O'Neill v Liddle

Court of Appeal (NSW)|2012-08-10|Before: Macfarlan JA, Barrett JA, MacFarlan JA

Judgment 1MACFARLAN JA:I agree with Sackville AJA. 2BARRETT JA:I agree with Sackville AJA. 3SACKVILLE AJA: This is an appeal from a judgment of the District Court (Blackmore DCJ) awarding the respondent damages in respect of injuries sustained by her in a motor vehicle accident on 23 April 2007. The judgment was delivered on 29 September 2011, after a trial which lasted for seven hearing days scattered over nearly a year, from June 2010 to May 2011. His Honour assessed the total damages at $1,234,468, but reduced that figure by 55 per cent by reason of the respondent's contributory negligence. Thus judgment was entered for the respondent in the sum of $555,510. 4The primary Judge's assessment of total damages of $1,234,468 was made up as follows: $ Non-economic loss 237,500 Past out-of-pocket expenses 2,979 Future medical expenses 62,307 Past economic loss 29,397 Future loss of earning capacity 235,522 Future loss of superannuation benefits 21,196 Past gratuitous care 61,920 Future (commercial) domestic assistance 581,002 1,234.468 (The judgment incorrectly records the total as $1,203,002, but the error was corrected before the entry of judgment.) 5The appellant challenges the primary Judge's findings on liability, contributory negligence and damages. The appellant contends that the primary Judge erred in: (i)finding that the appellant was negligent; (ii)alternatively to (i), in assessing contributory negligence at only 55 per cent, instead of what is said to be a more appropriate figure of at least 75 per cent; (iii)(if the negligence finding stands) in assessing the respondent's future loss of earning capacity by reference to average weekly earnings for full-time adult female employees in New South Wales ($921 per week), instead of the respondent's net earnings at the date of the trial ($619 per week); (iv)in allowing 11 hours per week for past gratuitous care for a particular period, rather than 10.25 hours per week; (v)in finding that the respondent's need for personal and domestic assistance in the future would be 14 hours per week, rather than the 10.25 hours per week required at the date of the trial; and (vi)in allowing a sum of $27,000 for future surgery. 6If the appellant's submissions on liability are accepted, the orders made by the primary Judge would be set aside and judgment entered for the appellant. If those submissions are rejected, but the appellant's submissions on damages are accepted in their entirety, the appellant's total damages, subject to any allowance for contributory negligence, would be reduced from $1,234,468 to $852,124.

Background 7The following account is based on the findings of the primary Judge. 8The respondent was injured in a collision between two vehicles that occurred at the intersection of Summer and Spring Streets, Orange, at about 4 pm on 23 April 2007. 9The respondent was driving a 1994 Ford Festiva manual vehicle in a northerly direction along Spring Street, towards the intersection with Summer Street (which is aligned in an east/west direction). (The primary Judge referred to a Ford "Fiesta", but the expert reports describe it as a "Festiva".) Both streets are relatively wide and flat, although Summer Street proceeds gently uphill from the west towards the intersection. The intersection itself is flat. Vehicles entering the intersection from Spring Street in either direction are faced with a "Give Way" sign located in the middle of the Spring Street roadway at the northern and southern sides of the intersection. 10The appellant was driving an Audi vehicle in an easterly direction along Summer Street towards the intersection. At the time of the collision, the sun was low in the western sky and therefore was behind the appellant's car when viewed from the east. The appellant was travelling within the prevailing speed limit of 50 kph. The appellant first saw the respondent's vehicle in her peripheral vision when that vehicle was about one car's length from the intersection. 11The respondent stopped at the Give Way sign as she approached the intersection. However, her view of Summer Street to the west was obscured by the glare from the sun. She was unable to see down the length of Summer Street and was unable to ensure that it was completely free of traffic. She entered the intersection without realising that the appellant's car was approaching from the west. 12The respondent proceeded to cross the intersection and cleared the westbound lane of Summer Street. She had almost cleared the eastbound lane of Summer Street when the appellant's vehicle struck the Ford Festiva behind the front passenger's door, near the rear wheel. The primary Judge found that the "majority of the [respondent's] vehicle had already crossed the intersection when the vehicles collided". 13The force of the collision caused the respondent's vehicle to rotate counter-clockwise. The vehicle hit the median strip in the middle of Spring Street on the northern side of that road. It then collided with the Give Way sign at that location and overturned. 14As a result of the collision, the respondent's right arm protruded from the vehicle and was apparently crushed when the vehicle overturned. In consequence, the respondent sustained very serious injuries to that arm. She is right handed. 15The respondent was assisted from her vehicle and taken to hospital. After a number of operations, she retained the use of her right arm. However, the arm is significantly scarred and her use of the limb is diminished. The injuries to her arm and the various medical operations that she had to undergo formed the primary basis of her claim for damages.

Liability 16The primary Judge pointed out that the fact that a plaintiff drives a vehicle through a Give Way sign prior to a collision does not necessarily determine whether the other driver involved in the collision has been negligent (at [12]). In his Honour's view, the correct approach was simply to assess whether the appellant had failed to show reasonable care. 17The primary Judge noted that expert evidence had been led by both parties. However, that evidence did not provide much assistance in answering the relevant questions. The conclusions of the experts were "somewhat speculative" and, for that reason, carried little weight. Accordingly, their evidence was not the major source for the findings on liability. 18His Honour considered that there were two interrelated facts which supported a finding that the appellant had failed to take reasonable care in approaching the intersection. The first was that the appellant agreed that she had first seen the respondent's vehicle in her peripheral vision when it was some distance from the intersection. She therefore had time, after having first perceived the respondent's vehicle, to assess its speed and to note that it was approaching a Give Way sign. Had the appellant kept the respondent's vehicle under observation as she (the appellant) was approaching the intersection, she would have been in a much better position to avoid the collision. 19The second material fact was that most of the respondent's vehicle had already crossed the intersection when the vehicles collided. Since the respondent's vehicle had modest acceleration at best, there was time for the appellant to have kept the respondent's vehicle under observation. The intersection was relatively open and clear and it would have only required a minor adjustment in the appellant's speed to have avoided the respondent's vehicle altogether (at [20]). 20In view of these matters, the primary Judge made the following finding (at [23]): "It seems plain on the totality of the evidence that the [appellant] did not keep a proper lookout. She conceded as much in her evidence. She indicated that she took her eye off the [respondent's] vehicle even though that vehicle was approaching her vehicle from the right and unless it stopped at the intersection might come into collision with her vehicle." 21The primary Judge went on to find (at [24]) that excessive speed was not a factor, of itself, in the collision. However, had the appellant perceived and taken note of the danger of the respondent's vehicle entering the intersection, it would have been prudent for her to have slowed her vehicle. 22The primary Judge rejected (at [26]) the appellant's submission that she had merely made a reasonable assumption that the respondent's vehicle would stop at the Give Way sign and that, therefore, responsibility for the collision rested entirely with the respondent. His Honour found that: "It is inherently unlikely, had the [appellant] been paying proper attention to the road and the [respondent's] vehicle, that a collision could have eventuated at the point it did on the [respondent's] vehicle. ... [B]ecause the [respondent] had stopped at the intersection [or virtually stopped] and it was necessary for her vehicle to accelerate and almost drive completely through the entire intersection before it was struck by the [appellant's] vehicle, it seems more likely than not that the [appellant] was not paying proper attention to her driving at a time immediately before the accident. Had she been paying attention the collision might have been avoided."

Contributory Negligence 23The primary Judge rejected the appellant's contention that the respondent was guilty of contributory negligence because she had failed to wear a properly secured and fastened seat belt. His Honour accepted the respondent's evidence that she was wearing a seat belt. He considered that the expert evidence did not significantly call into question the respondent's evidence on this point. His Honour accepted the opinion of Mr Joy, the respondent's expert, that it was quite possible for the respondent's arm to be forced out of the rear window as the vehicle overturned, even if she was wearing a seat belt. 24Nonetheless the primary Judge found that the respondent had been contributorily negligent. He expressed his conclusions as follows (at [38]-[39]): "... there were alternative routes available to the [respondent], which she could have used to avoid the accident but perhaps that is not the real question. She took a calculated risk based on the things she knew. She knew the intersection and how far down the road she could usually see; she knew that the road was generally not busy; she knew the distance to cross the road and she knew the speed at which her vehicle accelerated. She miscalculated and that resulted in a collision. The question is what is a just and equitable apportionment for the damage ultimately caused? In my view a fair apportionment in the circumstances of this case is 55% for the [respondent]. Despite the negligence of the [appellant] the [respondent] is more responsible for the collision by driving her vehicle in the manner she did."

Damages 25The primary Judge's reasons for the contentious aspects of the assessment of damages can be summarised briefly.

Future Loss of Earning Capacity 26His Honour made the following findings relevant to his assessment of the value of the respondent's lost future earning capacity:

At the time of the accident on 23 April 2007, the respondent was working as a kitchen hand at a takeaway food shop in Orange. In that employment, she earned $455 net per week (at [70]).
On 3 November 2008, the respondent obtained clerical employment with an NRMA agency in Orange. Between 3 November 2008 and 30 June 2009, she earned $397 net per week (at [71]).
Thereafter, the respondent's earnings in her employment with NRMA exceeded her pre-accident earnings, and at trial amounted to $619 per week (at [72]).
There was no evidence that the respondent, but for her injuries, would have been able to earn more than she was earning in her employment with the NRMA agency (at [72]).
The respondent was essentially unqualified, having commenced but not completed a TAFE course (for reasons unrelated to her injuries) (at [72]).
The respondent's injuries were not diminishing her income from her work at the NRMA agency (at [72]).
Although the respondent gave honest evidence that she wished one day to run a fine dining establishment, that evidence was "rather naïve" and the prospect of her doing so successfully was "very remote" (at [74]).
But for her injuries, the respondent may have become a cook, or she may have gone on to study in some field (at [77]).
While the respondent was a 'positive young woman' she 'did not display any exceptional intellectual traits' that might see her employed in a field that would enable her to earn more than average weekly earnings (at [77]).
The respondent was capable of continuing in her present employment (or some similar employment) until normal retirement age (at [76]).
The difference between the respondent's net weekly earnings at the time of trial ($619 net per week) and average weekly earnings of full time adult female employees in New South Wales ($921 net per week) was $302 net per week. 27In the light of these findings, the primary Judge said (at [77]) that it was appropriate to allow the respondent the difference between her earnings at the time of trial and average weekly earnings, until the retirement age of 65. The calculations, allowing 15 per cent for the vicissitudes of life, yielded a figure of $235,522.

Past Gratuitous Attendant Care Services 28The primary Judge's award for past gratuitous care was calculated by reference to a number of discrete periods. Relevantly for present purposes, his Honour found that between November 2007 and 7 June 2010, the respondent required 12 hours assistance per week. From 8 June 2010 until the date of trial, he allowed 11 hours per week. 29The total award in respect of past domestic assistance was $61,920. The first of the two periods (November 2007 to 7 June 2010) accounted for $38,556 of this figure and the second (8 June 2010 to trial) accounted for $12,304.

Future Domestic Assistance 30The primary Judge explained (at [87]) his award as follows: "I accept the [respondent's] evidence that she will continue to require about 11 hours of assistance into the future. The [respondent] gave evidence that she would prefer to pay for such assistance rather than seek to obtain it from her grandmother, who is now elderly, or her mother. That in my view is reasonable. In addition I will allow for a modest increase in these hours to account for the possibility that over time and with the age the [respondent] will require more assistance. Consequently I will calculate future assistance on the basis that she will need 14 hours a week." The assessment of $581,002 under this head was based on the respondent's life expectancy of 60 years and an hourly rate of $41 for the services required by the respondent.

Future Medical Expenses 31The primary Judge accepted the evidence of two doctors (Dr Cummine and Dr Morgan) who indicated that the respondent would require three surgical procedures during her lifetime in consequence of her injuries. His Honour allowed $27,000 to cover this requirement.

Liability 32The relevant principles applicable to the question of negligence are stated in s 5B of the Civil Liability Act 2005 ("CL Act"). Section 5B provides as follows: "(1)A person is not negligent in failing to take precautions against a risk of harm unless: (a)the risk of foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b)the risk was not insignificant, and (c)in the circumstances, a reasonable person in the person's position would have taken those precautions. (2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a)the probability that the harm would occur if care were not taken, (b)the likely seriousness of the harm (c)the burden of taking precautions to avoid the risk of harm, (d)the social utility of the activity that creates the risk of harm." 33The primary Judge did not expressly refer to s 5B of the CL Act. But there is no dispute that the statement of principle in Manley v Alexander [2005] HCA 79; 223 ALR 228, to which the primary Judge referred, is relevant to the application of s 5B(1)(c) to the present case. That was a case where the defendant was held liable, subject to a reduction in damages of 70 per cent for contributory negligence, for failing to see the plaintiff who was dressed in dark clothes and was lying on the road at 4 am while in an intoxicated state. Gummow, Kirby and Hayne JJ said (at [12]): "It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Rd at 4 am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events." 34Mr Rewell SC, who appeared with Mr Guihot for the appellant, also did not dispute that observations made by the High Court in Sibley v Kais [1967] HCA 43; 118 CLR 424, were directly relevant to the present case. The Court there said (at 427) that: "The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case. Therefore, it is, in our opinion, rightly said that the "'right hand rule' is not the be all and end all in relation to questions of civil responsibility". The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to 'reasonable care' is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or form his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected." 35The appellant submitted that the "particular circumstances" of this case meant that she was entitled to assume that the respondent would obey the road rules and accordingly would yield to the appellant's vehicle. Mr Rewell contended that the appellant was not required to anticipate the respondent's unpredictable behaviour in proceeding through the Give Way sign in the face of oncoming traffic. 36This submission does not come to grips with the critical findings by the primary Judge (at [23]) that the appellant had failed to keep a proper look out and that, had she done so, she would have been able to avoid the collision by a minor adjustment to her speed (at [20]). His Honour took into account that, since the respondent's vehicle had almost cleared the intersection when the collision occurred, there must have been a significant period of time when the appellant had the respondent's vehicle in her line of vision. Her line of vision was unobstructed. 37The appellant's evidence, as Mr Rewell accepted, was somewhat confused, particularly as to when and where she first saw the respondent's vehicle and why she apparently did not see that vehicle crossing the intersection until just before the collision. She asserted that the respondent's vehicle had not stopped prior to entering the intersection, but his Honour rejected that part of her evidence. Given that his Honour found that the respondent did in fact stop at the intersection, she effectively conceded that she had not been keeping a proper look out. She did so in this passage: "Q.Ms O'Neill, if the other vehicle driven by Ms Liddle had in fact stopped at the - or did in fact stop that day at the give-way sign, there was nothing obstructing your view of that, you would have been able to see it, if that happened? A.Yes. Q.And if you hadn't seen it, you'd agree you wouldn't have been keeping a proper lookout of the road ahead, correct? A.Yes, correct." 38Mr Stuart-Smith, a traffic engineer, estimated that the distance between the Give Way line in Spring Street on the southern side of the intersection to the point of impact was 11.5 metres, although he seems to have placed that point rather closer to the centre of the intersection than was warranted by the evidence. Be that as it may, Mr Joy, another traffic engineer, estimated, on the basis of a "realistic and typical acceleration rate" that it would have taken the respondent about four seconds to have moved from a stationary position at the Give Way sign to the point of impact. 39Mr Dennis, a witness to the collision, said that the respondent stopped briefly at the Give Way sign and then proceeded at "just a normal take off speed". 40The appellant gave no clear reason for failing to see the respondent's vehicle in time, other than her claim (rejected by his Honour) that the respondent had not stopped prior to entering the intersection. The appellant said she did not know how long before the collision she attempted to brake, but there appears to be no objective evidence to suggest that, if she did attempt to brake, she did so sooner than when a collision was imminent. 41This evidence reinforces the primary Judge's finding that the appellant, had she been keeping a proper look out, had sufficient time to avoid the collision. The case is not one of a driver being confronted by unpredictable behaviour creating an unavoidable danger. The appellant saw the respondent's vehicle as it approached the intersection and wondered whether it was going to brake or not. Since the appellant at all times had a clear view of the intersection and of the respondent's vehicle traversing it relatively slowly, by keeping a proper look out she would have been able to observe the path of the respondent's vehicle and to have taken simple measures to avoid a collision. 42There was no error in the primary Judge's finding that the appellant breached her duty of care by failing to take the precaution a reasonable person in her position would have taken to avoid the risk of a collision.

Contributory Negligence 43The appellant challenged the primary Judge's assessment of contributory negligence on two grounds. First, the finding that the respondent was wearing a seat belt at the time of the accident was not supported by adequate reasoning. Secondly, in any event the attribution of only 55 per cent responsibility for the collision to the respondent was manifestly inadequate.

The Seat Belt Finding 44Although Mr Rewell addressed the seat belt finding after making submissions on the apportionment of liability, logically it should be dealt with before the question of apportionment. 45Mr Rewell submitted that the primary Judge gave insufficient reasons for rejecting the opinion given by Mr Hall, an engineer whose reports were tendered on behalf of the appellant. Mr Hall stated that it was not possible for a driver of the respondent's stature, with the seat positioned for normal driving, to extend her arm out of the rear side window while wearing a seat belt and "remaining restrained within the general seat environment". He supported this finding by placing two females of similar build to the respondent in a 1994 Ford Festiva and asking each of them to extend her right arm out of the rear window. 46The respondent tendered a report by Mr Joy, a consulting engineer. He expressed the view that if the seat belt had been correctly worn, the lap section would have restrained the respondent's lower torso, but her upper torso would have rotated and her right shoulder and arm would have been pulled out of the sash section of the belt and become unrestrained. He thought that the evidence of Mr Bettles, the respondent's then boyfriend, that post-crash he observed the respondent in the front seat with part of the belt around her leg strongly indicated that she was wearing a seat belt when the collision occurred. In his cross-examination Mr Joy adhered to that opinion and explained the basis for it. 47The cross-examiner also put to Mr Joy the opinion expressed by Mr Hall. Mr Joy said that he did not agree, for these reasons: "As I indicated before seat belts don't hold you perfectly in position in a violent incident. I think in another light you may see it this way. Ms Liddle was not ejected from the vehicle in a rollover, rotating collision. She was not ejected from the vehicle despite the fact that the rear window of the vehicle was smashed out, the rear screen was smashed out and the rear window was smashed out. She was not ejected from the vehicle. You could draw an inference from that that she was restrained in the vehicle. There is no indication that she was smashed against the interior of the vehicle which would happen in this collision-˝ 48Mr Hall was not required for cross-examination. Mr Rewell did not submit that this of itself was a basis for overturning his Honour's finding that the respondent was wearing a seat belt. But the absence of cross-examination limited what his Honour could usefully say in his judgment on this issue. 49The primary Judge said in the judgment (at [35]) that he accepted the respondent's evidence that she was wearing a seat belt. The respondent had given evidence, corroborated by her mother, that her practice was always to secure the seat belt when driving. In addition, she said that after the collision the car was spinning on its roof and she was hanging by her seat belt. The ambulance notes prepared by officers attending the scene recorded that a seat belt had been worn, although they did not identify the source of the information. 50The primary Judge said (at [36]) that he had considered the expert evidence questioning whether it was physically possible for the respondent's arm to have been out of the back window if her seat belt had been fastened. However, he found that the evidence (presumably given by Mr Hall) did not significantly call into question the respondent's own evidence. His Honour accepted Mr Joy's evidence that it was entirely possible for the respondent to have been injured in the manner she had while wearing a seat belt. 51I do not think it was incumbent on his Honour to give more detailed reasons for preferring Mr Joy's evidence. He might have said expressly that the "experiment" conducted by Mr Hall was of limited assistance because it did not take account of the forces involved in an accident, these being the matters identified by Mr Joy as of particular significance. But the reasons make it clear enough why the primary Judge accepted the respondent's evidence and found Mr Joy's opinion more convincing. 52In any event, Mr Rewell did not suggest that if the reasons were insufficient the matter should be remitted for a retrial. The evidence I have outlined amply supports his Honour's finding that the respondent was wearing a seat belt at the time of the collision.

Apportionment of Responsibility 53Section 5R of the CL Act provides as follows: "(1)The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2)For that purpose: (a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b)the matter is to be determined on the basis of what the person knew or ought to have known at the time." 54Mr Rewell acknowledged that it is well established that a trial judge's apportionment of responsibility for an accident is not lightly to be disturbed. The principle was stated by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529, at 532-533 [8], [10]: "A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v. Macgregor (Owners) [1943] AC 197, at 201. Such a finding, if made by a judge, is not lightly reviewed. ... The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd (1953) AC 663 at 682; Smith v. McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208, at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." See also Liftronic Pty Ltd v Unver [2001] HCA 24; 179 ALR 321, at 322 [2], per Gleeson CJ; Joslyn v Berryman [2003] HCA 34; 214 CLR 552, at 601 [157], per Hayne J. 55It is also significant that in this case the primary Judge had the advantage of inspecting the scene of the collision. A view of this kind must be accorded weight by an appellate court since it provides a "valuable third dimension" that photographs necessarily lack: Pledge v Roads and Traffic Authority [2004] HCA 13; 205 ALR 56, at 70 [49], per Callinan and Heydon JJ (with whom McHugh ACJ, Kirby and Hayne JJ agreed). 56Despite these barriers to the challenge to his Honour's finding, Mr Rewell submitted that the respondent bore much greater responsibility for the collision than the appellant. He did not suggest that the respondent, faced with the glare of the sun, should have done a U-turn and travelled north by some other route. However, he contended that she should not have proceeded across the intersection at normal speed, but should have advanced very slowly, maximising the opportunity for any oncoming driver to see her vehicle. Mr Rewell also drew attention to the respondent's admission in evidence that she did not look to her left while crossing the intersection until she observed the appellant's vehicle at close range. 57The primary Judge was aware of the nature of the departures from the standard of reasonable care by each of the drivers involved in the collision. His Honour took into account that the respondent had taken a calculated risk in entering the intersection without being able to see the length of Summer Street to her left. Her miscalculation resulted in the collision. He also took into account that the respondent, upon entering the intersection, did nothing other than drive normally. No doubt she might have looked again to her left earlier than she did, but her failure to do so was not inconsistent with a normal crossing of the intersection. 58The primary Judge accepted that the respondent was "more responsible" for the accident than the appellant. The apportionment of 45 per cent responsibility to the appellant reflected the appellant's unexplained failure to keep a proper lookout in circumstances which would have allowed her to avoid the collision with a minor adjustment to her speed or the trajectory of her vehicle. 59Had I been assessing contributory negligence (without the benefit of a view), I might well have been inclined to attribute somewhat greater responsibility to the respondent than 55 per cent. However, that does not justify concluding that the primary Judge's apportionment was outside the permissible range, having regard to the approach required by Podrebersek. I do not think it was.

Future Earning Capacity 60The appellant submitted that the primary Judge erred in attributing to the respondent an earning capacity equivalent to net average weekly earnings for females in full time employment ($921 net). According to Mr Rewell, there was no sound basis for concluding that the respondent but for her injuries, would have earned any more than her income from her clerical employment with the NRMA agency in Orange ($619 per week). Having regard to the respondent's lack of qualifications, her pre-accident work experience and her apparently limited abilities, the primary Judge's conclusion represented no more than speculation. 61Mr Rewell further submitted that there was an inconsistency in the primary Judge's approach. He had found (at [72]) that her disabilities had not diminished her income from her employment at the NRMA agency. Since her disabilities had not affected her capacity for clerical or similar employment or her capacity to undertake studies (if she wished) her future earning capacity, however assessed, was unaffected by her injuries. 62In my opinion, there was evidence from which the primary Judge could infer that the respondent's earning capacity, but for the accident, would have been equivalent to average weekly earnings for females. 63The respondent was only 21 at the time of the accident. She left school after obtaining her School Certificate (Year 10). She had been an average student. While at school she held part time jobs, reflecting her interest in the hospitality industry. She underwent a traineeship in hospitality at a hotel after leaving school, which terminated because of a change in ownership and staffing at the hotel. Thereafter she worked in a "Gourmet Takeaway" business as a cook and waitress. Her aspiration was one day to open a sit-in restaurant (not a "fine dining establishment" as referred to by the primary Judge). The medical evidence was that her disabilities prevented her working as a cook or a waitress. 64The primary Judge found that the respondent was a positive person. Although in pain, often quite intense, as a consequence of the accident, she had returned to work as soon as wire and screws had been removed from her arm in July 2007. She had taken only 44 hours sick leave over a two and a half year period. She had clearly made efforts to increase her post-accident earnings, despite her disabilities, to the point where, at trial, she was earning substantially more than at the time her injuries were sustained. While his Honour regarded the respondent's aspiration to open what he described as a "fine dining establishment" as unrealistic, he accepted that she might have found work as a cook or chef. His Honour was entitled to take into account that the respondent clearly intended to follow a career and to maximise her potential to earn income and had shown determination and resourcefulness in her post-injury employment activities: State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536, at 538 [4], per Mason P (with whom Handley JA agreed). 65As Heydon JA (with whose observations Mason P and Handley JA agreed) pointed out in NSW v Moss, at 553 ([70]-[71]), the compensable loss in a case such as this is the loss of capacity to earn income and assessment of that loss is an inherently uncertain exercise. Thus (at 553 [71]): "The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income ... Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities." 66Heydon JA also pointed out in NSW v Moss that compensation often has to be assessed without the benefit of specific evidence as to the value of that loss. His Honour said (at 559 [87]) that: "In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages. ... The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility." 67The task of assessing damages for the respondent's loss of future earning capacity was one that had to be undertaken on the basis of limited evidence. The respondent's career path, as is frequently the case with a young person, involved many uncertainties. The unrealistic nature of her aspirations to open a restaurant (as the primary Judge saw matters) did not rule out alternative careers in the hospitality industry, including careers that required further training. His Honour's finding as to her earning capacity but for the accident, does not disclose error. 68Contrary to the appellant's second submission, there was ample evidence to support the finding that the respondent's post-accident earning capacity would not allow her to earn more than she was earning at the date of the trial. Her work at the NRMA agency appears to have been mainly work at the front counter dealing with customers and answering telephone inquiries, although she also performed filing and general office duties. 69One basis for the submission was the primary Judge's finding (at [72]) that there was no evidence that the respondent's disabilities reduced her income from her job at the NRMA agency. This finding, however, was made in the context of the primary Judge considering the respondent's claim for past economic loss. It was not a finding that the respondent's disabilities would not interfere with her ability to exploit her earning capacity in the future. 70A second basis was that there was no impediment to the respondent increasing her earning capacity by applying herself and acquiring new skills. In this connection, the respondent gave evidence that she performed some work on a computer, using a modified mouse, but experienced pain which increased during the working day. The primary Judge accepted that the respondent's arm had a bend to about a 30 degree angle and that this would be permanent, regardless of whether spontaneous fusion of the elbow joint subsequently occurred. His Honour also accepted that the respondent experienced pain every day and that she would suffer ongoing depression and anxiety as a result of the accident. The medical evidence was clear that her injuries created a high risk that she would develop osteoarthritis and that this would increase the level of her pain. In addition, she would require further surgical intervention to deal with the consequences of her injuries. 71The primary Judge was entitled to find that these factors, together with her limited educational attainments (referred to by Dr Ting, an occupational therapist), would be likely to limit her ability to increase her future earnings beyond the level she was earning at trial. The appellant has not demonstrated any error in the primary Judge's assessment of damages for the respondent's loss of future earning capacity. 72For the sake of completeness, I should record that the appellant made no submission that the primary Judge failed to comply with s 126 of the Motor Accidents Compensation Act 1999. Section 126(1) requires a claimant seeking damages for future economic loss to satisfy the court that the assumptions about future earning capacity accord with the claimant's most likely future circumstances but for the injury. Section 126(3) requires the court making an award for future economic loss to state the assumptions on which the award is based. In the absence of any such submissions, there is no occasion to consider the application of s 126 to the present case.

Attendant Care Services 73The appellant has two complaints about the award of damages in respect of attendant care services. The first is that in assessing damages for the services required during the period from 8 June 2010 until trial (4 May 2011), by reason of a mathematical error his Honour mistakenly allowed 11 hours per week instead of 10.25 hours per week. The second error was that his Honour allowed 14 hours per week for future attendant care services when the evidence did not support a weekly figure higher than 10.25 hours. 74The primary Judge took as his starting point the respondent's evidence as to the services she required, rather than the evidence of two experts (who estimated a slightly higher number of hours per week). His Honour understandably misinterpreted a schedule prepared by the respondent of the attendant care services she required. He interpreted the schedule as producing a total of 10 hours 55 minutes of required services per week. In fact the total was 10 hours 15 minutes per week, taking into account an ambiguous entry in the schedule that the respondent explained in her oral evidence. This produces a small reduction of damages for past gratuitous services, using his Honour's assessment of other variables, of $838. 75The second complaint rests on the primary Judge's finding that 14 hours per week for future attendant care services was justified because of the possibility that over time and with age the respondent would require more assistance. Mr Rewell submitted that the evidence did not support an allowance for an increased need for assistance over time and that in any event the allowance failed to take account of the likelihood that any increase in need would occur gradually. 76There was evidence to support the finding that the appellant was likely to require additional care in the future. The treating orthopaedic surgeon, for example, reported that she would undoubtedly have long term problems with elbow stiffness and that she was at risk of developing degenerative changes in the elbow joint, heterotopic bone formation and elbow instability. Dr Zeman accepted that the respondent was likely to develop osteoarthritis and that her pain levels would increase. He also seemed to accept that, although there might well be a spontaneous fusion of the elbow joint over time, the degree of flexion would reduce and any fusion would "cement" the degree of dysfunction. 77The primary Judge did not explain why he allowed 14 hours per week for the entire period of the respondent's life expectancy (60 years), rather than a lesser hourly figure. It is possible that his Honour thought that the respondent's need for care, attributable to her disabilities, would increase to beyond 14 hours per week later in life, and that the figure he selected was intended to be a rough weighted average for the period of 60 years. However, he did not give this explanation. Moreover, there appears to be no evidence specifically directed to the likely increase in the respondent's needs, having regard to any possible degenerative changes in her elbow and increases in her levels of pain. 78The primary Judge's assessment of the respondent's need for future attendant care services was affected by his misinterpretation of the respondent's schedule. While 45 minutes per week may seem de minimis, when projected 60 years into the future the difference produces not insignificant changes in the calculation of damages. In addition, I do not think that the evidence justifies allowing an additional three hours per week beyond the hours required at trial for attendant care services over the respondent's entire 60 year life expectancy. An allowance of 12 hours per week for the period seems to me to allow adequately for an increase in the need for services to take account of a possible deterioration over time in the respondent's disabilities attributable to the injuries she sustained in the collision. 79The reduction of the allowance for future attendant care services to 12 hours per week reduces the compensation in respect of those services by $83,000, from $581,002 to $498,002.

Future Medical Treatment 80Mr Rewell did not develop in his oral submissions the assertion in the appellant's written submissions that the allowance of $27,000 for future surgery lacked an evidentiary foundation. The respondent's written submissions demonstrate that the award was supported by the evidence of Dr Cummine and Dr Burgess (whose evidence within his field of expertise was accepted) as to the surgical procedures the respondent was likely to require in the future. There was also evidence of the cost of the likely procedures that provided an adequate foundation for the damages awarded by the primary Judge under this head.

Conclusion 81The appellant's challenges fail, other than her challenge to the damages awarded in respect of attendant care services. For the reasons I have given the sum allowed in respect of past services should be reduced by $838, from $61,920 to $61,082 and the sum allowed in respect of future services should be reduced by $83,000, from $581,002 to $498,002. 82These reductions produce a figure for total damages of $1,150,630. When that figure is reduced by 55 per cent to allow for the respondent's contributory negligence, the damages award should be reduced from $555,510 to $517,783. 83As the appellant had had only minor success on the appeal, she should be ordered to pay 80 per cent of the respondent's costs of the appeal. 84The orders I propose are: 1.Appeal allowed in part. 2.Set aside the verdict and judgment for the respondent in the sum of $555,510. 3.In lieu thereof enter verdict and judgment for the respondent in the sum of $517,783. 4.Appeal otherwise dismissed. 5.The appellant pay 80 per cent of the respondent's costs of the appeal.

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. Decision last updated: 29 August 2012

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