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[2003] NSWCA 81
appellant. Appeal allowed. The trial judge’s contributory-negligence apportionment and damages assessment were set aside. Responsibility was apportioned 50% to Bradley and 50% to Jones. Total damages were...
The appeal court found that both the driver and pedestrian made serious contributions to the accident. Jones was intoxicated and failed to respond adequately; Bradley crossed a busy road unsafely and continued after another vehicle took evasive action. The court considered that evidence about Bradley’s recent condition was relevant and had not been properly addressed. It therefore divided responsibility equally. It also reduced and recalculated several damages awards because the trial judge had not sufficiently examined specific evidence and issues, including care needs, services that would have been provided anyway, transport, future treatment and Bradley’s realistic employment prospects. The court set total damages at $1,539,709.70, with a 50% reduction for contributory negligence.
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In Jones v Bradley [2003] NSWCA 81, the New South Wales Court of Appeal considered an appeal by Edward Jones, the driver, against findings made after a serious pedestrian accident. Emma Bradley, the pedestrian and plaintiff at trial, was the respondent on appeal. Jones admitted that his driving was negligent, but challenged the trial judge’s division of responsibility and the assessment of damages. Santow JA gave the substantive reasons; Meagher JA and Beazley JA agreed ([1]–[3]).
The accident occurred on 9 May 1996. Jones was driving on the Princes Highway in Rockdale while intoxicated. Bradley, then aged 26, was crossing the multi-lane road outside a pedestrian crossing. She had recently attended a medical centre, where staff observed her in a somnolent state after she said she had taken Rohypnol. An ambulance officer offered to take her to hospital, but she refused and left. She was later seen hurrying across the highway. An unidentified vehicle braked heavily and swerved to avoid her; she continued across the road and was struck by Jones’s car ([4]–[7], [25], [42]–[46]).
Bradley suffered serious orthopaedic injuries and brain damage. The District Court found Jones 75% responsible and Bradley 25% contributorily negligent. It awarded judgment of $1,949,715.40 ([8]). On appeal, Jones challenged both the 25% finding against Bradley and the damages assessment. The Court of Appeal allowed the appeal, substituted a 50:50 apportionment, assessed total damages at $1,539,709.70, and entered judgment for Bradley for $769,854.85 after the contributory-negligence reduction ([227]).
The judgment is best understood as addressing two separate appellate questions. First, when does a trial judge’s discretionary apportionment of responsibility contain an error warranting intervention? Second, when may an appeal court set aside and recalculate damages rather than order a new trial? The court emphasised restraint on appeal, but found specific errors in both parts of the District Court decision.
The court approached apportionment by considering both relative culpability and causal potency. Relative culpability concerned the degree to which each person departed from the applicable standard of care. Causal potency concerned the contribution each person’s conduct made to the accident and resulting injury. The judgment describes this framework by reference to Podrebersek v Australian Iron and Steel Pty Limited ([28], [104]).
Bradley’s conduct involved a serious departure from the care expected of a pedestrian. She crossed a major arterial road away from the marked crossing, at more than a walking pace, and continued even after another vehicle braked and swerved to avoid her. The court considered that she should have seen the approaching vehicles and that her actions showed little regard for her own safety ([105], [107]).
Jones’s conduct was also a serious departure from the standard expected of a driver. He drove while heavily intoxicated, failed to detect Bradley in time, and failed to respond appropriately to the movements of the other vehicle. The court accepted that his intoxication impaired his driving and that, with reasonable care, he could have avoided the accident ([28], [106]).
The material appellate error was not simply that the Court of Appeal might have preferred a different percentage. The trial judge had regarded the connection between Bradley’s somnolence and her decision to cross as speculative. Santow JA considered that the evidence made the connection more than speculative: witnesses had described Bradley’s condition shortly before the accident, she had reported taking several Rohypnol tablets, and her history of benzodiazepine abuse was relevant to assessing her mental state and judgment ([76]–[80], [102]). The trial judge’s failure to advert expressly to that evidence was an error. In the Court of Appeal’s view, it affected the assessment of Bradley’s culpability and the resulting apportionment ([102]–[108]).
The court did not treat Bradley’s conduct as cancelling out Jones’s responsibility. It accepted that Jones’s intoxicated driving remained a serious cause of the accident. It concluded that the trial judge’s 75:25 division did not reflect the substantial culpability of both parties, and set an equal division ([107]–[109]).
The court began from the principle that an appeal court should not lightly disturb findings based on the trial judge’s opportunity to see and hear witnesses. It cited authorities including Abalos, Devries, Warren v Coombes and Rosenberg v Percival on appellate restraint ([112]). It also emphasised that a damages appeal challenges an exercise of discretion. Under House v The King, intervention requires more than showing that another assessment was possible; the appellant must establish an error of the relevant kind ([117]).
The court did not hold that the trial judge’s reasons were generally inadequate merely because they were concise. It accepted that the trial judge could rely on his observations of Bradley and on the evidence of her former partners, Mr Sengos and Mr Frost, when assessing her functioning and care needs ([133]–[145]). But it considered that the overall damages report prepared for Bradley had been accepted without sufficient engagement with particular disputed issues and contrary evidence. That approach permitted the appellant to show that particular amounts were excessive or insufficiently supported ([146]–[150]).
The future-care award was a central example. The trial judge had allowed six hours of care each day. The Court of Appeal accepted that Bradley had real difficulties with ordinary household tasks, personal care and safety. However, it found that the trial judge had not adequately considered her actual cognitive functioning or the lower care arrangement under which she had been coping before trial. The failure to engage sufficiently with relevant expert evidence also mattered. The appeal court therefore substituted three hours of daily care ([170]–[177], [212]).
Other adjustments followed from similar concerns. Past care had not been assessed with sufficient attention to the statutory exclusion for services that would have been provided anyway, or to the proper market value of those services ([156]–[163]). The vacation-care award did not adequately take account of Bradley’s pre-injury lifestyle ([178]–[180]). The taxi allowance did not properly reflect her actual use of public transport and taxis; the handyman award was too high and did not engage with the occupational therapist’s evidence; and the future-medical allowance included potential duplication and unsupported treatment costs ([185]–[197]).
The future earning-capacity assessment also required individual consideration. Bradley’s employment history was limited; she had left school without a School Certificate, had little paid work experience, had been unsuccessful in seeking work shortly before the accident, and had other circumstances relevant to the probability and continuity of employment. The court concluded that the District Court’s assumptions about sustained employment and earnings were not adequately supported ([192]–[195]). It used shop-assistant earnings as a benchmark and applied a 50% vicissitudes deduction to the relevant economic-loss and associated awards ([218]–[224]).
Finally, the court considered whether to order a new trial or reassess damages itself. It referred to the statutory power set out in paragraph 204 and concluded that the record was sufficient. The necessary reassessment did not require disturbing the main credibility findings, and avoiding another trial was desirable ([203]–[210]).
This judgment does not purport to announce a new general test for contributory negligence or damages. It applies established principles to a particular record and explains how those principles operate where both parties’ conduct involved serious departures from reasonable care.
Before the appeal, the District Court had placed 75% responsibility on Jones and 25% on Bradley, and had made a substantial damages award. The Court of Appeal’s analysis reaffirmed that apportionment requires a comparison of culpability and causal potency, while cautioning that other apportionment decisions offer limited guidance where the conduct and circumstances differ. The court noted the caution in Tuebner v Humble against using other cases’ percentages as a guide ([104], [107]).
On damages, the judgment restated the established appellate distinction between identifying a possible alternative assessment and showing that the trial judge’s assessment was erroneous. It stressed that the judge need not discuss every item of evidence, but should address evidence that is important or critical and should explain material findings and conclusions. The extent of the reasons required depends on the nature and centrality of the disputed issues ([123]–[131]).
The judgment also applies established principles on gratuitous-care damages. The claimant’s need for the services is the basis of the claim; reasonable market cost is ordinarily the objective measure; and services that would have been supplied in any event are excluded under the statutory provision quoted in the reasons ([156]–[162]).
The practical change in this case was in the orders, not a wholesale alteration of doctrine. The appellate court replaced the trial judge’s particular apportionment and damages figures after identifying errors in how evidence and issues had been addressed.
At [102], Santow JA states that Bradley’s mental condition and capacity to make a rational judgment were relevant to whether she departed from the pedestrian standard of care. In plain English, the question was not only what a reasonable pedestrian would do in the abstract. The evidence of Bradley’s condition immediately before the collision mattered when assessing her conduct.
At [108], the court says the trial judge’s apportionment did not reflect Bradley’s substantial culpability, but that her culpability did not remove the impact of Jones’s serious breach. The court regarded equal responsibility as appropriate. In plain English, the court did not see this as a case in which one person’s fault displaced the other’s. Both contributed significantly.
At [125], the judgment sets out three components of adequate reasons: reference to relevant evidence, material factual findings, and reasons explaining how those findings support the conclusion. It also clarifies that a judge need not make findings on every piece of disputed evidence or answer every submission. In plain English, reasons must be enough to show how the important questions were resolved, but need not be an exhaustive transcript of the case.
At [149], the court says accepting the plaintiff’s comprehensive costing report did not automatically invalidate the damages decision, but it opened the door to challenges to individual amounts that were too large or inadequately supported. In plain English, adopting a report as a whole did not insulate every line item from appeal.
At [180], the court explains that damages aim to put the plaintiff in the position she would have occupied if the accident had not happened, not to provide an economically optimal standard of living. That principle informed the court’s reassessment of vacation care and other future expenses.
At [193]–[195], the court stresses that earning-capacity damages must take account of the claimant’s individual work history and circumstances. It rejected an assumption of continuous work to retirement that was not supported by Bradley’s history, and reassessed the relevant figures using the available shop-assistant earnings benchmark.
The judgment is relevant where an appeal concerns apportionment between a negligent driver and a pedestrian, particularly where both parties’ conduct may represent substantial departures from reasonable care. It illustrates that a pedestrian’s unsafe crossing may have significant causal potency, while a driver’s intoxication and failure to respond may remain independently serious causes. It also shows the relevance of evidence about a pedestrian’s mental or physical condition shortly before the accident where that evidence bears on the assessment of their conduct ([102]–[109]).
The judgment may also be useful in damages appeals involving extensive care claims and competing medical or occupational evidence. Its reasoning is pertinent where a trial judge accepts a comprehensive costing report but may not have engaged with important evidence about actual functioning, existing care arrangements, duplicated services, pre-injury lifestyle or the claimant’s individual employment history ([125]–[149], [177]–[198]).
It does not establish that a 50:50 apportionment is generally appropriate whenever a pedestrian crosses outside a crossing or a driver is intoxicated. The court described equal apportionment as justified on these circumstances, with the parties’ particular conduct and evidence before it ([108]–[109]). Nor does it establish a universal number of care hours or a fixed vicissitudes percentage. The figures were the result of the evidence and reassessment in this case ([212]–[225]).
The supplied judgment does not identify any later court decisions applying, distinguishing or otherwise treating Jones v Bradley. Its list of cited authorities and the discussion within the reasons concern authorities considered by the Court of Appeal in 2003, not later treatment of this judgment. On the material provided, subsequent judicial treatment cannot be established.
The judgment itself discusses earlier authority on appellate restraint, reasons, gratuitous care, apportionment and reassessment. For example, it applies the reasoning in Podrebersek to apportionment, relies on Van Gervan v Fenton in assessing gratuitous services, and discusses Beale v GIO, Soulemezis and Moylan on judicial reasons ([104], [123]–[131], [161]). Those authorities explain the framework used by this court; they do not establish how later courts treated Jones v Bradley.
The judgment does not decide how the same apportionment analysis would apply where the evidence of a pedestrian’s intoxication, awareness or decision-making capacity is different. Its conclusion depended on evidence from the nurse and ambulance officer, Bradley’s reported Rohypnol use, and the circumstances of the crossing ([76]–[80], [102]).
It also does not provide a numerical formula for translating culpability and causal potency into percentages. The court stresses the evaluative nature of apportionment and the limited value of comparing percentages from different cases ([28], [107]–[109]). The result of equal responsibility is therefore tied to the facts and appellate error found in this case.
On damages, the judgment leaves open how much detail reasons must contain in other cases. It says the required detail depends on the nature of the case and the centrality of the issue, and that judges need not address every item of evidence ([125]–[131]). The decision provides examples of material issues that required engagement here, but no exhaustive checklist.
The court’s reassessment also depended on its view that the appeal record was adequate and that it did not need to disturb the central credibility findings. The judgment does not imply that an appellate court can always recalculate damages from the written record. It recognises that credibility conflicts or unresolved evidence may require a new trial instead ([203]–[210]).
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These proceedings are the result of a serious pedestrian accident on the Princes Highway at Rockdale. The Respondent was run over by a vehicle driven by the Appellant. The Appellant was intoxicated by alcohol at the time and the Respondent crossed the major arterial road in a hurrying manner without checking for approaching vehicles. At the time the Respondent was adversely effected by a substance as earlier in the day she had consumed a number of Rohypnol tablets. Immediately before the Appellant's car collided with the Respondent, an unidentified vehicle had broke heavily and swerved to avoid colliding with the Respondent. The Respondent suffered serious orthopaedic injuries and has suffered ongoing disabilities as a result. The Appellant challenged the Trial Judge's findings on apportionment of contributory negligence and the assessment of damages.
Held per Santow JA, with Meagher and Beazley JJA agreeing:
Contributory negligence
Damages
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41050/01 DC 2140/99
MEAGHER JA BEAZLEY JA SANTOW JA
16 APRIL 2003 Edward John JONES -v- Emma Ward BRADLEY Judgment 1 MEAGHER JA: I agree with Santow JA. 2 BEAZLEY JA: I agree with Santow JA. 3 SANTOW JA: INTRODUCTION Before dealing with the specific grounds of appeal and the extensive factual materials required to be considered in that context, I shall attempt a brief summation. 4 The Appellant was driving a motor vehicle on Princes Highway on 4 May 1996 at 4.15 pm, in an intoxicated state. He ran over the Respondent. She had just earlier been in a nearby Medical Centre, suffering from the after effects of two to four rohypnol tablets. These had, at the Medical Clinic, induced a somnolent state, followed by aggressive behaviour. 5 The Respondent, a young woman of 27 years had been hurrying across the Princes Highway, not at the pedestrian crossing. She first caused another car to brake suddenly and swerve to the left and miss her. Still proceeding forward at the same pace, she was hit in the third lane by the Appellant's car. 6 The Respondent sustained serious orthopaedic and brain injuries leading to brain damage. 7 The Respondent as plaintiff commenced proceedings against the Appellant as defendant in negligence for damages. Whilst admitting liability, the Appellant claimed that the Respondent had contributed to her injuries by failing to take adequate care for her own safety. 8 The Trial Judge (Dent DCJ) found that the Respondent was 25% liable and the Appellant 75% liable. The Trial Judge awarded judgment for the Respondent in the amount of $1,949,715.40. 9 The issues in this appeal are first the Trial Judge's assessment of contributory negligence at 25%; that is to say, apportioning liability 75% upon the Appellant and 25% upon the Respondent. The Appellant submits that the apportionment of liability between the Appellant and the Respondent should have reflected the Respondent's greater share in causal potency and relative culpability. The Appellant recommends a finding of contributory negligence against the Respondent of 65%. 10 The second issue is the assessment of damages, said by the Appellant to be manifestly excessive. Essentially, the Appellant contends in relation to each of the specific heads of damage that lower figures be substituted, apart from the figure for non-economic loss of $236,800 which is conceded. The Appellant contends that the total damages should be $1,186,081.13 as against the figure found by the Trial Judge of $2,599,620.60. 11 I set out the Appellant's contended assessment of damages in columnar form, so it can be compared to that of the Trial Judge.
MATERIAL FACTS 12 The Respondent was born on 16 September 1969. She attended High School but did not obtain her School Certificate. She initially left school at 15 years of age in mid-1984, returned to school in February 1985, and finally left on 30 September 1985. 13 Her employment record was very limited. In 1984, the Respondent had worked for approximately three months as a shop assistant at Jewells Supermarket, Oatley. In 1985/1986 she worked as a shop assistant in Woy Woy Wool Shop for approximately six months. Relevant on the positive side to employment, the Respondent in 1994 participated in Meadowbank TAFE course and successfully completed a typing/secretarial course. She also undertook and completed successfully a Child Care Course, she having had three children in earlier years, her first child being born in November 1986. These courses were completed whilst she was in prison following a sentence imposed on 4 November 1992 of nineteen months dating from 21 July 1992 for the offence of assaulting and robbing, together with an additional eighteen months sentence imposed in November 1992 and a further seven months sentence imposed on 30 March 1993 following a brief escape from Mulawa Detention Centre. 14 Before dealing further with that period, it should be recorded that in 1990/1991 the Respondent commenced working as a prostitute. This period coincided with her also using drugs, in particular heroin and cocaine, but also speed, serepax and methadone. By December 1991 and during the first half of 1992, she was using cocaine at a cost of $500 per day, and heroine at a cost of $400 to $500 per day. During the first half of 1992 she was arrested on a number of occasions for soliciting, for making false prescriptions, and for minor crimes of dishonesty. This led to a number of admissions for short periods of time to the Mulawa Detention Centre. 15 In September 1994 the Respondent was accepted for the methadone programme whilst in prison so that by December 1994 her methadone dosage had increased to 120mg per day. Following her release from prison on 16 October 1995 the Respondent continued in the methadone programme at 120mg per day. 16 I should add that whilst in Mulawa Detention Centre, the Respondent was found to be suffering from Hepatitis C, the Trial Judge remarking that this was "a common finding in people who have indulged in drug taking and/or found themselves in a penitentiary"; Red, 65R. 17 The Trial Judge also found, and this was not challenged on appeal, that "[D]espite the plaintiff's falling from grace in this period of her life, I do accept that it was her wish to be a successful mother and that her long-term interest in employment was to be in some form of social work with children."; Red, 65P. 18 In relation to the period in prison, as an inmate of Mulawa Detention Centre, the Trial Judge rejected the Appellant's tender of the Respondent's disciplinary record whilst there, it having been tendered in order to support an inference that while she was in jail the Respondent continued with substance abuse. The contention was that the prison record should have been allowed to be tendered in order to show that that was why she refused to have her urine tested for drug detection purposes; Blue, 1301-2, Black, 734-5 and earlier at Black, 1287-8 where a serious of such offences are listed under the heading "Apparent intoxication with unknown substances while in prison". 19 Leave was given to add Appeal Ground 18A, to the effect that "His Honour erred in rejecting the Appellant's tender of the Respondent's disciplinary record whilst an inmate of Mulawa Detention Centre …" 20 The Appellant at trial, in support of this tender, submitted unsuccessfully that it was relevant to support a submission by the Appellant that "history indicates that she was not a good prisoner and that those sort of internal convictions and breaches of discipline indicate that she was having troubles in jail as well."; T, 735G. 21 The Respondent submitted that the Trial Judge's reasons for rejecting the tender really went to weight and he correctly gave the material no weight, or little weight. The Trial Judge concluded that the material was not relevant on the basis that "I can't see how her behaviour in the present environment, which seems to have amounted to pretty spirited and regular resistance, can provide any basis for any adverse conclusions against her upon her release from prison"; Black, 737 I to J. 22 I consider that the Trial Judge was in error in rejecting this evidence altogether though its weight be limited, as it was relevant to an issue, namely the Respondent's future employability. It is thus material which should have been before the Trial Judge available to be taken into account insofar as it bears upon damages. But one may, with some latitude, treat the Trial Judge's conclusion as amounting to no more than that the weight of that evidence was so slight as to fail to influence him against the plaintiff on her employability on that score. I am satisfied that was a conclusion open to him. However, as emerges later, I do not, with respect, consider his conclusion, based on inference, as to the extent of her likely capacity to secure employment can stand, when regard is had to the evidence of her very limited past employment pre-accident. However I consider the weight of this material to be slight. 23 Returning to the narrative of relevant events on 16 October 1995, after the Respondent was released from prison, she continued in the methadone programme. When the Respondent attended for routine psychological assessment on 12 March 1996, it was noted that she was on prescription methadone and serepax. 24 In late 1995, the Respondent had met and formed a relationship with Mr Sengos, a clerk employed by the Department of Defence, and a member of the Army Reserve. His evidence as to her capacity to look after herself was important as was that of her subsequent companion Mr Frost; see later. The Respondent had commenced to live with Mr Sengos in January 1996. The Respondent applied for jobs, but was unsuccessful. This is significant as it pre-dated any injury. 25 In April 1996, Mr Sengos went overseas to attend a friend's wedding. On 9 May 1996, the date of the accident, while Mr Sengos was still away, the Respondent attended the Immediate Health Care Clinic. What there transpired is set out in uncontroversial detail by the Trial Judge at Red, 62G to Q. This is with the minor correction in the reference to the plaintiff lapsing back into sleep. This occurred, according to the evidence of Sister McLeod who was in charge of the waiting room, in the treatment room rather than the waiting room; Black, 493R. "The plaintiff's movements on the afternoon in question are known to a degree. Some five to ten minutes prior to the accident occurring the plaintiff left the medical centre known as Immediate Health Care, situated on the corner of Bay Street and the Princes Highway at the Sevenways intersection. The plaintiff had been seen in the waiting room of the medical centre by a Sister McLeod, who saw her in a somnolent state lying over two chairs. She roused her and took her to the treatment room and placed her on the bed there. The plaintiff was a patient of the medical centre as they held her patient card. A decision was taken not to treat her but to call the Ambulance Service. The plaintiff lapsed back into sleep and was in that state when the ambulance officers, two of them, arrived. It is clear from the conversations recalled by Sister McLeod and the ambulance officers, which are not identical, that the plaintiff had attended the medical centre to secure a medical certificate to excuse her from being at work that day. On questioning she admitted that she had taken Rohypnol that day. Apart from her somnolence she appeared to the ambulance officers to be in good condition. The ambulance officers wished to take the plaintiff to hospital by ambulance. The plaintiff refused the offer and became verbally aggressive and stomped out, after an ambulance officer had responded in kind to her, pointing out that she did not have to go to hospital, but that she could not stay where she was. The plaintiff apparently said that she would go home and when she was asked how she was going to get home, the plaintiff said that she would catch a train. Sister McLeod recalls the ambulance officer prophetically uttering, "Well don't get run over on your way." 26 The Appellant in his submissions does however take issue with what the Trial Judge then says in the next paragraph relevant to rohypnol. At Red, 62Q he says: "Rohynol [sic] is a prescribed medication prescribed for insomnia. Records from Mulawa where the plaintiff had been an inmate are in evidence and suggest that the plaintiff suffered from insomnia … it is known from other evidence, to wit that of Mr Sengos, that the plaintiff was looking for work at the time and it is interesting that her stated purpose in attending the medical centre was to obtain a certificate for employment non-attendance purposes, as opposed to treatment for any condition from which she was suffering. Having studied the entirety of the evidence presented by the defendant on this issue, I am firmly of the view that it is speculative that the somnolent state that the plaintiff was in whilst in the medical centre, caused as it may well have been by an adverse reaction to rohypnol, was the cause of the error of judgment that the plaintiff committed in assaying [sic] to cross the carriageway, at a time when she ought to have realised that there were two vehicles proceeding on her right which would either have to slow down or to stop, to permit her free passage across the carriageway." 27 Before returning to the Appellant's attack upon this aspect of the Trial Judge's reasoning, which is essentially that he misused his discretion in the assessment of contributory negligence by erring in finding that the plaintiff was not affected by an intoxicating substance being probably rohypnol, at the time when she attempted to cross the road, I should return to the actual events of the accident. This is to place that factor in that context. 28 Much of what follows is not controversial, though some aspects are, such as the capacity of the Appellant driver to see the Respondent and at what point of time, as well as issues concerning reaction time and braking time. Importantly, there is no dispute that a breach of the duty of care by the Appellant driver is admitted. Thus it is not challenged that the Appellant should not have been driving at all because of his intoxicated condition. That is a factor bearing on "causal potency" in the terms adopted in Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492. It is used to identify which party's conduct made the greater contribution to the occurrence of the accident in order then to determine "relative culpability" as between the parties. That requires a comparison of the degree of departure from the standard of care of the reasonable person, here as between Appellant and Respondent. The Trial Judge thus set out to determine the relative importance of the acts of Appellant and Respondent in causing the damage. Our task is to determine whether the Trial Judge's finding as to that relative contribution gave rise to appellable error. Such findings are to be afforded considerable latitude, bearing, as they do, on what is a just and equitable apportionment, where a range of assessments can be sustainable. 29 Thus I turn to what is described by the Appellant as the fundamental facts found by His Honour at Red, 58D to M. "The accident occurred at abut 4.15 pm on Thursday 9th May 1996 in lane three of the Princes Highway, Rockdale, at a point approximately 35 metres south of Bay Street at a time when the plaintiff had traversed the width of the Princes Highway to a point where she was probably more than halfway across the median strip lane which is lane three. The defendant Edward John Jones, a 49 year old male was driving his Holden Commodore Station Wagon north in the Princes Highway which for the purposes of this judgement can be regarded as a highway laid out in the north south alignment. The plaintiff was traversing the highway from west to east. In the vicinity of the subject collision the Princes Highway is a straight road which enters a slight curve to the right at the intersection. It is a faintly uphill gradient of about two degrees from the horizontal. It is closely developed with commercial premises on either side of the highway. There is a hotel known as the St. George Tavern on the western side of the highway at the intersection. Travelling north to the intersection there are three marked traffic lanes and at the intersection the highway widens on the western side to provide a fourth lane presumably for traffic exiting the highway by a left hand turn. The weather at the time was fine and clear." 30 The Appellant as I have said, does not dispute the fact that he was under the influence of intoxicating liquor at the time of the accident and that, consequently, his driving ability was impaired, Red, 59G. 31 The Appellant stated to the police that he had consumed six 245ml "stubbies" of Carleton cold beer between 12 mid-day and 3.20 pm on the day of the collision, the last being just under an hour before the accident. The Appellant admitted to the police that he had had only four hours sleep on the evening before and that he had not breakfasted but had a sandwich at "Smokers" and that he had nothing for lunch other than the beer; see Blue, 756. 32 The Trial Judge's summary of the following part of the expert evidence below is uncontroversial. This is subject to the minor caveat that in relation to the evidence of Associate Professor Graham Starmer, the reading which Professor Starmer estimates would have been produced had a direct blood reading been taken at the same time as the accident, was about 0.150g/100ml, rather than the higher figures quoted below, though it is conceded that nothing hangs on that. "It was the opinion of Anthony Frederick Moynham, Director, Clinical Forensic Medicine Unit, that at the time of the collision, the alcoholic burden of the defendant would have been not less than 0.130 grams of alcohol in 100 ml of blood and not more than 0.190 grams of alcohol in 100 ml of blood. It was Mr Moynham's view that within that range all persons would be under the influence of intoxicating liquor to the extent that there would be an impairment of driving ability. Associate Professor Graham A. Starmer of the Psychopharmacology Research Unit of the Department of Pharmacology of the University of Sydney who reviewed all available evidence was of the opinion that at the time of the collision the defendant's most likely blood/alcohol concentration would have been about 0.197 grams alcohol in 100 ml of blood, that it would not have been lower than 0.192 grams alcohol in 100 ml of blood, or higher than 0.202 grams alcohol in 100 ml of blood. He expressed the view that from a psychopharmacological point of view, alcohol has been shown to impair the three most important driver functions, perception, decision-making, and response. The inability to efficiently divide attention amongst two or more sub-tasks is classical expression of alcohol-induced driving impairment. Intoxicated persons almost invariably feel that they need to concentrate on events in the centre of the visual field and to ignore those in the periphery. He expressed the view that it is generally accepted that the driving ability of all individuals is measurably impaired at blood/alcohol concentrations of 0.100 grams/100 ml and above." (Red, 59) 33 Some additional elaboration is needed as to the evidence concerning the location of the accident. At Blue, 929 is to be found a detailed street and location map showing the medical centre visited by the Respondent. Upon it can be located where the accident occurred on Princes Highway and the relative distance from where Princes Highway intersects with Bay Street and Sevenways. The Respondent crossed from just south of Frederick Street where she travelled between a walk and a run (statement of George Tsipiras, Blue, 850). 34 The Appellant in his statement to the police made on 12 June 1996 some five weeks after the accident, states that, "I was driving north on the outside lane of the Princes Highway. The traffic was very light for that time of day, the traffic any other times always stop, start, stop, start. I was on the outside lane, median strip lane heading north. The green lights were on and I wasn't speeding, I never speed. I was just driving up, I've got vague recollections of a car passing me on the inside. I was driving up towards the lights and watching the lights and I seen a girl or a women run across and I seen her about the middle of the middle lane. I hit me brakes but she kept runnin' towards me and hit me."; Blue, 827. 35 He thus confirms that the accident occurred in the third lane near the median strip in which he was driving. 36 Later in the same police interview he states that "we were not that far from the lights, and as I say, I seen the girl in number, lane number 2, about midway between lane number 2, and I hit me brakes and she just kept comin."; Blue, 829. He confirms that his speed was under 60 kilometres an hour. 37 Later in the same interview he confirms that there were no parked vehicles in the gutter lane, that is lane number 1, that is to say "in that general vicinity"; see Blue, 831. 38 He confirms that "the girl collided with the left-hand side of the car"; Blue, 833 and that "she seemed to hit inside the headlight, towards the grille". 39 Finally, he confirms that when he first saw the Respondent, she was about two metres in front of him; Blue, 841, being the time when he hit the brakes and skidded. 40 Viewing the site of the accident, it is unexplained how the Respondent had gone from the medical centre to the place where she crossed from west to east near the corner of Frederick Street and Princes Highway. She herself has no recollection of the accident, having suffered brain damage. The place where she crossed was not far from the lights at the intersection. There was a zebra crossing and a pedestrian intersection at the place where Princes Highway intersected with Sevenways and Bay Street. That pedestrian intersection would have been a safe crossing, though it would have taken her longer in crossing first Sevenways and then Princes Highway further north finally crossing back across Bay Street, if that were her destination. In fact we do not know what her ultimate destination would have been. There is also a zebra crossing at the commencement of the crossing over Sevenways followed by the pedestrian intersection. 41 The Trial Judge made no mention of the fact that the Respondent appears to have rejected the safer route. The Respondent crossed when the lights (at the intersection) were green and did so over a triple lane highway that is a vehicle thoroughfare. The Trial Judge makes no mention of the fact that the layout of the pedestrian crossings should have indicated that the place chosen to cross was a more dangerous place to cross than the pedestrian crossings, though the latter may have been less convenient in terms of proximity. 42 The only known eye witnesses to the accident was the Appellant who gave evidence and Mr George Tsipiras. The latter made a statement to the police at Hurstville on 14 July 1996 (Blue, 849). He describes that he himself was driving in a northerly direction along Princes Highway, Rockdale at the time being in the middle lane of the three northbound lanes and approaching a set of traffic lights which were red outside the Ambulance Station and then changed to green. He describes that after he passed the Ambulance Station he was doing approximately 60 kilometres per hour behind the small light coloured car, the owner of which has not been identified ("the unidentified car"). This car was approximately 50 metres in front of Mr Tsipiras' car. He described continuing in a northerly direction towards the intersection of Sevenways at Rockdale where there were parked cars on the left-hand lane up to the hotel. He describes how "as the car in front of me approached the hotel, I saw a lady start to cross the Princes Highway". 43 He continues, "I first saw the lady she was in the process of crossing Princes Highway from my left to right. At the time she was in between a walking and running pace. I did not see her until she was near the lane markings that divide the inside lane to the middle lane, because of the parked cars." 44 I should note here that being some 50 metres behind and in the centre lane, it is not unreasonable to conclude that the parked cars would, to begin with, have obstructed his vision, at least partially. 45 He continues, "the car that I was following braked heavily, as I saw smoke coming from the front tyres, the driver swerved to the left to avoid the lady as the driver had already passed the parked cars. At this stage I slowed down as I was closing in on the car in front of me. The lady did not react to the car in the middle lane, but continued to cross the highway in the same manner. The next thing that I saw was that there was a silver commodore station wagon in the lane on my right-hand side [the Appellant's car] when I first saw the commodore station wagon it was near the rear of the car that braked heavily and swerved to the left." 46 He then describes the actual collision with its heavy impact: "The next thing that I saw was the lady appear in front of the commodore. The brake lights on the commodore came on and the front dipped as if it was under sudden braking. I saw the front of the commodore hit the lady on her right side. After hitting the front of the car the lady rolled onto the bonnet and hit the windscreen. She was thrown into the air and landed back onto the bonnet and she roll (sic) onto the roadway as the commodore had stopped. The lady landed in the right-hand lane but was close to the lane markings that divide with the middle lane." 47 He confirms that the traffic travelling in the northern direction was very light, while the traffic travelling in the southerly direction was extremely heavy; Blue, 851. 48 In relation to Mr Tsipiras' evidence, it is significant that he confirms in cross-examination that "it is not until the lady is really into lane 3 [where the collision occurred] that suddenly the Commodore hits the brakes"; Black, 489. Accepting that evidence, which is not inconsistent with the Appellant's account that he saw her "about the middle of the middle lane", it supports that he did not see her earlier and applied the brakes when collision was unavoidable. 49 Second, he confirms as to the small sedan being the unidentified car: "Q. The car that was in front of you, the small sedan, it was obvious when it was performing this manoeuvre? [the manoeuvre being to hit the brakes] A. Yes.
Q. To miss the lady closer to the lady than the commodore was at that point of time; A. That's correct." Black, 489X to 490C 50 He explains that the unidentified car "swerved and went round the lady"; Black, 498, being at that stage in lane 2. 51 Finally, he clarifies that "hurrying" was an apt description of being faster than a walking pace but not a running pace; Black, 490P-S. 52 From this evidence, the Trial Judge after noting that the Respondent was not emerging between parked cars (where visibility would be constricted) but attempting to cross the highway at a point to the north of where the last vehicle was parked, concludes as follows: "I am unable to infer on the evidence that the emergency response of the unknown driver was entirely the result of the conduct of the plaintiff. It may well have been made necessary by simple failure to keep a proper lookout by the unidentified driver until an emergency response was called for, but the importance and significance of the behaviour of the unidentified vehicle is that it occurred, and its conduct was plainly visible to Mr Tsipiras and ought to have been plainly visible to the defendant had he had his wits about him. The tragedy of the occasion was that the defendant did not have his wits about him, doubtless as a combination of the effect of the alcohol which he had consumed and probably his lack of sleep and proper nutrition in the 24 hours prior to the accident. Exhibit 4 and the viva voce evidence of the defendant make compelling reading. In my judgment the only fair inference from the experience is that Mr Jones' driving talents were so dulled and distorted by the alcohol which he had consumed that he was only vaguely aware of his surroundings as he drove north on the Princes Highway. His unawareness extended to his completely failing to see the plaintiff entering upon the carriageway or seeing the dramatic incident which occurred in relation to the plaintiff and the unidentified vehicle up ahead and to the left of him." Red, 60 Appellant's and Respondent's Competing Contentions 53 The Appellant takes issue with the suggestion that the unidentified driver in the second lane who had braked and swerved to avoid the accident had failed to keep a proper look out until an emergency response was called for, because in implying that the unidentified driver was negligent by inference the Appellant was even more negligent. 54 Thus the Appellant contends that the Trial Judge failed to take into account that the Respondent moved from behind a line of parked cars, at no time was observed to stop on the kerb before commencing to cross the road, did so at a speed between a walk and a run from the moment she left the kerb, and importantly, "failed to appreciate that drivers do not react instantaneously, but there is a lag between the perception of a danger and reaction thereto", citing as an accepted reaction time in such a situation, 1.5 seconds. The Appellant concludes, relying on his expert Mr Foley, "assuming a 'hurrying speed' for the Respondent of 2 metres per second (see Jamieson Foley report Blue, 409 at para 5.2), the driver in the second lane did extraordinarily well to avoid the Respondent, and there is no basis for a finding that he failed to keep a proper look out. His need for an emergency response was entirely due to the conduct of the Respondent."; Orange, 33. 55 The Appellant also takes issue with what is attributed to the Trial Judge, namely that the Trial Judge "seems to assume that the Appellant's vehicle was in a similar or the same position as that of Mr Tsipiras, and therefore his reaction should have been the same. … the undisputed evidence of Mr Tsipiras was that the Appellant's vehicle was near the rear of the car in the second lane …"; see Orange, 33, para 29 and 35, para 33. 56 But it is difficult to see how anything in the Trial Judge's reasoning involved that assumption. The Trial Judge can be taken to have been aware of the relative position of the two vehicles and in any event, given that the undisputed evidence was that the Appellant's vehicle was near the rear of the car in the second lane, it is clear that the Appellant had a fraction more time to react than did the unidentified driver who successfully avoided an accident. 57 However, the Appellant acknowledges that, "the fault on the part of the Appellant was that he failed to react quickly enough, and that he failed to observe the emergency braking of the vehicle in the second lane. Nevertheless he did see the Respondent when she was in the centre lane … . Had the Appellant not been affected by alcohol he would have applied the brakes earlier, and even if he had hit the Respondent, would certainly not have hit her with the same force." 58 Given this concession by the Appellant, it appears there is still a difference between the conceded position of the Appellant and the finding of the Trial Judge earlier quoted. It is this. The Appellant does not in terms concede that had he been sober, with his wits about him, he would not have hit the Respondent at all, though he does concede he would not have hit her with the same force. It is however not entirely clear that the Appellant means to make that distinction; see Orange, 35 at para 33P and Red, 60R. 59 The other areas where, despite the concession made, the Appellant challenges the findings of the Trial Judge, is in relation to when the Appellant should have first been expected to see the Respondent, when heading towards an intersection controlled by traffic lights but without a pedestrian crossing. The Appellant contends that to require that the driver in those circumstances "should be looking towards the kerb, rather than to his or her front is to impose an unrealistic level of care", citing Derrick v Cheung (2001) 181 ALR 301. The Appellant refers to the Respondent emerging from behind a line of parked cars and that the Appellant's vision "was also obscured by the vehicle in lane 2, which was between him and the Respondent". 60 To this the Respondent responds, by relying upon the swerving of the unidentified car immediately in front, this should have alerted the Appellant to the presence of the Respondent. Also, the Respondent relies upon the movement of the Respondent towards and onto the roadway where her pace should have been a sufficient trigger to bring her into the foveal (peripheral) vision of the Appellant; Black, 757D, evidence of Mr Moir, the Appellant's expert at Black, 757E and earlier at 756W. 61 Mr Moir for the Respondent, gave evidence that the Appellant should have then taken some action, be it release of the accelerator or movement of the right foot towards the brake and continued to have monitored the Appellant (Black, 756W to 757C). This was put on the basis that the Appellant had ample time to avoid colliding with the Respondent based upon this monitoring (Black, 757K). 62 Mr Moir also gave evidence to the effect that if the Appellant's attention was not triggered by the Respondent's movement onto the roadway, it should have been triggered by the braking and evasive movement of the other unidentified car; Black, 756; Blue, 763H, asserting that even at this stage the Appellant had ample time either to brake to stop, or to swerve, to avoid the Respondent; Blue, 763J. This is particularly if sober; Black, 761Q. 63 Mr Moir concluded that the swerving movement would not have required the Appellant to head towards the Respondent while in lane number 2 as there was still time to accomplish this when the Respondent was already in lane number 3; Black, 773G. 64 Mr Moir's evidence as to vision was that a normally alert driver is looking at the road ahead but his peripheral vision also extends beside him. His foveal vision is ordinarily concentrated on where he is steering to. His attention is not directed to the periphery unless something occurs, a strong stimulus, such as a visual stimulus which is stronger than all other stimuli. Thus here, the moment the car beside him braked heavily, its nose dropping, smoke coming up, he should have detected this and the Appellant's focus should have moved towards the stimulus. If his attention was not attracted by this, then nothing was going to attract his attention; Black, 769I to W. 65 The Appellant takes issue with this evidence, first on the asserted basis that the Trial Judge did not adequately or at all, indicate why he preferred the opinion of Mr Moir to the Appellant's expert Mr Johnston of Jamieson Foley & Associates. 66 But at Red, 61H, the Trial Judge indicated why he did prefer the evidence of Mr Moir rather than Mr Grant Johnston of Jamieson Foley, referring to the latter in this passage. "He at the time of qualifying himself did not have the benefit of some of the police photographic material which was given in evidence and in my opinion, the facts of cross-examination upon his reconstruction denied the validity of the theory that he had espoused for the purpose of the criminal proceedings. I prefer the analysis of the accident propounded by Mr Geoffrey Moir qualified by the plaintiff, and I am satisfied from his evidence on the probabilities that had the defendant not been intoxicated, he would have had ample notice of any emergency arising from the plaintiff's choosing to cross the carriageway at the time that she did and ample opportunity to stop his car before the collision occurred. Further, the defendant's state of intoxication was such that he had fallen into a state of tunnel vision where he was not reacting to anything other than the colour of the traffic lights at the intersection which he was approaching. Had the defendant reacted timeously he could have avoided the collision by a combination of breaking and, if necessary, deviating to the left. This conduct of the defendant establishes the negligence pleaded." 67 The Appellant points out in response that the absence of the police photographs had no effect on Mr Johnston's opinion and this is correct. It is also said that the cross-examination of Mr Johnston did not lead to any withdrawal by him of his opinion. Finally, it is said that "His Honour failed to deal with the rather spirited criticism of the report of Mr Moir contained in Mr Johnston's second report of 17 October 2001 [Blue, 936]. So it is said that apart from anything else, His Honour failed to deal with the inconsistency between fundamental elements of Mr Moir's theory and the direct evidence of Mr Tsipiras (Transcript, Black, 487, lines 50 to 54)." I shall return the two reports later. 68 Finally, as regards contributory negligence and the challenge to the Trial Judge's apportionment, the Appellant's submissions take issue with the conclusion of the Trial Judge that, "it is speculative that the somnolent state that the plaintiff was in whilst in the medical centre, caused as it may well have been by an adverse reaction to rohypnol, was the cause of the error of judgment that the plaintiff committed in assaying (sic) to cross the carriageway, at a time when she ought to have realised that there were two vehicles proceeding on her right which would either have to slow down or to stop, to permit her free passage across the carriageway." Resolution of the Apportionment Issue 69 It is convenient at this stage to return to the Trial Judge's findings, to view them as a whole. Then I recapitulate the principal grounds of attack on the Trial Judge's apportionment, before turning to the two expert's reports. I do so in order to determine whether, within the undoubted constraints applicable to appellate review of apportionment in contributory negligence, the Trial Judge's apportionment based on his assessment of the evidence and the two reports can and should be disturbed. The Trial Judge's findings 70 To recapitulate. The Trial Judge made a number of findings in reaching his assessment of culpability. In relation to the liability of the Appellant, His Honour held that "the Defendant's driving talents were so dulled and distorted by the alcohol which he had consumed that he was only vague [sic] aware of his surroundings as he drove north on the Princes Highway. His unawareness extended to his completely failing to see the Plaintiff entering upon the carriageway or seeing the dramatic incident which occurred in relation to the Plaintiff and the unidentified vehicle up ahead and to the left of him" (Red, 60).
The Trial Judge rejected evidence of the Defendant's (Appellant's) expert witness as to accident investigation and re-construction Mr Johnston. Mr Johnston was retained for the Appellant's criminal trial. His hypothesis was that even a sober driver could not have avoided the accident. His Honour was of the view that the evidence that the expert gave and the cross-examination upon his reconstruction denied the validity of the theory advanced. This led His Honour to conclude that he preferred the analysis of the Plaintiff's expert, Mr Moir (Red, 61). 71 The Trial Judge stated that he was satisfied on the balance of probabilities that had the Appellant not been intoxicated he would have had ample notice of an emergency arising on the carriageway at the time and an ample opportunity to stop the car before the collision occurred. The Appellant's state of intoxication was such that he had fallen into a state of tunnel vision where he was not reacting to anything other than the colour of the traffic lights at the intersection (Red, 61). 72 In relation to the culpability of the Plaintiff the Trial Judge noted that in the period 5 to 10 minutes before the accident the Plaintiff had been to a medical centre on the corner of Bay St and the Princes Highway at the Sevenways intersection. While present at the medical centre the nurse attending to the Plaintiff, Nurse McLeod, was concerned about the Plaintiff's condition and called for an ambulance. Ambulance Officer Callum Dickson attended the medical centre to treat the Plaintiff. The Plaintiff had admitted at the medical centre to have taken Rohypnol that day. The nurse and ambulance officer described the Plaintiff as being in a somnolent state at the time. The ambulance officer suggested that the Plaintiff attend hospital. The Plaintiff became aggressive and refused to go with them (Red, 62). 73 The Trial Judge concluded that "having studied the evidence presented by the Defendant, [he] was firmly of the view that it is speculative that the somnolent state that the Plaintiff was in whilst in the medical centre, caused as it may well have been by an adverse reaction to Rohypnol, was the cause of the error of judgment that the Plaintiff committed in assaying to cross the carriageway" (Red, 62-63). 74 The Trial Judge concluded that the Appellant had demonstrated that the Plaintiff, in essaying to cross at the time she did, was guilty of want of care for her own safety that amounted to contributory negligence in the circumstances. He assessed contributory negligence in the proportions earlier set out. Appellant's challenge 75 The focus of the Appellant's challenge to the assessment of culpability is that the Trial Judge failed to take adequate account of the Respondent's departure from the standard of care imposed on the Respondent as a pedestrian, to take care for her own safety. The Appellant admits that he was in breach of his duty of care as a driver. I now consider in more detail the four bases or grounds of challenge, before turning to the two experts' reports. First basis for challenging apportionment: Influence of a substance 76 The first challenge to the apportionment of contributory negligence is in relation to the Trial Judge's finding that the Respondent was not under the influence of any substance when she attempted to cross the road. Counsel for the Appellant contended that this finding was wrong and contrary to the evidence. 77 The Appellant points to a range of evidence which would support a contrary finding. In particular the Appellant submits that the behaviour of the Plaintiff in continuing to attempt to cross the road in the same manner following the heavy braking and swerving action of the unidentified vehicle was "extraordinary, unless the Respondent was so under the influence of a substance that she was substantially unaware of her surrounding" (Orange, 30). 78 Second, the evidence of Nurse Mcleod and her concern for the Respondent's well being (in calling the ambulance) was indicative that the Respondent was significantly affected by some substance (Orange, 31). 79 Third, the evidence of ambulance officer, Callum Dickson indicated that at the time he saw the Respondent, some 5-10 minutes before the accident, the Respondent was under the influence of some substance (Orange, 31). In addition the Respondent had told him that she had taken four Rohypnol tablets that day. 80 Fourth, there was evidence led from Dr Helen Daucey a pharmacologist, which set out the affects of Rohypnol and that the Respondent's alleged usage was well in excess of the amount recommended to treat insomnia (Orange, 31). The Appellant submits that the Trial Judge did not have regard to the fact that Rohypnol is a benzodiazepine, which the Respondent has had a history of abusing. The Appellant submits that in view of such compelling evidence, the Trial Judge's finding that it was mere speculation that the Respondent's adverse reaction to the Rohypnol was a causal factor in her decision to cross the road (Orange, 32) cannot stand. Second basis for challenging apportionment: Appellant's driving ability 81 The second challenge made to the Trial Judge's apportionment was that the inferences that the Trial Judge drew from the facts about the Appellant's driving ability were not open on the evidence. In particular, the Appellant submits that on the evidence before the Court there was no basis for the finding that the Appellant was at fault because he had not seen or detected the Respondent commencing to cross the road (Orange, 35). It was submitted that this finding was based on an erroneous assumption that the Appellant would have had the same line of vision as the witness, Mr Tsipiras. The Appellant submits that there was no evidence to support such an assumption (Orange, 35). Third basis for challenging apportionment: Adequacy of reasons 82 Then the Appellant submits that the Trial Judge did not give adequate reasons as to why he preferred the opinion of the expert retained by the Respondent, Mr Moir. Fourth basis for challenging apportionment: Inconsistency in standard of care imposed 83 Finally, whilst adhering to the earlier submissions, the Appellant submits that the Trial Judge imposed too a high a standard of care on the driver and was too favourable to the Respondent. The Appellant in summary indicates that the Respondent failed to take reasonable care for her own safety and caused the emergency situation (Orange, 37-38). The Appellant submits that if there were liability, the apportionment should have been 65% to the Respondent and 35% to the Appellant (Orange, 38). Respondent's submissions in response 84 The Respondent submits that the Trial Judge's assessment was not in error and that the Appellant has failed to establish that the Trial Judge did make an appellable error warranting this court to re-assess contributory negligence. The Respondent points to the fact that the Appellant has not sought to challenge what it regards as the central finding of the Trial Judge, that the Appellant was unfit to drive because of his state of intoxication. It was on this basis and after considering the experts' reports, that the Trial Judge concluded that the Defendant was more culpable for the accident than the Plaintiff. In addition, the Respondent submits that the Trial Judge's findings about the state of the Plaintiff at the time of the accident and her poor decision of crossing the road at that time were open to His Honour. The Respondent submits that the Trial Judge was entitled to consider that the causative potency of the Appellant's driving of the vehicle, in combination with the Appellant's significant breach of duty in driving at all in the state he was in, justified the apportionment of liability 75% against the driver and 25% against the pedestrian. Resolution of argument - the competing Expert's reports 85 To successfully obtain a review of such a discretionary finding, an Appellant must show that the Trial Judge made an error because he or she acted on a wrong principle, acted on extraneous or irrelevant material, mistook facts or failed to take into account a relevant consideration or took into account an irrelevant one. The Trial Judge's assessment of a just and equitable apportionment of the respective liability of plaintiff and defendant is afforded considerable latitude. The first two challenges to the apportionment are based on arguments which seek to establish that, first, the Trial Judge did not take relevant material evidence into consideration and second that the judge acted on wrong principle in relation to the standard of care of a driver and that of a pedestrian. 86 In his judgement, the Trial Judge stated that he rejected the evidence of the expert retained by the Appellant as he believed that the evidence in the case disproved his hypothesis. Insofar as that conclusion is based on the evidence of witnesses, the challenge faces the conventional constraints on appellate review. While the statement of reasons for rejection are relatively brief and do not elaborate in any detail the grounds for finding that that theory was disproved, I conclude that an analysis of the evidence of the expert witnesses affords a sufficient basis for the finding made by the Trial Judge. 87 The Jamieson Foley Traffic Engineer's Report of 2 October 1996 written by Mr Grant Johnston was prepared for the Appellant's defence in relation to criminal charges arising from the accident (Blue, 912; Black, 621E-J). Mr Johnston prepared a letter in relation to his first report and in reply to Mr Moir's report dated 17 October 2001 in which he addresses some of the criticisms of his first report (Blue, 936). Mr Johnston reiterates the basic hypothesis of the first report and that the report had been prepared for the criminal matter. 88 The general hypothesis posed was that even a sober driver confronted with the same circumstances as the Appellant would have been unable to take any action to avoid the impact with the Respondent (Blue, 925; Black, 621H-J). The Report contends that the primary causal factor in the incident was the Respondent's action of crossing the roadway (Blue, 925). Mr Johnston considered that the Respondent was fortunate to have not been hit by the unidentified vehicle in lane 2 (Blue, 928). The unidentified vehicle formed a "view obstructor" in relation to "inter-visibility" between the Appellant and the pedestrian (Blue, 928; Black, 688U). In Mr Johnston's opinion, the Appellant was only able to see the Respondent when the unidentified vehicle broke and swerved and that the Appellant reacted in a reasonable amount of time, that is within 1.5 seconds of viewing the Respondent and commenced braking before impact (Blue, 924; Black, 667V-668O). In these circumstances, Mr Johnston was of the view that when the Appellant was first able to see the Respondent on the road, the impact and accident was imminent and unavoidable. Mr Johnston contended that the view of the Respondent was impeded by the unidentified car and that the accident was unavoidable irrespective of whether the Appellant was affected by alcohol (Blue, 936). 89 As there were limitations in the extent of the available evidence, analysis of the accident was predicated on various assumptions: that the vehicles in lane 2 and lane 3 were positioned in the centre of their respective lanes (Blue, 923); that the Appellant was travelling at approximately 55 km/h before the accident (Blue, 922; Black, 664N); that the braking of the car had slowed it to a speed of between 40 and 45 km/h at the time of impact with the Respondent (Blue, 922; Black, 661F); that the Respondent was crossing the road at a speed of 2.0 metres per second (Blue, 923; Black, 665T); and that the Respondent was crossing the road at a 90 degree angle (Blue, 936; Black, 692K-M). 90 In contrast, the report of Geoff Moir and Associates of 27 August 2001, written by Mr Geoff Moir, was prepared for the civil case for the Plaintiff (Blue, 762). Mr Moir presented a number of scenarios that sought to show that the pedestrian was within the Appellant's peripheral field of vision for a considerable time before the collision and that there were a number of options open to a driver in the Appellant's position to avoid the collision or at the very least to minimise the damage to the Respondent. 91 In an overview of the accident, Mr Moir noted that the impact between the car and the Respondent was severe and that the severity of the impact and the damage to the car indicated that the Appellant had not slowed his car by any significant margin before impact (Blue, 763). (That is supported by Mr Tsipiras' evidence earlier noted (Black, 489) and not inconsistent with the Appellant's account.) Mr Moir accepted that the Appellant had been travelling at a speed of 55 km/h (Blue, 764) before the accident. But he considered that the severity of damage could not support a conclusion that the emergency braking commenced by the Appellant when he actually sighted the pedestrian had slowed the car to a speed of 35 to 45 km/h (Blue, 767). Rather the evidence of the single skid mark and the damage to the Respondent and the car indicated an impact speed of 55 km/h (Blue, 767). 92 Another aspect of the Jamieson Foley report of which Mr Moir was critical, was the conclusion that the Respondent only became visible at a time when the collision was imminent and unavoidable. In contrast Mr Moir posited that the Respondent would have been visible to a driver in lane 3 as she was clearly within the peripheral vision range of a driver (see below for explanation). Then that, although the unidentified vehicle may have somewhat obstructed the view temporarily, the action of the unidentified driver in braking heavily and emergency swerving should have "pre-alerted" a driver in the Appellant's position to the impending emergency (Blue, 768). 93 The main hypothesis of this report was that a sober, normally cautious and responsive driver would have been capable of reasonably responding to this emergency in a way that would have avoided impact with the pedestrian. The Appellant had a number of options open to him to avoid the incident, including braking to bring the car to a halt, as well as the ability to brake and then swerve around the Respondent in the same way that the driver of the unidentified car had done. Mr Moir also considered the contention that the accident was unavoidable. He contended that had the Appellant braked conscientiously upon seeing the unidentified car brake and swerve, such braking would have dramatically slowed the speed of the car and that the drop in speed would have substantially reduced the impact energy and force responsible for injuring the Respondent (Blue, 775). 94 The assumptions underpinning this formulation include: that the half cone of vision of a normal driver is 37 degrees and that when the Respondent was at the kerb about to commence her crossing she would have been at an angle of 12 degrees (Blue, 769; Black, 757O-S); Mr Moir asserted that a normal cautious driver would have been pre-alerted by this activity and would have, if not commenced braking, removed his or her foot from the accelerator and covered the brake (Blue, 771; Black, 756W-757D). Mr Moir, thus asserted that a driver who had taken heed of the warnings given would have been able to react in a period of 0.3 to 0.5 seconds and thus could either have stopped the vehicle, or braked and then swerved to avoid impact (Blue, 771). It was also asserted that it was likely that the Appellant's concentration as a driver was diminished and that his field of vision may have been reduced because of the consumption of alcohol (Blue, 769). It was suggested that the Appellant may have succumbed to extended eye dwell such that his ability to detect and then to respond to activity at the side of the carriageway may have been below that of a normal driver (Blue, 769). It was also suggested that because of the level of his blood alcohol concentration, the Appellant's ability to make a correct decision as to the best course of evasive action and then to implement it may have been impaired (Blue, 769). Mr Moir was prepared to accept that the Respondent, as she crossed the road, may have been moving at a maximum speed of 2.0 m/s, but that more realistically, the range of speed was between 1.5 m/s and 2.0 m/s (Blue, 767). To support this view, Mr Moir pointed to the possibility that, although the Respondent may have appeared to be hurrying because of her possible state of intoxication, her gait may have been inefficient (Blue, 767). 95 The most significant points of difference between the accident reports led by the Respondent and the Appellant related to the amount of time in which the Appellant would have been able to detect the Respondent entering and moving across the laneways, the likely reaction time of the driver and what would have been an appropriate evasive response. Mr Johnston and Mr Moir pose altogether different views of the ability of the Appellant to detect the Respondent. Mr Johnston was of the view that the time of exposure was limited to immediately before the accident when the unidentified car swerved from lane 2. In contrast, Mr Moir's opinion was that the Respondent would have been visible to a driver in lane 3 when she was at the kerb because the angle that she would have been at would have been within the ordinary range of peripheral vision. Second he posited that she would have been visible through the unidentified car, even though there may have been instances in which visibility was obstructed and that she then again became visible when the unidentified car swerved (Blue, 768). Mr Johnston's report states that it would have been difficult for the Appellant in lane 3 to have seen the pedestrian at the kerb and that the drivers in lane 2 would have had a better view (Blue, 938). This issue of when the ordinary prudent driver would have first detected the pedestrian in the position of the Respondent is crucial. These scenarios are based on assumptions as to facts about the speed at which she was walking and the angle at which she crossed the road. 96 The reports also differ on what would be a reasonable reaction time in the circumstances. Mr Johnston posited 1.5 seconds as a reasonable reaction time from when the Appellant first detected the Respondent after the driver of the unidentified vehicle reacted (Black, 676M-R). Support for such a time was said to be found in various experimental test results and their application to the circumstances here, contending that the response required in this case was complex (Blue, 939). In contrast, Mr Moir adopted a reaction time of 0.3 to 0.5 seconds upon seeing the pedestrian. The reasoning behind the adoption of this reaction time can seemingly be found in one of Mr Moir's criticisms of Mr Johnston's time: "The reaction time of … the Jamieson report … failed to allow for the very much shorter reaction time that was appropriate for a driver who was already braking or who had the foot on the brake pedal in readiness for braking. The 1.5 second reaction time was quite inappropriate for a driver mentally and physically prepared to respond to a possible emergency." [Blue, 771] 97 Thus underpinning Mr Moir's shorter reaction time is the conclusion that a prudent driver in the position of the Appellant would have sighted the pedestrian and have been aware of, or "pre-alerted" to, the possibility of the impending emergency (Black, 753M-P). In Mr Johnston's report the key assumption he makes in this regard is that the prudent driver was unaware of any impending emergency and had not detected the pedestrian until after the unidentified car had swerved. 98 The Respondent claims that Mr Johnston's reaction time of 1.5 seconds was inappropriate and not in conformity with the Olsen study quoted as support for this figure (Summary of Evidence of Geoff Moir prepared by Respondent). In contrast, Mr Johnston for the Appellant contended that the reaction time of 0.3 to 0.5 posited by Mr Moir was flawed for this case, as it was a reaction time for response to a simple stimulus and not for reaction to complex events (Blue, 939; Black, 674H). 99 The third point of departure in the reports is the likely responses that were available to avoid or at the very least minimise the danger. Mr Johnston contended that because of the circumstances created by the Respondent and that the driver's view of her movement across the road was obstructed, there was very little that could have been done to avoid the accident. Mr Johnston contended that the action of the driver in applying the brakes to slow the car was the only available response and that as the Appellant had done this he had taken all steps that were available to him at that point (Blue, 941). Important to this conclusion were the two previous points concerning a 1.5 second reaction time and that the Appellant could only have become aware of the Respondent after the unidentified car had braked heavily and then swerved (Black, 676M-R). 100 As Mr Moir's report is based on opposing assumptions, not shown to be unreasonable, about reaction times and when the driver should have been alerted to the Respondent's conduct, his conclusion greatly differs. He concludes that there were a number of alternate courses of action. He contended the options available could have easily avoided the accident or curtailed the damage to the Respondent. Mr Moir supposed that there would have been sufficient time for the Appellant to have safely brought the car to a halt or that he could have performed a manoeuvre where he braked and then swerved much in the same way that the driver of the unidentified vehicle had done. Finally he posed that even if the Appellant had only seen the pedestrian at the last moment, he should have been alerted to the danger by the action of the unidentified driver and should have been able to slow the car to a much slower speed thereby reducing the magnitude of the impact. 101 Based on this consideration of the evidence, it is clear that the Appellant has not shown that the finding reached by the Trial Judge accepting Mr Moir's conclusions over those of Mr Johnson was not open on the evidence. This does not settle the matter however. It is still necessary to consider whether the apportionment made by the Trial Judge is beyond challenge. 102 The Trial Judge was firmly of the view that it was mere speculation that the effects of an intoxicating substance were a cause of the Respondent's actions in crossing the road. However, I agree with the Appellant's submission that the mental condition of the Plaintiff and her ability to make a sensible and rational judgment were relevant to assessing whether she had departed from the standard of care expected of the reasonable pedestrian. The evidence of both Nurse McLeod and Ambulance Officer Callum Dickson was that the Respondent was intoxicated by some substance and that there was a considerable effect on her degree of mental alertness. Second, the fact that the Respondent had told the witnesses that she had consumed a number of Rohypnol tablets and her history of benzodiazepine abuse is indicative that it was more than mere speculation that the Respondent's intoxication contributed to her choosing to cross the road in the manner that she did. In making the assessment as to the Respondent's mental condition at the time of accident it was necessary to take into account the clear statements by witnesses as to the state of the Respondent immediately prior to the accident as well as her past history of benzodiazepine abuse. In failing explicitly to refer to this evidence the Trial Judge was in error. 103 However, to intervene, this Court must be of the view that the failure to advert to relevant evidence led to the Trial Judge's apportionment of liability falling into error of the kind warranting appellate intervention. To make such an assessment it is important to consider more closely the Trial Judge's apportionment. 104 Podrebersek (supra) holds that in making an assessment of contributory negligence it is necessary to consider, for both Plaintiff and Defendant, their respective shares of culpability by considering the relative culpability of each and the causal potency of the acts which caused the damage. Thus as a starting point the degree of departure from the standard of care of the reasonable driver and pedestrian must be considered. Then it is necessary to look to the relative importance of the acts of the parties in causing the damage. 105 In assessing the relative culpability of the Respondent, the starting point is that the Trial Judge found that the Respondent had been negligent is attempting to cross the road in the manner that she had. From the eye-witness evidence it is apparent that the Respondent acted in an unreasonable manner and that she acted without due regard for her own safety. The Respondent elected to cross the road in an area that was not marked for pedestrian crossings, she attempted to cross a major arterial road either by running or hurrying, she continued to cross the road even though another vehicle had to brake and swerve to avoid a collision and the Respondent should have seen the approaching vehicles. The Respondent's actions involved a clear departure from the standard of care expected of a reasonable pedestrian to take care for his or her own safety (Tuebner v Humble (1963) 108 CLR 491 at 502; Schieb v Abbott (1999) 27 MVR 285 at 288; Clarke v Freund 1999 (29) MVR 361). 106 However, as was correctly identified by the Trial Judge the Appellant's degree of departure from the standard of care expected of the reasonable driver was also significant. The Appellant elected to drive his car while in an intoxicated state which rendered him wholly unable to drive lawfully; the Appellant failed to detect the approaching pedestrian and he failed to take appropriate measures in reaction to the actions of other road drivers. It is well established that a driver is not expected to anticipate all irrational acts of other drivers and pedestrians. Yet in this case, that does not alter the fundamental finding that the Appellant's conduct was admitted to be negligent; that it involved serious departure from the standard of care expected of a reasonable driver as he drove his vehicle while heavily intoxicated, and that he could and should with reasonable care have avoided the accident. 107 The issue of causal potency is one which here raises significant questions. The causal potency of the Respondent hurrying on to the road should not be understated. The submission of the Appellant's counsel that the Respondent's action of crossing the road was the immediate cause of the action is undoubtedly true. However, the action of the Appellant in driving a motor vehicle while intoxicated and unable to comply with the standard of care expected of a driver at all, was no less a cause of the accident and the consequent damage. Counsel for the Appellant directed the Court's attention to a number of cases in which the pedestrian has been held to be more culpable than the driver. Noting the cautionary principle from Teubner v Humble (supra) at 503 concerning the inappropriateness of using other decisions on apportionment as a guide and that the cases referred to did not involve such consistent and serious departures from the standard of care by both the driver and the pedestrian, I do not consider they offer any real guidance for the present case. 108 However, I do consider that, the Trial Judge nevertheless erred significantly in his assessment of apportionment, even allowing the high degree of latitude which should properly be afforded to that determination, more especially in matters of apportionment. I consider in consequence that despite the strictures on appellate intervention in such a case, the apportionment does not reflect the substantial degree of culpability of the Respondent for the accident. The Respondent had been warned by Nurse McLeod and the ambulance officer that she was not able to properly look after herself, yet she nevertheless chose to cross the road and did so in a manner which showed that she had very little, if any, regard for her own safety. The Trial Judge failed to advert to this relevant evidence. This led him into error. That culpability of the Respondent however, does not remove the impact of the serious breach by the Appellant though it reduces it significantly. In the end, I consider that the proper apportionment is one of equal responsibility and that this is one of those rare cases where appellate intervention is justified in an apportionment case. Conclusion 109 I consider that a proper apportionment of liability is 50% to the Appellant and 50% to the pedestrian. DAMAGES Introduction 110 The Appellant has attacked the damages part of the judgement on a number of bases. First, the Appellant submitted that the Trial Judge failed to give adequate reasons for his findings as to damages in favour of the Plaintiff and against the Defendant. Second, that the Trial Judge erred in not applying vicissitudes of life in relation to specific awards, owing to the fact that she has Hepatitis C. Third, the Appellant takes issue with the amounts awarded under specific heads of damages as being excessive, based on wrong principles or as not being supported by evidence. In the event that this Court decides that the Trial Judge did err in the assessment of damages, it is then necessary to consider whether there is sufficient material available for this Court to reassess damages, or whether a new trial should be ordered. The Appellant presses the former. The Respondent, while defending the original damages determination submits that if it is not to stand, then a new trial should be ordered. I will return to that issue later. This will be in light of the degree to which, if at all, the trial judge's assessment of damages must be disturbed and, if it is to be disturbed, the capacity of this Court to assess damages for itself and the desirability of doing so. 111 The Appellant contests the amount awarded by the Trial Judge under a number of heads of damages. These are: the Griffiths v Kerkemeyer (1977) 139 CLR 161 award in relation to past, future and vacation care; house modification; taxi transport; handyman assistance; economic loss for past and future years, superannuation and long service leave; future medicals; and the need for a case manager. 112 Before considering the Trial Judge's award and reasons and the submissions put by the Appellant and Respondent, it is necessary to consider the nature and scope of the duty of this Court to review factual findings made at first instance in the context of a damages award. It is trite law that an appellate court should act with restraint when considering whether to interfere with findings based on a Trial Judge's assessment of the credibility of a witness, more especially when it comes to damages. The mere reading of the transcript and the written reasons of the Trial Judge cannot replace the advantages enjoyed by the Trial Judge in assessing the witnesses during the course of a trial: Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; Jones v Hyde (1989) 63 ALJR 349; Rosenberg v Percival (2001) 205 CLR 434. An appellate court ought not interfere with credibility findings, here basing a damages award, unless satisfied that the Trial Judge palpably misused the advantage of seeing and hearing the witnesses or that the advantage could not be sufficient to explain the Trial Judge's conclusion: Abalos v Australian Postal Commission (supra) at 178-179; Devries v Australian National Railways Commission (supra). The Court may interfere if it determines that the Trial Judge's findings are inconsistent with, or are glaringly improbable having regard to, incontrovertible evidence: Agbaba v Witter (1977) 14 ALR 187. However, the appellate court is not excused from weighing conflicting evidence, while giving full weight to the advantages enjoyed by the trial judge and drawing its own inferences and conclusions; Warren v Coombes (1979) 142 CLR 531; State Rail Authority of NSW v Earthline Construction (1999) 73 ALJR 306, per Kirby J at 324. 113 In cases such as the present where the Court is asked to review the specific factual findings of the Trial Judge which underlie the discretionary determination of damages, the Court will not interfere with the primary factual findings if the findings made were reasonably open on the evidence: see for example Damberg v Damberg [2001] NSWCA 87; Williams v The Minister for Aboriginal Land Rights Act 1983 and the State of NSW [2000] NSWCA 255. In Williams v The Minister for Aboriginal Land Rights Act 1983 and the State of NSW (supra), Heydon JA delivering judgment for the court gave a detailed exposition of the law in this area. Many of his comments have particular application here, as the Appellant is seeking the Court to undertake a detailed review of all of the evidence in the case. Heydon JA held at [60] that the Appellant "bore the burden in the appeal not merely of showing that on the facts her contentions might be available or even correct, but of showing that the Trial Judge's conclusions ought to be reversed". Heydon JA then favourably referred to the Full Federal Court decision of Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 369 where it was held: "... the court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the Trial Judge and do not support the judgment. The court must be satisfied that the judgment of the Trial Judge is erroneous and it may be so satisfied if it reaches the conclusion that the Trial Judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the Trial Judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made." 114 In dismissing the appeal in Williams v The Minister for Aboriginal Land Rights Act 1983 and the State of NSW, Heydon JA highlighted that the Appellant's approach was inadequate to warrant appellate court interference with the judgment at first instance. The impugned approach was characterised by His Honour as [61]: "The Plaintiff's approach sometimes invited the court to survey for itself, afresh, all the evidence on particular points and arrive for itself at particular conclusions about them, without essaying the necessary task of positively demonstrating that the Trial Judge was wrong. The Plaintiff's approach also paid insufficient regard to the difference between, on the one hand, pointing to difficulties in the Defendants' path of establishing matters which they wished to contend for and, on the other, pointing to sufficient evidence to permit an inference to the contrary of the Defendants' contention". 115 Heydon JA then favourably quoted from Biogen Inc v Medeva plc [1997] RPC1 at 45 per Lord Hoffman: "The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la [vérité] est dans une nuance ), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation. It would in my view be wrong to treat Benmax as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved." 116 Thus it is clear that for the Appellant to succeed it is necessary that the Appellant demonstrate more than that there were alternate findings (which this Court may or may not prefer) available. The appellant must demonstrate, positively, that the Trial Judge in making the findings that he did was wrong. Thus in the analysis of the grounds of appeal and the arguments put in support, it is important to bear in mind the need for the Appellant to establish error warranting appellate intervention and not merely that there was evidence which may support alternate findings. 117 Moreover it is important to emphasise that such a damages appeal is an appeal from an exercise of discretion by a judge, whose wrongful exercise must be shown, in accordance with well established principle in House v the King (1936) 55 CLR 499 at 504-5, Gamser v Nominal Defendant (1977) 136 CLR 145; 13 ALR 387; Wilson v Peisley (1975) 7 ALR 571; 50 ALJR 207; Miller v Jennings (1954) 92 CLR 190; Wilkes v Bradford Kendall Ltd (1962) 79 WN (NSW) 850 at 853; Moran v McMahon (1985) 3 NSWLR 700 at 716-21. Though Kirby P in Fuller v Galvin Incorporated, SCNSWCA, 7 April 1995, sought to qualify the latitude thereby afforded to the Trial Judge's assessment of damages, as merely akin to the review of an exercise of judicial discretion, his minority view was not reflected by either Mahoney JA or Powell JA. Indeed the latter emphasised: "That such value judgments are involved to my mind dictates the approach which one must adopt to a case such as this, for, in making of such judgments, there is room for a great variation of approach, and the fact that one may differ from the judgment under appeal does not demonstrate error - error will only be demonstrated if the judgment under appeal is shown to contain one or other of the features referred to in the well-known Judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, 504-5 " Whether reasons for damages findings adequate? 118 The most significant challenge to the damages judgment was that the Trial Judge did not give adequate reasons for his findings as to damages in favour of the Plaintiff and against the Defendant. From this central challenge most of the remaining grounds of appeal in relation to the damages award flow. 119 The Appellant submitted that His Honour accepted all of the submissions put on behalf of the Respondent, without qualification as to damages, except for two claims. The first rejection was in relation to the supposed need for a computer and the second the supposed need for future spinal surgery. The Appellant contends that the approach adopted by His Honour was in error in that he failed to analyse the evidence of expert opinions, in particular where there was conflict in the evidence of the experts. Then it was said that he gave insufficient reasons for the conclusions which were drawn. The Appellant characterised the approach adopted by the Trial Judge in the written submissions thus: "41 His approach was to review some of the clinical records from the St George Hospital and the Liverpool Brain Injury Unit to set out the findings of Dr Drummond, the Respondent's treating orthopaedic surgeon, to refer to his own observations of the Respondent in court and to review the evidence of Messrs Sengos and Frost insofar as it related to the Respondent's behaviour. His Honour then accepted the opinion of the medical practitioners called on behalf of the Respondent and rejected those called on behalf of the Appellant. He made no analysis of the conflicting expert opinions. He made no analysis of the conflicting lay observations." [Orange, 39] 120 The Appellant submitted that there was no specific reference to any of the evidence, expert or lay or video, which the Appellant had called in his defence. The Appellant then goes on to list what it describes as the resulting deficiencies in the judgment: no attempt to reconcile the discrepancies in evidence of Messrs Sengos and Frost; no attempt to analyse the precise nature of the Respondent's brain damage and explain her consistently high scores in the neuropsychological testing (Orange, 40). 121 The Appellant submitted that the Trial Judge erred as the reasons given were not sufficient to indicate why only certain evidence was accepted and why the other evidence had been rejected. 122 In reply, the Respondent contends that the Trial Judge did give reasons for his rejection of the Appellant's case and in particular the rejection of the Appellant's experts. The Respondent submits that the Appellant's evidence was rejected because the Trial Judge found that the Respondent suffered and continues to suffer severe impairment. He based this on the lay witness evidence and his own observations of the Respondent during the course of the trial, concluding that this "clear picture" was at odds with the views presented by the Appellant's experts and in the Appellant's case. This interpretation of the judgment is based upon the finding in the judgement, where the Trial Judge held: "In my judgment all of the opinions of the experts in this case have got to be evaluated against what I find to be a very clear picture of the Plaintiff's performance since the subject accident …The evidence of the Plaintiff's two male companions over the years since the accident is the touchstone that advises the court of the extent of her needs. In my judgment she cannot exist effectively without a companion…" [Red, 19]
and "I record that in arriving at the … finding I am accepting as sound the opinions of Doctors Buckley and Lorentz and Ms McMaster and I decline to accept the views of the experts retained by the Defendant to the extent that the conflict with the above views" [Red, 20]. Failure to gives reasons at law 123 The failure to give adequate reasons may be an error of law, entitling the court to set aside a judgment or part of a judgment and either determine the matter for itself or remit the issue for retrial pursuant to its power under SCR Pt51 r23. In Beale v GIO (1997) 48 NSWLR 430 Meagher JA discussed the consequences of inadequate reasons. His Honour held that it did not necessarily follow that because the reasons for a decision are inadequate an appellable error has occurred. His Honour held, "where no reasons have been given in the circumstances where there was an obligation to provide reasons or where the reasons given are so inadequate as to constitute a miscarriage of justice … the statement of reasons must be looked at as a whole and the material inadequacies identified and considered" (at 444). 124 There are a number of principles which govern the duty to give reasons. Meagher JA in Beale v GIO (supra) discussed these obligations in detail. While there is no doubt that a judicial officer has an obligation to provide reasons for the judgment given, the more difficult question is how extensive must be the reasons, in order to discharge that duty. Because the obligation is a matter of judicial duty and normally, but not universally, an incident in the exercise of judicial power (per Meagher JA at 441) the answer is, what is required to fulfil the purpose of giving reasons. That purpose is multifaceted. Giving reasons may operate prophylactically on the judicial mind; enhance judicial accountability; have an educative effect; save time in the appellate courts; and above all serve justice. For a failure by a Trial Judge to provide adequate reasons for a decision can lead to a real sense of grievance that a party does not know why it has lost nor understand the decision that has been made: Meagher JA at 442. 125 After reviewing authority on this issue, Meagher JA distilled three fundamental elements for an adequate statement of reasons, while noting that the obligation is contingent on the nature of the case. First, the judge should refer to relevant evidence, but need not do so in detail. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the Trial Judge, then an appeal court may infer that the Trial Judge overlooked it or failed to give consideration to it (see North Sydney Council v Lygon (1995) 87 LGERA 435). Second, a judge should set out any material findings of fact reached. The obvious extension of the first principle is that where findings of fact are not referred to, an appeal court may infer that the Trial Judge considered the finding to be immaterial. A judge must say how he or she comes to accept the evidence of one witness over the other. That is not to say that the Trial Judge must make explicit findings on each disputed piece of evidence or make findings on every argument and destroy every submission. Third a judge should provide reasons for making the relevant findings of fact and conclusions and reasons for applying the law to the facts found. "Those reasons or the process of reasoning should be understandable and preferably logical as well.": at 443. 126 In Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247, Kirby P was of the view that the judicial obligation to give reasons and not frustrate the legislative facility of appeal on a question of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. "Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done.": at 259. However when a Trial Judge decides a question of fact, where no appeal lies against the factual finding "[W]hat is decisive is that his Honour's judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact"; McHugh JA in Soulemezis (supra) at 282. Clearly not all evidence is of equal importance in reaching a finding of fact, a point recognised by Spigelman CJ in TCN Channel Nine Pty Limited v Henry Alfred Anning [2002] NSWCA 82. The duty to give reasons and expert evidence 127 A critical issue to this appeal is whether the Trial Judge gave adequate reasons for the conclusions reached, particularly in dealing with the expert evidence in the case. There was considerable medical expert evidence led by both sides in report form as well as in oral testimony, as to the general competence and capabilities of the Plaintiff. The Trial Judge accepted the expert evidence for the Plaintiff. He said he regarded it as supportive of the view that he as Trial Judge formed in relation to the Plaintiff based on his assessment of her throughout the course of the trial and based on the evidence of her two successive companions. It is necessary to consider whether such treatment of the expert evidence was adequate. 128 In TCN Channel Nine Pty Limited v Henry Alfred Anning (supra), Spigelman CJ considered whether the Trial Judge failed to fulfil the obligation to provide reasons as her Honour did not indicate the basis on which she came to prefer the evidence of the Respondent's experts. Spigelman CJ held that it was not necessary for all evidence to be referred to in the judgement. However, the rejection of the expert evidence was critical to one aspect of the case. The failure to refer to the expert evidence indicated a failure to consider it. His Honour concluded that such a failure in those circumstances would be an error of law requiring a new trial. The need for reasons there depended on the criticality of the expert evidence in the way the evidence unfolded. In the present case, the Trial Judge in the way the case unfolded preferred relatively consistent lay evidence that was the product of direct and extended observation of the Plaintiff, as against expert evidence purporting to be predictive (as to future need for extra care). This was because the latter was not based on direct and extended observation, and there was conflict between the two sides' experts. 129 Likewise in the United Kingdom Court of Appeal Henry LJ in Flanery v Halifax Estate Agencies [2001] 1 WLR 377 stated that the scope of the duty of the Trial Judge to provide reasons is dependant on the nature of the case at hand. Where reasons, analysis and expert evidence is advanced by both sides it is however necessary that the Trial Judge "enter into" the issues canvassed and explain why one case is preferred over the other. In that case Henry LJ was of the view that the failure to refer to some of the expert evidence gave rise to appellable error, as the Trial Judge was under a duty to supply reasons in the form of a coherent rebuttal of the expert evidence that was not accepted. 130 This judgment has been referred to favourably by this Court in subsequent cases. In Moylan v The Nutrasweet Company [2000] NSWCA 337, the Court of Appeal was required to assess whether the Trial Judge's reasons were adequate in a case which was very lengthy, had significant complexities and experts reports. Sheller JA, giving judgment for the court, undertook a lengthy analysis of the judgment and highlighted a number of problems of approach in the first instance judgment. Relevantly for this case, Sheller JA held that "a short statement of conclusions does no justice to the detail and range of epidemiological evidence tendered by the parties": at [61]. His Honour expressed support for the view that when there is a dispute for which there has been an intellectual exchange, the judge must enter into the issues and provide explanation for why one case is preferred over the other: at [66]. Sheller JA criticised the Trial Judge's approach and held that it was inadequate merely to recite the evidence without engaging with it: "…Bruce J did little more over nearly two hundred pages than recite or copy out submissions by the parties and state conclusions based, so it was said, on the acceptance of the evidence of Professor Roy….Bruce J did not in any sense enter into the issues, which were canvassed before him, or explain why he preferred one case over the other." 131 Thus it is clear that it is not sufficient in cases where there is complex and contradictory evidence presented by the opposing sides, where acceptance or rejection of that evidence is critical to one aspect of the case, for the Trial Judge merely to assert that he or she accepts one case in preference to the other. Neither is it appropriate in such a case for the Trial Judge simply to adopt it, either through verbatim recitation of evidence or by merely saying "I adopt it". Where such express evidence goes to issues that have required resolution by reference to it, the Trial Judge must enter into and engage with that evidence and explain why a specific conclusion has been reached. The content of the statement of reasons as well as the degree of detail and elaborateness of reasons is not predetermined, but rather is contingent on the issue and its centrality to the case. 132 With this principle in mind it is necessary to consider the adequacy of the Trial Judge's reasons for damages. 133 On the issue of the assessment of damages, each side presented a number of expert reports on both the Plaintiff's degree of disability, her general level of functioning and what support services would be required to help the Plaintiff achieve an acceptable quality of life. As to her needs, the Trial Judge rejected outright the experts' opinions of the Appellant when they differed with the Trial Judge's own assessment of the Plaintiff and with his assessment of the direct evidence from her two companions, Messrs Sengos and Frost. He based his award of damages for past and future care on his favourable assessment of the Plaintiff's experts. 134 The Trial Judge did state, without great elaboration, why he accepted the experts' reports adduced by the Plaintiff. He said "In my judgement all of the opinions of the experts in this case have got to be evaluated against what I find to be a very clear picture of the plaintiff's performance since the subject accident. Nobody doubts for a moment that the plaintiff requires a degree of care, and the major argument in this case is about what that degree should be. The evidence of the plaintiff's two male companions over the years since the accident is the touchstone that advises the court of the extent of her needs. In my judgement she cannot exist effectively without a companion. In the two periods to date when that companionship did not exist, the plaintiff clearly entered a downward spiral of deterioration in the quality of her life. Mr Sengos in evidence advanced the belief that part of the mechanism that led to his break up with the plaintiff was that the move from Arncliffe to the Central Coast which exposed him to much longer hours in work travel, and thus deprived the plaintiff of his more extended company, was something which stressed her considerably. It is crucial in assessing the need for care of the plaintiff to ignore any claim of competence by the plaintiff personally and any aspirations on her part which conflict with the true picture presented by Messrs. Sengos and Frost. The profound brain damage combined with her underlying proud battling nature make such claims by her risible." 135 That process of reasoning is legitimately open. The Trial Judge can reasonably say, on a matter as difficult to predict as future needs, where one expert's view is well able to be contradicted by another and was, that he prefers the direct lay evidence of her two successive companions more especially as one of those had the advantage no expert had of seeing her both before and after the accident. He was also entitled to rely on his own observations. That said, it is still the case that the inferences drawn by the Trial Judge are not immune from appellate intervention, but with proper recognition of the advantages of the Trial Judge in observing the Plaintiff and the witnesses. Such intervention is not however based on lack of sufficient stated reasons, but rather that the inferences were not soundly based. 136 There are, however, further areas in which the Appellant has alleged that there were insufficient reasons, or a failure to engage with the evidence or issues. I take each in turn. That His Honour failed to deal with the issue of the Plaintiff's actual cognitive abilities and in particular her consistently high scores on neuropsychological testing 137 The Appellant submitted that the Trial Judge failed to deal with the issue of the Respondent's actual cognitive abilities other than to say that the Respondent suffered from profound brain damage. The Appellant submitted that this was inadequate, as a real issue in the case was the extent of the Respondent's brain damage and the effects that it had on her ability to function on a daily basis. This issue arose because the neuropsychological testing which the Respondent undertook indicated that she had cognitive abilities within a normal range although her speed of processing information was slow, which was at odds with the evidence led by the Respondent at trial. The Appellant submits that the argument, that the results were high, because of the practice effect on the Respondent, should be rejected because of the consistency of the results from the earlier testing. (Orange, 58-59) 138 The Respondent's high test scores and her cognitive ability in test situations were raised in the following reports: Dr Buckley (Blue, 31, 33, 41-43) Dr Batchelor (Blue, 81-90) Ms Farelly (Blue, 630) Dr Matheson (Blue, 817) and Dr Rawling (Blue, 859-883). The nature of this evidence is at extreme variance with the experts retained by the Respondent generally positing that the high test scores were caused by the "practice effect" due to the high number of such tests she had previously undertaken. In contrast, the experts retained by the Appellant rejected the practice effect as a complete explanation of the high test scores and considered that the Respondent's cognitive functioning was generally within normal ranges. 139 Clearly then, the Trial Judge was faced with a clear conflict in the expert evidence, on a matter which I consider not susceptible of a precise answer; namely the extent of the deleterious effect of her accident on her ability to cope in daily life. 140 Counsel for the Respondent submitted that the issue of the Respondent's performance in psychometric testing was of "no real significance" there being "no dispute that the Respondent is brain damaged and needed care". (Orange, 76). The issue was, I agree, really the extent of care needed. The Respondent submitted that the critical issue in this case was how the brain-damaged individual performs in the real world. Here I agree that the Trial Judge was entitled to rely predominantly on the lay evidence of her two companions who had observed her daily, as against such testing and what predictions it would allow (Orange, 76 and see also 74). The lay evidence of the two witnesses was, as I explain, essentially to the same effect (though Mr Frost tended more to the dramatic) and its cogency such that it was open to the Trial Judge to rely on it, rather than upon conflicting expert opinion on a matter not susceptible of ready prediction from mere test scores possibly affected by practice. Failed to adequately or at all resolve the conflict between the observations of Mr Sengos and Mr Frost as to the Respondent's ability to manage and her level of disability 141 A further criticism of the judgement by the Appellant is that the Trial Judge did not recognise or seek to resolve the divergence and conflict in the evidence of Mr Sengos and Mr Frost, with the Trial Judge "assuming" that their evidence was to the same effect (Orange, 52). 142 The Appellant submitted that Mr Sengos lived with and observed the Respondent "at her worst when she was discharged from hospital." He lived with her for some five months up to the accident in May 1996, and thereafter for a further three years, so could observe the extent of her recovery, compared to pre-accident. His evidence was that, with time, there were gradual improvements. Following the break up of his relationship with the Respondent, Mr Sengos appeared to have considered that the Respondent could function on her own with him visiting her two or three times during the week (Orange, 52). The Appellant further submitted that the problems identified by Mr Sengos were in the nature of housekeeping and ambulation problems and not the sort of safety issues which Mr Frost identified (Orange, 52-53). In contrast, the Appellant submitted that the evidence of Mr Frost was "far more dramatic as to safety issues, and frequency of occurrence" (Orange, 53). 143 In reply the Respondent submitted that the Trial Judge was not required to deal with the issue of discrepancy in evidence as there was no major conflict. In further submissions handed up in Court, the Respondent in tabular form effectively demonstrated by reference to the transcript that the evidence of Mr Sengos and Mr Frost raised similar concerns pertaining to the Respondent's temperament, memory, food preparation, housework and walking. The general thrust of this submission is that the two witnesses both shared common concerns for the Respondent's ability to manage on her own and that at times both attested to her having acted in ways that may have placed her safety at risk. I agree with that submission, though accepting that Mr Frost's evidence as the companion from August 2000 tended to be a little more inclined to emphasise risk to her safety than Mr Sengos. But I consider the divergence between the two was more of occasional emphasis, that it did have that limited degree of divergence enhanced rather than detracted from its credibility. In my judgment the Trial Judge was not required to choose one witness as against the other, as their degree of difference was not of that order. Nor (it follows) was there any failure to give reasons for choosing one as against the other, given the substantial similarity of their evidence. 144 The Trial Judge accepted Mr Sengos as a truthful witness. His credibility was enhanced by his ready recognition that there was a significant degree of improvement from the immediate position after she first returned home, where Mr Sengos attested to her need for care of up to four hours per day (T, 174.23) to a reduced number of hours of around three per day six months later (T, 176.15). By November 1998, the need for care was around two hours (T, 185.25). 145 Mr Frost's evidence as the companion from August 2000 was that the Respondent had difficulty with coping with ordinary household tasks and that she was often unsure of how to handle potentially life threatening situations, (compare Sengos at Black, 187X; 188A-G; 188X; 187K-N, 266P-R; 182T and Frost at Black, 287N; 287W-288D; 279I-280E; 282U). I accept that the Trial Judge was entitled to use the evidence of Mr Sengos supported by Frost as crucial in his assessment of the capacity of the Respondent in carrying out ordinary activities and to rely on it rather than trying to resolve which expert to believe. The more understated Mr Sengos gave clear evidence about continuing household difficulties for the Respondent, which had repercussions for her safety, such as filling an iron with lemonade. There was also her failure to keep the home clean. The Trial Judge was entitled to give that weight. Treatment of expert evidence 146 In various places the Trial Judge stated that he "adopted" specific reports as part of his judgment. At no stage did he explicitly refer to the content that was accepted and adopted, nor did he explicitly canvass the opposing reports and state why the report adopted was preferred. The report adopted was the Respondent's report from Furzer Crestani which involved an overall costing the particulars of the Plaintiff's claim (Blue, 676), item by item. 147 The Furzer Crestani report was prepared by chartered accountants retained by the Plaintiff's solicitors. The purpose of the report was to provide a basis for a damages award based on the Plaintiff's claims, expert medical and other reports obtained by the Plaintiff in the preparation of the case, and evidence of lay witnesses that the Plaintiff was going to call in support of her case at trial. Accordingly, the report is based on the Plaintiff's as yet unchallenged claims and unchallenged supporting evidence that had not yet been tested in court by cross examination. This costing was based on the particulars of damages provided in the particulars of the claim in the first amended Part 9 Rule 27 statement filed on 15 August 2001. 148 The Appellant submitted that there were two bases for attacking the Trial Judge's approach. First, is the general criticism that it is inadequate to merely adopt one expert's opinion as the basis for part of the judgment without an analysis of the competing experts' opinions. A difficulty with this argument is that the Furzer Crestani report was prepared as an overview by accounting experts. The Appellant did not supply their own assessment of these figures, such that was even open for the Trial Judge to accept a competing comprehensive report. However, when one considers the nature of the Furzer Crestani report it is obvious that the calculations are based on the Plaintiff's claim, opinion of the medical experts retained by the Plaintiff (and not just the lay witnesses) and the unchallenged evidence of lay witnesses who were to be called as witnesses in the case at trial. Accordingly, acceptance of the Furzer Crestani report involves implicitly accepting the medical opinion of experts retained by the Respondent against which there was a considerable amount of conflicting opinion in the expert medical evidence that was to be led by the Appellant at trial. 149 While on balance I would not treat that acceptance as fatally undermining the Trial Judge's determination of the damages amounts, it certainly opens the door for the Appellant to attempt to demonstrate that particular amounts allowed are so large and unsubstantiated or insufficiently substantiated as to fall outside the latitude properly applicable to a discretionary determination of damages. 150 I turn now in the next section of the judgement, to consider the appeal grounds pertaining to specific heads of damages. However I do so, first by determining if there be appellable error. That necessarily precedes any consideration of consequences, new trial or otherwise. A. Griffiths v Kerkemeyer - past, future and vacation care 151 The Trial Judge noted that due to the Plaintiff's injuries, it was not doubted that the Plaintiff required care. The major issue was the degree of care required (Red, 75N). This statement adequately reflects what was in issue in the appeal. The crux of the Appellant's complaint is that the degree of care allowed by the Trial Judge was excessive in the specific circumstances of this case. 152 In assessing the appropriate degree of care the Trial Judge held "all of the opinions of the experts in the case have got to be evaluated against what I find to be a very clear picture of the Plaintiff's performance since the subject accident" (Red, 75M). The Trial Judge, as I have said, gave great weight to the evidence of the Respondent's two male companions, Messrs Sengos and Frost as to the limitations the Respondent faced on a daily basis and their evidence, which he expressed himself able to confirm from his own observation, regarding her temperament. He found the evidence of both witnesses to be credible. In considering the care needs of the Respondent His Honour spent a significant portion of the damages judgment reviewing their evidence with references to specific incidents which occurred that indicated that the Respondent was not able properly to care for herself or perform a number of ordinary household tasks without problem. His Honour concluded that "the evidence of the Plaintiff's two male companions over the years since the accident is the touchstone that advises the court of the extent of her needs. In my judgment she cannot exist effectively without a companion" (Red, 75P) and earlier, that "she has been converted into a person who is incapable of achieving an independent existence" (Red, 71I). Moreover, she "has become a person who is subject to violent and irrational outbursts that make it highly improbable that any person will be able to live with her on a one to one relationship within marriage or otherwise" (Red, 71J). 153 His Honour concluded that an allowance of 6 hours care per day for 7 days a week and a full-time carer on an annual vacation represented the minimum reasonable provision. In doing so His Honour explicitly rejected all of the opinions of the experts that stated that the Respondent required less care. He did so on the ground that anything less than the allowance given would not "fully compensate the Plaintiff for incapacity to function independently or protect her fully from the dangers that her orthopaedic disabilities and her brain damage expose her to" (Red, 76C). In addition His Honour ignored the Respondent's claim to competence as it was in conflict with what he saw as the true picture given by her two companions, Messrs Sengos and Frost and concluding that the Plaintiff suffered profound brain damage. (Red, 75V). 154 The Griffiths v Kerkemeyer award of damages is divided into three components. First, there was an award for past care of $83,204. Second, there was an award for future domestic care of $995,526. Third, there was an allowance of $207,425 made for the Respondent to have a full time carer for an annual vacation of four weeks duration. The Appellant has grounds of appeal in relation to each of these components. Past Care 155 The Appellant submitted that His Honour failed to explain how he arrived at the figure of $83,204 for past care, as he simply accepted the calculation of the accounting experts in the Furzer Crestani report (Blue, 676). 156 Additionally the Appellant submitted that it was improper for the Trial Judge to adopt a report without entering into the issues, the second issue raised by the Appellant. Finally, the Appellant contended that the assessment of past care was in any event excessive. This is because some of the tasks and activities that were claimed in the first amended Pt 9 r 27 statement would have been performed by them in any event. The first amended Pt 9 r 27 statement claims for gratuitous services, such as cooking and cleaning, performed by Messrs Sengos and Frost when they were living with and caring for the Respondent. The Appellant submitted that some of the tasks indicated as a basis for the claim were not performed solely for her benefit and would have been carried out irrespective of the Respondent's condition. The Appellant submits that the failure of the Trial Judge more critically to interrogate these claims meant that the provisions of s72(6) of the Motor Accidents Act (Act) were neglected. Section 72(6) of the Act provides: "No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured in the accident." 157 The Appellant highlighted that where cooking and other domestic activities would have been provided gratuitously in any event, a plaintiff is not entitled to compensation: Van Gervan v Fenton (1992) 175 CLR 327. The Appellant submits that the only view open on the evidence of Messrs Sengos and Frost was that some of the activities that they undertook for the Respondent, whilst they were living with her, would have been undertaken in any event and that some of the activities while benefiting the Respondent were also for their own benefit. Evidence supportive of this argument can be found in the oral testimony of Messrs Sengos and Frost where each refers to cooking meals for the Respondent and Mr Sengos refers to undertaking various domestic duties such as cleaning, shopping and housework (Sengos at Black, 178P-X; Frost at Black, 287W-288D). In the written submissions the Appellant submitted that an alternate award of $75,000 for past care was appropriate. 158 In reply, the Respondent submitted that the figure arrived at by the Trial Judge was open on the evidence and his approach of accepting the Furzer and Crestani report was appropriate. Although there was evidence to support the Respondent's claim for the need for future care, the Respondent's submissions on this point did not challenge the central argument of the Appellant that the Trial Judge failed to have regard to s72(6) of the Act. 159 The evidence referred to by the Appellant does show that some of the activities carried out by the Respondent's carers was carried out not just for the Respondent's benefit. Nevertheless, other aspects of this evidence indicate that the Respondent required considerable assistance with her personal care and grooming and that she had great difficulty with many household tasks, as well as difficulties in undertaking ordinary activities such as travelling on public transport and shopping. However, in these circumstances, the Appellant has shown that the Trial Judge erred in failing to explicitly consider the s72(6) provisions of the Motor Accident's Act as he did not consider whether certain assistance would have been provided in any event. Clearly, some cooking and domestic assistance by the Respondent's domestic partner would have been provided in any event. The Trial Judge's failure to specifically advert to this statutory limitation on damages led his decision on damages for past care into error. 160 A second problem with the assessment of damages for past care is evident in the method of calculation of damages employed in the Furzer Crestani report. In the report it is stated: "4.5.2 The level of gratuitous care provided to the Plaintiff from the date of the accident is outlined in the statement of particulars.
We have utilised the hourly rates referrable to the New South Wales Average Weekly Total Earnings of Full Time Adults." [Blue, 682] 161 This indicates that the assessment is not based on the value of the services required by the Respondent as there was no attempt to give an accurate market value to the nature of the gratuitous services provided. Undifferentiated average weekly earnings are not an adequate proxy. Such an approach to the assessment of damages for gratuitous services is incorrect. In Van Gervan v Fenton (supra), Mason CJ, Toohey and McHugh JJ at 333-334 held: "The true basis of the Griffiths v Kerkemeyer claim is the need of the Plaintiff for those services provided to him or her …. Once it is recognised that it is the need for the services which gives the Plaintiff the right to an award of damages, it follows that the damages which he or she receives are not determined by reference to the actual cost to the Plaintiff of having them provided or by reference to the income forgone by the provider of the service … Because the market costs of the services is ordinarily the reasonable and objective value of the need for those services, the market costs, as a general rule, is the amount which the Defendant must pay as damages." 162 From the particulars claimed, the services gratuitously provided were in the nature of general housekeeping and to some extent untrained medical aid. As such, it was inappropriate to assess the value of these services by reference to New South Wales average weekly earnings. A correct assessment would involve reference to the hourly commercial rates for the services provided. 163 For the above reasons it is clear that the Trial Judge erred in the assessment of damages for past gratuitous care. I deal with the consequences later. Future Care 164 The future care allowance is a significant proportion of the total damages awarded. The amount allowed was $995,526. This segment of the award was based on the Respondent requiring 6 hours care per day for the rest of her life. The fees assessed were the commercial rates for a carer of $600 per week (Monday to Friday) and $315 per weekend. The Appellant challenges this award and submits that a far smaller allowance should have been made. The basis of the Trial Judge's assessment of the future care needs was that he considered that the Respondent was incapable of functioning independently and he used the evidence of her two male companions as the basis for the assessment. The 6 hour per day regime was put forward in the evidence of Dr Buckley, Dr Lorentz and Ms McMaster. 165 The Appellant has submitted that the figure for future care is excessive as it involves professional assistance for an amount of time far in excess of that which the Respondent had previously received. The Appellant submitted that the oral testimony of Dr Buckley and Ms McMaster revealed that the nature of the care which they envisaged the Respondent required was not so much care that required another person to do things for Ms Bradley. Rather it was supervisory care underpinned by a rationale that "someone should be with the Respondent in case something went wrong" (Orange, 49W). The Appellant's case at the trial, which was supported by expert opinion, medical assessments and observations of the Respondent, was that the general level of functioning of the Respondent was within normal limits. Nevertheless the Appellant did concede that some care was required, but that the level of that care was at a significantly lower level than that posited by the Respondent. The experts called by the Appellant were of the view that drop-in visits were appropriate. In the Written Submissions, Counsel for the Appellant stressed that the legal criterion for determining appropriate care is "what is reasonably required to satisfy the need created by the injury", with the law not imposing any obligation to provide the optimum degree of care. 166 Second, the Appellant submitted that His Honour did not refer to the Respondent's pre-trial, post-accident state, where she effectively functioned without a high degree of care regime. The Appellant emphasised that there were medical opinions which recommended that it would be in the Respondent's best interests that she do as much as she could for herself. 167 A third problem was said to be that the Trial Judge tended to treat the evidence of Messrs Sengos and Frost as mutually consistent and supportive when it was not. The Appellant submitted this was an incorrect approach to take as there were significant discrepancies and differences between the evidence of the two men, and in particular Mr Sengos' evidence was not as "dramatic" as Frost's as to the safety issues confronting the Respondent living independently. The Appellant's argument was that the evidence of the two men could not be used as support or a basis for the claimed amount of care. I have earlier said that I do not accept that submission. Their evidence was overall consistent. 168 Counsel for the Respondent submitted that the award of damages for future care should not be interfered with as it was based on the Trial Judge's "clear understanding of the Respondent's post accident predicament and its continuance into the future" (Orange, 74R). The finding of the Trial Judge, it was submitted, was based upon His Honour's reliance on the observations of those in day-to-day contact with the Respondent. The Respondent submits that the real question, and the proper question which the Trial Judge answered, was how the Respondent, being a brain-damaged individual, would perform in the real world. That evidence was provided by Messrs Sengos and Frost and the Trial Judge accepted that evidence. Thus the Respondent submitted that the finding of the Trial Judge was open on the evidence and that it was insufficient to interfere with the Trial Judge's award on the ground that a differently constituted court would take a different view of the evidence. 169 In reply to the argument that the Trial Judge did not consider the Appellant's evidence, the Respondent submitted that His Honour did have regard to the body of evidence, which can be seen from his statement "after due consideration, I reject all opinions from the experts that would reduce the need below the particularised claim" (Red, 76 see also Orange, 79J). The Respondent continues that the His Honour gave explicit and adequate reasons for rejecting the Appellant's expert evidence as he "did not consider that those expert witnesses fully appreciated the extent of the Respondent's condition or what would be an appropriate level of care." 170 To assess whether the Trial Judge erred in his assessment of the Respondent's future care needs it is necessary to consider the evidence of this claim in totality. At trial there was three categories of evidence led. First, there was considerable expert medical opinion on the capabilities and limitations of the Respondent. Second, the Respondent's two previous domestic partners, Messrs Sengos and Frost, gave evidence of the Respondent's daily life and the effects of her disabilities on her capacity to function effectively. Third, the Respondent herself gave evidence of her competence. In relation to this evidence of the Respondent the Trial Judge was cautious in its treatment as he regarded certain aspects of the Respondent's personality would lead her to minimise the true difficulties she faced and overestimate her competence in specific areas, even though such evidence would be unhelpful to her case before the court. This assessment of the Respondent as a witness can be taken to be based at least in substantial part on her demeanour and as such is a credibility based finding, which this Court is constrained by Abalos principles in overturning. In any event neither the Appellant nor the Respondent bases the case on appeal on this point. Thus in assessing whether the Trial Judge was justified in making the findings supporting his conclusion of 6 hours care per day it is necessary to consider both the expert medical evidence and the oral testimony of Messrs Frost and Sengos. 171 The 6 hour per day care regime was supported by three medical experts called by the Respondent. Dr Buckley first proposed such a care regime was necessary in his report of 16 May 1999 and affirmed in his second report on the Respondent of 12 September 2001. Dr Buckley was of the view that the deficits suffered by the Respondent were permanent (Blue, 34D) and that she would have difficulty living completely independently (Blue, 34P). He considered that in the event that she was to live alone, there would be an impoverishment of her quality of life with respect to personal nutrition, hygiene and the maintenance of her home to an acceptable standard (Blue, 34R). For these reasons Dr Buckley was of the view that the Respondent would require the attendance of a carer or supervisor for six hours per day, seven days per week to assist with the maintenance of her quality of life in every respect. In particular he recommended that such a carer would be needed to assist in all activities including "shopping, cooking, housework and a mentally and physically stimulating program, designed to maintain mental and physical fitness" (Blue, 34W; see also Black, 215K-217C). In evidence in chief, Dr Buckley expressed the opinion that although the Respondent could survive living on her own, the sorts of deficits she suffered meant there would be "huge costs of quality of life." (Black, 214X) 172 This position was supported by Dr Lorentz in his report of 10 August 2001 and in his oral testimony, where he agreed that the Respondent required a carer or companion for at least six hours per day as she was generally unable to care for herself (Blue, 52I-J; Black, 290S). 173 A third medical opinion was proffered from Ms McMaster, an occupational therapist who visited and assessed the Respondent in her home. In the report of 11 September 2001 and in her oral testimony, Ms McMaster expressed the opinion that the Respondent required assistance for four to six hours per day to assist the Respondent in attending to her personal care; domestic tasks; as a companion for outings or appointments; to promote involvement in vocational activities; to encourage the Respondent to perform household tasks; and to assist in ensuring the Respondent maintains adequate nutrition and cleanliness (Blue, 68-69; Black, 321-328). 174 In assessing the capacity of the Respondent and what her need for care was the Trial Judge, as I have said, particularly relied on the evidence of Messrs Sengos and Frost. In addition, the expert opinions referred to information that either or both Mr Sengos or Mr Frost had given regarding the Respondent's daily activities. A brief summary of Mr Sengos' evidence was that following the accident the Respondent's personality changed with the Respondent becoming more temperamental (see Black, 166X, 180D, 179). He also noted that she had difficulty with concentrating, understanding and communicating (Black, 173J). Evidence was led from Mr Sengos about the difficulties that he had seen the Respondent encounter and her general level of competence in caring for herself. He gave examples of situations where the Respondent had been cooking but had left the food to burn, that she left electrical appliances and lights turned on, that she had difficulty preparing shopping lists, that she had damaged an iron by filling it with lemonade, she had difficulty keeping the kitchen and her home unit clean; if the Respondent was to cook while Mr Sengos was present he would accompany her in the kitchen; and that the Respondent would become disoriented if travelling to new places and would call him in an agitated state requiring directions to get home. He also highlighted that the Respondent had difficulty with personal care and hygiene. 175 Mr Frost also gave evidence about the Respondent's activities and capabilities while he was living with her. A significant component of his evidence was his concerns for her ability to function safely without support and companionship. His concern particularly in relation to safety matters was somewhat stronger than that of Mr Sengos. However, Mr Sengos' evidence did raise issues pertaining to safety concerns. 176 In contrast, the experts retained by the Appellant considered that a much lower degree of care would be required. At the appeal the Appellant conceded that 2 hours drop-in care per day would be an appropriate figure. One difficulty with this submission is that there is little evidence to support this particular figure. Dr Matheson a consultant Neurosurgeon retained by the Appellant recommended care in the nature of two visits per week for half an hour (Blue, 819W) and Dr Rawlings recommending a visit of one hour per week (Blue, 883C). These reports were prepared following assessment of the Plaintiff and did not involve an assessment which involved discussions with her two companions who were concerned about the Plaintiff's ability to cope. 177 In this case, the Trial Judge's determination was based on evidence, not just expert evidence, but also on lay witness' evidence of some cogency and on his own assessment of the Plaintiff. For the Appellant's claim to succeed the Appellant must establish not just that there was an alternate award that could have been made but that the award made was erroneous. It is clear that there was evidence to support the figure awarded. However, there were a number of relevant matters which would go to the proper assessment of the Plaintiff's needs which were not adverted to. In particular the failure to advert to the Plaintiff's actual level of cognitive functioning and that she was coping before the trial with a much lower level of care does indicate that the Trial Judge erred in his assessment of damages. Further, the failure to engage with the issues raised by the expert evidence led by the Appellant at trial is troubling. 178 Another issue raised by the Appellant was the allowance of full-time vacation care for four weeks per year for the remainder of the Respondent's life. The Appellant submits that His Honour did not specifically deal with this in the judgement other than by the general acceptance of the Furzer Crestani report. No reason was given as to why four weeks was a appropriate as opposed to a shorter period and no regard was given to the Respondent's pre-accident lifestyle in which she had not had a vacation for the last 14 years of her life. Further, the Appellant submits that the requirement of 24 hour care was not established (Orange, 57). The Appellant nevertheless concedes that some allowance should be made for vacation care with an allowance for a two week annual vacation until the Respondent is 70 being appropriate. 179 The Respondent submits that this ground of appeal should fail as the ordinary community standard for annual leave is four weeks per year and that His Honour was entitled to make such an award. 180 The assessment of the need for vacation care should take into account a range of evidence. The Trial Judge in simply adopting the assessment made in the Furzer Crestani report gave no consideration at all to the Respondent's pre-injury lifestyle in which she had very rarely taken a vacation as an adult and not since she had separated from her husband many years ago (Black, 143L-U). Consideration of such evidence is relevant to the assessment of a Plaintiff's need. That disclosed appellable error. Even though it is trite to say, it is nevertheless appropriate to stress that the focus of damages in negligence cases is to put the Plaintiff in the position that he or she would have occupied had the accident not occurred and is not independent of that, to ensure that a Plaintiff has an economically optimal standard of living. 181 I shall deal later with the consequence of this. B. House modification 182 The Appellant submitted that the allowance for house modifications was erroneous. The Trial Judge did not specifically address the issue, other than by accepting the Furzer Crestani calculations. The Appellant submitted that the head of damages was not made out on the evidence as there was no evidence that the Respondent would alter her accommodation nor was the need for an extra bedroom and bathroom made out (Orange, 44). 183 The Respondent submitted that home modifications were suggested in the medical reports of Dr Buckley and Ms McMaster and involved fairly extensive modifications to ensure that the home was appropriate for the carer who would be with the Respondent for 6 hours per day. 184 I consider that as the initial allowance was based on the purported need for a carer to attend for prolonged periods, this recommendation depends on that being made out. I have already pointed out the appellable error that, with respect, attended that prior finding. C. Taxi transport 185 The Appellant submits that the Trial Judge's assessment of $95 per week for the use of taxi transport was excessive and not supported by evidence. The Appellant submitted that the figure was arbitrary and that there was no evidence to indicate that the Respondent had used taxi transport in the years following the accident. Nevertheless the Appellant concedes that an allowance for more irregular use of taxi transport should have been made (Orange, 45). The Respondent submitted that the Trial Judge was entitled to make the allowance for taxi transport due to the nature of the Respondent's difficulties with using public transport and that there was expert evidence recommending such usage (Orange, 83). Noting that there was evidence of the Respondent having difficulty with public transport when travelling to unfamiliar locations, it was submitted that, nonetheless, such problems cannot be used as the basis for supporting such a high award. I agree this allowance ignored the fact that the Respondent has been able to function without regular use of taxis and that she can and has used public transport, in that respect failing to engage with that issue. That discloses appellable error. D. Handyman assistance 186 Again, the Trial Judge accepted the level of handyman assistance claimed by the Plaintiff by accepting the Furzer Crestani report. There was no attempt to evaluate the claim by weighing up any of the contrary evidence. The Appellant submitted that this claim was excessive and not supported by evidence. The Appellant points to the fact the Respondent has not in the past required handyman assistance of three hours per week as allowed by the Trial Judge. Second, the Appellant submits that this claim was not even supported by the evidence led by the Respondent at trial. Ms McMaster retained by the Respondent suggested that a more limited handyman regime would be required which involved differential amounts of work depending on the season. The Respondent submitted that the claim which was accepted by the Trial Judge was based on the evidence of Dr Buckley. 187 This ground of appeal must succeed as the Trial Judge did not engage with the evidence or the issue pertaining to this head of damages and the award made is unreasonable. E. Economic loss for past and future years, superannuation and long service leave 188 The Trial Judge accepted the calculation of the Furzer Crestani report with regard to the Respondent's past and future economic loss. The calculation contained in the report was based on a number of assumptions. Scenario 1 involves a calculation based on average weekly total earnings of female shop assistants from the time of the accident until a retirement age of 65. In the Furzer Crestani report past loss under scenario 1 was assessed at $115,243 and future loss was assessed at $390,469. Scenario 2 was based on the same work length time (date of accident until retirement at age 65) but was assessed according to the average weekly earnings for full time employed females. This calculation allowed $151,567 for past loss and $576,305 for future loss. Loss of superannuation was assessed at $67,515 under scenario 1 and $92,122 under scenario 2. Loss of long service leave was assessed at $2,522 under scenario 1 and $3,493 under scenario 2. The Trial Judge then averaged the two scenarios to finally determine the damages to be awarded for economic loss and reduced the figures by 30% for vicissitudes of life. 189 The challenge to these heads of damage by the Appellant is: "that His Honour's award of damages for past economic loss and future loss of earning capacity were excessive, wrong in principle, in that His Honour failed to pay due regard to the Plaintiff's past employment history, and treated as a certainty a loss which could, at best, have been only hypothetical." 190 The Appellant submitted that the approach evident in the Furzer Crestani report was to assume that by 1 July 1996, the Respondent would have obtained work at an average rate of pay somewhere between the average earnings of a female shop assistant and the average weekly earnings for women generally in Australia. The Appellant submits that this approach was wrong. This is because scenario 2 was never an appropriate hypothetical figure as it is based on female earnings irrespective of the training and so includes the income of highly skilled high earning female workers. The Appellant is of the view that at best the Respondent could only rely on the earnings posited in scenario 1 as it is "a reasonable benchmark for an untrained and unskilled person with no work experience" (Orange, 40). The Appellant submitted that the work history of the Plaintiff as well her behaviour whilst in prison were such that there was no indication that the Respondent was likely to return to the workforce (Orange, 41). The Appellant contends that in essence the Respondent only lost the chance to be employed (Orange, 41) and that the Trial Judge erred in accepting that the Respondent would have gained employment and would have remained employed until the age of 65. The Appellant submitted that to take account of this fact, the award should be reduced by 65%. 191 In reply the Respondent submitted that the Trial Judge's finding was based on His Honour's assessment of the Respondent's prospects of obtaining and continuing in employment based on his assessment of her past history and her performance as a witness. 192 In making an award for both past and future loss of earning capacity it is essential that the facts pertinent to the individual Plaintiff be considered, as such facts provide the limits and scope of any assessment. Palmer J's comment in RT & YE Falls Investment Pty Ltd v NSW [2001] NSWSC 1027 has particular application to this case: "A court must not, under the guise of compensation, award Plaintiffs a castle of marble where, if no wrong had been suffered, they would probably had but castle in the air." 193 Accordingly, in making any assessment of the Respondent's loss, it was necessary for the Trial Judge explicitly to consider the characteristics of the Respondent in the workforce. Implicit in the Trial Judge's finding is an assumption that the Respondent would have remained in employment without any break from the time of the accident until retirement. The facts of the Respondent's employment history cannot in any way be used to support such an assumption. The Respondent left high school in 1985 without obtaining any qualifications. In 1985-1986 the Respondent worked for three months as a shop assistant. In 1986 the Respondent ceased paid employment to have her first child. Since that time the Respondent has never been employed outside of the home. In the early 1990s the Respondent was in custody for 3.25 years. She had developed drug addictions. In the time since the Respondent's release from Jail in October 1995, until the accident the Respondent had been seeking employment, but had not been successful in that search. Accordingly, based on the past history of the Respondent there is no evidence which can be used to support the claim that the Respondent would have been able to secure steady and permanent employment. 194 The second difficulty with the assessment by the Trial Judge is that he accepted that she would be able to earn in excess of the average wage of female shop assistants on a permanent basis. Such a finding did not include consideration of the fact that the Respondent only has 3 months experience in such a position (although it is unskilled) and that that work experience was in 1985 and 1986. Additionally, if money handling is involved in such positions, trust by the employer is required. The fact that the Respondent has a history of criminal activities would unfortunately significantly reduce her opportunities of obtaining such employment. Further at the time of the accident the Respondent was on the methadone programme. These various factors indicate that the Respondent would have great difficulty in competing successfully in the employment market. 195 In Yip v Zreika [2001] NSWCA 446, the Court of Appeal reassessed damages for economic loss awarded to an individual who had a relatively poor employment record. In that case the Trial Judge had assessed economic loss on the basis that the Plaintiff would be employed for 42 years without break. The court considered that such an assessment was fanciful as there was little evidence to support the conclusion that the Plaintiff would have settled down and obtained secure employment. The majority of Mason P and Young CJ in Equity allowed a third of that period on the basis of the Plaintiff's sporadic work history. This analysis is apposite to this case. The Respondent's work history indicates that she would have had difficulty in obtaining employment at the rate of pay allowed by the Trial Judge and for the period of time allowed by the Trial Judge. Accordingly, this ground of appeal must be allowed; its consequence remains to be considered. F. Future medicals 196 The Trial Judge accepted the future medical calculations as set out in the Furzer Crestani report based upon the evidence to be led by the Respondent at trial. It was approximately $69,000. The Appellant points out that included in this calculation was the cost of an occupational therapist and occupational rehabilitation costs of $9,000, which would overlap with the case manager claim. The Appellant submits that although the overlap had been pointed out, it was not resolved by the Trial Judge. Second, the Appellant submits that there was no need established for knee surgery, yet the Furzer Crestani report allows for the costs of two such operations. Third the Appellant had sought to challenge the allowance made for physiotherapy claims. The Respondent had replied that the claims were supported by evidence. 197 The Appellant's claim under this head must be successful. The failure of the Trial Judge to consider those matters pertaining to this head of damage, mean that he has not entered properly into that issue. Evidence and argument was led which was contrary to that accepted by the Trial Judge and His Honour made no reference to it at all. G. Case manager 198 The Trial Judge was of the view that the Respondent would require the services of a case manager who was independent of her daily carer for two hours per fortnight. This allowance was based on the Trial Judge's acceptance of the Furzer Crestani report. The Appellant conceded that the Respondent would have some need for a case manager, but that the claim was excessive. The Respondent submitted that the allowance was based on the evidence of Dr Buckley. This ground of appeal must also be successful for the reasons previously set out. The mere acceptance of the Furzer Crestani report without consideration of the evidence and issues pertaining to this head of damage gave rise to appellable error. Vicissitudes of life 199 The Appellant claims that the Trial Judge when assessing damages should have discounted a percentage from all awards for vicissitudes of life owing to the fact that the Respondent has Hepatitis C. The essence of the Appellant's contention is that Hepatitis C is a serious disease that has potentially life threatening consequences. There is always present the possibility that the disease will become active in the future and such consequence would significantly reduce the Respondent's life expectancy and income earning capacity. The Appellant submitted that the failure of the Trial Judge to take this issue into account led to error, requiring appellate court intervention by applying a vicissitudes discount to all of the heads of damages. 200 The Trial Judge allowed a discount of 30% for vicissitudes of life in discounting the amount awarded for past income loss, future income loss and superannuation (Red, 77C). The conventional figure which is discounted for vicissitudes in NSW is 15%. The Appellant submitted that due to the Plaintiff's Hepatitis C a 15% discount for vicissitudes should also be applied to all of the heads of damages. The basis of this contention is that evidence led by the Appellant at trial was that Hepatitis C is a serious medical condition which may have life threatening consequences. The Appellant submitted that it was necessary that the chance that the Hepatis C may become active be included in the assessment of damages (Orange, 47). However, the Appellant admitted that in most cases vicissitudes are only applied to economic loss awards and not to the awards based on life expectancy as such figures are based on the life tables, which have included a component for vicissitudes. But the Appellant submitted that because there was a chance of the Hepatitis C becoming active, it must be taken into account pursuant to the principle from Malec v JC Hutton Pty Limited (1990) 169 CLR 638. The Appellant did not challenge the use of the normal life expectancy table to determine life expectancy but did contend that it was necessary that a discount apply to all of the heads of damages. 201 In "Assessment of Damages for Personal Injury and Death" Professor Luntz, comments that "apart from death the four major contingencies that exposes employees to risk of loss of income are sickness, accident, unemployment and industrial disputes.": at 381. The discussion precedes on the basis that vicissitudes relate only to awards for future economic loss. However, it is made clear that it is the circumstances of the case affects what is to be considered. 202 This may have been a case in which it is appropriate to consider the chance that the Plaintiff's disease will become active. However there was a dearth of evidence about the likely impact of hepatitis C on the Plaintiff. There was no specific expert that was called to give evidence about a likely prognosis or the nature of the chance of the vicissitudes developing. Second, the trial judge explicitly considered this in his judgment and his determination of this issue should not be disturbed. Outcome 203 The appellable errors earlier identified led to the question, what should follow: a new trial, or reassessment by this Court. 204 The Court of Appeal has power to substitute its own verdict for a judgment which it sets aside. Section 107 of the Supreme Court Act provides: "Where, in an appeal to which this section applies:
(a) the Court of Appeal would, but for this section set aside the verdict, finding, assessment or judgment and order a new trial on an issue of the amount of debt or damages or of the value of goods,
(b) the Court of Appeal is satisfied that: (i) without seeing or hearing the Plaintiff or Defendant or other witnesses, or
(ii) without seeing or hearing the Plaintiff or Defendant or other witnesses further than it has seen or heard them for the purpose of receiving evidence under section 106, it is fully able to assess the amount of debt or damages or the value of the goods on perusal of the evidence contained in the documents before it and on the facts (if any) admitted and on the facts (if any) found by it under section 106, and (c) (i) the parties consent to the exercise of the powers given by this section, (ii) it appears to the Court of Appeal to be desirable to exercise the powers for the purpose of avoiding a multiplicity of trials, or (iii) it appears to the Court of Appeal that, as a result of an error of law on the part of the Trial Judge or (where there has been a trial with a jury) a manifest error on the part of the jury, some item of debt or damages or valuation has been wrongly included in or excluded from the assessment,
the Court of Appeal may draw inferences and make findings of fact, assess the amount of debt or damages or the value of goods in such sum as in the opinion of the Court of Appeal the debt or damages or value ought to be assessed if a new trial were had forthwith and substitute that sum for the sum awarded in the Court below and give such judgment and make such order as the nature of the case requires." 205 The policy underlying this section is that the Court of Appeal should assess damages where it is satisfied that it is able to do so. However, in exercising this power it is imperative that the court is of the view that it is able to properly assess damages and that it has sufficient material for such assessment: General Insurance Office of New South Wales v Evans (1990) 21 NSWLR 564 at 577-578. Where such assessment is contingent on credibility findings, the court may not be in a position to undertake the reassessment: Emery v Wilson (1974) 28 ALJR 131 at 132 Shehata v Montague L Meyer Pty Ltd (1976) 51 ALJR 77 at 79-82; Agbaba v Witter (supra) at 506. Likewise if the evidence of witnesses is conflicting and the appeal court cannot resolve the conflict, then the matter will need to be remitted for a new trial. 206 In determining whether this is an appropriate case for the Court to reassess damages, the submissions of the parties on re-assessment should be taken into account in determining the appropriate course. A request by both parties for the appellate court to make the assessment, with its evident saving of costs as against a new trial, indicates that the parties believe that there are no questions of credibility which would prevent the court from reassessing damages and that the quantum of damages can be reassessed based on the appeal papers. If that course is urged against opposition from the other party, that requires the court to make its own assessment by reference to the matters set out in s107. The views expressed by the litigants 207 The Appellant was of the view that this was a case in which it would be appropriate for this Court to reassess damages (see Prayer for Relief 2 in Notice of Appeal). Mr Hoeben SC for the Appellant submitted that this was a case where there were sufficient errors in principle to enable this Court to intervene and without there being any real need to assess matters such as credit or otherwise being compelled to proceed by ordering a retrial for the other usual reasons why a re-hearing is ordered (appeal transcript 9 September 2002 T, 46.25-.30). 208 The Respondent resisted the adoption of such a course based on the submission that this was not a matter where it was appropriate for the Court of Appeal to reassess damages. Mr McCarthy QC for the Respondent submitted that if there needed to be a reassessment of damages, the matter should be remitted to the District Court for a new trial. It was submitted that critical to any assessment of damages would be an evaluation of the Respondent, as well as the other witnesses across many issues (appeal transcript 29 November 2002, T, 246.1-.15). This case 209 For this Court to be entitled to substitute its own verdict for that of the Trial Judge and to reassess damages for itself, this Court must have sufficient material to make such reassessment. The Respondent contends that this is a case in which it would be important for the court assessing damages to observe the witnesses as opposed to reliance on the transcript and other evidence. However, I do not consider that such reassessment requires disturbing the findings of the Trial Judge on the credibility of the Plaintiff. Nor does it require any different assessment of the two lay witnesses Messrs Sengos and Frost primarily relied upon by the Trial Judge. The errors identified go rather to the inferences drawn from the Trial Judge's assessment of the credibility of these witnesses informed by a proper engagement with the issues in those instances where the Trial Judge has failed to do so. Moreover, the supposed conflicting evidence of the two companions is minor, and readily resolved by consideration of the transcript of their evidence. In addition, I would not disturb the Trial Judge's decision not to give weight to the evidence of the Respondent as to her supposed competencies but rather to look to the two lay witnesses. 210 I am therefore satisfied, in terms of s107, that this Court can and should carry out such reassessment of damage as is necessitated by the appellable errors identified. I consider that it properly appears that it is desirable to exercise that power for the purpose of avoiding a multiplicity of trials, with their attendant additional costs. Griffiths v Kerkemeyer - past, future and vacation care 211 In relation to past care, a number of errors were identified. I consider that it is appropriate to set aside the award by the Trial Judge. I would accept the figure of $75,000 put forward by the Appellant. This figure is an appropriate award as it takes into account that some of the gratuitous services from the two male companions would have been provided in any event, thus satisfying s72(6) of the Act. 212 I consider that the Trial Judge's assessment of future care was excessive taking into account the actual performance of the Respondent since the accident and, though secondary, such of the expert evidence as bears upon that. The evidence presented from Messrs Sengos and Frost illustrates that the Respondent has genuine difficulties with household activities and preparing her main meals. The evidence established that some of the difficulties presented safety hazards for the Respondent and that the Respondent was at times ill equipped to deal with many ordinary household activities and dangers. Accordingly, I consider that it is clear that the Respondent requires daily care in the amount of three hours per day, seven days a week for the remainder of her life. On the figures accepted by the Trial Judge this equates to $497,763. 213 The allowance for vacation care also requires reassessment. I consider that the Appellant's submission on reassessment should be accepted in full, with the amount to be allowed being $47,950. There was no evidence to indicate that in the years immediately preceding the accident that the Respondent had taken a holiday nor did she have any plans to take any holidays. In view of this fact and the Respondent's pre-accident lifestyle there is no evidence to support a higher award. Case manager 214 The Appellant submitted that to some extent the services of the case manager would be a duplication of the services provided by a carer in attendance for six hours per day. This is because both Dr Buckley and Ms McMaster gave evidence that one of the services to be provided by the carer would be to facilitate, encourage and supervise the Respondent in undertaking a variety of tasks for herself. As the allowance for future care has been reduced, it would not be appropriate to alter the Trial Judge's allowance of $93,005, which was for the attendance of a case manager for two hours per fortnight. House Modification 215 I consider that the allowance for house modification should be set aside and no allowance should be given. This is because the initial allowance was based on the purported need for a carer to attend for prolonged periods. As such need has not been made out, there can be no basis to support an award for house modification. Taxi transport 216 I consider that the allowance for taxi transport is excessive considering the Respondent's post accident lifestyle and that she has made little use of taxi's since the accident. The Appellant properly conceded that because of the Respondent's mobility problems there is some need for use of taxis. As there is little evidence indicating what the average use of taxis by the Respondent would be and the fact that she has been reliant on and has access to public transport, the Appellant submitted that an allowance of $50 a week would be appropriate. It must be stressed that the fact the Respondent has not previously been using taxis should not be detrimental to her claim. There may be many reasons, not least of which is that her financial circumstances have precluded her from using such a service. I accept that there is a need for the Plaintiff to use taxi transport at times and consider that a figure of $50 per week is adequate to cover the Respondent's needs, recognising that the Respondent also has the capacity to use public transport. The allowance for this becomes $48,950. Handyman assistance 217 I consider that the allowance made by the Trial Judge for handyman assistance was unreasonably high. The amount of assistance recommended by Ms McMaster appears more reasonable in that it takes account of the varying needs of the Respondent throughout the course of the year. The allowance should be based on that assessment of need. Allowance should be made for handyman assistance based on two hours per fortnight in summer and two hours per month in winter. Based on the average assessment of the cost for such services at $22.00 per hour (see Dial An Angel Report, Blue, 728), allowance of $10,788.58 should be substituted. Economic loss for past and future years, superannuation and long service leave 218 Before the accident the Respondent had a poor employment record and at the time of the accident was trying to gain employment. In addition, she had a criminal record and was on the methadone programme. The Appellant submitted that the Trial Judge erred in rejecting the Appellant's tender of the Respondent's disciplinary record whilst an inmate of Mulawa Detention Centre. I am of the view that the Trial Judge did err in refusing to admit this record to the extent that it went to show the Respondent's rebelliousness but agree he was entitled to give it little or no weight. In the Respondent's favour however was that whilst in prison she had undertaken a TAFE typing course and a child care course and had entered a methadone programme. 219 Nevertheless even without the accident there would have been real and significant obstacles to the Respondent being able to secure long-term employment, based on her poor employment record; her period in prison and her health concerns. As the previous reasoning illustrates, the chance of the Respondent being unemployed for substantial periods of time must be taken into account in assessing economic loss. This chance may be taken into account in one of two ways. First, the vicissitudes deduction may be such as to take into account the chance of the Respondent being unemployed for periods of time. Or, alternatively, the court may take into account the likelihood of unemployment by reducing the period of time for which the Respondent can be compensated for lost income. 220 In the Court below the Plaintiff accepted that vicissitudes of 30% were required. The generally accepted level of vicissitudes in the ordinary case is 15%. It is well established that the Court has the discretion to increase or decrease the vicissitudes discount dependant on the circumstances of each case (see for general discussion, Nestle Australia Ltd v McDougall, (NSWCA, 24 June 1998, unreported). In Nestle v McDougall (supra), Beazley JA referred to cases where vicissitudes discounts of 40% have been regarded as high. In this case, the Appellant posited that the vicissitudes discount should be at 65%. The basis for this extraordinarily high vicissitudes rate is that it very likely that the Respondent would not have obtained secure employment. As submissions were not received on any alternate basis for reducing the award I will proceed to reduce damages by increasing the vicissitudes to take into account the above mentioned facts and recognising that such adjustments cannot be made with precision. I am of the view, noting both the favourable and unfavourable subjective and objective factors, that the vicissitudes in this case should have been assessed at around 50%. 221 Second, it is important to consider what the likely income rate the Respondent would have received had she gained employment. The only legitimate paid job that the Respondent previously had was working as a shop assistant. The Respondent had not been employed in that field of work for many years and so there is no information of what she would have actually expected to earn. The qualifications earned by the Respondent whilst she was in prison were some years old, would have required updating and in any event would have only offered employment at best in semi-skilled fields. Accordingly it is necessary to look for an approximate guide to the statistical average income earnings of females employed as a shop assistant. The average income used in the Furzer Crestani report, termed scenario 1 is an appropriate source of this information. Past 222 Based on the Furzer Crestani report the hypothetical past earnings forgone based on average weekly earnings of shop assistants was $115,243. This amount requires reduction by 50% to take account of the vicissitudes level assessed above and leads to an award of $57,621.50 being substituted. Future 223 The Furzer Crestani report for scenario 1 assessed future loss of income at $390,469. Applying a vicissitudes rate of 50% results in an allowance of $195,234.50 being substituted. 224 Applying this reasoning to the award for lost superannuation, the relevant allowance to be made is $33,757.50. The award for long service leave is $1,261. Future medicals 225 I consider that the Trial Judge's allowance of $68,473 should be set aside and in lieu an allowance of $52,002 should be made. This reduced figure is to remove the possibility of duplication of services by not providing for the services of occupational rehabilitation. Such services should be covered by the services of the case manager and occupational therapist for which the full award claimed by the Respondent has been given. Second, the figure must be reduced so that there is compensation for only one knee surgery. The Appellant posited $14,000 would be a fair allowance, which I accept. Summation as to Reassessment 226 The result of the above reassessment can be conveniently set out in the tabular summary below. Head of Damages Judgment amount Appellant amount Proposed in Appeal Judgement Non Economic Loss $236,800. $236,800. $236,800. This head of damages was not challenged. Griffiths v Kerkemeyer Past $83,204. $75,000. $75,000. Griffiths v Kerkemeyer claim for past care is discounted to take into account that some of the care claimed would have been provided in any event. The figure advanced by the Appellant is accepted as appropriate. Griffiths v Kerkemeyer Future $995,526. $331,842. $497,763. Griffiths v Kerkemeyer claim for future care has been discounted by 50%. This is to reflect the fact that the award by the Trial Judge based on 6 hours care per day is excessive. On reassessment, I have held that 3 hours care per day is appropriate. In calculating the allowance have used the figures adopted by the Trial Judge and reduced them by 50%. Griffiths v Kerkemeyer Vacation $207,425. $47,950. $47,950. Griffiths v Kerkemeyer claim for vacation care has been reduced to reflect the fair award for vacation care is two weeks annually until the Respondent is 70. The figure advanced by the Appellant in this respect is accepted. House modifications $75,000. 0. 0. The challenge to the allowance for house modification is entirely successful. Based on the reduced hours of future care, no need has been established to make house modifications Future equipment $35,605. $35,605. $35,605. This head of damages was not challenged. Exercise facilities $12,668. $12,668. $12,688. This head of damages was not challenged. Taxi transport $93,005. $48,950. $48,950. The challenge to the allowance for taxi transport was successful and the amount advanced by the Appellant was accepted. This figure is based on a $50 per week allowance for taxi transport. Handyman assistance $86,152. $10,000. $10,788.58 The allowance for handyman assistance was reduced to be in conformity with the regime proposed by Ms McMaster. To reach this assessment the figure from the Dial-an-Angel Report (Blue Book 728) of $22 per hour was used as the hourly rate for such services and the multiplier of 979 from the Furzer Crestani report was adopted. The allowance is for 2 hours handyman assistance a fortnight in summer and 2 hours handyman assistance per month in winter. Past income loss $96,383.50 $40,335. $57,621.50 The allowance for past economic loss has been reduced as the deduction for vicissitudes of life has been increased to 50%. The base figure for this calculation was past economic loss under scenario 1 (average earnings for female shop assistants) in the Furzer Crestani report of $115,243. The 50% vicissitudes were then deducted (Blue Book 688). Future income loss $316,850. $115,722. $195,234.50 The allowance for future economic loss has been reduced as the deduction for vicissitudes of life has been increased to 50%. The base figure for this calculation was future economic loss under scenario 1 (average earnings for female shop assistants) in the Furzer Crestani report of $390,469. The 50% vicissitudes were then deducted (Blue Book 689). Superannuation loss $55,872.5 $20,085. $33,757.50 The superannuation allowance was based on the Furzer Crestani allowance of $67,515 and then reduced by 50% for vicissitudes (Blue Book 690). Long Service Leave $2,105. $618. $1261.50 The long service leave allowance was based on the Furzer Crestani scenario 1 calculation of $2522, less 50% for vicissitudes (Blue Book 691). Past Medicals $141,283.13 $141,283.13 $141,283.13 This head of damages was not challenged. Future Medicals $68,736.5 $22,720. $52,002. This allowance has been reduced. The cost assessment of future medicals in scenario 1 in the Furzer Crestani report was generally accepted (Blue Book 695). Scenario 1 presented future medical costs as $90,435. The Trial Judge disregarded the allowance for a lumbar fusion, this was not challenged. Additionally, the allowance of $21,471 for knee surgeries is to be disregarded and in lieu, an allowance of $14,000 is to be given. The allowance of $9000 for occupational rehabilitation is to be disregarded, as it would be a duplication of services already provided for. Case manager $93,005. $46,503. $93,005. The challenge to this award was not successful. Totals 2,599,620.6 1,186,081.1 $1,539,709.70
CONCLUSION 227 I would propose the following orders: 1. Appeal allowed. 2. The Trial Judge's assessment of contributory negligence be set aside. In lieu thereof order that contributory negligence be assessed at 50% to the Plaintiff and 50% to the Defendant 3. The Trial Judge's assessment of damages be set aside. In lieu thereof damages assessed at $1,539,709.70. 4. Verdict entered for Plaintiff in the amount of $769,854.85 228 I would propose that costs be separately addressed, after hearing from the parties. I note that no appeal was brought in relation to what the Trial Judge determined in relation to interest on the damages award. **********
Last Modified: 06/17/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Jones
Bradley
CITATION : Jones v Bradley [2003] NSWCA 81 revised - 11/06/2003 HEARING DATE(S) : 09/09/2002, 10/09/2002, 28/11/2002, 29/11/2002 JUDGMENT DATE : 16 April 2003
CATCHWORDS : CONTRIBUTORY NEGLIGENCE - apportionment of responsibility - whether Trial Judge's discretionary assessment of contributory negligence miscarried - where actions of both the plaintiff and defendant involved serious and substantial departures from standard of care - where actions of both the plaintiff and defendant involved a significant degree of causal potency - NEGLIGENCE - assessment of damages - whether Trial Judge's discretion in assessing damages miscarried - scope of obligation to give reasons - whether it was appropriate for the appellate court to reassess damages - Griffiths v Kerkemeyer allowance - lost earning capacity allowance - home modification allowance - taxi transport allowance - handyman assistance allowance - future medical care allowance - case manager allowance Abalos v Australian Postal Commission (1990) 171 CLR 167 Agbaba v Witter (1977) 14 ALR 187 Beale v GIO (1997) 48 NSWLR 430 Biogen Inc v Medeva plc [1997] RPC1 Clarke v Freund 1999 (29) MVR 361 Damberg v Damberg [2001] NSWCA 87 Derrick v Cheung (2001) 181 ALR 301 Devries v Australian National Railways Commission (1993) 177 CLR 472 Emery v Wilson (1974) 28 ALJR 131 Gamser v Nominal Defendant (1977) 136 CLR 145; 13 ALR 387 General Insurance Office of New South Wales v Evans (1990) 21 NSWLR 564 Flanery v Halifax Estate Agencies [2001] 1 WLR 377 Fuller v Galvin Incorporated, SCNSWCA, 7 April 1995 House v The King (1936) 55 CLR 499 Jones v Hyde (1989) 63 ALJR 349 Malec v JC Hutton Pty Limited (1990) 169 CLR 638 Miller v Jennings (1954) 92 CLR 190 Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 CASES CITED : Moran v McMahon (1985) 3 NSWLR 700 Moylan v The Nutrasweet Company [2000] NSWCA 337 Nestle Australia Ltd v McDougall, (NSWCA, 24 June 1998, unreported) North Sydney Council v Lygon (1995) 87 LGERA 435 Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492 Rosenberg v Percival (2001) 205 CLR 434 RT & YE Falls Investment Pty Ltd v NSW [2001] NSWSC 1027 Schieb v Abbott (1999) 27 MVR 285 Shehata v Montague L Meyer Pty Ltd (1976) 51 ALJR 77 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 State Rail Authority of NSW v Earthline Construction (1999) 73 ALJR 306 TCN Channel Nine Pty Limited v Henry Alfred Anning [2002] NSWCA 82 Tuebner v Humble (1963) 108 CLR 491 Van Gervan v Fenton (1992) 175 CLR 327 Warren v Coombes (1979) 142 CLR 531 Wilkes v Bradford Kendall Ltd (1962) 79 WN (NSW) 850 Williams v The Minister for Aboriginal Land Rights Act 1983 and the State of NSW [2000] NSWCA 255 Wilson v Peisley (1975) 7 ALR 571; 50 ALJR 207 Yip v Zreika [2001] NSWCA 446 PARTIES : Edward John JONES (Appellant) Emma Ward BRADLEY (Respondent) FILE NUMBER(S) : CA 41050/01 COUNSEL : C Hoeban (Appellant) J McCarthy, QC/ P S Jones (Respondent) SOLICITORS : Lee & Lyons (Appellant) Colin Daley Quinn (Respondent)
(1990) 171 CLR 167
(1977) 14 ALR 187
(1997) 48 NSWLR 430
(2001) 181 ALR 301
(1993) 177 CLR 472
(1974) 28 ALJR 131
(1977) 136 CLR 145
(1990) 21 NSWLR 564
(1936) 55 CLR 499
(1989) 63 ALJR 349
(1990) 169 CLR 638
(1954) 92 CLR 190
(1992) 35 FCR 359
(1985) 3 NSWLR 700
(1995) 87 LGERA 435
(1985) 59 ALJR 492
(2001) 205 CLR 434
(1999) 27 MVR 285
(1976) 51 ALJR 77
(1987) 10 NSWLR 247
(1999) 73 ALJR 306
(1963) 108 CLR 491
(1992) 175 CLR 327
(1979) 142 CLR 531
(1975) 7 ALR 571
(1977) 139 CLR 161
Appeal allowed. The trial judge’s contributory-negligence apportionment and damages assessment were set aside. Responsibility was apportioned 50% to Bradley and 50% to Jones. Total damages were assessed at $1,539,709.70, and a verdict was entered for Bradley for $769,854.85. Costs were left to be separately addressed.