this submission was that the gradient at this point of the Esplanade was only 5%, or one in twenty, so that even if the bicycle's speed had increased because of that gradient, the increase would have been very little over the relatively short distance of thirty metres or so between the point where the bicycle passed through the bollards and the point of impact. In my opinion there is no substance in this submission and I would reject it. 17 Second, it was submitted that his Honour's finding that the claimant was also in breach of his duty in the circumstances by failing to apply his front brake was in error. It was contended that if the front brake had been applied then the front wheel would have locked and the claimant would have lost control over the motorcycle and would therefore not have been able to avoid the collision. However, the evidence of Mr Schnerring was that it was only necessary, in order to shorten the distance in bringing the motorcycle to a stop, for the front brake to be applied to the extent of 75%, which would not have caused the front wheel to lock. The whole point of having two brakes was to ensure that in an emergency both were used in a careful and proper way in order to avoid collisions. His Honour's finding in relation to the failure of the claimant to apply his front brake was in the context of his finding as to the failure of the claimant to keep a proper lookout, so that the necessity for applying both brakes in order to avoid the collision and to otherwise bring his motorcycle to a halt became even more important if the claimant was to avoid a finding that he had materially contributed to the collision. 18 The claimant was in this respect an experienced rider of the type of motorcycle upon which he was travelling, and he must have been aware of his ability to use his front brake properly in order to bring his motorcycle to a halt within a relatively short distance, even when travelling at 40 km per hour. In my view there is no substance in the claimant's challenge to his Honour finding that he was in breach of his duty of care by failing to apply his front brake as well as his rear brake. 19 The third argument advanced on behalf of the claimant on the issue of liability related to his Honour's finding as to causation. It was submitted that the collision would have occurred in any event, that it was indeed inevitable, but that his Honour had not addressed the question of causation at all, or if he had, he had done so inadequately. 20 With respect to the forcefulness of Mr Harben's argument I am unable to agree with him that his Honour failed to address this issue. I have already set out in [14] above the passage from his Honour's judgment in which he said that by failing to keep a proper lookout, and by only applying his rear brake, the claimant did not give himself the opportunity to have stopped or to have reduced speed to a degree which would have enabled him to have taken evasive action to avoid the collision. It may well be that even if he had stopped that the opponent, who was himself guilty of contributory negligence, would have still collided with the motorcycle, but in that situation there would have been no blameworthiness on the part of the claimant. The fact that the collision might have been inevitable in such circumstances does not, in my view, avoid the finding of the primary judge that the failures of the claimant found by the primary judge on the part of the claimant to reach the necessary standard of care were such as not constitute a contributing cause of the collision. 21 Accordingly, in my view, none of the arguments on the issue of liability are capable of displacing his Honour's findings and I would therefore decline to grant leave to appeal in relation to that issue. 22 The second matter raised in the summons for leave to appeal related to the finding of contributory negligence of 50%. However, during the course of the hearing Mr Harben quite properly accepted that if his challenge to the primary judge's findings of a failure to keep a proper lookout and to apply his front brake was rejected, then it could not be said that his Honour's assessment of the opponent's contributory negligence of 50% was outside the proper range within which he could have determined the extent of the opponent's responsibility for his injuries. 23 The third challenge related to the question of damages and, so far as any question of leave to appeal was concerned, was confined to the proposition that in determining future economic loss his Honour had misdirected himself. 24 His Honour's findings in relation to the reduction in the opponent's earning capacity, which is the hallmark of any finding that he had sustained future economic loss, were as follows. First, his Honour found that the opponent probably had regained the physical capacity to work following the accident by the time he saw Dr Patrelas at Royal Newcastle Hospital on 8 July 2003. Dr Patrelas was of the opinion that the opponent could go back to work "as pain allows". His Honour considered that physically the opponent had the capacity at that time to engage in regular employment provided it was not too heavy. 25 Second, Honour referred to the evidence of the opponent himself that he considered he could probably have worked full time from March 2004. His Honour determined to adopt 30 June 2004 as the date at which the opponent should be considered to have been able to return to work full time. 26 Third, after referring to the opponent's symptoms in relation to his back, knee and hand, which were all injured in the accident, the primary judge found on the medical evidence that the restrictions on the opponent's physical ability to work as a result of his symptoms was relatively slight. He then came to the following conclusion: "The likelihood is that the plaintiff's condition will not worsen in the future and is likely to improve with exercise and work. I consider that the plaintiff is capable of working full time in painting work, but will need to avoid the heavier work. This no doubt will restrict the sort of work which the plaintiff can do in the labour market in which he finds himself, and it is likely that he will be without work from time to time to an extent greater than would be the case if the plaintiff were working on an unrestricted basis even though there might be some intermittency in unrestricted work as projects come and go." 27 Fourth, further on in his judgment when dealing with past economic loss, his Honour again reiterated that it was likely that lighter painting work was only available in a smaller labour market; that is, that the pool of work would be less in that it would not extend over all types of painting work, and that that should be reflected in determining that it was likely to result in less work for the opponent in the order of one day per week, on average, given that he would be off work more often. 28 Fifth, his Honour's findings in that regard were supported by Dr Cher-Sangkuo, an occupational physician, who on 17 August 2005 examined the claimant. In relation to his fitness for work he stated as follows: "He is probably fit for some of his pre-injury duties but may have difficulty copying with a full day's work or with work if he has to lift twenty litre drums of paint or climbing ladders, standing on scaffolding all day. He should be fit for at least half day's work now and with time and exercise gradually increase his work tolerance. He could eventually work a full day but may need help with some of the heavier tasks." 29 Having determined in relation to past economic loss that the reduction in the opponent's earning capacity should be calculated on the basis of one day's loss of work per week on average at a rate of $138 per week, his Honour determined in relation to future economic loss that it was likely that as a result of his injuries the opponent's ability to earn would be reduced to the same extent. He accordingly applied the rate of $138 per week subject to the vicissitudes of life at the usual discount of 15% to the thirty-three years of working life that the opponent had left to the age of sixty-five from the date of trial, resulting in an amount of $100,374. 30 There is no question, and the contrary was not suggested, that his Honour did not err in his finding as to the restriction of the opponent's earning capacity that I have set out in [26] above. It was clearly demonstrated that in relation to his future earning capacity the opponent was suffering a disability which reduced that capacity and would continue do so over the 33 years of his working life that he had left. Nevertheless it was submitted that at most his Honour should have awarded future economic loss by way of a modest buffer. $20,000 was suggested. This was because he had misdirected himself by confining the capacity of the opponent to work to painting work where he would be required to avoid heavier work such as lifting large cans of paint. 31 The evidence on the other hand established that the opponent was able to carry out menial work within the building industry generally that did not involve painting, and that in fact he had undertaken such work, albeit work found for him by his sister, with a building maintenance company, which had enabled to him to earn as much as he had earned as a painter prior to his injury. However, the fact that he was able to earn as much carrying out light work generally in the building maintenance industry as he had earned prior to the accident as a painter does not negative the finding that he had a reduced earning capacity in terms of carrying out heavier work generally. 32 It was nevertheless submitted that the methodology adopted by his Honour was in error given that the pool of work available to him extended beyond painting work. Further it was submitted that in any event there was no evidence that the labour market for not only painting work but also general maintenance work of the menial kind, which was the only type of work that the opponent was capable of undertaking given his education and qualifications, was any less for such a person than would be the case had the opponent not been injured. 33 In my view these contentions should be rejected. There is no substance in the submission that it was not open to his Honour to come to the conclusion he did as to a smaller labour market with respect to the type of light work which the opponent was capable of performing. Further, in my view it was not necessary for some form of evidence, expert or otherwise, to have been called to support that type of finding. As a matter of commonsense it must follow that in relation to the type of work that the opponent was capable of undertaking, which was, apart from painting, generally unskilled work, a constraint on the worker to the point where he was required to avoid any form of heavy work would result in less opportunity to obtain the type of work which he was physically capable of performing than would be the case if his physical abilities were unconstrained. 34 It would be inappropriate in cases such as the present for this Court to in any way encourage parties to undertake the expense of calling such evidence about an everyday experience which, as I have said, seems to me to involve a matter of commonsense. This is particularly so given one's common knowledge that labour markets change over a period of time and are sometimes more buoyant and at other times extremely tight. If an unskilled worker is confined only to light work, or light duties, it must follow as a matter of common experience that the pool of work available to such a person will be less than that which would be available to a person who suffers no such constraint. 35 In these circumstances, in my opinion it was clearly open to his Honour to take the course he did. Although as I have observed, it was submitted that it would have been more appropriate for his Honour to have merely determined future economic loss by way of a buffer, as a rule of thumb I would not have thought that the provision of a buffer was appropriate where the period over which a plaintiff will suffer reduced earnings is as high as thirty-three years, as in the present case. To apply a buffer in those circumstances where clearly there is a reduced capacity over what is a relatively long future working life would not in all cases be appropriate though it may be in some. It is a matter of judgment. It was therefore open to his Honour to take the conventional approach to the determination of the opponent's future economic loss rather than the buffer approach, which is speculative to say the least. Even if the matter was left to me and I would have preferred the buffer approach, no error on the primary judge's part has been demonstrated which would justify the intervention of this Court. 36 As no error of principle has been demonstrated in the adoption by his Honour of the conventional approach to his assessment of the opponent's future economic loss, it follows that the claimant's submissions on this issue are not such as would justify a grant of leave to appeal. 37 For the foregoing reasons, in my opinion, leave to appeal should be refused, and the claimant' summons for leave to appeal should be dismissed with costs. 38 BASTEN JA: As the presiding judge has shown the trial judge was required to consider an unremarkable set of facts concerning a routine and relatively minor road accident. He did so in an appropriate and reasonable manner as expressed in an entirely adequate judgment. He found that each rider contributed to the accident and he apportioned liability equally. No error was demonstrated in this conclusion which requires the attention of this Court. 39 His Honour assessed diminution of the plaintiff's earning capacity carefully by reference to relevant considerations, and by reference to the evidence. The appellant contends that this exercise involved undue precision, and that to provide a small cushion would have been the appropriate course. A cushion is usually appropriate only where there is no basis for making a calculation. That may be an unavoidable approach in some cases, but it is an invitation to the taking of shortcuts with possibly unfair results to contend that it is the correct approach where an evidence-based calculation is justifiable: see Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 160 at [48]-[50]. The calculation undertaken was justifiable in the present case. 40 For the reasons given by the presiding judge, and for these additional reasons, I agree that leave to appeal should be refused, and that the claimant should pay the opponent's costs of the proceedings in this Court. 41 CAMPBELL JA: I agree with each of the judgments pronounced so far and the orders proposed. 42 TOBIAS JA: The orders of the court will be that the summons for leave to appeal is dismissed with costs. 43 DOOLEY: Your Honour, we'd seek a special order for costs, and we'd seek an order for indemnity costs from 16 October 2006 over the opponent. 44 HARBEN: It's conceded, your Honour, than an offer was made in terms less favourable than the judgment delivered this morning. We've got nothing to say. 45 CAMPBELL JA: Calderbank offer or notice of compromise? 46 DOOLEY: Offer of compromise. 47 HARBEN: It was an offer of compromise, your Honour. 48 TOBIAS JA: I will amend the order for costs. The claimant is to pay the opponent's costs of the summons for leave to appeal on the ordinary basis up to and including 15 October 2006, and thereafter on an indemnity basis. ********** 20/07/2007 - Counsel representing parties - Paragraph(s) Coversheet 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.