6 Dunnett's motor vehicle was a Toyota 4 Runner with what can be broadly described as having a station wagon configuration. The interior of the vehicle contained a front seat, a rear seat and a cargo space behind the rear seat. Access to the vehicle was through the front driver or passenger side doors or a door at the back of the vehicle. The rear door had a window which could be wound up or down only by means of a switch controlled by the driver. Roof racks across the vehicle were suitable for the attachment of surfboards. However, the back of the front passenger seat and at least the corresponding portion of the rear seat had been folded down and surfboards had been placed within the vehicle from front to back along the passenger side. The respondent and his brother and Dunnett sat in the cargo space.
7 As they approached their destination, the vehicle was travelling at about 50 to 60 kilometres per hour. It was dark and the road was wet. Kerr's attention was attracted by either flashing lights or a car horn from a following vehicle, which it seems to have been assumed contained friends. The respondent and his brother and Dunnett decided to remove their clothing and expose their buttocks to the people in the following vehicle. All three stripped and at least the respondent and his brother climbed out of the rear window of the vehicle, which Kerr had opened. Kerr knew that his passengers were outside the vehicle. Initially, those outside the vehicle stood on the rear bumper bar and/or the rear window sill and grasped the rear roof-rack. The respondent and his brother then climbed onto the roof of the vehicle and kneeled there, holding the rear roof rack. These activities were accompanied by considerable noise.
8 Kerr knew of the danger to his passengers, and attempted unsuccessfully to persuade them to re-enter the vehicle. He could have slowed and stopped, but did not do so. He said that there were shops in the vicinity and he did not want to embarrass his friends who were naked. It was not far to their destination, and he drove on. When it became necessary to turn left, he slowed down to about 30 kilometres per hour. As the vehicle turned, the respondent was thrown from the roof onto the road and suffered serious injuries.
9 Although the appellants' submissions in relation to liability were variously formulated, they contained two main propositions. One was that the trial judge erred when he found that Kerr was aware that one or more of his passengers was on the vehicle roof. The other was that the respondent had not established that he would not have been injured if Kerr had slowed and stopped instead of continuing and turning once he became aware that his passengers had climbed outside the vehicle.
10 It was open to the trial judge to reject Kerr's evidence that he did not know that any of his passengers had climbed onto the roof. Not surprisingly, there were some inconsistencies in Kerr's evidence at the trial and earlier accounts which he had given between the accident and trial. Even if he was an entirely honest witness, telling what he remembered to the best of his ability, his evidence might not have been reliable. Recollections commonly diminish personal responsibility. The trial judge saw and heard Kerr give his evidence. Further, he took into account the circumstances, including the fact that, after they had climbed onto the vehicle's roof, those who had done so would no longer have been visible to Kerr in the rear view mirror.
11 In any event, even if he did not know that one or more of his passengers was on the roof of the vehicle, Kerr owed his passengers a duty of care which he breached by continuing to drive instead of slowing and stopping.
12 The appellant's second major proposition is likewise not sustainable. It was open to the trial judge to conclude, and correct of him to do so, that the respondent would probably not have been injured if Kerr had slowed and stopped instead of continuing and turning the corner.
13 At first glance, the conclusion that the respondent's damages should be reduced by only 25 per cent might seem curious. In his intoxicated state, he engaged in reckless folly. However, the making of the apportionment which s 10 of the Law Reform (Miscellaneous Provisions) Act 1965 requires does not only involve comparison of the degree to which the respondent and Kerr respectively departed from the standard of what is reasonable. "Regard must be had to the 'relative importance of the acts of the parties in causing the damage' and it is 'the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination'". [1] Further:
"A finding on a question of apportionment is a finding upon a 'question, not of principle or a positive findings of fact or law, where a 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." [2]
14 The trial judge correctly placed considerable emphasis upon the circumstances that Kerr was in control of the situation and knew of his passengers' reckless folly, the danger in which they had placed themselves and that their judgment was seriously affected by their intoxication. He could have terminated the danger to his passengers by slowing down and stopping, but did not do so.
15 While other minds might consider it just and equitable that the respondent's damages should be reduced by more than 25 per cent, that conclusion was open to the trial judge, and is not one with which this Court is entitled to interfere. [3]
16 The appellants' challenge to the trial judge's award of damages for the respondent's non-economic loss accepted his Honour's description of the respondent's injuries and their sequelae, which are reproduced as a Schedule to these reasons. However, it was submitted that the conclusion that "all of this amounts to a state of affairs which represents 80 per cent of a most extreme case", was wrong, and that no more than 60 per cent of a most extreme case was demonstrated.
17 As the appellants accepted, a comparison between an injured person's condition and a most extreme case requires a value judgment related to circumstances which vary in significance from person to person. Different opinions are legitimately open. This is another area in which an appellate court is not justified in interfering with a trial judge's decision unless there is discernible error or the decision is so unreasonable that it cannot be correct.
18 The appellants' arguments did not demonstrate any error in the trial judge's approach, or persuade me that the figure of 80 per cent of a most extreme case was not open to his Honour.
19 Two separate complaints were made by the appellants in relation to the damages which were awarded to the respondent for future economic loss.
20 The appellants' first point was that no discount for vissisitudes was applied to the economic loss awarded to the respondent in respect of the period between the end of the hearing and the end of the year in which the matter was heard and decided. As was pointed out during the hearing in this Court, the trial judge was entitled to be satisfied that what would occur in that short period was sufficiently certain that a discount was not warranted.
21 The appellants' main complaint in relation to the trial judge's award to the respondent for future economic loss concerned his Honour's conclusion that the respondent's "earning capacity to age sixty five [was] … no more than half of his currant nett earnings which are $240 per week…". Broadly, it was submitted that that conclusion underestimated the respondent's prospects. It was also submitted that the trial judge took too favourable a view of the respondent's prospects prior to the accident.
22 The trial judge obviously formed an excellent impression of the respondent and his pre-accident future and was understandably pessimistic about the situation with which he is now faced as an unskilled employee, with significant deficiencies, in a volatile industry which is prone to economic fluctuations. While other views were again open, there is nothing to indicate any error by the trial judge.
23 Finally, the appellants argued that the respondent was awarded too much for care. However, after noting that divergent views had been expressed in the medical evidence, the trial judge accepted expert opinion that supported the amount which he awarded. It was permissible for him to do so.
24 In summary, the appeal was dismissed because no appealable error was demonstrated.