Jackson, Daniel Noel v. Windahl, Neil [1980] FCA 82

non-economic loss, forming part of general damages of $28,200 was manifestly inadequate. Part way through the hearing counsel said that he intended to attack, as well, the award of $15,000 for economic loss.

On 26 September 1971 the appellant was riding his motor cycle, a light powered Yamaha, east along Wells Street, Ludmilla. The accident occurred at the inter- section of Wells Street with Lovegrove Street. Lovegrove Street was on the appellant's left, it leading away from Wells Street in a northerly direction thus forming a "T" intersection with Wells Street. The evidence establishes that the respondent, who had been travelling west in Wells Street, intended to make a right hand turn into Lovegrove Street. The intersection is a dangerous one. It is made dangerous by the existence of a crest in Wells Street 15 metres to the west of the junction of that street with Lovegrove Street. To the rider of a motor cycle travelling east, as was the appellant, there 18 no view of the intersection, or for that matter of the road ahead, until the crest is surmounted. To the driver of a motor

vehicle travelling west and intending to turn right into

Lovegrove Street, as was the respondent, there 1s no view of traffic coming 1n the opposite direction until that

traffic reaches the crest only 15 metres away. Thus great caution is required both of traffic

travelling east and west bound traffic intending to turn

right into Lovegrove Street. In a sense greater caution might be thought to be called for from traffic travelling west and intending to turn into Lovegrove Street because of the obligation which such traffic has to give way to traffic emerging over the crest, But substantial caution is also required on the part of traffic travelling east because to turning traffic the road might appear to be clear and a turn commenced, yet the driver of the turning vehicle when partway through his turn might find traffic bearing down upon him.

The evidence established that the respondent failed to make the turn into Lovegrove Street with due care. His Honour found negligence on his part; no challenge is made to that finding. Amongst a multiplicity of acts of negligence that which was the most heinous was the respondent's travelling on his incorrect side of the road as he approached the intersection. To the appellant as he came over the crest the respondent presented his vehicle as one proceeding in the opposite direction on the incorrect side of the road. There can be no question but that that was the situation with which the appellant was confronted. His evidence was plainly to that effect. He was not shaken in his cross- examination. The respondent was not called to give evidence, No explanation for his absence from the witness box was offered. There was no other evidence on the point.

The respondent's gross negligence in driving on his incorrect side of the road was compounded by the fact that he did not disclose his intention to turn right into Lovegrove Street by any turning signal. That was the appellant's plain and uncontradicted evidence.

The appellant's account of what he did in an endeavour to cope with the emergency with which he was faced emerges in a rather confused way from the transcript. But in essence it seems that he decided that to apply his brakes hard would have led to a head-on collision and that to go to his right would probably have taken him under the car. With a gap of about 4 feet or 5 feet between the car and the northern kerb of Wells Street, the appellant touched his brakes and tried to negotiate the gap. He failed, no doubt because, as he tried to pass to the left of the car, it began to turn to its right into Lovegrove Street. The motor cycle struck the car on the nearside front guard just behind the headlight.

When police officer Crowell arrived shortly afterwards, the front of the car was in Lovegrove Street, on its incorrect side and about seven feet into that street. 'The motor cycle was in Wells Street, just east of the inter- section and just off the road. The point of impact, ascertained from the position of debris, paint and dirt on the road, was on the north side of Wells Street, close to the eastern edge of the intersection.

Constable Crowell interviewed the respondent at the

scene. It appears that he did not at once speak to the appellant who presumably was in shock, but he must have spoken to him at some time because his written report of 22 October 1971 refers to statements made by both drivers. The respondent said he just did not see the appellant and that he was turning right when the accident happened. He did not claim to have given any warning of intention to turn out of Wells Street.

It was not put to him that he was on the wrong side of the road but the appellant does not seem to have said this at the time. According to the police officer's brief notes, the appellant said that as the car was approaching the crest it turned right in front of the motor cycle without any prior indication of intention to do so.

As has been said the evidence plainly established that when the appellant came over the crest he was confronted with the respondent's vehicle which was proceeding towards him on its incorrect side of the road. At that point of time there was no indication that it intended to turn. The appellant was thus faced with a crisis requiring immediate action, He decided to attempt to pass the vehicle on his left hand side but failed because by the time of the impact it had commenced to make its turn. Some criticism was made of the appellant for not attempting to pass the vehicle on his right hand side. But if there were no more, that

circumstance could not found contributory negligence because

the appellant was guilty of no more than an error of judgment, in the emergency in which he found himself, in going to his left rather than to his right. In the instant he had to make a decision the respondent's vehicle did not present itself as one which was about to turn. Rather it was a vehicle proceeding towards the appellant on its incorrect side of the road.

The more fundamental criticism of the appellant's conduct made both by the respondent and by his Honour in his judgment was that the appellant must have been travelling at a speed of more than the 25 to 30 miles per hour to which he deposed, Such a speed was said to be excessive by reason of the fact that the appellant had no view of the road ahead until he surmounted the crest. The respondent also said that even if the appellant's speed was 30 miles per hour, it was excessive in the circumstances.

His Honour's findings, being based upon an inference from accepted facts, are open to review by this Court which may, if it considers it proper, draw different inferences if they ought to be drawn.

In our view there was nothing inherently improbable in the appellant's evidence that he was travelling at 25/30 miles per hour. His cycle was not high powered and he had had to ascend a not unsubstantial incline to reach the crest, The appellant was under an obligation to take

care as he came over the crest of the hill, but he ought

not to have been expected to drive at such a speed as to be able to avoid a vehicle coming towards him on its

wrong side of the road. In our opinion, a speed of 30 miles per hour was not exeessive in the circumstances.

His Honour should not have inferred that the appellant

was travelling in excess of it. Really, there 1s little or no evidence to support such an inference. And the appellant's uncontradicted evidence is to the contrary.

In our opinion the inference which should be drawn 1s that the appellant, travelling at a not unreasonable speed in all the circumstances judged, wisely or not, but certainly excusably, that the best course in the emergency was to pass the respondent's vehicle in the space at the left

remaining to him; and that his maneuvre failed not because of

excessive speed on his part but because, after he first observed the respondent's car, it also turned in that direction, so_ narrowing the space as to cut off the escape route.

The remaining criticism of the appellant was that he failed to keep a proper look out. In our view there was no evidence or matter of inference to support such a finding. He saw the respondent's vehicle as soon as he came over the crest. There was no evidence to suggest that he should have or could have seen it earlier.

Contributory negligence :s not a treach of duty to another (Pennington v. Norris (1956) 96 C.L.R. 10). It

is a failure to have sufficient regard for one's safety.

In our view, the appellant was not shown so to have failed; he was placed in an impossible position by the respondent's driving towards him on the incorrect side of the road and his sudden turn right. In our opinion the finding of contributory negligence was not justified. The appellant's damages ought not to have been reduced.

We turn to the cuestion of damages. The total amount of damages which the learned trial judge found was $29,342.05 made up as follows:

expenses 500.00 Damages for future economic loss 15,000.00

General damages for pain and suffering, the effects of the injury and loss of amenities of life 11,000.00

The appellant challenged the adequacy of the amounts awarded both for future economic loss and general damages.

It will be useful first to mention something of the appellant's history. He was born on 25 May 1951 and attended school until approximately the age of 16 years completing, 1t seems, Grade 10 or, as 1t 1s described in evidence, "the Junior Certificate" 1n Gueensland. Up to the time of trial, he had acquired no other educational qualifications. He had had various Jobs after leaving

school including working as a clerk, storeman, stockman

and labourer, This work had been done in various parts of Queensland, in New South Wales and in Darwin. At the time he received his injuries he was working as a postman in Darwin. The injuries received by the appellant were severe. They 1ncluded a head injury involving a laceration to the back of the scalp, a compound fracture of the right femur, and lacerations of the right leg. His treatment in hospital and otherwise is set out in the report of Dr. Gray who also was called to give evidence. He was obliged to remain in hospital for some five months during which period he was in traction for approximately 4% months. He was not able to walk without crutches until about 12 months after the injury. In April 1972 a bone fragment was removed by operation from his right thigh. Thereafter treatment included physiotherapy to the right limb includirg thigh, knee and ankle, The two last mentioned joints had become stiff after the prolonged immobilization. The medical evidence is that the appellant will suffer osteo arthritis in both joints sooner than otherwise would have been the case. The findings as to his residual disabilities were not the subject of challenge before us. They are summed up by the learned trial judge in this way: " The plaintiff's right leg 1s 24" shorter tnan his left but he has not accepted medical advice to wear a Special shoe to mitigate this to a cert3in extent. He walks with a marked limp and the shortness of his leg has caused a pelvic tilt. His leg feels

tired and aches if he walks a long distance or stands on it for too long and he also has pain in his right

"hip area and upper right thigh. The plaintiff cannot bend his right knee fully, there being

a 20% loss of flexion and his right ankle move- ment is sometimes restricted and the ankle tends to tilt."

Following the accident the appellant was off work for 30 weeks. At the time he was a temporary postman earning about $63 a week. The learned trial judge allowed $1,700 for loss of wages and there is no complaint about that. Indeed, upon the basis of some calculations done by counsel during the argument, the amount may be somewhat too high.

But it 1s the sum of $15,000 awarded for economic loss suffered after the conclusion of the period of 30 weeks that the appellant was off work that 15 said to be tanifestly too low, The appellant did not return to his pre-ingury work. It 18 common ground that he was not ther fit and is not now fit to do the work of a postman. Instead he obtained employment as a bookmaker's clerk, employment which he has had ever since.

It 1s to be observed that there was 4 substantial delay in bringing the proceedings. The appellant commenced work as a bookmaker's clerk in 1972. His damages were not assessed until 21 September 1979. Tre figure of $15,090 1S intended to compensate the appellant for his diminisned earning capacity for the seven years up to the date of trial and thereafter. At the time of trial the appellant was 28 years of age.

An ®xplanation for what at first sight seems a ratner

meagre sum 1S the finding by his Henour tnat the appellant

was an unambitious young man content to drift along as a bookmaker's clerk without attempting to find better paid work within his capacity. In this respect there can be no question but that, notwithstanding that his injuries have rendered him unfit for a variety of oceupations,he has left to him a not insubstantial earning capacity. Counsel for the appellant submitted that his Honour'ts view of the appellant was unfair. He said that his remaining a bookmaker's clerk was not the result of lack of ambition or drive, but a sensible course having regard to the difficulty the appellant might have in ootiin- ing alternative employment particularly in Darwin where he wishes to remain. If the appellant were to find another gob, give up his employment as a bookmaker's clerk and find that the new gob was not within his capacity or that re did not suit his employer 1t would ce unlikely that he woula be able to get his old gob back with the result thet ne migrt well be unemployed. Counsel referred us to the avcpeliznt's evidence which was along these lines and alsc to eviaencc given by an officer from the Commonwealth Employment Service who deposed to the difficulty a person with disabilities such as the appellant would have in obtaining employment.

We think that there is force ir tre submissions waich were made to us. On the other hand, ti2s Honour huu the

opportunity to observe the appellant un the witnecs tom. 4H

impression of the appellant is states in the find.nz tha:

he made ard we do not think that thet firdong ecu simpli, he

put aside. Furthermore, there are otner matters which must be taken into account.

Firstly, his Honour's assessment was made before the High Court overruled its decision in Atlas Tiles Limited v. Briers 52 A.L.J.R. 707; see Cullen v. Trappell (1 May 1980 - as yet unreported). Such amount as was included in the sum of $15,000 for future economic loss (that 3s loss of earning capacity after the date of trial) ought, as things now stand, be arrived at after the taxing into account of income tax. As the law stood when his Honour aelivered Judgment he was obliged to deal in gross figures.

Secondly, and more importantly, the evidence aiscloses that the case 1s more difficult to quantify than others where claimants have had, prior to injury, continuous and steady employment. The appellant had only been a postman for 10 days prior to his being injured. Frior to trat employment he had had, as has been mentioned, a number of jobs of the labouring type in a variety of places. His evidence was that his intention was to remain a postman for two years. Thereafter his plans were +o leave Larwin and to travel about Australia and perhaps overseas, wording nere and there as he did so. He thought that he woula event ially have returned to Darwin to settle, but tnis was not certair, That beinz the evidence one could not take as a start rue

point the net earnings of a postman at various Cates berveen

1972 anda 1979, The appellant may er acy not hove remind a postman tor two years, If he had ne nay have rac perioas thereafter wien he was not working Tr wien ALS cerrings were

A final matter to be merttoned 15 that sien the appellant commenced work as a bookmarker's clerk after his recovery, his earnings were then somewhat nigher than those of a postman. They have since fallen well behind.

Having reflected on the matter, we are nov persuadca after taking all relevant considerations into uccount that the amount awarded for economic loss was ranifestly low. We are not disposed to disturt that part of the award. We would say, however, that the award could not be described as more than modest. That will oe a relevant matter to which to have regard wher we come 9 n2c:de wha the outcome of the appeal on damages shoula be.

We have already referred to the appeliart's residuci disabilities. Their effect on his social life ard ecneral standard of living was described by the learned irial judye in these terms:

" The plaintiff is not able to run c: to wala fast. Prior to the accident he was an active snurtsa.

He was a promising rugby leirue player anc probully would have played 1n A Grade in the year ifter the accident. He was also a successful table tenn:+ player. He played squash and witer skiea. He cannot carry on any of these sports now except that he does play a little social table tennis. Competitive table tennis at which he had been siiccessful 25 now >"yone him. Frior to the accident the plaintiff was = fit young sportsman and he 1s no Jonger."

The injuries suffered by tre appellant were severe ana

have left the appellant wath a not incubdstantia: derrec of

incapacity. His Honour tnought,ari we agree, Vet che

condition of his leg would be improvea :! ne were to weer a built up shoe. It would also take away much of hi: pelvic tilt and, with it, pain he suffers in his low back. ae agree with his Honour that his failure to wear a built up shoe and the consequences that follow from that failure ought not to be visited upon the respondent. But so much having been said, the fact remains that the eppellant at

the age of 19 was seriously ingured. The effects of tnat ingury will be with him for the remainder of "1s life. we cannot regard the sum of $11,000 awarded for senerai daiares as a sufficient award. In reaching our conclusion we nave taken into consideration a matter expressly left out of account by his Honour. That matter w?s permanent sc@rrin,: suffered by the arpeilant on nis neat ord leg. Tre sev rring is described, although not in detail, in to. medical evidence. It was omitted from consideration by hoc Horcur ceccaus?: the appellant did not complain of scarce to nim. 42 cannot

think that that was a correct course for his "i7nour to follow. We should mention a submission made by the resnondenw. wat

the evidence did nob establish that the sears were cau 4

Altnougn we have taken the scarring into ac: cunt, we have not heen able hy reason of the senerality oJ tre redical evidence and the absence of evidence from the aprelatntz, 12 give it any substartial place in the award wricn ae iraek

spould nave pveen made. Our princins] reeson for osneindin:

my The Meslomb begopm or began, ' pron ' earth om rn hog ile oot ' mor

[a a a hyip de ca oad - Coa mb mt owe lin les re pore te rs

the costs :° tne trial. If, om cen cle + Yo. bard in ie more than weonow Taney, ut yor. | moo

by the Loarmed trial gut le be tenn, Tor aeeudics in ary event, to have hos costs wt or OR fa