Cook v. Hawes [2002] NSWCA 79

CITATION : Cook v. Hawes [2002] NSWCA 79 FILE NUMBER(S) : CA 40629/01 HEARING DATE(S) : 18 March 2002 JUDGMENT DATE : 22 March 2002

PARTIES : Brian James Cook - appellant Alan Leslie Hawes - respondent JUDGMENT OF : Stein JA at 1; Hodgson JA at 2; Ipp AJA at 34

LOWER COURT JURISDICTION : District Court LOWER COURT DC 7701/99 FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER :

COUNSEL : Mr. J.D. Hislop QC with Mr. D. Ronzani for appellant Ms. S. Norton SC with Mr. R.A. Smith for respondent SOLICITORS : Blake Dawson Waldron, Sydney for appellant Andrew Fegent & Co., Sydney for respondent CATCHWORDS : TORTS - Negligence - Contributory negligence - Apportionment of responsibility - Van hitting pedestrian crossing against traffic lights - Whether 50/50 apportionment reasonable. D. Podrebersek v. Australian Iron & Steel Pty. Limited (1985) 59 ALJR 429 at 493-4 Liftronic Pty. Limited v. Unver [2001] HCA 24 CASES CITED: Government Insurance Office of NSW v. Ergul, NSW Court of Appeal, 17/12/93 Stocks v. Baldwin, NSW Court of Appeal, 20/9/96 Tsuji v. Metromix Pty. Limited, NSW Court of Appeal, 17/12/98. DECISION : 1.Appeal allowed ; 2.Judgment for the respondent for $93,205.18 to be substituted for the judgment below for $229,532.41; 3.Respondent to pay one-half of the appellant's costs of the appeal, and to have a suitor's fund certificate if otherwise entitled, unless within 14 days either party provides the Court with written submissions on costs, in which case the Court will re-consider the question of costs on the basis of those submissions and any written submissions from the other side received within a further 7 days.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40629/01 DC 7701/99

STEIN JA HODGSON JA IPP AJA

Friday 22 March 2002 COOK V. HAWES Judgment 1 STEIN JA: I agree with the reasons of Hodgson JA as set out below. 2 HODGSON JA: On 31st July 2001, Goldring DCJ gave judgment for the respondent Alan Hawes in the sum of $229,532.41 in proceedings for negligence brought by him against the appellant Brian Cook. The appellant has appealed to this Court from that decision, on both liability and quantum of damages.

CIRCUMSTANCES OF ACCIDENT 3 The accident by which the respondent was injured occurred in the following circumstances found by the primary judge, and not challenged on appeal by either party. 4 The accident occurred shortly after 9am on 14th October 1996 in George Street, Sydney. The appellant was hit whilst crossing George Street from the Queen Victoria Building towards Hilton Hotel, in or very near a pedestrian crossing controlled by traffic lights. The weather conditions were good, and there was no problem with visibility. There were three traffic lanes in each direction. In the kerb lane, there was a bus stopped just to the south of this crossing, and another bus stopped just to the north of it. 5 The appellant, a self-employed courier, was driving his van north along George Street in the lane nearest the centre, at approximately 50 kilometres per hour. The lights were green in his favour. The respondent, who was colour-blind, entered the crossing against a red "Don't Walk" signal, moving much faster than a pedestrian would normally move. The appellant saw him and braked, but the van hit the respondent to the right of centre of its front.

PRIMARY JUDGE'S DECISION ON LIABILITY 6 The primary judge noted evidence from a report of Jamieson Foley, prepared on the assumption that the appellant was driving at 20 kilometres per hour (being the speed noted by a policeman in his notebook at the time), that at that speed the appellant would have been able to avoid hitting the respondent, and continued: Given that the defendant admitted that his speed was twice that, it seems that it is inevitable that I should find that he was driving without due care and attention and that this was negligence and a cause of the accident. 7 On the next page, the primary judge said that the appellant "was driving at a speed that was such that he did not keep a proper lookout". He held that the appellant had a duty of care, and had broken that duty, and that it resulted in injury to the respondent. 8 The primary judge noted a concession for the respondent that the respondent had not taken reasonable care for his own safety; and said that, although the respondent was colour-blind, he should have worked out a way of determining what traffic lights indicated. Furthermore, the respondent left the kerb whereas other pedestrians did not, and walked at an extremely fast pace. The primary judge assessed the respondent's contribution to the accident at 50 percent.

APPEAL ON LIABILITY 9 The relevant grounds of appeal were merely that the primary judge erred in finding (1) that the appellant was negligent, and (2) that the respondent's degree of contributory negligence was only 50 percent. 10 The appellant's written submissions accepted that the primary judge was entitled to take judicial notice of the fact that in the central business district of Sydney pedestrians do at times tend to cross streets otherwise than in accordance with the Motor Traffic Regulations; but contended that the evidence did not support a finding that the appellant was not having regard to this possibility and not keeping an appropriate lookout. The appellant's evidence was that, when he was about 30 metres from the crossing, he saw something out of the corner of his eye, on his left side; and as he got closer, within a second or so realised it was a person and immediately slammed the brakes on. According to the evidence of the appellant's expert Mr. Griffiths, at such a speed the accident could not have been avoided. The submissions also put that the speed of 50 kilometres per hour was not excessive. 11 In oral argument, Mr. Hislop QC for the appellant submitted that reasonable care did not require a person to drive at less than 50 kilometres per hour where the lane was clear, the lights green, and apparently there were no pedestrians on the road. In any event, he submitted, the speed of 50 kilometres per hour was not causative of the accident: the expert evidence properly understood was to the effect that the accident would not in any event have been avoided. Mr. Hislop also referred to the appellant's evidence that he was constantly on the alert when driving on this occasion, and the cross-examiner's acceptance of this evidence. 12 Alternatively, it was put for the appellant that the responsibility of the respondent for the accident was far greater than that of the appellant: the respondent was crossing against a red signal from between stationary buses at a fast speed, when other pedestrians were waiting at the kerb, and he did not look to see if traffic was coming. It was put that the respondent's responsibility for the accident should be assessed at no less than 80 percent. 13 Ms. Norton SC for the respondent submitted that the experts' reports were of little value: they did not have the correct speed of the appellant and they did not have the information that the appellant saw the respondent when he was still about 30 metres away. In all the circumstances, the primary judge was entitled to conclude that 50 kilometres per hour was too fast for the circumstances. 14 On apportionment, Ms. Norton submitted that this involved a discretion, as to which different minds could differ, and which should not be lightly reviewed by an appeal court: see Podrebersek v. Australian Iron & Steel Pty. Limited (1985) 59 ALJR 429 at 493-4; Liftronic Pty. Limited v. Unver [2001] HCA 24. In any event, the apportionment was reasonable: see Government Insurance Office of NSW v. Ergul, NSW Court of Appeal, 17/12/93; Stocks v. Baldwin, NSW Court of Appeal, 20/9/96; Tsuji v. Metromix Pty. Limited, NSW Court of Appeal, 17/12/98.

DECISION ON LIABILITY 15 In my opinion, it was open to the primary judge to find that, in all the circumstances, a speed of 50 kilometres per hour was excessive. In circumstances where the respondent crossed nearly two traffic lanes in view of the appellant, before being hit, and where the appellant caught sight of the respondent when he was still about 30 metres away, it was open to conclude that the speed of 50 kilometres per hour approaching a pedestrian crossing, albeit one controlled by traffic lights, was excessive. In my opinion also, another factor which could have been relied on was the appellant's evidence to the effect that he did not brake immediately when he first caught sight of the respondent, but waited an instant until he confirmed that this was a person crossing the road: one would expect that a driver travelling at 50 kilometres per hour in George Street would immediately brake if he or she caught sight of anything coming onto the road, without pausing to determine what it was coming onto the road. To put this another way, in my opinion it was open to take the view that, if a driver is travelling at 50 kilometres per hour in a busy city street where pedestrians might be expected to come onto the street, sometimes in disregard of the traffic rules, it is necessary to be extremely vigilant and to respond immediately and without hesitation to any indication that this might be happening. If one does not drive in this way, then one must drive at a lower speed. 16 However, in my opinion the apportionment was so unreasonable as to disclose error. It is true that a high standard is required of a person in control of a lethal object in a city street; but negligence was found against the appellant only because of what might be regarded as a small and momentary lapse from that high standard. On the other hand, the respondent moved quickly across the road, against the traffic lights, without looking for traffic, in circumstances where there were no other pedestrians on the crossing but were other pedestrians waiting at the kerb. In my opinion, his colour-blindness makes little difference: a colour-blind person must take account of this condition, particularly in situations where compliance with traffic lights is vital for the person's own safety and the safety of others. The respondent's responsibility for the accident was substantially greater than the appellant's. 17 This case is different from Podrebersek and Liftronic, which related to jury verdicts returned after adequate directions, whereas this is a judge's assessment unsupported by reasons. It is also different from the three Court of Appeal cases to which we were referred. In Ergul, where the pedestrian's responsibility was assessed at one-third, the pedestrian had almost completed crossing a road at walking pace, and other persons were also crossing. In Stocks, where the pedestrian's responsibility was assessed at 40 percent, the driver drove at 25-35 miles per hour in murky conditions in a kerbside lane alongside lines of cars stopped by traffic lights in the next two lanes, through which the pedestrian came "fighting the rain". In Tsuji, where the pedestrian's responsibility was assessed at 60 percent, the driver was travelling at 60 kilometres per hour in busy conditions and saw the pedestrian running towards the road but did not slow markedly. 18 Having regard to the degree of lapse from reasonable standards, and the degree of contribution to the accident, from both parties, an appropriate apportionment would be 25 percent for the appellant and 75 percent for the respondent.

CIRCUMSTANCES CONCERNING DAMAGES 19 The respondent was born in 1949, completed Year 11 at school, and then worked at the Commonwealth Bank for 20 years. He and his wife then managed a motel in the country for three years. In 1992, he joined the staff of the Protective Commissioner, and achieved quite rapid promotion. At the date of the accident, he was a Senior Estates Officer, managing the property of incapable persons, earning a weekly salary of $558.00 net. He was a fit man, and healthy for his age. 20 The appellant's van hit the respondent's right side, and he was thrown to the ground, striking the left side of his body. The medical experts agreed that, as a result of the collision, he suffered a serious injury to his right shoulder, and that his right shoulder and arm were thereby seriously impaired. However, there was disagreement among experts as to whether or not the respondent suffered serious soft tissue injury to his cervical spine, resulting in on-going neck pain and headaches; and whether or not the accident caused injuries and pain claimed by the respondent to be suffered in his left shoulder, arm and both wrists. The respondent also led evidence that, as a result of the accident, he was suffering chronic pain syndrome and diminution of his cognitive capacity. 21 The respondent did not return to work until about June 1998, when he commenced part-time work at the Office of the Protective Commissioner. Over a twelve month period, this built up to full-time attendance. However, the respondent did have difficulties with that work, and in November 1999 he was medically retired from the Public Service. He later acquired an interest in a café known as Café Greco, and he started work there on 31st July 2000. He continued there until the hearing of these proceedings in mid-2001. The respondent has also passed nine subjects in an external university law course, two of which he passed before the accident.

PRIMARY JUDGE'S DECISION ON DAMAGES 22 The primary judge found that the respondent did suffer serious soft tissue injury to his cervical spine and that as a result he suffers continuing neck pains and headaches. He found that he suffers from chronic pain syndrome. Concerning his cognitive capacity, the primary judge was satisfied that the respondent was prone to exaggerate his symptoms but not that he consciously feigned symptoms; and he was also satisfied that the combined effect of his injuries, chronic pain syndrome and impairment of his adaptive abilities was that he could not have attempted to return to his duties earlier than he did and that he was unfit for work at the time he was retired from the Public Service. However, the primary judge found that he was not totally incapacitated for work. 23 The primary judge assessed the respondent's non-economic loss at 33 percent of a most extreme case, giving a figure of $93,500.00. Past out-of-pocket expenses were agreed at $33,659.00. Future out-of-pocket expenses, including provision for shoulder replacement, was assessed by the primary judge at $25,000.00. As regards loss of past earnings, the primary judge assessed this at $65,090.00 up to the time of his medical retirement and $14,232.90 thereafter, making a total of $88,422.90. Loss of future earnings he assessed on the basis of a 30 percent loss of capacity, which the primary judge quantified at $369.30 per week to age 65, less 15 percent for vicissitudes, giving a figure of $166,149.92. He added a loss of superannuation benefit of $52,333.00. These figures gave a total of $459,064.82; and the primary judge gave a verdict for one-half that amount, namely $229,532.41.

GROUNDS OF APPEAL ON DAMAGES 24 The Notice of Appeal contained the following grounds relevant to damages: 3. His Honour erred in finding that the Respondent's injuries constituted 33% of a most extreme case within the meaning of s.79A of the Motor Accidents Act 1988 (as amended). 4. His Honour erred in finding that the surveillance evidence adduced by the Appellant was, save in one respect, totally consistent with the Respondent's evidence in chief. 5. His Honour's findings in (4) above, and the terms in which it was expressed, gave rise to a reasonable apprehension of bias on the part of his Honour against the Appellant. 6. His Honour erred in finding that the Appellant's evidence regarding his employment was acceptable and honest. 7. His Honour erred in rejecting the opinion of Professor Mattick, relied upon by the Appellant. 8. His Honour erred in awarding the sum of $25,000.00 in respect of future treatment. 9. His Honour erred in awarding the sum of $88,422.90 in respect of past economic loss. 10. His Honour erred in awarding the sum of $166,149.92 in respect of future loss of earning capacity. 11. His Honour erred in awarding the sum of $52,333.00 in respect of loss of superannuation entitlements. 25 The respondent conceded that there were errors in the calculation of future wage loss and superannuation. As regards future wage loss, the respondent conceded that the calculation had been based on 30 percent of gross wages, rather than 30 percent of net wages; and that the figure calculated on the basis of loss of 30 percent of net wages, on the basis adopted by the primary judge, was $116,149.92. In relation to superannuation, the respondent conceded that the correct calculation on the basis of the approach of the primary judge gave a figure of $16,088.90, rather than the $52,333.00 adopted by the primary judge.

SUBMISSIONS ON DAMAGES 26 Mr. Hislop for the appellant submitted that the only actual injury, objectively confirmed, was to the respondent's right shoulder; and in relation to that, Dr. Goldberg's evidence was that a very good result had been achieved. In relation to the appellant's functional problems, including the claimed chronic pain syndrome, Mr. Hislop pointed out that the primary judge was satisfied that the respondent was very prone to exaggerate his symptoms; and Mr. Hislop submitted that the surveillance film taken of the respondent working at the Café Greco showed him working with no disability. In relation to the claimed cognitive affectation, the respondent was progressing through a law degree, passing seven subjects subsequently to the accident. Having regard to the respondent's exaggeration of his symptoms, the assessment of non-economic loss at 33 percent of a most extreme case was excessive: an appropriate assessment would be 24%, giving a figure of $16,500.00. 27 Mr. Hislop submitted, in relation to future out-of-pocket expenses, that the allowance was excessive, particularly in circumstances where the substantial allowance for a future shoulder replacement was not justified. In so far as the appellant's difficulties with employment were functional, it was inappropriate to award future economic loss on the basis that the disability was permanent.

DECISION ON DAMAGES 28 In my opinion, it was open to the primary judge to find, as he did, that the combined effect upon the respondent of his injuries, his chronic pain syndrome, and the impairment of his adaptive abilities was that he was unfit for work at the time he was retired from the Public Service. This finding receives very strong support from the circumstance that, over the respondent's strong opposition, he was compulsorily retired on medical grounds from the Public Service. 29 It does seem that a significant factor in the respondent's difficulties with his work was psychological, and that could have given rise to an assessment that did not assume permanent disability. However, in all the circumstances, in my opinion an assessment of a 30 percent loss of capacity from the time of trial to age 65 was a reasonable and balanced assessment of the disability caused to the respondent, and I see no reason to disagree with the revised figures for future wage loss and superannuation conceded by the respondent. I do not think a ground has been made out to interfere with the assessment of future out-of-pocket expenses. Likewise, no case is made out for interfering with past wage loss. In all the circumstances, in my opinion the assessment of non-economic loss, while high, does not disclose appealable error. 30 In the result, the quantification of damages at $459,064.82 is to be reduced by $50,000.00 in respect of future wage loss and by $36,244.10 in relation to superannuation, giving a figure of $372,820.72.

CONCLUSION 31 The appeal should be allowed, and there should be substituted a verdict for the respondent of one-quarter of $372,820.72, that is, $93,205.18. 32 As regards the costs of the appeal, the appellant has been unsuccessful in relation to the quantification of damages, except in relation to matters conceded by the respondent. The appellant was unsuccessful in the appeal against the finding of negligence, although many of the matters raised and debated concerning that aspect of the appeal were also highly relevant to the apportionment of contributory negligence, on which the appellant succeeded. My tentative view on costs is that the respondent should pay one-half of the appellant's costs, and have a suitor's fund certificate if otherwise entitled. However, I would reserve leave for either party to put in written submissions on costs within 14 days, any reply to be provided within a further 7 days. 33 Accordingly, the orders I propose are: 1. Appeal allowed. 2. Judgment for the respondent for $93,205.18 to be substituted for the judgment below for $229,532.41. 3. Respondent to pay one-half of the appellant's costs of the appeal, and to have a suitor's fund certificate if otherwise entitled, unless within 14 days either party provides the Court with written submissions on costs, in which case the Court will re-consider the question of costs on the basis of those submissions and any written submissions from the other side received within a further 7 days. 34 IPP AJA: Apportionment of damage involves a comparison between the degree of negligence of the plaintiff and the degree of negligence of the defendant, and the relative causal contribution of the parties' negligence to the damage: Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 529; Pennington v Norris (1956) 96 CLR 10. 35 The trial judge apportioned damage on the basis that the degree of negligence and the relative causal contribution of each of the parties was equal. In my opinion that was an error. 36 The appellant was driving his vehicle at a speed below the legal limit and his negligence in this respect was not of a high degree. The same may be said of his negligent failure to apply his brakes earlier than he should have, that is, within a period of about two seconds. 37 The respondent, on the other hand, sought to cross the road against the red traffic light, without looking at the traffic passing in front of him, in rush hour in the centre of the city, while all the other pedestrians who wished to cross the road at that point remained stationary. His conduct was far more considered than that of the appellant and was inherently dangerous to a significant degree. 38 In my opinion, the degree of fault and responsibility on the part of the respondent was far greater than that of the appellant. 39 I would favour apportioning damage on the basis of 20 percent for the appellant and 80 percent for the respondent. Hodgson JA, however, proposes an apportionment of 25 percent for the appellant and 75 percent for the respondent and Stein JA agrees with that. In the circumstances I would accept the apportionment proposed. Otherwise I agree with the reasons of Hodgson JA and agree with the orders proposed by him. **********

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