Richards v Mills [2003] WASCA 97

Negligence - Contributory negligence - Failure to wear seat belt - Overall assessment of 55 per cent contributory negligence on account of manner of driving and failure to wear seat belt

Damages - Personal injuries - Loss of earnings - Matters to be considered in reduction of damages - Income protection scheme provided by employer - Benefits payable during disability - Whether deductible from damages for loss of earnings and lost earning capacity

Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947, s 4(1)

Allen v Redding [1934] HCA 2; (1934) 50 CLR 476

Bradburn v Great Western Railway Co [1854] EngR 538; (1874) LR 10 Exch 1

Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; (1985) 59 ALJR 842

Byass v Nicholson (1995) 14 SR (WA) 322

Carter v Gilmore (1975) 49 ALJR 360

Earl v Stevensen [2000] WASCA 159

El-Syoufi v Alcazar [2000] ACTSC 109

Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60

Halliday v Halliday (1998) 27 MVR 479

Harding v Kilmurray (1998) 19 SR (WA) 646

Kilby v The Nominal Defendant (ACT) (1986) 4 MVR 74

Lee v Burn (1998) 27 MVR 186

March v Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Minsull v Pecorari [1968] WAR 59

Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10

South Australian Ambulance Transport Inc v Wahlheim [1948] HCA 32; (1948) 77 CLR 215

State of New South Wales v Davies [1998] NSWSC 51

Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Wills v Bell [2001] QSC 444

1 ANDERSON J: This is an appeal and cross appeal from a judgment delivered in the District Court (Macknay DCJ) on 26 March 2002 in an action arising out of an unfortunate traffic accident on the Kwinana Freeway 700 or 800 metres north of the Russell Road intersection. The two vehicles involved were travelling south and the accident happened when the respondent's vehicle moved out of the left lane in front of the appellant's vehicle which was travelling in the right lane. There was not enough clearance and the right hand rear corner of the respondent's vehicle made contact with the left hand front corner of the appellant's vehicle and went out of control. The respondent who was not wearing a seat belt was flung from the vehicle and seriously injured and is now paraplegic.

2 The learned trial Judge found that the appellant was negligent but that the respondent was contributorily negligent and 55 per cent to blame for the damage which she suffered. The appellant appeals against the finding that he was 45 per cent to blame.

3 Both drivers gave evidence and a number of eye-witnesses also gave evidence and there were photographic exhibits. The Judge considered and evaluated the evidence of each witness and the photographic exhibits and the evidence of physical damage to both vehicles and in a careful and closely reasoned judgment he concluded in essence that the appellant was negligent in failing to see that the respondent was moving across his path and in failing to take any preventative measures to avoid the contact; and that the respondent was contributorily negligent in failing to wear a seat belt and in failing to ensure that there was sufficient clearance between the two vehicles when she commenced the manoeuvre from her lane into the appellant's lane.

4 The appellant's notice of appeal against the findings of negligence against him and the degree of contributory negligence attributed to the respondent contains an astonishing 16 grounds, many of which are divided into sub-grounds. The whole occupies some 10 pages of the appeal book. These grounds are prolix, repetitive and argumentative. This manner of pleading grounds of appeal in straightforward road accident cases is unfortunately now a commonplace and is definitely to be discouraged. It is not a proper discharge of professional duty to extend over 10 pages what can be set out in two pages or less. The appellant's case on appeal as regards liability was simply that the respondent executed a manoeuvre which he did not foresee and could not reasonably foresee and against which he had no time to take reasonable precautions so that he was not negligent. Alternatively, that on the evidence as to the respondent's manner of driving and failure to wear a seat belt there should have been a finding that her level of contributory negligence was much greater than 55 per cent.

5 The respondent was living with Mr Mark Lambert (now her husband) at an address in Winthrop. Mr Lambert was a submariner in the Royal Australian Navy and worked at the Garden Island naval base known as HMAS Stirling. Very shortly after Mr Lambert had left for work on the morning of 10 September 1997 the respondent noticed that he had left some keys behind including the door keys to the house in which they were living. As he had just driven off she decided to pursue him, stop him and give him his keys. She knew the route he usually took, the first stage of which was to travel south on the Kwinana Freeway. With his keys in her possession she drove her white Daihatsu Charade sedan to the Kwinana Freeway and entered it on the left from Armadale Road and commenced the pursuit. This involved driving above the speed limit which was 100 kph. Although the two south bound lanes were not congested there was a moderate amount of traffic in them and it was necessary for the respondent to move or weave from lane to lane in order to catch up to Mr Lambert who she could see about 80 metres ahead of her in the left lane. It was her intention to drive alongside him and attract his attention. There were vehicles in each of the two lanes and the traffic speed generally was about 100 to 105 kph with the right lane moving a little faster than the left lane. After merging into traffic in the left lane from the Armadale Road entry and doing some weaving the respondent moved into the right lane and gradually accelerated but could not proceed further in that lane due to the presence in front of her of the appellant's vehicle. She drove closely behind his vehicle expecting that he would see her in his mirrors and move into the left lane allowing her to pass. It was her evidence that he did not do so and that she flashed her headlights at him to let him know that she was behind him wishing to go ahead. The appellant's vehicle did not move over. The respondent crossed into the left lane, moved alongside and then ahead of the appellant's vehicle and then attempted to cross in front of him so as to get back into the right lane. As earlier recounted, it was during the manoeuvre from the left lane to the right lane that the right rear corner of the respondent's vehicle made contact with the left front corner of the appellant's vehicle causing the respondent's vehicle to go out of control.

6 Obviously legal responsibility for the collision between the two vehicles depended on the answer to a number of questions. Did the appellant observe the respondent's vehicle coming up behind him? Ought he to have been aware that she wished to get ahead of him and should he have anticipated that she may attempt to do so? Was he aware or should he have been aware that her vehicle had moved from his lane into the left lane as part of an overtaking manoeuvre? Did he see her or should he have seen her coming alongside and commencing to go past in the left lane? Was he aware or should he have been aware that she wanted to get back into his lane ahead of him? Did he see her commence her attempt to cross in front of him or should he have anticipated that she might attempt to do so? Did he observe that she was actually moving out of her lane into his lane or should he have been aware that she was actually doing so? Was he aware or should he have been aware that if she continued that manoeuvre the two vehicles might make contact unless he slowed to allow her in? Did he in those circumstances take any measures to avoid the contact between the two vehicles and if not, were measures reasonably open to him which he ought to have taken - such as applying his brakes or simply decelerating? Did the respondent take proper precautions before attempting to cross in front of the appellant's vehicle? Did she take reasonable steps to satisfy herself that there was sufficient clearance between the two vehicles to enable the manoeuvre to be completed safely in all the circumstances, including the relative speeds of the two vehicles and traffic conditions generally?

7 As is only to be expected in a case of this kind the eye-witness evidence is not without its inconsistencies. In order to deal with the rival submissions which we have heard it is necessary to look at this evidence in a little detail.

8 There were three independent eye-witnesses. The evidence of one of them differed in important respects from the evidence of the other two. Each of them had given police statements not long after the accident. There are some inconsistencies between the evidence which two of the eye-witnesses gave in Court and the statements which they had given to police. One of the witnesses was a Mr Bokulic, a naval officer. His evidence was accepted by the Judge as accurate and reliable. Mr Bokulic said that he was travelling in the left lane behind the appellant's vehicle which was in the right lane and the respondent's vehicle went past him to within two car lengths of the appellant's vehicle. The respondent indicated an intention to move into the left lane and then did so. He observed the respondent's vehicle overtake the appellant's vehicle on the left and commence to cross back in front of it. He described this as "a steady manoeuvre to move from the left to the right". The appellant's vehicle did not brake or slow and he observed the impact between the two vehicles as the respondent's vehicle moved across the path of the appellant's vehicle. He gave firm evidence that at no time did the brake lights of the appellant's vehicle activate nor did it slow down. His evidence was that after the collision the appellant's vehicle continued "on its course and speed". It eventually stopped about 500 metres further on, at or near the Russell Road intersection traffic lights. Mr Bokulic's evidence about this was as follows (AB192):

"What did you observe about the dark coloured sedan [appellant's vehicle] when that happened? --- For me this is the most striking point of all of this, that at no point did the sedan [appellant's vehicle] brake. I didn't see that car operate its brakes at all, even when colliding. I would have thought a natural reaction would be to put the foot on the brake, but it didn't.

After the impact what did that dark coloured sedan do? --- It kept going in the direction it was going. It didn't - well, it certainly didn't appear to slow down, and again I didn't see any brake lights, so that struck me as surprising to."

9 Mr Bokulic gave evidence to the effect that as the respondent's vehicle passed him it was travelling at no more than 115 kph. It was obvious to him that the respondent wished to get past the appellant.

10 Evidence was called from a Mr Pritchard, a sales executive, who was also travelling south on the freeway in the right lane, driving at approximately 100 or 105 kph. The Judge accepted his evidence also. Mr Pritchard observed the respondent's vehicle come up behind his vehicle, obviously wishing to pass him. He had earlier seen the same vehicle cross from one lane to the other as it approached. He decided to stay in the right lane and observed the respondent move into the left lane behind him, overtake him in the left lane and move back into the right lane in front of him. His evidence was that on both change of lanes the appropriate indications were given and the changes were effected "with ease, no threat or danger to me, left quite some distance, you know, between turning into the other lane and coming back in front of me". He saw the respondent change back into the left lane ahead of him. He gave evidence that this manoeuvre was carried out with "no suddenness". He said "It wasn't a fast manoeuvre at all" [AB210]. He gave evidence that when the respondent's vehicle "looked like it had passed the [appellant's vehicle] to some degree", it "started merging into the gap" between the appellant's vehicle and traffic ahead of the appellant's vehicle. He could not say whether the respondent activated her trafficators on this occasion to indicate the change of lanes from left to right. He estimated that the gap into which the respondent was attempting to manoeuvre was of about two car lengths. He then gave the following evidence [AB204]:

"What did you see when - that is, after the white vehicle started to move into the right hand lane in front of the Magna? --- Ok. My view from that - I could see through the, I suppose, the windows of the Magna and also the top of the white car, coming across. It merged across as it had in past instances without any great force or any, like, sharp moves, just merged across but then at some point it actually veered very sharply which I believe was a cause of the impact, so once the impact happened then the car actually lost control and turned into that mid-strip section and so forth, you know, tumbled.

Did you see the impact? --- No, I didn't. I saw the effects of the impact in that the car just totally lost control but didn't actually see the collision."

11 Concerning the behaviour of the appellant's vehicle, Mr Pritchard's evidence was [AB204]:

"When you saw or before you saw the white vehicle out of control, what did you observe about the way in which the Magna was being driven? --- The Magna continued driving along. There was no brake lights that came on to indicate that he was backing off to allow someone to merge across or even, yes, like his speed seemed to be current, just staying the same which as I said would probably have been around 100 to 105 kilometres but he certainly just stayed the same relevant speed and there was no indication of him slowing down, either by braking or anything like that.

When you saw the white Daihatsu out of control, what did you observe the Magna do? --- The Magna still continued without braking. It wasn't until sometime afterwards that he then slowed down.

How much? --- I would say he probably got - he almost made it to the traffic lights at the next intersection before he slowed down and he would have had to have slowed down then anyway, because they were on red.

How far away were those traffic lights? --- He was probably - I think he probably continued for another 500 metres, possibly, before he actually came to a stop."

12 His estimate of the speed at which the respondent's vehicle was travelling was "about 115 kilometres" [AB209]. He described it as "a speed that I would normally probably accelerate to to overtake somebody myself".

13 Mr Pritchard admitted giving a police statement in which he said of the respondent's vehicle "It cut the Magna sedan off" but he did not recall having used those words and did not agree that it was an accurate description of the occurrence.

14 A third eye-witness, a Mr Powell, a trainee minister of religion was called to give evidence on behalf of the appellant. He was driving in the left lane at a speed of between 95 to 100 kph. He gave a different version to that given by Mr Bokulic and Mr Pritchard with respect to the respondent's manner of driving. His evidence was that the respondent's vehicle passed him in the right lane travelling at 115 to 120 kph. He gave evidence that the appellant's vehicle got to within "about a car length" of the appellant's vehicle and that "it just swung to the left very quickly and proceeded to overtake the [appellant's vehicle]". He described it as "sort of a rally manoeuvre". He likened it to a manoeuvre carried out by a formula one racing driver "when one car is in the slip stream of the other and is about to overtake then immediately it will swing out to overtake. It was just so fast that it wasn't a normal manoeuvre, it was just very fast, and that's what caught my attention". His evidence was that the respondent's vehicle "did not indicate" as it moved from behind the appellant's vehicle into the left lane. His evidence was that the respondent's vehicle then "tried to overtake the Magna to rejoin the outside lane" and that it did so without indicating. He gave evidence that the respondent looked quickly over her shoulder before commencing to move into the right lane ahead of the appellant's vehicle. He said that the appellant's vehicle appeared to be catching up to the vehicle ahead of it in the right lane so that the gap between those two vehicles was closing. His evidence was to the effect that the respondent tried to "squeeze between the two cars" and "didn't make it". The Judge did not accept Mr Powell's evidence where it conflicted with the evidence of Mr Bokulic and Mr Pritchard.

15 The respondent's evidence was that when she realised that the appellant did not intend to move to the left to allow her to go forward in the right lane she changed into the left lane after indicating her intention to do so, gradually moved ahead of the appellant, activated her trafficators to indicate an intention to move to the right in front of the appellant, looked over her shoulder to see that she had sufficient clearance and when she was satisfied she had cleared the appellant's vehicle she moved across to the right. It was her evidence that she was completely into the right lane and about two car lengths ahead of the appellant's vehicle but that it then collided with the rear of her vehicle, throwing it out of control.

16 The appellant's evidence was to the effect that he saw the respondent's vehicle coming up behind him. He then saw that it was no longer behind him. The effect of his evidence was that he did not see it again until the moment of impact. His evidence was that at no time had he been aware of the presence of the respondent's vehicle alongside on his left or overtaking on the left and at no time was he aware of any indication by trafficator or by vehicle movement of the respondent's intention to move back into the right lane ahead of him. The impact occurred, according to his evidence, without any awareness on his part that it was about to occur. The following is the appellant's cross-examination on this aspect of the case:

"After you saw this small white vehicle coming up behind you, you saw that through your rear-vision mirror? --- Yes.

And did you look again to see if that vehicle was still behind you? --- I looked behind me - I seem to remember that I looked behind me, saw the vehicle approaching. I suppose I was a little concerned at that stage there because of the close proximity of all the other traffic around us and the fact that the vehicles in front of us were stopping. I looked back to my front because that's my duty of care, that - look after the people in front of me, and then when I glanced back, there didn't appear to be a vehicle there.

Did you see where that vehicle went? --- Well, shortly afterwards I presume the vehicle that approached me is the one that crossed my front.

Did you look in your left-hand, that is, the outside left-hand rear-vision mirror? --- I couldn't swear to you that I did nor did not.

You did not see the white vehicle in the left-hand lane? --- The vehicle was probably still in the left-hand lane when I first saw it looking across my front. So beside, in front - how you would describe that, I don't know, but it was already starting to cross my front.

You did not see that white vehicle alongside you in the left-hand lane? --- No, I don't believe I did.

You did not see that white vehicle pass you in the left-hand lane? --- Wasn't possible for it to pass me in the left-hand lane.

No, would you answer my question? --- You did not see it pass you in the left-hand lane? --- No.

So you did not see it draw up alongside you? --- No.

You did not see any part of this vehicle go ahead of you? --- No. Sorry, I'm probably wrong in saying that. Obviously I spotted the vehicle in front of me as it crossed my front.

And from what you said earlier, you saw it when it was - at least part of it in the right-hand lane in front of you? --- Yes.

I'll come back to my question. You did not see the white vehicle draw alongside you. Is that right? --- That's correct.

You did not see it draw past you? --- As I said to you, I believe that I would've seen the vehicle - if you're saying draw past me, it would've been drawn past me to have gotten across the front of me.

But you did not see it do that, did you? --- I saw the vehicle as it - as it was angling across my front.

Yes, but you did not see it in the left-hand lane drawing past you? --- No, I didn't see it actually pull up beside me, no.

Nor did you see it - for example, the front of it drawing past you? --- No."

17 The important findings made by the trial Judge can be summarised as follows.

18 The respondent was trying to catch up to Mr Lambert and to that end she was travelling faster than the general flow of traffic and was doing some weaving. She came up behind the appellant's vehicle travelling at a faster speed than him. The appellant observed the respondent's vehicle come up behind him in a manner that made it clear that she wished to go past him but he did not move over. Then he saw that she was no longer behind him. Therefore he should have appreciated that she had moved into the left lane as part of a passing manoeuvre. Notwithstanding that the respondent's vehicle was, as his Honour put it, "there to be seen", the appellant did not see it again "until it moved back into his path". The Judge found that before commencing this manoeuvre the respondent cleared the appellant's vehicle and had activated her trafficators signalling her intention to move to the right and that a driver in the position of the appellant, keeping a proper lookout, would have been aware of the presence of the respondent's vehicle as it came alongside and moved past and clear of his vehicle and would have seen the trafficators signalling the intention to change lanes and that in any event he ought to have appreciated on the strength of what he had actually seen, that she would try to move back into his lane to get ahead. The appellant took no step to avoid contact between the two vehicles although there was "ample time for the [appellant] to observe the [respondent's] vehicle."

19 His Honour found that the clearance between the two vehicles was lost when the respondent slowed a little after moving ahead of the appellant "perhaps whilst checking her mirrors and looking over her shoulder".

20 In my opinion, these findings were plainly open on the evidence and are sufficient to sustain the finding of negligence against the appellant. The negligence was failing to keep a proper lookout thereby failing to see that the respondent's vehicle was ahead of him intending to cross into his lane in circumstances in which there was the risk of a collision if he did not yield to the respondent's vehicle. In the result he did not yield to the respondent's vehicle when a reasonable driver keeping a proper lookout and otherwise acting reasonably would have done so.

21 In my opinion, the appellant can have no possible complaint about these findings. For myself I think it was open on the whole of the evidence to find that the appellant actually saw the respondent's vehicle along side him, saw it move ahead of him and saw the trafficators and the movement of that vehicle from left to right as it proceeded to cross in front of him. These are things that an ordinary driver with ordinary peripheral vision would observe. If these had been the findings the appellant's level of culpability for this accident would have been found to be much greater. His conduct would have been explicable only on the basis that he positively decided to hold his ground when to do so was fraught with the risk of collision. The inference that this was his manner of driving and his state of mind is supported by the uncontested evidence as to his extra-ordinary behaviour after the impact. He just kept going.

22 I would dismiss the appeal against the finding that the appellant was negligent.

23 The second main ground of appeal is that the Judge failed to attribute to the respondent a sufficient degree of responsibility for her injuries. Counsel for the appellant has drawn our attention to cases in which damages awards have been reduced by as much as 25 per cent simply for failing to wear a seat belt. Mr Brooksby went so far as to submit that the Judge should have performed two discrete exercises. He should first have determined a contributory negligence apportionment arising from the respondent's manner of driving and then he should have determined a contributory negligence apportionment on account of the failure to wear a seat belt. He should have added the two together and had he done so the result would have greatly exceeded 55 per cent.

Contributory negligence - failure to wear seat belt

24 Section 4(1) of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 provides:

"Whenever in any claim for damages founded on an allegation of negligence the Court is satisfied that the defendant was guilty of an act of negligence conducing to the happening of the event which caused the damage then notwithstanding that the plaintiff had the last opportunity of avoiding or could by the exercise of reasonable care have avoided the consequences of the defendant's act or might otherwise be guilty of contributory negligence the defendant shall not for that reason be entitled to judgment but the Court shall reduce the damages which would be recoverable by the plaintiff of the happening of the event which caused the damage had been solely due to the negligence of the defendant to such an extent as the Court thinks just in accordance with the degree of negligence attributable to the plaintiff."

25 This section abolished the common law rule that contributory negligence is a complete defence to an action in negligence and introduced instead the doctrine of apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage. The making of an apportionment involves a comparison both of culpability and of the relative importance of the acts of the parties in causing the damage: Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494. In that case the High Court pointed out that it is the whole of the conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.

26 At one time in this State it was thought that it is only conduct contributing to the accident itself which is relevant to apportionment, so that failure to take precautions to reduce the extent of the injury did not amount to contributory negligence: Taggart v Rose [1975] WAR 41 at 43. However, it is now settled that failure to take precautions to lessen injury may amount to contributory negligence: Motor Vehicle Insurance Trust v Wilson [1976] WAR 175. It is also well settled that the failure to wear a seat belt fitted to the seat of a motor vehicle falls into this category of contributory negligence and may (depending on the circumstances) lead to a reduction in the plaintiff's damages. Froom v Butcher [1975] EWCA Civ 6; [1976] QB 286; Ford v Barnett (1987) 5 MVR 95. It is for the defendant to prove contributory negligence and in order to obtain an apportionment under this head of defence the defendant must show that the plaintiff's injuries would have been less if a seat belt had been worn. It then becomes a question of degree. It was put in this way by Lord Denning MR in Froom v Butcher (supra) at 296:

"Sometimes the evidence will show that the failure made no difference. The damage would have been the same, even if a seat belt had been worn. In such case the damage should not be reduced at all. At other times the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25 per cent. But often enough the evidence will only show that the failure made a considerable difference. Some injuries to the head, for instance, would have been a good deal less severe if a seat belt had been worn, but there would still have been some injury to the head. In such case I would suggest that the damages attributable to the failure to wear a seat belt should be reduced by 15 per cent."

27 In this case the appellant did succeed in obtaining a finding against the respondent on the question of the seat belt. The Judge found that the respondent's failure to wear her seat belt increased the likelihood of spinal injury of the kind sustained by the respondent. His Honour referred, however, to uncontradicted medical evidence which was to the effect that even if the respondent had been wearing a seat belt she may have sustained the spinal injuries in question. Although he was satisfied that the respondent's injuries "were more severe as a result of her failure" he thought that on the strength of the medical evidence the extent of the increase in severity "must be assessed conservatively".

28 Mr Brooksby submitted that, quite apart from a substantial deduction on account of the manner of the respondent's driving, damages should have been reduced by as much as 25 per cent on the seat belt issue alone. He argued that it was more than likely that the spinal injury was sustained when the respondent was thrown from the vehicle and that it was unlikely that this would have occurred had she been restrained by her seat belt. He submitted that in these circumstances a total deduction of only 55 per cent amounted to an erroneous exercise of discretionary judgment. I am not persuaded that this is so. His Honour was not engaged in a totting up exercise but was obliged to make an overall assessment of contributory negligence as a matter of discretion and judgment and of weighing all of the different considerations: Barnard v Towill (1998) 72 SASR 27 per Lander J at 44; Podrebersek v Australian Iron and Steel Pty Ltd (supra) at 493. As was stated by the High Court in the latter case, such a finding, if made by a Judge, is not lightly reviewed. In my opinion, it was open on the whole of the facts to find that by crossing in front of the appellant when the vehicles were so close and by failing to wear a seat belt the respondent was 55 per cent to blame for her own damages. It is a very substantial deduction on account of contributory negligence. I would dismiss this ground of appeal.

29 On behalf of the respondent it was contended by Mr Viner QC that her manner of driving should not have been held in any degree a cause of the accident itself. In essence his submission was that on the Judge's own findings the respondent committed no more than an error of judgment, that errors of judgment do not amount to contributory negligence and that the sole cause of the accident was the appellant's failure (a), to move into the left lane when he saw the respondent coming up behind him wishing to go ahead and (b), his failure to give way so as to allow the respondent room to come across in front of him when he ought to have seen it was her wish and intention to do so. The indisputable fact is however that, taking reasonable care for her own safety, the respondent should not have attempted the manoeuvre without making sure by looking that it was quite safe to do so. It is true that his Honour described her actions as merely "an error of judgment" but still she was careless. She simply did not allow sufficient clearance thereby heightening the risk of contact between the two vehicles. Whilst the appellant should have had the respondent's vehicle under observation and should have yielded to her when it was obvious (as it must have been) that she wished to come into his lane in front of him and whilst the level of his culpability as regards the contact between the two vehicles was substantial, I believe a reduction of as much as 55 per cent on account of the manner of her driving and her failure to wear a seat belt is not unreasonable.

Appeal on damages - deductibility of private insurance benefits

31 Included in the overall assessment of damages at $2,085,699.75 before apportionment was an award of $423,984 for future loss of earning capacity. By ground 18 of the grounds of appeal the appellant pleaded that his Honour should not have:

"18. Awarded damages for past and future loss of earnings notwithstanding and/or without taking into account that the respondent (plaintiff) was a beneficiary under a policy of income protection taken out by her employer in relation to which she made no contributions."

32 The respondent was an employee of Maga Pty Ltd as trustee for the Sprague Kam Unit Trust as a medical secretary and receptionist. Her employer conducted a radiology practice at St John of God Hospital in Subiaco. It had a group disability income insurance policy with the National Mutual Life Association of Australasia Ltd under which it was entitled to benefits if its employees became disabled from earning. The Judge found that pursuant to this policy the respondent was entitled to receive and was receiving weekly payments at the rate of 75 per cent of the salary she would have received had she continued in her employment. It was submitted on behalf of the appellant at trial that the benefits from this policy ought to be taken into account in arriving at a proper assessment of future economic loss. Of this submission his Honour said:

"The defendant says that the likelihood that the plaintiff will continue to receive such payments is something that must be taken into account in reduction of any allowance made under this head.

However, having regard to the policy and its apparent purpose, in my view the recent decision of the High Court in Commission of Taxation v Scully [2000] HCA 6; (2000) 201 CLR 148, 168 - 170 makes it plain that the converse is true."

33 In the result, the Judge made no deduction from this head of damage on account of the benefits received and to be received by the respondent in virtue of the policy and the question is whether he ought to have done so. This once again raises the question of when insurance funded receipts should go in reduction of damages for personal injuries and when they should not. The question is not always easy to answer. As Lord Bridge of Harwich said in Hussain v New Taplow Papermills Ltd [1988] 1 AC 514 at 528:

"Many eminent common law Judges, I think it is fair to say, have been baffled by the problem of how to articulate a single guiding rule to distinguish receipts by a plaintiff which are to be taken into account in mitigation of damage from those which are not."

34 The difficulty arises from the tension which exists between the rule that the victim of a tort may recover only his real loss and may not enjoy double recovery and the principle (or exception to the rule) that a tortfeasor ought not to derive any benefit from receipts to which the victim of the tort has become entitled under private insurance arrangements.

35 The clear tendency of authority in Australia is to exclude from consideration the proceeds of insurance paid for in one form or another by the injured party: National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569 especially per Dixon CJ at 573 and Windeyer J at 588, 598, 599 - 600; Redding v Lee [1983] HCA 16; (1983) 151 CLR 117 at 138; Commissioner of Taxation v Scully [2000] HCA 6; (2000) 201 CLR 148 at 168 - 171.

36 Mr Brooksby for the appellant submitted that this case is distinguishable from these cases in that although it is a case of private insurance the respondent made no contribution at all by way of the payment of premiums. He submitted that the case is indistinguishable from Hussain v New Taplow Papermills Ltd (supra) in which the employer had set up a disability scheme for its employees under which employees disabled through injury or illness were entitled to receive full pay for 13 weeks and thereafter half pay. The liability to make these payments was the employer's alone, the liability arising under the contract of service. The employer had however taken out a policy of insurance providing insurance cover for the amounts which it was liable to pay under the scheme. The House of Lords decided that the amounts received and to be received by the plaintiff were deductible from the damages which the employer was liable to pay to the employee in respect of an injury sustained by the employee in the course of his employment. In my opinion, the case depended on its special facts and is distinguishable from the case which we have under consideration. It turned on an analysis of the particular scheme in the context of the particular contract of employment. The House of Lords concluded that the amounts received by the employee were salary or wages. As Lord Bridge put it at 530:

"...it has always been assumed as axiomatic that an employee who receives under the terms of his contract of employment either the whole or part of his salary or wages during a period when he is incapacitated for work cannot claim damages for a loss which he has not sustained..."

37 There is little or no evidence in the case before us as to the terms of the contract of employment. All that appears is that after an initial probationary period of employment employees were offered a salary package which included what the employer called "income protection insurance". The evidence about it came from a Ms Pendlebury who was the office manager of the employer at St John of God Hospital. Her evidence was as follows:

"In the course of employment by SKG are employees provided with anything in the nature of income protection insurance? --- Yes, they are. After your three months probation, if you become permanent every employee is entitled to the income protection.

How does that operate in terms of relationship with salary in terms of employment? --- I don't know the finer details of it because it is handled by our personnel lady at the head office ... I believe that once you've been taken off work ill for a month it then comes into play and that you get 75% of your wage.

I might have misled you. I wasn't intending to ask you for details of the actual policy [indistinct] produce that to you. I'm wishing to ask you in relation to the salary and terms of employment, how is the income protection insurance policy provided? In other words, is it part of a salary package in terms of employment? --- Yes, it is. It's part of every permanent employee's salary package.

How is the premium funded? --- I wouldn't know the answer to that, I'm sorry.

Is it so far as you are aware part of that salary package? --- Yes, it is.

When Heidi was employed was she permanent? --- Yes, she was.

Did she have the benefit of that income protection insurance policy? --- Yes, she did."

38 A document was then tendered which was entitled "Proposal for Group Disability Income Insurance Policy (Non-Superannuation) made to the National Mutual Life Association of Australasia Limited". The policy itself was not tendered and no further evidence was called as to the terms of employment.

39 In my opinion, if one guiding principle emerges from the cases on this subject it is that it is the nature or character of the payments which determines whether they are or are not deductible, not the identity of the person who makes them nor whether the employee to whom the payments are made contributed money to the fund, scheme, or policy which is the source of the payments. It is on this basis that Hussain v New Taplow Papermills Ltd (supra) is clearly distinguishable from the many cases in which receipt by injured employees have not been deducted from their common law damages award. The character of the payment in that case was wages. The amounts which were paid to Mr Hussain were paid under a scheme incorporated by reference into the contract of employment pursuant to which Mr Hussain's employment and his right to remuneration continued during his incapacity. The payments in their essential character were wages payable by agreement between employer and employee only for as long as the injured employee remained in the employment of the employer: Hussain v New Taplow Papermills Ltd (supra) per Lord Bridge at 525 C-D. They were analogous to indefinite sick leave. It is of course well settled that sick leave is deductible from an award of common law damages under the head of lost earning capacity. In Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 the payments made to the plaintiff after the accident and before he was compulsorily retired were held to be deductible from his damages. The payments were described as "sick pay" but the Court was not greatly influenced by that label. The important point was that the payments were made as wages pursuant to an industrial agreement providing for sick leave. As it was put by Dixon CJ, Kitto and Taylor JJ at 345:

"...we are concerned with a contract pursuant to which, generally speaking, the employee was bound to work for his wages. But the contract contemplates the possibility that circumstances of a defined character may arise and prevent the employee from performing his duties. In those circumstances he is to be entitled to absent himself on sick leave and, subject to specified limits, to receive "full pay" whilst on leave. In our view the respondent's contract says no more and no less than that, if he becomes unable by reason of sickness or other specified causes to perform his ordinary duties, nevertheless his right to "full pay" or, in other words, his ordinary wages, shall continue to be payable, subject to the limit specified during the period of his absence. If, therefore, the claim be made, as it was, that the respondent lost the whole of his wages between the date of the accident and the date of trial then the appellant was entitled to answer it by showing that for a period of 178 days he received his full wages.

In Paff v Speed [1961] HCA 15; (1961) 105 CLR 569 at 566 Windeyer J held in effect that a plaintiff who has been injured, but whose employment has not been terminated, cannot recover as lost wages what he was entitled to have from his employer by way of wages whether it be called sick pay or not."

40 In my opinion, Hussain v New Taplow Papermills Ltd (supra) is no more than an application of these principles. It was because the payments that were made to Mr Hussain were wages or a substitute or partial substitute for wages that he could not claim that they should be disregarded in the assessment of his loss of wages.

41 In Redding v Lee (supra) the High Court held that awards for loss of earnings or earning capacity should be reduced by the amount of Commonwealth unemployment benefits received by the injured employee but not by the amount of Commonwealth invalid pension received by the employee. The point of distinction was in the character of the payment. As regards the grant of an invalid pension to an injured person the Court held (at 144) that the legislature intended that it be for the benefit of that person notwithstanding any common law claim for damages which he might have in respect of his injuries and in light of this legislative intention "the invalid pension payments are not to operate in relief of the liability of any person liable to pay those damages". On the other hand, as regards unemployment benefits, the Court held that the legislative intention was that the payments should be a substitute or partial substitute for wages justifying the same treatment as wages in terms of assessment of damages. Mason and Dawson JJ referred to a line of cases which were to the effect that the duty to mitigate damages which is imposed on an incapacitated plaintiff did not cease on failing to find work but extended to drawing unemployment benefits whilst out of work (at 145).

42 In the case which we have under consideration there is no evidence that the payments which the respondent has received and will receive in virtue of the income protection policy in question are intended to be paid as wages or as a substitute or partial substitute for wages. Her employment did not continue and there was no continuation of the right to be paid wages. The payments are not conditional on the continuation of the respondent's employment. The mere fact that the payments are calculated as a percentage of the respondent's annual salary is not determinative of the essential character of the payments. The scheme in question is in all respects analogous to a pension scheme with pension benefits payable pursuant to a policy of insurance. There is not the slightest indication in the proposal document (which we are told and which I accept reflects the policy itself) that the benefits are to go in relief of any liability of third party tortfeasors to fully compensate her for the damage she has sustained by their negligent conduct. There are clear indications in the document to the contrary. By cl B3 of the document it is provided that the amount of income benefit that is payable in respect of a person is to be:

"...reduced, to the extent permitted by law, by any Offsets in respect of the person..."

43 In the definition part of the Proposal the following definition of "Offsets" appears:

(i) are made independently of the Policy, and

(ii) are of a periodic nature (including periodic payments which have been commuted or partly commuted to a lump sum), and

(iii) in the opinion of National Mutual relate to reduced income earning capacity of the Insured Employee arising from inability to work by reason of any injury or illness

and which arise pursuant to any legislation, statute or ordinance (excluding sick leave pay unless the proposers and National Mutual agree otherwise) or which derive from any personal sickness and accident policy or from any superannuation fund."

44 By specifically providing for the deductibility of particular kinds of receipts, ordinary rules of construction compel the conclusion that no other receipts are to be deducted. The payment of lump sum damages at common law is not in the category of payments that are to be applied in reduction of the income benefit payable under the policy. If the insurance company refused to pay the benefits on the ground that the respondent had been compensated at common law for lost earning capacity there would be no answer to an action for enforcement. In other words, the payments are intended to be conferred independently of the existence in the employee of a right to recover common law damages against others and are conferred so that they may be enjoyed by the employee although he or she may enforce that right. In the words of Dixon CJ in National Insurance Co of New Zealand Ltd v Espagne (supra) at 573:

"...they are the product of a disposition in [her] favour intended for [her] enjoyment and not provided in relief of any liability in others fully to compensate [her]."

45 The fact that the respondent did not contribute by direct monetary payment or by a nominated salary sacrifice to the premiums payable to the insurance company is immaterial. It is well recognised that as a general rule an employee earns the benefits of a pension entitlement by moneys worth being the services which he or she renders under the contract of employment. In this case the respondent became entitled to the benefits by reason of her service. The premium paid by the employer is the price that was paid for the benefits to which the respondent is now entitled and by working in return for the payment of those premiums the respondent has bought and paid for the benefits as much as if there had been a deduction from her salary or a separate payment from her savings. The case comes within the principle articulated by Lord Templeman in Smoker v London Fire and Civil Defence Authority [1991] 2 AC 502 when he said:

"The plaintiff has bought his pension which is, in the words of Lord Reid [Parry v Cleaver] [1969] UKHL 2; [1970] AC 1 at 16] 'the fruit, through insurance, of all the money which was set aside in the past in respect of his past work'. The fruit cannot be appropriated by the tortfeasor."

46 It is worth observing as Donovan LJ did in his dissenting judgment in Browning v War Office [1963] 1 QB 750 at 763 - 764 that the benefits under the policy in question are not paid as compensation for the damage inflicted by a tort. They are moneys payable under a contract of insurance upon the happening of the event insured against namely the onset of disability. On this analysis the respondent is not recovering twice in respect of the same tort.

47 That these benefits are indistinguishable from benefits arising from insurance privately effected by the injured employee is explained by Lord Pearce in Parry v Cleaver [1969] UKHL 2; [1970] AC 1 at 37 - 38 as follows:

"...one must see whether there is some reason to except from [the principle of non-deductibility] pensions which are derived from a man's contract with his employer. These, whether contributory or non-contributory, flow from the work which a man has done. They are part of what the employer is prepared to pay for his services. The fact that they flow from past work equates them to rights which flow from an insurance privately effected by him. He has simply paid for them by weekly work instead of weekly premiums. Is there anything else in the nature of these pension rights derived from work which puts them into a different class from pension rights derived from private insurance? Their 'character' is the same, that is to say, they are intended by payor and payee to benefit the workman and not to be a subvention for wrongdoers who will cause him damage."

48 This notion that pension schemes and disability schemes are earned by services rendered was echoed in the speech of Lord Wilberforce in Parry v Cleaver (supra) at 42 when he said that the pension represented "the earnings, or reward of past saving, to the extent of his own contribution or his past service, and, therefore, not entering into the computation of last post-injury wages."

49 It is the same point that was made by Windeyer J in National Insurance Co of New Zealand Ltd v Espagne (supra) at 598 when he observed of non-contributory pension schemes that they were "part of what a servant earns by his labour". Having earned it there is no reason in principle why the employee should be deprived of it by way of a deduction from damages to which the employee would otherwise be entitled as redress in an action against a tortfeasor.

50 In the end I think cases such as this remain governed by the principles enunciated by Windeyer J in National Insurance Co of New Zealand Ltd v Espagne (supra) at 599 - 600 when he said:

"Is there a governing principle in all these cases? So far as any rules can be extracted, I think they may be stated, generally speaking as follows:

In assessing damages for personal injuries, benefits that a plaintiff has received or is to receive from any source other than the defendant are not to be regarded as mitigating his loss, if:

(a) they were received or are to be received by him as a result of a contract he had made before the loss occurred and by the express or implied terms of that contract they were to be provided notwithstanding any rights of action he might have; or

(b) they were given or promised to him by way of bounty, to the intent that he should enjoy them in addition to and not in diminution of any claim for damages.

The first description covers accident insurance and also many forms of pensions and similar benefits provided by employers: ... the second description covers a variety of public charitable aid and some forms of relief given by the State as well as the produce of private benevolents. In both cases the decisive consideration is, not whether the benefit was received in consequence of, or as a result of the injury, but what was its character: and that is determined, in the one case by what under his contract the plaintiff had paid for, and in the other by the intent of the person conferring the benefit. The test is by purpose rather than by cause."

51 The benefits in question in this case are to be enjoyed notwithstanding that employment has ceased; and the benefits were paid for during employment by the services rendered by the respondent in the employment. The purpose of the benefits is not to compensate the respondent for the damages she sustained in the accident nor is it a payment in lieu of salary any more than any other pension is a payment in lieu of salary. It is simply one of the fruits of the respondent's past service, payable upon the onset of disability. It is a benefit "both independent of and cumulative upon whatever right of redress against others might arise out of the circumstances of" the onset of that disability (National Insurance Co of New Zealand Ltd v Espagne (supra) per Dixon CJ at 573).

52 In my opinion, Macknay DCJ was correct to disregard the benefits payable under the policy in question in assessing damages for lost earnings and lost earning capacity.

53 The parties provided the trial Judge with schedules in which they nominated specific heads of damage and in which they set out the agreed amount or their respective positions as to an appropriate award under each of those heads. His Honour therefore proceeded to make an assessment with respect to each individual head of damage in the schedules which included the following:

"8. Future doctor attendances and other medical attendances.

9. Future hospital expenses.

11. Future carer services/domestic assistance.

16. Future wheelchair expenses.

17. Future vehicle expenses."

54 As is evident from the headings themselves all of these claims were for compensation for anticipated future expenses quite unrelated to loss of future earning capacity.

55 Having arrived at a capital sum which he considered sufficient to compensate the respondent in respect of these future expenses the Judge discounted each item by 5 per cent as an allowance for the contingencies involved in what are called the ordinary vicissitudes of life. Mr Viner submitted that this was not justified and that generally speaking this form of contingency deduction is a discount confined to the assessment of compensation for lost earning capacity, it being a deduction made on account of the risk that remunerative employment might be interrupted in the future for various reasons. As Mr Viner pointed out this is not relevant to an assessment of compensation for the future outgoings in question. As to the contingency that there might be an untimely death, Mr Viner submitted that this was taken into account in the calculation of the respondent's probable life expectancy which was determined to be 74 years rather than the usual 82 years.

56 I would accept these submissions. With respect to the learned trial Judge I can see no basis upon which a discount for the ordinary vicissitudes of life which may be appropriate in assessing lost earning capacity should be applied to the assessment of compensation for future expenditure on things like hospital and medical expenses once probable life expectancy has been determined. I would give general application to the statement in Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 at 587 which was to the effect that once probable life expectancy is determined, vicissitudes of life do not enter into the assessment of future hospital expenses. In Simmons v Hillsdon (No 2) [1965] NSWR 837 the New South Wales Court of Appeal held that the relevant period for calculating expenditure was the plaintiff's expectation of life, with no rebate for contingencies, since the chances of her living longer were exactly the same as those of her not living so long: see per Brereton J at 938 - 939. And see the discussion in Luntz: "Assessment of Damages for Personal Injury and Death" (4th ed) par [6.4.4].

57 The learned Judge did not give any reasons for applying the contingencies discount to the capital sum assessed in respect of future expenditure other than to refer to the judgment of this Court in Black v Motor Vehicle Insurance Trust [1986] WAR 32 in which a discount of 30 per cent applied by the trial Judge to an assessment for future loss of earning capacity was reduced by the Full Court to 10 per cent. However, that case concerned only the deduction which is appropriate to be made to the capital sum assessed as compensation for lost earning capacity. There is no support in the case for the application of a contingency deduction to items of future expenditure which as Windeyer J pointed out in Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541 at 546 "are of a different order from those to be considered in assessing loss of earning capacity". The risk of supervening illness, unemployment and so on is simply not relevant to the question of fair compensation for future wheelchair expenses etc. The contingencies that may be relevant (such as that the plaintiff may die sooner, that the expenses may not be as great as expected and so on) are contingencies all of which can go the other way. As was pointed out by Brereton J in Simmons v Hillsdon (No 2) (supra) the plaintiff may live longer. And as was pointed out by Windeyer J in Bresatz v Przibilla (supra) expenses for medical attention may turn out to be greater than expected.

58 I would allow this ground of cross appeal and increase the award by 45 per cent of the calculated amount of $16,821. That is to say I would restore the 5 per cent discount deducted by his Honour.

59 One of the heads of claim under the general heading of "Future doctor attendances and other medical attendances" is a claim for psychological and psychiatric treatment made necessary by the onset of a major depressive disorder as a sequel to her physical incapacity. The Judge awarded $1,800 as a capital sum to compensate the respondent for the likely cost of future therapy. On behalf of the respondent it is contended that this is a gross under-estimate based upon a misapprehension of the evidence of the psychiatrist, Dr Loke. He had provided a report dated 9 September 1999 in which he said:

"I recommend that Ms Mills receives a course of anti-depressant medication. The likely duration of anti-depressant therapy is one to two years. I would also recommend cognitive behavioural therapy in the management of her depressive disorder. Approximately 12 sessions of cognitive behavioural therapy from a suitably qualified clinical psychologist may be required."

60 Apparently the parties put forward opposing calculations of the future cost of therapy. On behalf of the respondent five attendances per year at $200 per attendance for the rest of the respondent's life were claimed for. On behalf of the appellant it was contended that the evidence justified no more than an allowance for 10 attendances at $150 each over a period of six months.

61 In his judgment the Judge referred to Dr Loke's report of 9 September 1999 and to the evidence presented on behalf of the appellant and said "I will allow $1,800". Mr Viner QC submitted that in assessing these damages his Honour "apparently overlooked Dr Loke's revision" in a report which Dr Loke wrote on 13 February 2001 in which Dr Loke gave the opinion that the respondent "probably requires appropriate anti-depressant therapy for the remainder of her life. It would be reasonable to make an allowance of about four psychiatric or psychological attendances per year for the remainder of her life".

62 I do not understand his Honour's judgment to have been based upon a misapprehension of Dr Loke's evidence but upon a non-acceptance of it. It is fair to say I think that the Judge was sceptical of this head of claim. He remarked, for example, that although the plaintiff had been prescribed medication she "has not sought counselling and said she intended to see a psychiatrist when the litigation had been concluded". As I understand his judgment he did not consider that the respondent had sought or was in need of the level of therapy which Dr Loke thought she might require. I am not persuaded that this ground of appeal should be allowed and I would not interfere with the amount of $1,800 assessed by his Honour.

63 There was a claim for domestic assistance and personal care. The claim was supported by evidence from a Ms Jodrell who is an occupational therapist. Ms Jodrell provided a schedule of approximate costs said to represent the respondent's requirements for home help (cooking, shopping, cleaning and laundry) as well as for requirements enumerated under the heading "Other" being "cleaning - heavy, gardening and maintenance". Mr Viner complained that whilst the Judge made an allowance for the first set of items (domestic assistance and personal care) he made no allowance for the set of items under "Other" (heavy cleaning, gardening and maintenance). Mr Viner submitted that as his Honour obviously fully accepted Ms Jodrell's evidence and as it is obvious that he intended to make his assessment based upon that evidence the failure to make an assessment with respect to the respondent's need for assistance with heavy cleaning, gardening and maintenance must be taken to be simply an oversight.

64 I think this submission must be accepted. Although he did make some adjustments for overlapping it is clear that his Honour closely followed Ms Jodrell's estimates and calculations with respect to personal care, cooking, shopping and cleaning and he made a careful assessment of the capital sum appropriate to compensate the respondent for the cost of these services. He does seem to have overlooked Ms Jodrell's evidence (or that part of her written report) as to the respondent's requirements for assistance with heavy cleaning, gardening and maintenance which she costed out at $1,892 per annum. Nowhere in his Honour's judgment is

there an allowance for this head of claim or a disallowance of it. I am persuaded that this aspect of the respondent's claim was lost sight of and that this is an oversight which should now be corrected.

65 Based on Ms Jodrell's costing, none of which were disputed by the appellant, the appropriate allowance for this head of claim would be $30,634. I would allow this ground of appeal and increase the award by 45 per cent of that amount.

66 I would dismiss the appeal and the cross appeal on the question of liability. I would dismiss the appeal against the assessment of damages and allow in part the cross appeal on the question of damages by increasing the amount awarded to the respondent by 45 per cent of $47,455.

67 PARKER J: I agree with Anderson J, for the reasons he has given, that both the appeal and the cross-appeal should be dismissed on the question of liability, as should the appeal in respect of the assessment of damages, and that the cross-appeal as to damages should be allowed in part and the amount awarded the respondent should be increased as his Honour has indicated.

68 I would merely comment, with respect to the vexed question of liability, that there was some support in the evidence at trial for the contentious advanced before us on both the appeal and cross-appeal. In short, the evidence was varied in respect of a number of material matters and in some respects was conflicting. It was a case in which the trial Judge clearly enjoyed a significant advantage over the members of this Court in the weighing of that evidence by virtue of having seen and heard the witnesses give their evidence.

69 It cannot be said, merely from a review of the transcript of the evidence at the trial, that his Honour ought not to have accepted the evidence of those witnesses on which he relied, or that, in my respectful view, the material inferences which he drew were not open on that evidence.

70 It is not for this Court, in a case such as the present, to seek to make its own factual findings from a mere reading of the transcript of the trial and to decide the outcome of the appeal on that basis. As the findings reached by his Honour were properly open to him on the evidence, it is

necessary for the Court to respect the primary role of the trial Judge as the trier of fact, even though other views were open on some of the evidence.

71 MCKECHNIE J: The facts have been comprehensively set out in the judgment of Anderson J and I shall only refer to such other facts as are necessary to explain my reason for concluding that the appeal on liability should be allowed.

72 Before setting out my reasons, I expressly associate myself with Anderson J's comments on the prolix grounds of appeal.

73 Ms Mills is now married so I will refer to her as Mrs Lambert notwithstanding the title of the action.

Did Mr Richards breach his duty of care to Mrs Lambert?

74 I have reached a different answer to this question from that of the trial Judge. It appears that the trial Judge accepted that at the time of the collision the two cars were travelling around 110 kph. Mrs Lambert was travelling a little faster, perhaps at 115 kph.

75 It was common ground that Mr Richards was unaware of the presence of Mrs Lambert's car as it came alongside and moved passed his car until it moved back into his path. It is this fact which the trial Judge held led to the conclusion that Mr Richards therefore failed to keep a proper lookout.

76 The consequence of the speed of the cars is that the events happened extremely quickly and Mr Richards' liability for failing to take reasonable care has to be judged in this light. The Judge did not advert to the very short time which would have elapsed between Mrs Lambert moving from the right-hand lane to the left-hand lane, pulling alongside Mr Richards, and then pulling in front of him into his lane. The Judge concluded at [205] that there was "ample time" for Mr Richards to observe Mrs Lambert's car. However, it was not the observation of the car which was important but the time possible for observation of the manoeuvre. This time was necessarily short.

77 The evidence as to where the two cars touched is not very clear.

"... the collision occurring between the very rear of the plaintiff's vehicle on the right and the front of the defendant's vehicle on the left, ..".

79 Mr Richards gave evidence that after the collision he checked his car:

"... There was a small mark on the front bumper. It hadn't cracked the plastic or anything like that there."

Whereabouts on the front bumper?---The front left-hand corner of the vehicle."

80 In cross-examination Mr Richards described the small mark as an abrasion, a rub mark, right on the corner of the left-hand bumper.

81 Mr Bokulic in cross-examination was asked about the point of contact which he said was:

"...The bumper, more a little bit of the front panel of the dark sedan.

...

You know, it may have been the bumper but it appeared more that they were rather than corner to corner, it appeared that it was more of a side to side.

MR BROOKSBY: If the driver says that contact was made with his front bumper you wouldn't argue?---No, I wouldn't.

In fact, your view was still partially blocked by this car in front of you?---Not at that stage."

"... I didn't inspect the whole vehicle, but I did look at that front left-hand corner of the Magna and saw damage done to it there.

... right near the headlight, right up near the headlights.

... The very front left part.

MACKNAY DCJ: So that's the corner panel, not the front of the vehicle?---Yes, it's the corner, the corner side, but more right up on the front corner - - -

In front of the wheel arch?---Yes, basically up near - a bit further up, but around the wheel arch, yes."

83 Mr Pritchard also had a look at Mrs Lambert' car. Her car had significant impact damage from rolling over. In his opinion the damage to the back was:

"... back right-hand side, driver's side, and the front left-hand side, I believe, were the most impacted damaged parts of the vehicle.

... yes, there was also some paint from the Magna on the vehicle as well.

... On the right-hand side, on the ... right-hand side rear of the vehicle.

... Right near the very back."

84 Mr Pritchard later corrected that to the left-hand side.

85 The finding at [159] is in line with the evidence and suggests that Mrs Lambert failed to allow enough space to complete her manoeuvre. The preponderance of such evidence as there is suggests some contact to the front left-hand side of Mr Richards' car. That being so, Mrs Lambert did not complete her manoeuvre into the outside lane before hitting Mr Richards' car. At the speeds being travelled and the distances involved, this reinforces the conclusion that events occurred quickly and lessened the time available for Mr Richards to have seen the manoeuvre. Under the Road Traffic Code in force at the time of the accident, Mrs Lambert was required not to drive in front of Mr Richards until her vehicle was safely clear.

No finding that Mr Richards blocked Mrs Lambert

86 The particulars of negligence pleaded in the amended statement of claim were:

"The Defendant;

(a) failed to keep any or any adequate look out for the Plaintiff's vehicle;

(b) drove at a speed which was in excess of the speed limit on Kwinana Freeway at the place of the collision;

(c) drove at a speed which was excessive in the circumstances;

(d) failed to brake, slow down or otherwise manoeuvre the Defendant's vehicle so as to avoid collision with the Plaintiff's vehicle;

(e) drove the Defendant's vehicle so as to block the Plaintiff from changing lanes in the Plaintiff's vehicle."

87 The Judge made no findings as to excessive speed in particulars (b) and (c). Specifically the Judge did not find that Mr Richards drove his car so as to block Mrs Lambert from changing lanes in her car: particular (d). The sole basis of liability the Judge found was the lack of Mr Richards' awareness of Mrs Lambert's car in the left-hand lane which demonstrated a failure on his part to maintain the look out required of a reasonable person in the circumstances.

88 The trial Judge proceeded on the basis at [164]:

"... that a reasonable person in the position of the defendant would have been aware that the plaintiff's vehicle had changed to the left-hand lane, there being nowhere else it could go, so that there would be a high degree of probability that the plaintiff had done that in order to pass the defendant's vehicle."

"The collision which followed that failure involved, quite literally, a matter of inches, or centimetres, and the lightest touch to the defendant's brakes prior thereto would have avoided it.

Had the defendant been aware of the plaintiff's vehicle there would have been sufficient time for him to so brake and avoid the collision and its consequences.

The defendant's breach of duty was thus a cause of the collision."

90 It may be accepted immediately that Mr Richards owed a duty of care to Mrs Lambert, and other road users, to take reasonable precautions to prevent harm. The standard of care to which Mr Richards was required to conform, included his taking into account, the possibility of inadvertent or negligent actions on the part of other road users. The scope of the duty of care in the circumstances was for Mr Richards to drive his car at a steady speed so as not to impede another car from entering the lane in front of him. All drivers should pay attention to the road conditions and keep a lookout. This is as much for their own protection as to fulfil the content of any duty of care to other road users.

91 The answer to the question whether there has been a breach of the duty of care involves a sequential reasoning process: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 77 ALJR 183 derived from Wyong Shire Council v Shirt:

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have."

92 The conduct in the present case involved driving down a two lane busy freeway in the right-hand lane, keeping a steady speed. It is clear that Mr Richards was generally aware of other traffic even if he was not specifically aware that another car, that of Mrs Lambert, had entered the left-hand lane and was intending to pass him and merge into his lane. Mr Richards' evidence was that he was keeping a watch on the cars ahead, those in respect of which he was drawing closer.

93 In Graham Barclay Oysters McHugh J said at [87]:

"Reasonable foreseeability involves more than a question of fact. It involves a value judgment. Would a reasonable person in the position of the defendant not only have foreseen that his or her conduct - including omissions - gave rise to a risk of injury, but regarded it as sufficiently serious to consider what steps should be taken to avoid or reduce it ."

94 I do not consider that a reasonable person would have foreseen the risk of injury to Mrs Lambert. Mr Richards was motoring down a freeway which was carrying traffic ahead of and behind him. This is a common state of affairs as is the fact that from time to time some drivers change lanes. Traffic may not travel at a uniform speed so that overtaking will occur. When overtaking does occur the overtaking car is required to keep clear of the other car.

95 In all the particular circumstances, I am unable to agree with the Judge that any action or omission by Mr Richards breached his duty of care to Mrs Lambert.

96 In the very brief time during which Mrs Lambert's car came behind Mr Richards' car, pulled into the left lane, came alongside, and then overtook his car, and pulled in front of him, it is an unreasonable burden to extend the duty of care on Mr Richards to take steps to reduce his speed to accommodate a manoeuvre which self-evidently was dangerous. Mr Richards' failure to keep a proper lookout, even if accepted, did not breach any duty of care owed to Mrs Lambert.

97 Moreover, Mr Richards' omission to brake, although in a literal sense was causative of the accident, is not in my view a legal cause of the injuries and damage suffered by Mrs Lambert. The collision occurred because Mrs Lambert misjudged the manoeuvre or, as the Judge opined, she reduced her speed.

98 There is nothing in Mr Richards' behaviour or actions following the accident from which can found any inference of negligent driving before the collision.

99 To elevate the failure to keep a proper lookout in this case to the status of a failure to take reasonable care for the safety of Mrs Lambert is to impose a condition akin to strict liability.

100 It is often difficult, and sometimes wrong, to compare facts of different cases and extract general principles from them: Knight v McLean [2002] NSWCA 314 at [61].

101 In this case the Judge expressly found that Mr Richards should have realised there was a high probability that Mrs Lambert would want to move from the left-hand lane to the right-hand lane. However, even allowing for the possibility that Mrs Lambert might make an error of judgment, his continued steady speed did not in the circumstances breach his duty of care.

102 To the extent which Derrick v Cheung [2001] HCA 48; 181 ALR 301 lays down any principles of negligence, those principles would suggest that no finding of negligence against Mr Richards should be made.

103 I would allow the appeal, set aside the orders in the trial court and in lieu order that the plaintiff's claim be dismissed.

104 In view of my conclusion on liability it is unnecessary for me to deal with this issue. The competing policy considerations are not always easy to reconcile. In the present case Mrs Lambert has been awarded damages for her loss of earning capacity.

105 On one view, 75 per cent of Mrs Lambert's future earning capacity is guaranteed because her salary package provides an automatic income compensation to that extent.

106 A tortfeasor should not have a windfall advantage of private arrangements entered into by a plaintiff to cover a contingency of loss of earning capacity. On the other hand, a tortfeasor's obligation is to pay damages for actual loss and it is arguable that in the particular circumstances the case does not fit within the Espagne doctrine on that argument. The actual loss of earning capacity is only 25 per cent of the projected total loss.

107 The comprehensive analysis by Anderson J and the conclusion he expresses is persuasive. However, because of the competing principles enunciated above, and the fact that no case cited is precisely on all fours with the present case, I will not publish what would necessarily be obiter dicta.

108 Although again obiter dicta, I will nevertheless record my agreement with the reasons and conclusions of Anderson J on this point.