Gardner, Brian Joseph v Duve, Caroline Francis [1978] FCA 47

the amount of the judgment for the respondent gaven by the Supreme Court of the Australian Capital Territory be varied by thes substitution of the sum of $31,832.50 for the sum ot $51,000,

the respondent pay the appellant's general costs of the appeal,

the appellant pay that portion of the respondent's costs as 16 relerable to the assue of apportionment,

On Appeal from the Supreme Court of the Australtan Capatal Territory

BETWEEN BRIAN JOSEPH GARDNER Appellant (Defendant) AND CAROLINE FRANCES DUVE

REASONS FOR JUDGMENT NIMMU, J. 22 June 1978 5ST. JOHN, J.

Caroline Frances Duve was the plaintiff in proceedings in

the Supreme Court of the Australian Capital Territory for damages for personal injuries against Rrian Joseph Gardner and was awarded a verdict of $102,000 and om apportionment, a fanding that the plaintiff was 50% responsible, the verdict

The defendant in those proceedings now appeals seeking variation of the verdict by increasing the proportion of the plaintiff's

responsibility for the accident and reduction of the dumages on

We have had the opportunity of reading the reasons tor judgment prepared by McGregor J. where the evidence 15 comprehensively and accurately set out. We respectfully agree with His Honour'ts conclusions as to the mauner in which the learned trial Judge could regard and use the statement made to the police by the defendant and we also agree that we should assume that the learned trial Judge could ignore any part of that statement which tended to show that the plaintiftl (respondent) was the sole cause of the accident even though a specific statement

to that effect was not included an the reasons for judgment

In order to make our reasons comprehensible however 1t 15 necessary for us to shortly advert to the tucts. The appellant was driving his vehicle in a westerly direction along an arterial road in the Australian Capital Territory called Hindmarsh Drive towards the intersection of Badimara street with Hindmarsh Drave. The left-hand carriageway of Hindmarsh Drive was some 15 metres an width; there was no other traffac in the vicinity; the Plaintiff has no recollection of her vehicle entering Hindmarsh Drive from Badimara Street; a "Give Wav! sign controls traffic entering Hindmarsh Drive from Badimara Street and a collision occurred between the plaantiff's vehicie and the defendant's vehicle, A passenger ain the plaintiff's vehicle could not

contribute to the facts ot the accident except to say that

A police constable made observations at the scene and produced a

sketch showing that the defendant's vehicle skidded for 4O metres

up to the point of collision and a Lurlher 14 metres after

the point of iampact and that that point ot ampacl was 9 metres from the southern corner of Badimara street and Hindmarsh Drive. The weather was fane and each vehicle would have been visible to the driver of the other vehicle. ]t would appear that the plaintiff entered Hindmarsh Drive withoul allowing the defendant's vehicle to pass before entering and in that

respect was in breach of the relevant traffic regulations.

The learned trial Judge found that "the detendant was liavelling at not less than 45 m.p.h. ... and in all probability at a

very much greater speed ...". The speed limit applicable

was 37.5 miles per hour, In the defendant's statement to the police there was an admission of travelling at ''0 or 43 m.p.h. by the defendant and in addition the trial Judge was entitled

to draw inferences from the skid marks, both before impact and afterwards and the evidence of the force of the collision.

The appellant's (defendant's) submissions are to the effect

that the plaintiff should bear a much hagher proportion of

In Penningion v Norris 96 C.L.R. 10 the High Court said this 3:

with the original task of making the apportionment, Much latitude must be allowed to the original tribunal in arriving at a judgment as to what 15

Just and equitable. It 1s to be expected, therefore, that cases will be rare in which the apportionment made can be successfully challenged..."

The excessive speed of the defendant's vehicle, the uwhsence

of other traffic an the vicinity, the width of that part of the carriageway of Hindmarsh Drive that the plaintiff entered, the difference in the degree of control over a motor vehicle travelling at excessive speed and at 37.5 miles per hour, and the rejection as evidence of the facts of such parts of the defendant's statement that tended to exculpate him and the application of the principles in Jones v Dunkel 101 C.L.R. 298 to the unexplained failure of the defendant to give evidence could be sufficient in our view for the learned trial Judge to apportion responsibility at 50% attrabutable to each party.

In so holding, 1t 1s not to be thought that had we tried the case we would have come to a similar result but that 15 uot the test to be applied. lt would appear to us that great caution 1s demanded of an appellate tribunal in interference with a trial Judge's apportionment of liability. Tn se far as the

appeal relates to that apportionment we would dismiss ut,

As to the submissions that the damages award were excessive at 1s farst necessary to analyse the learned trial Judge's verdict in order to see what amount was awarded 11 respect of general damages for pain and sutfering, past and tuture, loss of amenities of life and future economic Loss. li is clear that the out of pocket expenses and loss of wages to the date of hearing amounted to $135350 and there 15 no further dissection of the verdict of $102,000. [1 follows that pain and suffering, loss of amen3zties and loss of curning

capacity comprises $88,650 of that verdict. As to the

evidence relating to future economic Loss we respectfully agree wath the observations of MeGreror J. and further we agree with his conclusions as luv what the total verdict

In our view the verdict should be set aside and a verdret of that figure subsistuted and redneed by 50% makings a nett

verdict in favour of the plazntitf an the sum of $31,832.50,

As the appellant has been partially suceesstul we would order that the respondent pay the appellant's general costs of the appeal and thal the appellant pay such costs as are reterable

I certo *y th.t this and the (4) eee 2 a *rve copy cr

On Append trom the Supreme Court of the Australian Capttal Terratory

REASONS FOR JUDGMENT MeGREGOR, sl 22) June 1978 Canberre

CAROLINE FRANCES DUVE ("respondent") sued BRLAN SOSDPH GARDNER

("appellant") for damagves Jor personal anguerres sallered by her In a moter vehicle accident about 9.00 pom. on Saturday 20 December 1975. At the tame amd dete gar question she was driving her motor vehiele in a netrheriy direction sn Bacimara Street Waramangea towards the mtersection of that 2oad und Hinduarsh Drive. At that intersection i a tive Way? sip which of course requared that she Jalt there until trarPic coming in any direction was clear, Vhe particular regulation and duty arasing are to be tonnd an Motor Traffic Ordinance

(a) a molor vehicle upon a publie street 1s approuchang a ftratfic sagem, Mserdbed with the words "GTVE WAY", erecled at, near or wrihin the jumetton o2 intersection of that public street and another public

street and fSacing in the elazeetion from which the motor vehiete Ts approwcduiye 3

(b) anolher vehrele ls approaching the same yuuctionm or

intersection [rom either of those publae sireetss and

(c) the circumstances are such that there is «a reasonable possibility that the vehicles might arrive at the same point simultaneously or that a dangerous situation might otherwire be created;

the draver of the moto1 vehiacte shall either devrease the speed of has motor vehicle to such an ealent, of stop hrs motor vehicle for such time, vs 25 neecessaty to aevoid that possibility or siiuation',

A saimilar regulation was cousdacdere d in hoht wo Sallinamn 113 C.L.R.

At the same time the appeltant was driving has vVelricle in a westerly direction towards Wataminga which meant that le would pass the Badimara Street gntersert ron wrth trafLtie whieh aoght emerpre trom at on has Tett bul whieh, to comply with the

regulation, would have in effect the onus of giving away to hum

He gave an account of this ineident ania statement Faken from

ham whach was tendered and ts marked Exhitbot tat ga thas

proceeding, Has account of the matter ts to be found an that exhibit and omitting surrounding detaLrh reads as follows ¢

TAs 1 was driving ai about WO or i> imep.sh. an the lett Jane To saw a grey and white Holden station wagon FC model.

when L farst saw this cairo wes abont tweulry car Lengths away. This car was approachsay the "arve Way" si gi erected at the imterseet iron of Bacdtnara Street atid

Hindmarsh Drive When I first caw ut. DTolook my root off the acceleralor poral. Then this car slackhened its speed so T returimne:! My fool and picked Up speed again

and continued down Hindmarsh Diaye al NO re 45 m.ep.h,,

thinking that this ear would stop, This car dqdntt stop al the "Give Way" Siem and sa | 'mime dtalely hit the brakes and this car continued through the imtersoed lon. I

turned my car to My 2teht to word a Colltszom age go the Same direction as lhe car ro word hitling thas car head on, My car's brakes wer, lovked up at this slapne. I could see this cat wasn't polis to slop so T tricad to bring my car cto the Jeit of this ear but tl was too late, so I re-applicd the brakes, My vehicle then collided anto the centre of the ltolden station sedant,

respondent had with her on her wi hitele a passenger Mrs,

O'Dwyer, but Mearther she tor tte Posscuner wore able to elve

any account olf whal had happened, the siynilicant porrion of

Q. On 20 December MOTD were you surt Mme in the front Passenger seal of ao motor vehiede beinp decry: n by Miss Duyve?

Q. Was Lhalt driving Along, in Baclomare ptreod, WhaDemenga , approachiug the Aaindmarsh Drive imterse: far?

Q. As you approached Her iiuitletseey fon, in the direction You were come wees it (INO Way saan

Q. Do you remember noy whether Miss Dive stopped at that Bive way siren or nol?

Q. What 2s the First Fh, sou remember that happened an relation to the vieimily of that HIVE way sien?

A. Well, the firyt Ching, wae lo heard Carolyn seream, She let out a ser cum teh dite next Uhiuyr was the thud Of the other car Wat crashed,

A. It was a iremoencdous tors o, Cr teallty knocked us.

The only other evidence as to liability is to be Lound in the evidetice of Constable heelty who pro lueed a shetch he hed crawn at the Jocalaty setting oul certain iyre marks appareutly attributable to the vehicles; (his sheteh ts marked Lahtbait 'H', las evadence does support an allegurion that the appellant's ear skidded for 40 meires up to the pornt of collision with the respondent's vehicle und a durther tt metres followang the point of impact. He also gave ovidence of the width of the westbound carraageway of Hinder sh Drive as beinp 15 metress and the pount of unmpact was aboul Y metres trom the southern corner of Badimara Street and Mondmeesh Drive, This Latter measurement could andicate thal the vehrele driven by the respondent travelled that distamec atter at Lelio Badtmarvze Strect and apparently 231 dusresard of ats ob Igatiton fo 'Give

Lt would seem Crom Pxhsahat Gt cleel the care would have been tnlervisible as they approached Flas interseelion = the respondent's car bern first notrecd when it was sume 20 car

Jengths away and then approachiup the ive Way! sien.

Both parties were anjured in the collision, the Respondent's

ingurres Towill refer lo ra some more detail Jater,. In the result Nis Honour Pound a veerdtet for the ce spondent itn ihe sum of $102,000 which, by reason of her contributory

We are asked in thas appeal to entero verdiet Lor the

appellant upon the basis thal Ilis Honour was am error an tTindaing that the appellant was wes | opel or sil we were nol disposed lo do this to band both that the sum of &102,000 was a wholly erroneous estimate ol the respondents damapes and that the apportionment attrabatled foo preat a percentage of

The appellant seeks therefore a verdict to be entered tor him

or (as the matter has been argued) thal the damages should be

The learned trial Judge has found as to the appedlaor chat =

He was travelling ..... a4 not fess than 43 inwp.h.

and in all probabtlaiv alot very mich prealer speed

and thal Lis negligence has conterbated to the avrerdent

to the extent of %O%'. Accepting thas relates lo the period atter the uppelLlaut's car 'slachened', Loam nol aware upon what matlers lay Honour relied fur such porlion of the above quotation as reads -

'... and an all probability at a very much prearer speed!, In my view this tCandings was net open to him, To unde rstand [he appellant's submission that there as me evideure an which the Learned trial Judge could Lind the appellant guilty of negligence at 1s necessary to vuole the course ot the trial. Neather respondent nor the wrlness O'Dwyer were able co gave an account of The propress of the vehicles up to the post of TMpacts (he respondent proved hei case by tendering a

statement made by the appellant (Lahibit tat), [his statement

enabled the respondent to say that the appellant collided wath

the vehiele at the intersection sal chid describe the cvents Jeadinyg up to the point of impact, sipmaticantly pevluips showing that the appellant had «a st lean view of the tespondent approaching the sntersec tion, [Ith appellant was nor eatled to give evidence nor was auy caplanation siven of his absenee,

He relied for has case on the exculpatory matter appearing in Exhabat 'G! plus the admissions and defreLreucres an the

However, excepl fur one matter (to whieh T shall return) the account given in the satatement, Po aecepted as a correct VETSLON, gives an account of the wncrhkul which is plaussble, net anherently amprobable and supports nes ligeue behay.our by the respondent causing the eoalbisron, Unless portions of at are disresarded, iat would be exeutpiuory of the appellant; and for myself 1 would not Pind il showed vany newligenes I the

The judgment appealed Lirom does met atteompt to drotingraish between that which 15 sznceulpators ami thal which 12 eveulpatory mate rral in the statement but seJects only one aspect of the statement to which at refers by retercnee viz. the question of PXLCODSTVO speed, Barlier To have quoted that portion of the Judgment. A tuldamentadl questron arises here - was Jfts Honour entalled to select out and rely on some of DCxhibit 'G! and rejeet the rest? His Hotowr wes ree tect bolle slide mand Jury. Questions whach arise are whelliet at can be ianferred by this Appeal Court dhat His Vonour in his Jare capaerty did thiss

An early slalement of the Legal principles wut somewhat similar

circumstances 19 Found in Baildon + Walton (18435) 1 Dx. 617 per

Wilde Cod. where the issue was whether payments made could be taken as a gift or an acknowledpement thal money hud been lent; he said -

'... and we agree thal the whole admission inist be Laid before the jury as one cutire wisgtings - but we are also of the opinion that the jury were not bound to believe the whole ot it; they might believe the tacl ot 2.10 being paid half-yearly but reject the resaduc, wand rufer from olher evidence an the ease that the paymenls were made for interest upon «a debit, (p.632)

see also Griftan v London Bank of AustraLlta Lamited (1919)

S.R. 134 at 161, Ward v Roy W. damdfurd Lid. (1919) S.R. 172

at 185, State Government Tnsurance Office (Queensland } Vv

Saarinen 6 Ors (1967) Vol.61 Q.T.P.R. 126 ar 127 and Merbert v

For a eweneral referenee To these considerations see Phipson on

Evidence 12th Edilion paragraph 683, though with respect some

statements in R v Storey and Anolher (1968) 52 CCALR. O34

In Jack v Smaart (1905) 2 CVL.R. GS' this passage appears in the midgment of Gratfith Cel. ar oon =

'When the case came before the Judge of the Courl of Insolvency, the lrustees contented themselves with putting in evidence the deposrlton of the appellant teken on her

examination aon the Court ol busotvency om the course of her husband's tnsolvencey. lt must be remembered that sworn depositions are ne mote than a written admission made by the party by whom dhe evidence was piven. This

deposition was so treated a the Court of Tnsolvency without objectiron, and eclearls no objgection could be taken to al. But, beraug used by the frustecs as in admission,

the trustees must dake [he deposition as they find at.

They cannot seleet oa treagment cua say it bears oul thear Cabe, and reject all the rest tha makes ageunst their case. They must take the deposiaiten as a whole. That as the rule in criminal proceedings, and 1t was the rule tn the Court of Chancery. A tiragmetibary portion of depositions could not be taken adeane af at was qualified by another portion, That is simply a rule of fair play. The trustecs therefore abe bound by the statements of fact in the deposition, which 15 the only vereron ot the facts thai we have, so fav as rl ois not contradzeted by other evidence. If there 159 wy statement wheeh seems to be doubtful or amprobable, lhe party who ctises tt as an admission 15 at Jaberly to prove that that passage 15 untrue. But, in the absence of such prool, iat must either be Laken as true, er tf mast be takett that there 1s no evidenee on the subgect!.

While om Davey v. Raivley (1) 11 was held that the Court would attach such weight io the ditLerent parts of the depusitions as they considered them entitled to, Lt must not be forgotten that, tn wespvhings the evidence, the Court

Will act upon the pranesaples of The Jaw ot evidence, which are the same in all qurasdie tioms excepi so Var cas moditied by Statute, One cesentbiad principle 16 that,

where an adintssian 3s pul in evidence etther iu the e1vil or the criminal jurisdiction, the party selyiug on 1t Ls bound to take it as a whole, and cannot Lake those parts which are tn his favour and reygeel the rest. Te te clear this statement ot the appellant ts evidence as an admission, and upon thal principle the whole Ls evidenee as an admisston, that 15 to say, the eMect ot any portion of at eammot be Faken wethoul fhe cmelbitreations wp)em ol contained 11 the remainder. lf the person examined, against whom the story is puto oan when she 1s made a defendant party, gives a reasonable aceount of how she fame by property clazmed arainst her, at 1s incumbent upon (he party putting im her stary to shaw that st is talse. It, however, her account of the mebter is umreasonuable or improbable on the lace of ait, Lhe onas of preovang its trulh lies upon her, TT rl is reasonable or probable, she need po no further that het statementt,

dt 415 noted thal the Latst pawl of The quotation (per Griffith C.J.) refers lo the fnunelion of Trustees and whal use a Court will make of a stalementl tendered by thems whereas Barion 7.

I have read the quotation as todicatins thal af am a statement so tendered there was a qualitication wd an admis stom Luextrireably bound together soa that they could be separated into different components, thetr a Gontt must aeeccept the whole or reyecl the whole. bat sd re were possible to fragment the

stalement or deposition, a Comrt could accept porlion and regect } '

another portion which for good reason rb Found unacceptable,

This would seem to be consistent wrth Gritiin vv Londen Bank of

Australia Lid. (1919) S.R. 15% at 1617 per Cullen G.7. where

however the evidence was Vina vece, Tn Herbert v Benson 4 S.R.

382 (a collision case) the Chief Iaistiee, our Frederic kh Jordan, seems to regard viva voce ovidenee and a deposition londered against a pariy as giving (he same onttitement - toe. a Court may accept or reyeet porliaon as is thoughl appropradnie. He proceeded to quote anculpatory matters in a depositiiton tendered apaimest the defendant, and to omit exculpatory milerial, He sald (p.384) - tin the present case the defendant was not called upon to give has aceount to the Jurv orally as te how the accident oceurred. There was theredore rn my opinien no reason why the Jury should net approach the statemenc amt the Language tn which the defendlint expressed himselP trom dhe point of view expressed ino the two authorities to which L have just retorredd?,

(These eases iancinded the Grattin case (above) and ward v Roy W.

saundford (1919) S.R. 17°, 185). The ChaeP luistree found that

there was evidence in the statement to suppert oa ducyts verdret for the plaautitt; but be was a ckh-sentirent. Nalsve Ropers J. suid (p.386) -

"At the trial detendant's counsel argued that the jury was

not entitled to take Lsolated passages trom the deposition as admission by the detendan! apainst haimsell and lo regeet the rest, or such part of the vest os it aa lLhey ' thought Lit, but that they musi read Che deposition as a whole, aml by thal, | toke it, he meant they must accept or reyect the deposition as a whole, That argument 1s not well founded!.

However he considered there was not evidence on which one could

dind for the plaintiff as rt was not possible to say, ufltera process of selection had been welertuken, whether the plaintiff

Roper J, at 389 acknowledged the entstLement of the Jury to - 'oy... accept part of Lhe evidence of a witness and reject . the rest (whieh princaple} ... appdies also to evidence faiven an written torm such as a depositiont,

Put he also was constrained toa dtu a verdict tor the cde tendant

beeause of his view of the slatemenr vir. = "Tt could not properly be analysed anto a eoniessaion of prima Lacie Tault and an avoidance by an ewculpatory eaplanation'!.

A more recent reference fo the rule alleowine select ive

aceeplance of a porlion only of a sfarement appears in Lorne v

'Tweed River 'Transport (1967) 61 Q.I.PLR. and Stale Govetrmnent

Insurance (Queensland) \ dSanatmen «a Orn (1967) 61 Q.d.P.R. 126,

P27. The latest pronomncement! tuat Co have noted in the Jlrgh

Court an the subject 45 lo be found in Lopes v Taylor '') A.L.I.R. 412, In that case the Chicd Justice (p.'t15) (a dissentaent) ) explrieitly tefused to discuss the qoestronm whelher sell-sorving stalements no a deposstron lendered agaist a partly comld be aceepled as evidence Por hams le dick nel assert they could not. Menzies J. merely refers to a ditieremt resule procuced im this

aiea ot the law by diiferent authorities (FIO) but does not

OXpm ss at! Opinion as te whreb re correct, Yet he thoes say

tHowever J do not LocL mysell constrained to accept the whole of the defendant's weconnt of the aceidentt

which sugpests that he was proceeding, ets Tl the self-serving statements could be

Yo.. a foundation of a fanecings In hos taveur on an o4ssue,

the alleged contributory nepgligency of the Tesponcdent , the omis of which was upom tim

1 should observe that in this appeal we are not troubled as to the dascharge of that onuss simer dhe tact ol contributery neg ]igence seems never to have been contested and the fiundang of the trial Judge that the respondent was 30% to blame as I have earlicr temarked 45 nol the subjeel ol any etoss appeal. Walsh J. at 419 snid (inter ilia) =

{The onus ot proot of contributory nepligene: wis on the appellaiut. He gave no evidenced t,

This passage suggests too me that Irs Homour was not re tusing To accept selteserving statements as vpetative eviclonce for a party; but ralher that he was cescounking thera wereht on the

Gibbs 7. deals wath the matter ¢xplreatly this (pp.421-422) -

There has been, ws Austratia, a contlret of opitnson on the question whether, when ane party tenders evrdence of admissions made by the other, the larrer may, for the

purpose of discharging an omits of prool that Tres upon him, rely on self-serving slaremenis forming parl of the admissions. On one hand, there 36 the opinion expressed

an Day v Dyson (1965) V.R. 16035 at p.do0, followed in Revesz v Orchard (1969) S.A.n.R. 3360, thai self-serving slLatements made an the course of an admassion, although admissible as explanatory oro as gqnelifyrug the acdmissiton, are nol for other purposes evidence of the truth of what was stated. On the other hand, bhere i5 the vacw that where one parly puls an eviden oe «a statement made by the other the whole of the statement, tucluding seli-serving parts, becomes evidence of the truth of what was stated, although the Court 19 not bound to accepl all parts of

the statement as tiue but may sive daffercnt wesaprht to ditferent parts of the slateomenl see Higgins v Dorries; Higgauns v Donnelly (1965) QI.R. 389 at pp.395, 396; State Government Insurance Of) ice (Queensland) v Saatinen 1967 Q.W.N. 233 Horne v Tweed Rivet Mransport Piy. Ltd. (1967 61 Q.0.P.R. 114 at pp.1i9, 1203; Eyre v Nationwide News Pty. Ltd, (1968) 13 F.E.R. 180 at p.18&53 and Sharp v Hotel International Ltd. (196%) VLR. 103 at pp. lou, 110. l have myselt, when sitiitog elsewhere, accepled this latter

View as correct and althonph as al present advised | sec no reason to alter my opinivu 2 does nol seem to me to be necessary in lhe present case to pronounce £inallLy on this

fo complete the reference lo authoritres in this area J add a

references to Allied Interstate (Qt) Pty. Ltd. v Burnes 118

C.L.R. 581 at 583, 504 and Regina vo wellrimeon (1972) 2 N.S.W.L.R

Moreover, we are not immediately coneernmed with the problem of whelher seli-serving statements could Juve been used by the trial Judge since in any event he dtd nol do so, 'Jhe question is whether he was entatled do make a selection fiom the statement, The better opinien, rrom the anlhorslres, scems

to be that he was entitled to do oso, lt appears that he accepts only the inculpatory porrion or the statement and either reyected the exculpalory portion, or deeided there was really

nolhing exculpatory. If there is out iinpectiinent in tle way of

a Judge who would so seleet where tle adinzssion and assertion are anextrircably bound up together, that impediment dors not uppear here. It 16 possable, tno mv view, to sever the admission an Pxhibie 'G' of a spend above the Tegal Timil trom the discussion of the respordentts approach to the iantersection, anecludang her slowing up (and thus wisJcading the appellant)

and subsequent fPaslure lo stop. Perhaps the trial Jiudpe could have been less disposed to accept the exculpatory matter when it appeared in a voluntary slaicment whreh had atl the indicia ot careful preparaitron when the appellant (defendant ) was Dot called to sive evidence uor was uns given For thas PatLlure.

This Jine of reasoning was probably opem bo His Honour whe might have viewed the appellant's relromec un the statement as a convenient avotdance of crosssce xcuNTMaAt bot. See oom the question of fazlnre toe call evidence slones v Purnkel TO) C.E.R. 298 al e.g. JOB, 312, Bt,

Bat the trial Judge hes swaven no qiaedtoattom of whal view he formed of the remtander of the statement by the apnel lant an Iawhibit 'G!, How then are we do ck cide what process le

In my view one should proceed in the same fashion as when

considering the verdict of "a Jury, Onee There as evadence on which a Jury could rely, to find oo tact, their ve rdret could not be set aside, By analopy at 15 worth noting Austcalran

Tron & Steel Lld. wv Greenwood I1O7 8 Lek. SOR ar 411, 4,.¢. where

tt was being argued thal a sermbiel was caxacessive. it was said

there that an appeal Cort must assimne the fury took the view

most tavourable to the plasgutiil. dn Dorrington v GiLitt Fender

(mwansea) Ld. (1933) 1 W.L.R. 690 al 69%, Evershed MLR. wiote -

TT] must emphasitve fwo Chimes, farst, thal where a judge of the county court has fownd Pacts on some admissible evidence, this court cannel arml will nol dasturb the Cindane 3 and secondly, bars court will not dugshtly assume, beenuse a gudgets note ts, teeessarily, somewhat brirel, that he Has tusled to beat an mind an essential port which he had to delermine',

See also pet Barhett Lede al p.eoo't. Tn that case the Court

decided the dudwvwe bad nol constde red an essential miller at all.

Here, the pele renee to speed - whreh appeared only on Eshibst

gests thal the trial Windee noted the statements has

fanding for the plaintit( sugeests he was not dispased to accept

any exculpatory matter. Tocone lads brow the ouihoritie: = I. He was entitled ta exeroree aa praecees of selection, 2. His choace was understeamdlible when the ce fenclaat

3, The telerenee tro speed was in elject oa Pinding of Nepliyence.

Assuming dhen that we are lo capund the trial Judgets Cinding ot negligence by Looking al what was available to lim, it would have been possrble Lor the irrcl Idee fro reason Uti - (1) The auppellant on his own edmissaon had the respondent In view as het cat opprorwhed the oiersecrions (a1) The appellant's duly ub such a saluation ts set out

qn Sibley vohais TIS (LL.R. Teh at 4e7 where dhe ChiefL

"These Teeulationsa in nomlieetiug tbe vehrele whieh has anolhet velsre Le oon Lvros irerht as the BIve Way velroele are undoubtedly salntary and their breach is ch servedlLy marked wath criminal penal lies. Bal thes are tot definitive of the

respective duties of the drivers oC siuelt ehicles'

rs the breach of such repulatlrons conelusive as to the performance of the duty owed to one

another or ay respect ol themselves. fhe common-law duly too f teasonably 2 all the eTrewunstanees is pabamonnt, The Latture to

take reasonable care im eiven cir1peunslances 15 not NecessarTly answered by relianee wpon the expected pertormancee bs the driver of the give vay vehicle of has obblipatrons under the regulawtions; tor there as po general rule that an all circumstances a diiver cau rely upon the performance by olhets of thert duiies, whether derived from statutory sources or From the commott law. Whether or nok mn particular eLtreumstlances Tt ois veasenable to act upon the assumption that another will acl an some particular War, as for example by pertLorming his duly under a iesulation, must remain a question of tact toa te gudged i all the particular circumstanecs of the case, Therefore, it 48, Gn ota opinion, rr1ueshtly sald thar the * Trtetit luand rubet ows nor the be all and end altho in redateton ta questions of civil

responstb2lity', Mie obligsttom of each driver of tho vehicles approaehtug an ribersee tron 1s to lake reasonable care, What amounts to

Vrensonable cate ™ ae, af course, a question of fact bul to one wind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that le can bring tis vehicle to a halt or otherwise avoid an Linparrc, should he fink another vebarele ipprowchine trom hes cLreht or from his Jefloin sucl a fashion Fhat, JF both vehicles contime, a collision may reasonably be expected', See also Laylor v Miller (1969) VLR. O87.

The duty of Leepaugs his vetlbiele sn hand should be

regarded as a contimiuings one - not texhauisted! (as T

was at one stage disposed fo think) whea tespondent

lhe appellant farted to heep bis vehiede ban hand® and

there 15 some evidence llatr dhe appellant tried to

avoid the respondent by turning tefl. He taagleds; the trial Judse perhaps assisted by such inference as are avatlable by

reason of the prinetple gn tones . Dunkel 101 C.L.R. 298 might

have drawn the aonlerenee Ubato he ftutdeck because he wees

Thus 11 summary, 11 could be sardoot the learned trial Judge - -

1. Ile was enlitled Lo seleil Chat poricon of fixhibit 'G! which was capable ol be ray construed us showing Lhe appellant was negligent.

2. He was stmitarly entitled cto disregard rhe rest of Baxahsbir 'G!? whach mirelit taye shown the respondent was the sole canse of the accident,

3. An appeal Court 2 the «© creuinslanees should accept

thal he tollowed this process even Le amadequately PApLessed ta hits yuddemeut.

Accordingty | amo oof the wiew that there was evidence on which the drial Judge could have found Jor the respondent aud we should regeer the appeal as to trability, We are not asked to

Inleifere with the fanding of contritatory neplagence,

DAMAGES Mie Pearned trial Judge has made certarn Crncdings concerning: the respondent which mapht be divided approsumcte ly mto whal tnqjursres the plaintill suttered in the aeeident and secondly what are the consequences there trom, As to the Livst he said - Tso fat as the respondent is concerned she this beet erLevousty imngured, in faced she has been brought baci from death, She had a projJonecd porLod of uneonscrousness tn hospital unc thereafter she was far some considerable time in hospital'. Most of the matters of rnayury, to the respondent in tact were

not the subyect of dispute anesnmtch as the appellant called no

evidence to retule thal woven by the respondent and did not

Crosseexamine to suggest that that evicdenes was meorrect, So at 41s convenient to note thal the respotmdent received varLous anguries, shorlly referred to syn the judement but mioeht

conveniontly be more fully deseribed thus = (1) a fractured femur on the ripht sade3

(2) gross fracture of her pelvis which LClatdtened at anterior posteriorly;

(3) abdominal and chesi anyurtes including a vupeured liver (su that pati+s of 11 hel to be taken a ray). The chest amngurLes tneJuded Lung shoch, a lernm deseribed an detail by Dr. Scoii-Faindlay;

(4) goneralised haematoma, and tuijuzy io the bowel, the bladder and all the trtlernatl ovens ate

(5) a head anygury whieh rendered her alo least scmi- conscious up to the time of admission to the hospital an Woden Valley and thereabler Cor some tame ane which apparently involved birsn stem damage. tt seems that this aftecled, wnonest other things, her speech and at may not have been till lowards the end of January that she started to make noises, and im February 1977 developed what Dr. Seact-Tindlay described as a tscanning statte speoecht,

lhe tespondent was uncoubtediv cTose to death and Lorlunate lo survive by reason of the skill of Dx. Seott-tbindlay and her

other medical advisers together with the atlentiom given to her

In the Tntensive Care Vnite at thre Wodem Hasprleal.

The learned traal Judge an the second portion of that pert of his) gudgment concerned walh the respondent's physical tuyuries sets out what apparently he considered would be her residual disabilities, which when examined seem to tnelude the

(1) a Jey shortened hy 1! eee s requirtnoe (ue wearing of a buslt-up shoe;

(11) brain amyze Teavinge ber with a speech tmpedirment which she probably siild his on oc eas tonss

(iv) a resadual ettect from the Iracture of the pelvis which would warrant in the event of her beeomiung pregnant a Caesarian birth and probably a Limitation on Lhe number of chaldren she may bears

(v) scarring due to neeessiary operalions on the chest, abdomen and the upper thiph, depreted on Exhibit 'Bt of which His Honour says =

Tle. then she has track an operatiton to renove the sears of the previews operation, this 15 an operation whieh cealconds Lrom the chest to the abdomen and although at has removed the ugiser sears if stall Leaves her wath rew sears of TOL so ulNpleasanl a nature It st1711 she us Icti with sears apparently a big sear under her robs has been Jett altogether! ;

(vi) as a result ot her varied, saguraces she weuld be conlined to a sedentiury yobs

(vita) loss of abtiiew to do thines which onee she could do, particularly by way of actinge and 131 sport.

The sun fired os the wamount representriay damages stastaimmed by

to hearayig 4 45,550 2. Pain, suiferang, Loss of wamenaities

Ft as not possible lo say whelbber the learned trial liadge imtended that the sim of SRK,O50 shoulel be divided equally between pain, sutfermg, Loss of cuareurlres as one heading and loss oF carning capacity on the other, Tl he dad, an ny view the sum of #41,325 for Joss of euning capreity as a wholly erroneous estimate for that headlines of damage. On the evidence There a6 no evidenee of her bernie employed at a Lower wage.

Jtoas said that she can only de work of «a sedembory nature.

But this 15 anyway a Curr deseriptiron of the work of a lLypiste secretary, so Lar as she deserrbed ait, The evidener does : suggest she could uever be a prolesstonval aetress (1 great loss

to her personally), but dad nol establish tht she would ever achieve this or what she miphht thes earn. Het loss ts rather

loss of avenues of employment than a conblsraiing wage Loss.

On the question of pain and sufferings she indeed lad grievous

ingury but during the antensive cate period of her treatment

and whalst Vartous operations were petbotmed she ecoms lo have . ' been nol dully conserens ot, at any vrte, has nol piven evidence 1 t uf great pain during this period, Tn Luct, she selects only 1

• 1 : one day (of treatment) ws oceasionin, severe par, Tea secaurrings ge severe, but on the evidenee wil) wuproves and anyway 15 not visible when she is dressed, and tt seens, has nol anterfeted with ber marriaye Prospects, She has undoubtedly sustained Loss of aymlatyv and will be handireapped and sravely I! disadvantaged im ehildbieth, The evrdenee does nol establish ' that even the remiuning speech of memory drift eremdty will be permanent. Assuming stali, for the pirpose of unibysis, that the Learnect . i trial Judge arrived at the tipure of s88,650 by allowing equal : ! sums for pain ete, and Loss of earntiy CapacLtty, my View 1s ' hat $44,325 alsa exceeds any re. sonable allowance Por pain, : sutfering and Joss of amenalacs, |
  Sinee the sum frrvaed in tts entirety is im that cateyory of i

awards which an Appeal Courkl should os ( esade, rh 1s appropriate

Yor this Court to substitute an approprtate Ligure, To set out below what would be an wappropsrate verdset, allowing in Fhe sum for pain and suffering Por the posssbitity of Luture medical

expenses which seems a reasotuebTe approach an this ease =

1. Out-of-pocket and Toss ol wages to dute (as agreed) s 14,350
2. Loss of earning capacily 12,315
3. Pain, suffering, loss olf amenities 34,000

63,065 \PPORTIONMEN'L

Has Honeur has tound that Lrabristy for the collision should be borne by the parties in equal shites. Ihe apnellanl contends this as such a pross underesttmile of the respondent's culpability as to require intervention by this Court, Apportionment 15 provided for in foow Reform (Miscellancous

Provasions) Ordinance 1955-05, 5.15 which need nol be ser out.

Principles to be applied in apportionment Legastatison equivalent

to the above are lo be Lound in Pennington v Notts 96 C.L.R. 10.

'Tt ius clear that the Act gntends to pive a very wide dascretion to the judge or jury entrusted with the original

task of making the apporlionm nt. Much Latitude must be allowed to the otaipinal tribunal an arraving al a gudement as to whal as gust and equitable. Tl is lo be expected,

therefore, thal cases will be rate am which the apportionmenl made can be saeeesstully chailengeds; se Bratish Ifame (Owners) v Macprepot (Owners (1) and lugram v United Automobile Service ILd. (7). Rut, yivang full weight to these considerations imi the present ease, we are unable to avoid the conelusion thet, im apportiouing the responsibility equally, His Honour must have overlooked certain features of the «ase, cb that the ameouuc by which he reduced the assessed clamayes cannol really be supported,

The only guade which the stutule provides @s that Lb requires regard to be had to "rhe eclatmantts>s share om the

responsibility Lor the cdamape ™, As to the « ffeci of this see generally an artacle bs Douglas Payne, Reduce tron of Damaysos Lor Contributory Negtrpence ( xy. Whut has to be done is to arrive at a ""yuist cued «equrtable" wapportronment as between the plarntitt and the detendant of the "responsibilrly" tor lhe cleunape, It seems clear that this must of necessity involye a comparksen of culpalbtulity. By "culpability" we do nol mean moral Liameworrhaness but degree of departure from the stundazed of care of the reasonable mat. To amistituce a cComparisen mt respect of blameworthiness an such a ease as the present scens more or less smpractaicahble, because, while Lhe defendant's negligence 15 a breach of daly owed lo other persans and therefore blameworthy, the plauintift's "contributory" Negligence t5 not a Dreach of any duty at all, and at Ls ditfieutt to iampule "moral" blame to one who is careless

merely of his own satetly. Herve, om ote opinion, the negligence of the defendant wes imi bigh des ree more culpable, more gross, than tal of the plaimmtsib. The

platmnliff's conduct was ex bypothess careless and unreasonable but, after all, it was the sort oof thang that 1S very commonly done 3 he suinply diel nor Look when a reasonably careful man would lave Lookerl, We (hank too That un this case the vern fact ther his concduet dick not eudanger the detendarnt ar anybody cbse as a malerial consideratron', fn making a comparison of the eulpability here, rt ois necessary to point to the clear oblagation tequtred by the reysulet rom and the apparent total disregard of 11 by the respondent who knew not only the aonierseetion but the stotus of Wandmarsh Drive and the trattic wt carries, Ti she over tooked all these consideralions, and Carled csen to acee pk the tive weet obligation, she might Thave been expected to give way lo the appellant's vehicle coming om ber ray. She dul none of these things, endangerings not only hersed! fut the appellant and Mrs.

O'Dwyer - metlers which were thouesht of some moment mm the case

Ihe same Kind of Legislation was considered in Pollarel vo Pnsor

(1969) S.A.5.R. 57, where the partres at the trial were motorist

and pedestrian, the Jatter recove riage a verdiet duc betny Cound

20% to blame for tt, the appellate Conrt, by majorily, inereased the pedestrian respondent's share to 40%. The Chiel Justice

tn that case dissented but his judgment tres to deduce a commom principle by which an appeliale Court should tind stself obliged to vary an apportionment, He cdirYered tn bis wssessment from the traal Judge (he would have found the detendant 25% or 33-1/ 3% 1o blame bur them was not able to say that the figure chosen (20%) was outside the bounds of a

However the majority judgment does nol provide any assisliance on principle; it simply stated that che Frial ducdgets upportironment was 'sufficrently wa error to call for review'. Guided by these principles and consadetamgs the nature ot the restrictron on eutrey to Hindmarsh Drive, which applied to the state of the tratfie on that highway hnewn to the plaints ft

ancl the posilion of her vehirele vis a wig the appellant's

vehicle, my vicw 1s thal fifty percent as an estamalion of her culpability was outside the bounds of even a reasonable dascretion, Her conduct was Sar more culpable than the appellant's, callany fo2 anterfercnee by this Courl. In ony

view a proper apportionment ot the Taabrtily would therefore

Che total verdict as sel oul above bese 463,605.00, T would

reduce this by 75% so that rainally the plaintiff's verdict