TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Torts - Negligence - Road accident cases - Actions for negligence - Apportionment of damages - Pedestrian accidents - Pedestrian stepped into path of vehicle.

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, applied.

Judgment Number: [2005] TASSC 122

1 I agree for the reasons given by Tennent J that the appeal and the cross-appeal should be dismissed.

2 I have read the judgment of Tennent J in draft form. I agree with her Honour that the appeal and cross-appeal should be dismissed, for the reasons stated by her. I would like to add a little in relation to an arithmetical approach to ground 7, which relates to the award of $50,000 for the impairment of the plaintiff's future earning capacity.

3 The appellant was 23 years old at the time of the collision and 26 years old when his damages were assessed. At the time of the collision he was unemployed by choice. He left school when he was 15 years old. Thereafter he was unemployed or underemployed by choice for much of the time. He had worked with a panelbeater as a trainee, and then with a manufacturer of screen doors and blinds. He had undertaken a six month landcare and environment course that involved laying garden beds, planting trees, chemical spraying, bricklaying and the like. He had worked part-time as a night filler at a supermarket. He had undertaken fruit picking, gardening, cleaning work, and other odd jobs. The learned trial judge found that he was fit to return to his former occupations by about the end of March 2004. However his future earning capacity was impaired in two respects. Because of a possibility of early degenerative changes in his knees and hips occurring in his 50s, rather than in his 70s, he was no longer ideally suited for heavy physical work. Because of his head injury, he had a continuing mild impairment of certain intellectual processes. However he retained strengths in the areas of reading, general knowledge, and vocabulary, and those strengths continued to give him an advantage in the ability to obtain employment in a variety of areas. The learned trial judge faced a difficult task in assessing damages for the impairment of the appellant's future earning capacity because of his having been unemployed and underemployed by choice for much of the time since he left school.

4 Although the award of $50,000 under this head was not the product of a calculation, I think it is worthwhile, for the purpose of evaluating its adequacy, to undertake some calculations. The learned trial judge took the view that the appellant was able to earn about as much as his brother, who was earning about $32,000 per annum after tax at the time of the trial. That equates to $615.38 per week. A worker earning that amount would also be entitled under Commonwealth legislation to employer superannuation contributions equal to 9 per cent of his or her gross earnings. It would therefore have been appropriate to evaluate the appellant's earning capacity on the basis that he could have received earnings and superannuation benefits to a total value of about $700 per week after tax. The learned trial judge assessed damages on the basis that the plaintiff had a future working life of about 39 years. The amount required to compensate a person for a loss of $700 per week over 39 years, adopting a discount rate of 7 per cent pursuant to the Common Law (Miscellaneous Actions) Act 1986, is calculated as follows:

5 It is common for damages for the impairment of future earning capacity to be assessed by taking this sort of figure as a starting point, making a deduction to allow for "adverse" contingencies including unemployment and underemployment, and making a further deduction to allow for the plaintiff's residual earning capacity. In this case, it would have been appropriate to make a deduction of about 50 per cent to allow for contingencies including unemployment and underemployment by choice, and to have deducted a further 40 per cent of the original figure to allow for the appellant's retained earning capacity. The result would have been a figure very close to the sum of $50,000 awarded by the learned trial judge. It follows that the award of $50,000 is by no means an erroneous estimate of the appellant's damages under this head. A somewhat smaller award under this head would have been unexceptionable. There was no challenge to the findings of fact on which the award under this head was based. The award was clearly a reasonable one.

6 The appellant, a pedestrian, was injured when he was hit by a car driven by the respondent. He sought damages for those personal injuries. The learned trial judge made certain findings about the circumstances in which the accident occurred. As a consequence he found that the respondent had breached a duty of care towards, and was liable to pay damages to, the appellant. He also found the appellant contributed to the accident. He assessed the level of contribution at 40 per cent. The learned trial judge then assessed the level of damages which included an amount for the appellant's future loss of earnings.

7 Despite the number of grounds of appeal, there are two substantive matters complained of. These are the level of contribution of the appellant and the assessment of the appellant's loss of future earnings.

8 The respondent has cross-appealed, submitting he should have no liability at all for the accident.

9 The appellant pursued 12 grounds of appeal which were:

"1 That the learned trial judge erred in fact and/or law by finding the appellant's responsibility for his injuries at 40 per cent when that was too great on the evidence.

2 That the learned trial judge erred in fact and/or law by taking into account erroneous or irrelevant matters when apportioning responsibility between the appellant and the respondent namely;

3 That the learned trial judge erred in fact and/or law by failing to take into account adequately or at all relevant matters when apportioning responsibility between the appellant and the respondent namely;

b) The difference between the standard of care imposed on the respondent as the driver of a motor vehicle and the appellant as a pedestrian in the relevant circumstances

5 That the learned trial judge erred in fact and/or law by failing to adequately expose his reasoning process as to his determination of where on the roadway the collision occurred.

6 That the learned trial judge erred in fact and/or law by failing to advert adequately or at all to the evidence of Peter Hoban.

7 That the learned trial judge erred in fact and/or law by awarding the appellant $50,000.00 for future loss of earnings when that was inadequate on the evidence.

8 That the learned trial judge erred in fact and or law by finding that the appellant stepped to his left and onto the bitumen surface of the roadway almost immediately after the bus passed.

9 The learned trial judge erred in fact and or law by accepting the respondent's evidence that his utility did not leave the bitumen surface of the roadway.

10 The learned trial judge erred in fact and or law by finding that Ms McCaw encouraged the appellant to join her on the other side of the roadway.

11 The learned trial judge erred in fact and or law in concluding the appellant's intoxication caused him to step onto the roadway without noticing the utility or was such that he might not see or hear an approaching vehicle and might stray onto the roadway when it was dangerous to do so.

12 The learned trial judge erred in fact and or law in concluding that the possibility that the curve in the roadway caused the respondent's vehicle to stray onto the verge was not high as the defendant was familiar with the road.

13 The learned trial judge erred in fact and or law in rejecting the evidence of Ms McCaw that she called to the appellant 'there's a couple of cars coming'."

10 Counsel for the appellant acknowledged that the role of an appellate court in matters such as this was constrained by the provisions of the Supreme Court Civil Procedure Act 1932 ("the Act"), ss45 and 47. As to grounds 1, 2 and 3, he specifically relied on the Act, s45(1)(a), (b) and (c), which provides:

"45 (1) A Full Court ... shall not reverse or vary any adjudication of the judge which is, or purports to be, only the exercise of a discretion which the judge was entitled by law to exercise, unless it appears to the Full Court that -

(a) the judge has, in fact, declined or failed to exercise the discretion;

(b) the judge has proceeded on a wrong principle or otherwise contrary to law, or on irrelevant or insufficient materials, or has misapprehended the facts or has failed to consider any material fact;

(c) the adjudication is founded wholly or in part on an erroneous finding of fact or an erroneous determination in point of law; or ...".

11 In Les Walkden Enterprises Pty Ltd T/A Les Walkden Timber Harvesting v Menzie [2001] TASSC 140, Evans J said at par45:

"The reduction of the respondent's damages by a proportion under the Tortfeasors and Contributory Negligence Act 1954, s4(1), is for the purposes of the Supreme Court Civil Procedure Act 1932, s45(1) an 'adjudication of the judge which is, or purports to be, only the exercise of a discretion which the judge was entitled by law to exercise', and so the trial judge's determination as to the appropriate reduction should not be varied unless any of the matters detailed in that provision have been made out; McKinlay v Reading [1977] Tas SR 7."

"Any assessment of percentage of contributory negligence resists precise reasoning. It is an evaluation based on competing duties, and an appreciation of the totality of the case. It is an exercise of judgment (Liftronic Pty Limited v Unver (2001) 75 ALJR 867 and McKinlay v Reading [1977] Tas SR 7)."

12 In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493 - 494 (per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ), the court said:

"A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': ... Such a finding, if made by a judge, is not lightly reviewed."

13 As to appeal grounds 8 - 13 inclusive, counsel relied on the Act, s47(1) and (2), which provides:

"47 (1) Subject to the provisions of this Act, a Full Court, on the hearing of every appeal, shall have and may exercise all the jurisdiction ... and shall have power to draw inferences of fact not inconsistent with the findings of the jury, if any .. .

(2) On the hearing of every appeal from a judgment given ... by a judge sitting without a jury, a Full Court shall have full power to review the judgment ... appealed from on questions of fact as well as law."

14 Both counsel referred to passages from the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 where their Honours outlined, in pars23 - 27 inclusive, the principles relating to the role of an appellate court in matters such as the present.

15 As to grounds 1, 2 and 3, and relying on the Act, s45(1)(b), counsel for the appellant submitted that the learned trial judge:

(i) relied on irrelevant materials (the respondent's non-consumption of alcohol);

(ii) failed to consider material facts (where on the roadway the collision occurred); and

- finding that the appellant stepped to his left and on to the bitumen surface of the roadway, almost immediately after the bus passed;

- accepting the respondent's evidence that his utility did not leave the bitumen surface of the roadway;

- finding that Ms McCaw encouraged the appellant to join her on the other side of the roadway;

- concluding the appellant's intoxication caused him to step on to the roadway without noticing the utility, or was such that he might not see or hear an approaching vehicle and might stray on to the roadway when it was dangerous to do so;

- concluding that the possibility that the curve in the roadway caused the respondent's vehicle to stray on to the verge was not high as the defendant was familiar with the road; and

- rejecting the evidence of Ms McCaw that she called to the appellant "there's a couple of cars coming".

16 The matters outlined in (iii) above were the subject of individual grounds of appeal numbered 8 - 13 inclusive and counsel for the appellant acknowledged that as far as those separate grounds of appeal were concerned, the Act, s47, not s45, was relevant. However, as to those matters, insofar as they were the subject of argument in respect of grounds 1 - 3, what counsel for the appellant sought to do was challenge a number of findings of fact made by the learned trial judge underpinning his conclusions as to the circumstances in which the accident occurred and argue that because they were wrong, the learned trial judge had "misapprehended the facts" and "failed to consider material facts".

17 In respect of grounds 8 - 13, counsel for the respondent submitted that the strength of each of these grounds of appeal must be judged in the light of the need for appellate respect for the advantages of a trial judge, especially where that judge's decision might be affected by his or her impression about the credibility of a witness whom the trial judge saw, but the appellate court did not. Counsel referred also to the advantage of the view that the learned trial judge had. In this context he made reference to a further decision of the High Court in Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572 where reference was made to the Evidence Act 1995 (NSW), s54. In that case the court found there was a failure to have sufficient regard to the utility of the trial judge's inspection of a site given the terms of s54. The Evidence Act 2001, s54, in this State is in the same terms as that in New South Wales and allows a judge to draw inferences from what he or she has seen.

18 It is logical, having regard to the approach taken by the appellant, to consider the grounds of appeal 8 - 13 first.

19 These grounds can conveniently be dealt with together because they are interrelated.

"I find that at the point of impact, the tyres of the defendant's utility were not off the bitumen surface of the roadway and the plaintiff was on the edge of that surface, he having stepped to his left on to the bitumen almost immediately after the bus passed, with a view to crossing the roadway as he continued in the direction of Cygnet."

21 Counsel for the appellant argued that the evidence did not support the above finding but that what it did support was a finding that the appellant was on the gravel verge of the roadway at the point of impact and that therefore he was not responsible for his injuries, or his responsibility was negligible. Counsel referred to a number of matters to support this contention. These were the following:

* Evidence of Ms McCaw that "as the bus passed I seen Tim still just continue walking in the same spot beside the road", "From my position he looked like he was off the road" and that the appellant was still walking facing towards Cygnet after the bus passed.

* Evidence of Mr Hilary Direen, the bus driver, that the appellant was "just off the bitumen a bit", that he was dressed in grey and had his head down and did not move on to the road while he was watching him. It was submitted this evidence was inconsistent with an intention on the part of the appellant to cross the road. With respect, that does not automatically follow. Mr Direen did not say how long he kept the appellant in his view. One might assume that if he were driving a bus, once he passed the appellant, he may not have continued to watch him and could not have known precisely what he did.

* The suggestion that the appellant was crossing the roadway was inconsistent with the learned trial judge's finding that at the time of impact the appellant was roughly facing the respondent's utility. While his Honour did make that finding, he did not say the appellant was actually crossing the road, nor suggest he was. In par19, his Honour said "... he having stepped to his left on to the bitumen ... with a view to crossing the roadway".

* The statement of Ms McCaw to the respondent's mother about the appellant crossing the road was of little weight because it might have been a statement of intention and not of fact, and it was contrary to what Ms McCaw said of the appellant's actual movements. It was not disputed the statement may have been made. In her evidence, Ms McCaw said she must have been in shock when she said it. She was not examined about what she might have meant by it and counsel's characterisation as a possible statement of intention is pure supposition unsupported by any evidence. Further, his Honour made an assessment of Ms McCaw's evidence at par8, which explained why he approached her evidence as he did.

* The respondent's evidence as to his position on the road was unsatisfactory. Counsel referred to the evidence of the respondent as it appeared at 256 - 258 of the appeal book. The respondent was being cross-examined by counsel for the appellant about where he was on the road. Counsel suggested that the evidence disclosed a shifting basis for why the respondent said he was on the sealed surface and submitted that it reeked of reconstruction. The exchange referred to by counsel was the only evidence relating to the issue by the respondent. The difficulty in assessing this submission is that the only material this Court has to deal with is a transcript. It discloses questions by counsel and the learned trial judge. The exchanges are disjointed and it is apparent the respondent was at times confused when pressed about matters. In the end he did not move from the position that he was on the sealed surface. The learned trial judge clearly had the benefit of observing, and indeed taking part in, the witness's exchange with counsel and observing the witness's demeanour throughout.

* Ms McCaw did not encourage the appellant to join her on the other side of the road as found by the learned trial judge at par19. He referred to her evidence at 168 where she specifically denied calling out to him "Quick, quick", the evidence of the appellant at 28 where he said Ms McCaw "was yelling out to me repeatedly 'Quick, quick' ...", the further evidence of the appellant at 31 to the same effect and the appellant's police statement made a week or so after the accident which did not refer to much at all. Certainly there was no corroboration of the evidence of the appellant and the learned trial judge had earlier said he would not accept uncorroborated evidence of the appellant. The finding of the learned trial judge as to this matter does appear to be inconsistent with the approach he took to the evidence. However, clearly the evidence was there and it may be that his Honour took the view, similar to that in respect of Ms McCaw's evidence about some other matters, that her evidence on this issue should not be accepted over the evidence of the appellant.

* Debris from the respondent's vehicle was photographed on the verge following the accident and had not been removed from the bitumen surface, thereby suggesting the point of impact was on the verge. Counsel referred to a police photograph at the accident scene which showed what appeared to be two pieces of glass or perspex, one in the gravel beside the road within an inch or so of the sealed surface and the other in the grass on the verge. He also referred to the evidence of an attending police officer at 181 - 182 of the appeal book. That officer was a local officer who arrived at the scene about 20 to 25 minutes after the accident. He had no recollection of any debris and told the Court that had he seen it he would have recorded it. He said had there been debris and someone removed it, that would have stuck in his mind. He also gave evidence he looked for evidence that the respondent's car went off the road and found none.

* The evidence of Mr Hoban, a civil engineer, was not directly referred to at all and only indirectly referred to in par19. Counsel submitted the learned trial judge did not give reasons as to why the position of the debris and/or the appellant post-impact did not assist him in establishing whether the appellant was just on or off the sealed roadway at the time of impact. Counsel submitted the learned trial judge had a duty to expose his reasoning. He also submitted that the evidence of Mr Hoban was that the appellant's lateral movement following impact would be significantly less than 2 metres and the appellant was located 1.9 metres from the edge of the bitumen.

Mr Hoban's evidence and the items pointed out in the photo referred to need to be placed in the overall context of what was before the learned trial judge. It is apparent that no attending police officer or accident investigator recorded what was said to be debris from the respondent's vehicle. There was no evidence, indeed just an assumption, that the items were from the respondent's vehicle. There was no expert evidence as to the role debris might have in determining a point of impact.

The bulk of Mr Hoban's evidence related to stopping distances. He did not attend the scene of this accident and there was no evidence he had regard to any particular features of this particular accident. There was no evidence he saw any photographs of the scene. His evidence relating to potential lateral movement was, even on the face of the transcript, what can only be described as uninspiring and at times even unresponsive to questions asked. His evidence about this particular issue, ie lateral movement of a pedestrian struck by a car, appears at 146 of the appeal book. At no stage in his evidence did Mr Hoban say that the appellant's lateral movement would be significantly less than 2 metres. He was asked what the likelihood of a lateral movement by a struck pedestrian beyond a figure of 2 metres was and he replied, "I think that's very unlikely".

With respect, the probative nature of this evidence on any reasonable consideration of it was not high and one could understand why the learned trial judge did not see the need to dissect it before disregarding it.

* Police evidence as to the absence of tyre marks was of little weight given the police did not recall locating debris from the respondent's vehicle which was photographed. Counsel submitted that in any event a tyre mark may not be present if the respondent's vehicle left the road immediately before the impact. There was no evidence the gravel verge was receptive to tyre marks even when moist.

The evidence before the Court was that at least two officers inspected the scene, Constable Browning and Constable Hobbs. The latter was an accident investigator. He recorded no debris at the scene and he recorded no tyre marks off the sealed surface. Constable Browning did not see any. There was evidence the surface off the road was damp. It was not an unreasonable conclusion having regard to the nature of the tyres on the respondent's vehicle, apparent from photographs, that the gravel area was moist and that no tyre marks were found, that the respondent's vehicle's tyres did not go off the sealed surface.

* The curve of the roadway to the right raised the possibility it caused the respondent's vehicle to stray on to the verge because the respondent was following the bus and not looking at the road ahead of it. Counsel submitted this was possible because the respondent was not relying on his familiarity with the road. The evidence of the respondent, starting at 245 of the appeal book, was that he could not see to the left of the bus he was following, but that he was navigating by reference to the centre line and what the bus was doing. He said his vehicle would have been going towards the right as he went around that corner. There was other evidence he had driven the particular stretch of roads a number of times. The possibility of the curve in the roadway causing the respondent to stray left was certainly there. Equally, the possibility found by the learned trial judge on the evidence was there and, having regard to the evidence of the respondent, was probably a more likely possibility.

* It was unlikely the appellant would have attempted to cross the road immediately after the bus because Ms McCaw had warned him of the presence of two vehicles. Counsel submitted the learned trial judge erred in discounting Ms McCaw's evidence in that regard. He further submitted her evidence that she called out to the appellant after she saw the lights, was not inconsistent with her evidence that she first saw the lights reflected in the trees. Ms McCaw's evidence-in-chief was that she called out to the appellant that there were a couple of cars coming. Under cross-examination she was not specifically challenged as to the making of that statement. However, she was taken through, step by step, what she said happened. She agreed that what she first saw was oncoming lights reflected in the trees, she called out to the appellant, he acknowledged that and just kept walking, and then she saw actual headlights on high beam. It was not until it went past her she realised it was a mini bus.

The learned trial judge, at par8, made certain findings about this evidence. He declined to accept Ms McCaw's evidence as to specifically what she called out and gave his reasons for so doing. Those conclusions are consistent with the facts which were not in dispute, that is, as to the curve of the road, the side of the road each of Ms McCaw and the appellant were on and their relative positions, and his Honour's impression of Ms McCaw. There was also evidence Ms McCaw was concerned as to the appellant's safety.

* Evidence of the appellant's intoxicated state was not such as to establish that he might not see or hear an approaching vehicle and stray on to the roadway or did do so. Counsel submitted neither Ms McCaw nor Mr Hilary Direen gave evidence of any matters which might suggest the appellant was in that condition. The only evidence as to the appellant's level of intoxication was his own, that of Ms McCaw who said he was pretty sober, and the police incident sheet which described the appellant as being under the influence of alcohol. The learned trial judge had regard to what the appellant himself said he drank, that the appellant himself said he was drunk although capable of getting home, and the police observations. With respect, that evidence contradicts MsCaw's version of "pretty sober" and is more likely to be a better indication of the appellant's condition. The conclusion drawn by his Honour was entirely open to him, particularly given Ms McCaw's evidence as to concerns she held for the appellant's safety.

22 His Honour had the obvious advantage as a trial judge of being able to observe witnesses as they gave their evidence. He could listen to what they said and how they said it, and observe their demeanour as they said what they did. Much of this advantage is lost when an appellate court only has a transcript to read.

23 The submissions of counsel for the appellant were, to a significant extent, not directed at pointing out clear factual errors by reference to uncontroverted facts. They were directed to suggesting that his Honour drew conclusions from the evidence when there were other possible conclusions which might have been drawn and that this meant his Honour was somehow wrong. Were his Honour's conclusions so extreme as to be unrealistic having regard to the evidence, then perhaps these submissions might have merit. With respect, however, I am of the view, having regard to the submissions canvassed above and the evidence to which they relate, that the conclusions his Honour drew which are the subject of these appeal grounds were open to him on the evidence.

24 Having regard to the principles to be applied by an appellate court in this case, it would not be appropriate to interfere with his Honour's findings.

26 Counsel for the appellant conceded that a finding of apportionment is not lightly reviewed. He submitted, however, by reference to the definition of "wrongful act" appearing in that Act, that the learned trial judge failed to look at only the conduct of the appellant and the respondent which was responsible for the damage as required by the Wrongs Act 1954, s4(1). A wrongful act is defined as an act or omission that:

" ... and includes an act or omission on the part of a person suffering damage that causes or contributes to the damage and that constitutes a failure on the part of that person to take reasonable care for the protection of his or her person or property."

27 Counsel submitted that the learned trial judge took into account the respondent's non-consumption of alcohol in apportioning responsibility for the accident and by doing so he took into account an irrelevant matter and/or assessed the moral blameworthiness of the appellant and the respondent. In his submissions, counsel did not explore what he meant by "moral blameworthiness" and, with respect, I do not understand what he was suggesting was the error in that regard.

28 As to the statement about the respondent's non-consumption of alcohol at par22, counsel submitted that his Honour should only have had regard to matters which were causative and that this statement was made in the context of what his Honour considered were causative factors. Hence, he argued, his Honour had determined it was a matter relevant to causation and he submitted it was in fact irrelevant.

29 At par21, his Honour quoted from Podrebesrsek v Australian Iron and Steel Pty Ltd (supra) in the following terms:

"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] UKHL 4; (1953) AC 663, at p 682; Smith v McIntyre (1958) Tas SR 36, at pp 42 49 and Broadhurst v Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."

His Honour, at par22, then drew conclusions in the first sentence as to how he categorised the respondent's conduct for the purpose of the comparison he was required to make and referred to some uncontradicted facts about what happened in the lead-up to the accident. In the terms of what had been said in Podrebersek, he did no more than consider the "whole conduct of each negligent party".

30 I am not satisfied that in making reference to the respondent's non-consumption of alcohol as he did, his Honour erred. Ground 2(a) must therefore fail.

31 His Honour characterised the respondent's breach as "momentary". Counsel for the appellant submitted that was wrong and embarked on a lengthy discussion of the evidence and what he asserted was the conclusion his Honour should have reached having regard to that evidence. Counsel for the respondent submitted that in doing this, counsel for the appellant was ignoring the need to ground an appeal by reference to the Act, s45. Counsel for the appellant instead was conducting a wide-ranging attack on the reasoning process of the learned trial judge suggestive of a complaint about outcome rather than an error of law. In effect, the Court was being asked to conduct a general review of the evidence relating to the accident. Counsel for the respondent also quoted the following passage from Podrebersek at 493 - 494 (per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ):

"A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': ... Such a finding, if made by a judge, is not lightly reviewed. "

32 That passage identifies precisely the difficulty in this case. Counsel for the appellant is viewing the facts he canvassed from one perspective. His Honour viewed them from another. There has been nothing put which could persuade me that counsel has identified factual material in the evidence which, had his Honour had regard to it either at all or properly, would have produced a different result.

34 Dealing with ground 3(a), counsel submitted that his Honour either failed to take into account, or did not take into account adequately, where on the roadway the collision occurred. Counsel conceded that the trial judge found that the appellant moved on to the bitumen surface, that he was on the edge of it and roughly facing the respondent's vehicle at the point of impact. Clearly implicit in his Honour's findings is the conclusion that the position of the appellant in relation to the edge of the sealed surface changed after the bus passed him and that the point of collision was close to the edge of the sealed surface of the road.

35 There was never any suggestion in his Honour's reasons that the appellant darted out on to the road. There cannot be any doubt that when his Honour was considering apportionment, he did so with the point of collision he had determined in his mind. As to whether, having taken this matter into account, he did not do so adequately is a matter of degree, and there is nothing specific, save a general unhappiness with the result, which would suggest his Honour did not adequately consider this matter.

37 As to ground 3(b), counsel for the appellant appeared to be arguing that because the learned trial judge made the finding as to apportionment that he did, his Honour either failed to take into account, or did not take into account adequately, the difference between the standard of care imposed on the respondent as the driver of a motor vehicle and that imposed on the appellant as a pedestrian. It is apparent his Honour had regard to the principles set out in Teubner v Humble (1962 - [1963] HCA 11; 1963) 108 CLR 491 and the matters he needed to consider when balancing apportionment between a driver and a pedestrian because he quoted at length from that case at par21.

38 It is also apparent from the process he undertook at pars22 and 23 that he made a comparison of the behaviour of each of the appellant and respondent and considered the relevance of that behaviour to the accident. Again, this is clearly a matter of degree. At 3 of his first submissions, counsel referred to a number of factors in point 2. His Honour clearly had regard to these various factors and made findings about them. It is not the case the appellant can argue his Honour ignored these factors. It is that counsel for the appellant is saying to the Court his Honour should have given these matters more weight than he apparently did.

39 I refer back to the guidance in Podrebesek. His Honour conducted a balancing exercise having regard to the evidence he heard and considered, and the findings he made. He was clearly mindful of the appropriate principles. He exercised his judgment. That should not be lightly reviewed and in this case should not be.

41 I do not propose to deal with ground 1 in any detail simply because the same comments I have already made apply. For the same reasons that grounds 3(a) and (b) and 2 have failed, so must ground 1.

42 As to ground 5 relating to an asserted failure to expose adequately his reasoning process as to his determination of where on the roadway the collision occurred, in par7 - 18 of his reasons, his Honour canvassed evidence and made findings. He then drew conclusions in par19. As I have already said, it is quite apparent his Honour concluded that the appellant moved on to the bitumen surface of the road after the bus passed and that the point of collision was just on to that surface. This ground must fail.

43 As to ground 6, Mr Hoban was put forward by the appellant's counsel as an expert. His Honour was entitled to listen to his evidence and give it such weight as he deemed appropriate. However, ultimately it was for his Honour to make a determination based on the facts in evidence. His Honour clearly considered Mr Hoban's evidence because he made a determination that it did not assist him in relation to certain matters. It cannot be said that simply because his Honour did not recite Mr Hoban's evidence chapter and verse that he failed in some way. I have already made some comments about Mr Hoban's evidence in any event.

45 That brings me to the remaining ground of the appellant's appeal, that being ground 7. This relates to the amount of $50,000 his Honour awarded for loss of future earnings.

46 To succeed on this ground, the appellant must establish that the learned trial judge acted on a wrong principle, misapprehended the facts or made a wholly erroneous estimate of the damages. Counsel for the appellant submits that the estimate of loss in this case was so inordinately low as to be a wholly erroneous estimate. Counsel for the respondent, not unsurprisingly, argues the award was open to the learned trial judge.

47 There has been no challenge to the amount awarded for loss of earnings to September 2004. The learned trial judge found, at par27:

"During the period of about eight years between the conclusion of the plaintiff's schooling and the accident, he demonstrated that he was able to obtain and retain employment. However, he was also unemployed for extended periods during some of which he chose to reside at Cygnet, where he had reduced prospects of obtaining employment. I am satisfied that to a significant degree the plaintiff's employment status has been shaped by his attitude to employment from time to time which has, in turn, been influenced by his consumption of alcohol and cannabis. I conclude that for significant periods the plaintiff has had little interest in obtaining employment."

48 His Honour went on to say at par44 "In view of the uncertainty about whether the plaintiff would have in fact sought and obtained employment ...". There was no challenge to that finding.

"The extent to which the plaintiff is employed over the balance of his working life, about 39 years, will depend more on his attitude to employment than his capacity for employment. His conduct prior to and subsequent to his accident suggests that he will continue to have an indifferent attitude to obtaining employment and may only be employed in the future on an intermittent basis."

That finding was not challenged. His Honour made no secret by the above findings as to what overlaid his consideration of what the appellant's likely future employment pattern might be.

50 Counsel argued that the learned trial judge failed to adequately compensate the appellant for the "vulnerabilities and incapacity" caused by the accident. He submitted the appellant was 26 years old at the time of trial, with a balance working life of about 39 years. He further submitted that the appellant had limited education, no vocational qualifications and limited skill, and it was therefore foreseeable he would need to work in unskilled work, including heavy labouring type of work, in the future. He referred to the medical evidence which he said demonstrated the appellant could develop degenerative changes in both knees and hips in his 50s, that the appellant, in any event, would need further surgery and that there may be complications with that which might delay a return to work. He also referred to difficulty in carrying weights.

51 Counsel also submitted that the appellant's closed head injury had left him with residual disabilities which would impact on his earning capacity. Counsel submitted:

"He has continued slow speed of processing and difficulty with complex unstructured verbal learning. This makes him an inefficient learner. He will be slow to complete tasks and will not be as efficient as other workers. He will experience some mild difficulties in day to day functioning in novel situations only and it will impact upon his employment capacity in that he will be slower (and therefore less efficient) to complete tasks and to learn new tasks initially (Dr Jackson, 388 and 390).

The learned trial judge failed to have sufficient regard to the Plaintiff's youth and capacity to achieve (Dr Jackson 119)."

As to the last sentence, in his evidence at 119, Dr Jackson talked about the prospects of under-achievers in early life who are faced with significant life events. However, Dr Jackson said that he accepted there could be speculation about that which I infer related to the various arguments he had just covered. There was no definitive conclusion that the appellant's pre-accident under-achievement was as a result of life events (leaving aside the accident) from which it might have been expected that, but for the accident, he would have made a complete turn around.

52 With respect, counsel has been a little selective in what he has drawn from Dr Jackson's report, this being the document from which some of the above material was taken. For example, at 388, Dr Jackson said in relation to the perceived difficulty with processing speed, "this would still make him an inefficient learner to some degree".

"I would agree with Dr Nichols that there is no reason why Mr Direen could not perform the duties of occupations he has previously held. ...

... whilst Mr Direen should have no difficulty coping with his usual day to day activities and functions, the times he will potentially have problems is when he is confronted with a novel situation for which he does not have a ready answer and has to learn new responses. However, I agree that this is only a mild problem."

54 However, the learned trial judge referred to the matters counsel raised at par35 of his reasons. It is clear he had regard to them. It is also clear from the comment, at par33, following his having dealt with the physical injuries of the appellant, that the learned trial judge accepted the appellant had knowingly exaggerated some aspects of his residual disabilities.

55 The learned trial judge said, at par45, "There is no empirical basis upon which I can assess these losses" when referring to the future losses he accepted would be suffered. No challenge is made to that statement. Nor is any challenge made to the statements his Honour made about what financial material he did have. Ultimately in his submissions counsel for the appellant simply said that the more appropriate figure for the loss was in excess of $100,000. Save a reference to what he said was 2 years' loss of net wages and superannuation, he said no more.

56 Counsel for the respondent, on the other hand, provided the Court with some calculations by way of illustration of just what the award the learned trial judge made could have been the equivalent of.

57 The reality is that the learned trial judge made findings which were unchallenged about the appellant's work attitude prior to the accident. He also did not accept the appellant's explanation for why he did not take up the employment with his brother offered, in Western Australia, prior to the accident. He found the appellant had exaggerated his residual disabilities.

58 This is a case where it cannot be said the learned trial judge failed to have regard to relevant matters. The challenge to his award is that he did not take such matters properly into account. It is a matter of discretion. That this Court might make a different award is no basis for a finding that this award represents a wholly erroneous figure. It represents what his Honour concluded as appropriate, having regard to the findings he made about the appellant's work ethic generally, which were entirely open to him and otherwise the lack of empirical evidence.

60 The respondent's cross-appeal contained 2 grounds. These were that the learned trial judge erred in:

"law in determining that the Respondent's failure to see the Appellant prior to the instant of impact was a breach of his duty of care to the Appellant."

"fact in determining that the distance travelled behind the bus by the Respondent was a cause of the collision."

61 The learned trial judge's findings are predicated on the fact that the bus passed the appellant and that he then took a step on to the bitumen surface. Had the appellant not taken that step, the accident may not have occurred. Counsel for the respondent argued that if you took the bus out of the equation, the respondent was unlikely to have seen the appellant anyway, and that the accident only happened because the appellant stepped out and by then it was too late for the respondent to do anything.

62 Counsel submitted that a combination of the evidence of the bus driver and Mr Hoban would lead to a conclusion that by the time the bus driver saw the appellant it would have been too late to avoid hitting him had the appellant stepped out in front of him. That may very well have been the case. However, the appellant did not step out as the bus passed him. The inference clearly is that he stepped out because he thought there was only one vehicle and that he would not have stepped out had he known there were two vehicles. If that one vehicle had been the respondent, there may have been no accident, whether or not he saw Ms McCaw and the appellant before he passed them.

63 The learned trial judge referred to the respondent's evidence that he was travelling about 30 metres away from the rear of the bus and to the evidence of the bus driver, Mr Direen, to the same effect. His Honour also referred to Ms McCaw's evidence that the respondent's utility was about one to one and a half car lengths behind the bus. Accepting Mr Direen's evidence that upon seeing Ms McCaw in front of him he took his foot off the accelerator, the learned judge concluded that the distance between the two vehicles was between one to one and a half car lengths and 30 metres and that a finding that the distance was less than 30 metres was consistent with a narrowing of the gap when Mr Direen took his foot off the accelerator. The learned judge also noted that the respondent's evidence that his lights were on low beam and that he could not see beyond the rear of the bus also suggested that he was close to the bus.

64 The finding that the respondent did not see the appellant until the moment of impact has not been attacked. Noting that the respondent was travelling at about 50 kph or just short of 14 metres per second, the learned judge found:

"The bus was obstructing the defendant's view to its left and beyond it, so it was likely to obstruct his view of any person, animal, vehicle or the like ahead of the bus that was, or was about to, intrude on to the roadway. In these circumstances, it was incumbent on the defendant to travel a sufficient distance behind the bus to allow him to see and manoeuvre to avoid such an intrusion. He was not doing so. He did not see the plaintiff until the incident of impact."

65 All of those findings were reasonably open on the evidence and they led to a conclusion that the respondent breached his duty of care.

66 What cannot be ignored is that the respondent's vehicle was not the only one. He was one of two, and the distance between him and the bus precluded his being able to see around the bus or take any action to see and avoid what happened. Had he been further back he may well have been able to do both. Little action by him was required to avoid the appellant on the edge of the bitumen. In those circumstances there can be no doubt the distance between the bus and the respondent's vehicle was a cause of the collision.

68 In all the circumstances I would dismiss both the appeal and cross-appeal.