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[2015] ACTCA 57
General information, not legal advice.
Court of Appeal (ACT)
2015-11-06
Refshauge, Penfold and Rangiah JJ
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Authorised report: 11 ACTLR 95
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Steen v Senton by his litigation guardian The Public Advocate of the Australian Capital Territory
Citation: [2015] ACTCA 57
Hearing Date: 4 May 2015
Decision Date: 6 November 2015
Before: Refshauge, Penfold and Rangiah JJ
Decision: 1. The appeal be upheld in part.
a. Assessing the contributory negligence of Trevor Videan Senton as 50% and reducing the damages payable by that percentage;
b. Recalculating the portion of the damages payable for care while Trevor Videan Senton is in an aged care facility
The parties provide, within seven working days, a calculation of the amount payable for care in an aged care facility in accordance with the reasons of the Court in the form of a draft order but, if not agreed, precise details of the basis on which each party’s calculation is made.
There be no order as to the costs of the appeal
Category: Principal Judgment
Catchwords: NEGLIGENCE – Contributory negligence – apportionment of liability – whether ss 5R and 5B of the Civil Liability Act 2002 (NSW) depart from common law position – whether driver of motor vehicle subject to higher culpability than pedestrian – where Master ought to have applied ss 5R and 5B – where application of ss 5R and 5B holds driver and pedestrian to same standard of care – driver and pedestrian equally responsible for collision
DAMAGES – Calculation of damages – whether Master erred in calculating life expectancy – where inconsistencies found in Master’s findings – whether Master erred in calculating allowance for commercial care – where allowance found to be too speculative
PRACTICE AND PROCEDURE – New argument raised on appeal – whether in interests of justice to allow new argument – where appellant relies on decisions of intermediate appellate courts delivered after trial – where new argument dispositive of appeal – where intermediate appellate court should not depart from decisions of equivalent courts – new argument allowed
Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT) Civil Liability Act 2002 (NSW) ss 5B(2) and 5R Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 9 Motor Accidents Act 1988 (NSW) s 74 Motor Accidents Compensation Act 1999 (NSW) ss 138(1) and 138(3)
Cases Cited: Anikin v Sierra (2004) 211 ALR 621 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Bloemen v Commonwealth (1975) 49 ALJR 219 Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393 Broadhurst v Millman (1976) VR 208 CAL (No 14) Pty Ltd v MAI Board (2009) 239 CLR 390 Cocks v Sheppard (1979) 25 ALR 325 Coulton v Holcombe (1986) 162 CLR 1 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 Dungan v Chan (2013) 64 MVR 249 Evers v Bennett (1982) 31 SASR 228 Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89 Gordon v Truong (2014) 66 MVR 241 Green v Sommerville (1979) 141 CLR 594 Hili v The Queen (2010) 242 CLR 520 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Hulanicki v Walton (2015) 70 MVR 326 Karamalis v Commr of South Australian Railways (1977) 15 ALR 629 Marien v Gardiner (2013) 66 MVR 1 O’Brien v Komesaroff (1982) 150 CLR 310 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34 Smith v McIntyre [1958] Tas.SR 36 Smith v Zhang (2012) 60 MVR 525 Stapley v. Gypsum Mines Ltd. [1953] AC 663 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 T & X Company Pty Ltd v Chivas (2014) 67 MVR 297 Talbot-Butt v Holloway (1990) 12 MVR 70 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 Watt v Bretag (1982) 56 ALJR 760 Parties: Francis James Steen (Appellant) Trevor Videan Senton by his litigation guardian the Public Advocate of the Australian Capital Territory (Respondent)
Representation: Counsel Mr K Rewell SC and Mr WM Fitzsimmons (Appellant) Mr AJ Bartley SC and Mr SJ Longhurst (Respondent)
Solicitors Moray & Agnew Lawyers (Appellant) Porters Lawyers (Respondent)
File Number: ACTCA SC 39 of 2012
Decision under appeal: Court/Tribunal: Supreme Court of the Australian Capital Territory Before: Master Harper Date of Decision: 3 August 2012 Case Title: Senton by his litigation guardian The Public Advocate of the Australian Capital Territory v Steen Citation: [2012] ACTSC 127
Court/Tribunal: Supreme Court of the Australian Capital Territory Before: Master Harper Date of Decision: 9 April 2014 Case Title: Senton by his litigation guardian The Public Advocate of the Australian Capital Territory v Steen Citation: [2014] ACTSC 63
Court/Tribunal: Supreme Court of the Australian Capital Territory Before: Master Harper Date of Decision: 26 September 2014 Case Title: Senton v Steen Citation: [2014] ACTSC 249
THE COURT:
On 24 June 2004, the respondent, Trevor Senton, was severely injured when he was struck by a motor vehicle on the main street of Cowra in New South Wales. The appellant, Francis Steen, was the driver.
The respondent sued the appellant for damages for his injuries. The appellant admitted negligence, but alleged contributory negligence against the respondent.
On 3 August 2012, a Master of this Court found that the appellant was negligent, but that the respondent’s damages should be reduced by 30% for contributory negligence. On 18 June 2014, his Honour gave judgment for the respondent in the amount of $1,323,516.25.
The appellant has appealed against the judgment. The appellant contends that the Master erred by:
(a) failing to assess contributory negligence at either 50% or 70%;
(b) assessing damages for future care by reference to a life expectancy of 13½ years, when his Honour had indicated that such damages would be based on a life expectancy of 11 to 12 years;
(c) awarding damages for future care after the time when the respondent will, on his Honour’s findings, move into a residential aged care facility.
Contributory negligence
At 6.30 pm on 24 June 2004, the respondent was crossing Kendal Street in Cowra. He walked into the path of the appellant’s car and was struck. The part of the street where the collision occurred was poorly lit. The respondent sustained a severe head injury and has no recollection of the accident.
The respondent was then aged 63 years. He lived in Canberra, but worked as a travelling salesman.
The Master conducted a separate hearing as to liability. The oral evidence of a number of lay witnesses and expert witnesses was given over nine days. The Master had the considerable advantage of seeing and hearing those witnesses give their evidence.
An issue very much in dispute at the trial was whether the appellant’s headlights were on at the time of the collision. The Master found that they were on. His Honour found that the vehicle was travelling at between 11 and 16 km/h when the respondent was struck.
The Master made the following findings as to how the collision occurred and the respective contributions of the respondent and the appellant to the collision:
I find that more probably than not the plaintiff crossed the road, eating his hamburger, walking at a normal walking pace at an angle to the road in a slightly north-easterly direction so that his body was facing slightly away from oncoming traffic on his left. If he had stopped at the marked centreline and looked left, there is no reason why he would not have seen the approaching headlights of the defendant’s vehicle or indeed the vehicle itself. He must therefore have failed to do so, or at least to do so in other than a cursory manner, and to have walked on continuing to cross the road into the path of the defendant’s vehicle. I am satisfied that he failed to keep a proper lookout and that he failed to take the care for his own safety which a reasonable man in his position would have taken. 123. The defendant’s negligence is admitted. His lookout must have been inadequate. The plaintiff was plainly there to be seen. Mr McLeish could see him. He was wearing dark clothing, but this did not render him invisible. 124. The defendant was intending to make a left turn at the traffic lights and was, no doubt understandably, focused on where he was going. It is, however, incumbent upon a driver of a moving motor vehicle to keep a proper lookout to the front and to both sides to ensure that his vehicle does not collide with anyone or anything. The defendant did see the plaintiff, or at least a movement to his right which must have been the plaintiff, but too late to take any avoiding action. If he had been keeping even a slightly better lookout to the front and to his right, he may have been able to avoid the collision or at least greatly reduce its severity.
As the place of the tort was New South Wales, the Master was required to apply the substantive law of New South Wales. In assessing contributory negligence, the Master applied s 138(3) of the Motor Accidents Compensation Act 1999 (NSW). Section 138 provides, relevantly:
138 Contributory negligence—generally (1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section. … (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.
[126] In apportioning liability between pedestrians and drivers of motor vehicles, courts have consistently emphasised the fact that a driver of a motor vehicle has far greater capacity to cause damage than a pedestrian. … [129] Were it not for this factor, there would be a temptation to apportion liability for this collision equally between the driver and the pedestrian. Having regard to the authority of decisions such as Pennington and Anikin and making allowance for the very much greater capacity of the motor vehicle to inflict damage by comparison with the pedestrian, it seems to me that an appropriate apportionment of liability is 70% to the defendant and 30% to the plaintiff.
(a) failing to apply s 5R of the Civil Liability Act 2002 (NSW) (“CLA”) which, the appellant submits, requires an approach contrary to that taken in Pennington v Norris and Anikin v Sierra;
(b) in any event, making an assessment of contributory negligence that was manifestly inadequate.
Section 138(1) of the Motor Accidents Compensation Act provides that the “enacted law as to contributory negligence” applies to an award of damages in respect of a motor accident. The “enacted law” includes s 5R of the CLA. The Master did not refer to s 5R. That was because neither party suggested that it had any relevance to the case.
As the appellant made no submission at first instance that s 5R of the CLA is inconsistent with Pennington and Anikin, the respondent opposes that point being raised in the appeal.
In Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317, Hayne and Callinan JJ said at 365–366 [151]:
In deciding whether a party may take a point for the first time on appeal, the principles to be applied are well known . . . As was said in Coulton v Holcombe (1986) 162 CLR 1 at 7, “[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial”. But the rule against raising a new point for the first time on appeal is not absolute. As Mason J said in O’Brien v Komesaroff (1982) 150 CLR 310 at 319, “[i]n some cases when a question of law is raised for the first time in an ultimate court of appeal . . . it is expedient in the interests of justice that the question should be argued and decided”.
The Master delivered judgment on the issue of liability in 2012. The appellant’s argument relies on several judgments of the New South Wales Court of Appeal given in 2014. These judgments departed from earlier authorities which had consistently applied the Pennington v Norris and Anikin v Sierra approach, even after the enactment of the CLA. Accordingly, it is understandable that the appellant did not take the point at the hearing below. The respondent did not suggest that he would have led any further evidence if the point had been taken at the trial. In these circumstances, the appellant should be permitted to raise the point in the appeal.
Pennington v Norris and Anikin v Sierra each concerned assessment of the contributory negligence of a pedestrian injured by a motor vehicle. Those cases involved injuries sustained well before the commencement of the CLA. The effect of those cases is that when examining the degree of departure of each of the driver and pedestrian from the standard of care of a reasonable person, it is relevant to take into account that the driver is in charge of a motor vehicle capable of causing great damage to others; whereas the pedestrian does not endanger anyone else.
In Pennington v Norris, the High Court said at 16:
What has to be done is to arrive at a “just and equitable” apportionment as between the plaintiff and the defendant of the “responsibility” for the damage. It seems clear that this must of necessity involve a comparison of culpability. By “culpability” we do not mean moral blameworthiness but degree of departure from the standard of care of the reasonable man. To institute a comparison in respect of blameworthiness in such a case as the present seems more or less impracticable, because, while the defendant’s negligence is a breach of duty owed to other persons and therefore blameworthy, the plaintiff’s “contributory” negligence is not a breach of any duty at all, and it is difficult to impute “moral” blame to one who is careless merely of his own safety. Here, in our opinion, the negligence of the defendant was in a high degree more culpable, more gross, than that of the plaintiff. The plaintiff’s conduct was ex hypothesi careless and unreasonable but, after all, it was the sort of thing that is very commonly done: he simply did not look when a reasonably careful man would have looked. We think too that in this case the very fact that his conduct did not endanger the defendant or anybody else is a material consideration.
In Anikin v Sierra, Gleeson CJ, Gummow, Kirby and Hayne JJ, referred to Pennington v Norris with approval at 632 [51], but emphasised that the view taken in Pennington was based on the facts of that case. In other words, where there is a collision between a motor vehicle and a pedestrian, there is no legal principle that the driver of the motor vehicle is more culpable than the pedestrian. However, the application of the approach in Pennington has generally resulted in drivers being held to be more culpable than pedestrians.
In Talbot-Butt v Holloway (1990) 12 MVR 70, each member of the New South Wales Court of Appeal applied Pennington v Norris. Kirby P said at 72:
The very danger of the position she was in ought to have alerted him to a need for special care. He was in charge of a motor vehicle which had the potential to do very great damage to her, as indeed it did. On the other hand, ordinarily she could not do damage to him.
In weighing the responsibilities, and thereby taking account of the relative failures of the parties to comply with the standard of care exacted by law, and the causative potency in each case it is, in my opinion, important to recognise that the appellant was in control of a motor vehicle which, if not driven carefully, could cause great damage to people and property. Failure by the respondent, on the other hand, to observe due care for her own safety was likely to expose only her to danger. It is true that a negligent pedestrian can create a situation in which injury is caused to other persons. None the less, in circumstances such as the present the failure of the respondent to act as a reasonably prudent pedestrian would have acted created a situation in which she alone was exposed to danger. This factor is of primary relevance in determining the relative responsibilities. Certainly the courts have regarded it as important, as is evidenced by the statement of Zelling J in Evers v Bennett (1982) 31 SASR 228 at 234, that: “The train of authority over many years is to hold the motorist, who is capable of doing considerable injury to a pedestrian, more culpable than the pedestrian in such circumstances”.
The evaluation and assessment of the culpability of the plaintiff and defendant must take proper account of the fact that, as it happened, the plaintiff’s conduct posed no danger to anyone but herself, while the defendant who was driving the station wagon travelling at 60 km per hour ran little risk of damage to himself or his vehicle, but was in charge of a machine that was capable of doing great damage to any human being who got in its way. This factor has been emphasised by the High Court in Pennington v Norris (1956) 96 CLR 10 at 16; Karamalis v Commr of South Australian Railways (1977) 15 ALR 629 at 635 (level crossing collision between rail car and bicycle); Cocks v Sheppard (1979) 25 ALR 325; 53 ALJR 591 at 594 (collision between motor cycle and “large and heavy, yet fast moving” truck).
Since the enactment of the CLA, a number of judgments in the New South Wales Court of Appeal have applied the approach in Pennington v Norris. Some recent examples include Smith v Zhang (2012) 60 MVR 525 at [13]–[16], [29], Dungan v Chan (2013) 64 MVR 249 at [16]–[17] and Marien v Gardiner (2013) 66 MVR 1 at [49], [56].
Section 5R of the CLA provides:
5R Standard of contributory negligence (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 that person knew or ought to have known at the time.
5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was 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.
The issue that falls for consideration in this appeal is whether the effect of ss 5R and 5B of the CLA is that the approach taken in Pennington v Norris no longer applies to the assessment of the contributory negligence in a collision between a motor vehicle and pedestrian. There are three recent decisions of the New South Wales Court of Appeal which address this issue.
In T & X Company Pty Ltd v Chivas (2014) 67 MVR 297, Basten JA (with whom Barrett JA agreed), referring to s 5R of the CLA, said at 309 [52]:
[W]hat does need to be determined is the extent to which the approach adopted in Pennington, and relied on in Talbot-Butt, continues to operate.
The significant, if subtle, change of emphasis which arises from the enactment of the Civil Liability Act raises a doubt as to the emphasis in past cases placed on the capacity of a motor vehicle to cause far greater damage, when compared with the capacity of a pedestrian to cause damage. That factor should be understood from the perspective of both the driver and the pedestrian, rather than as an independent consideration. To treat it as an independent consideration may lead to the conduct of the driver being judged against a higher standard than that of the pedestrian. Each should be equally conscious of that factor and adjust his or her behaviour accordingly: the driver by taking greater care for the pedestrian; the pedestrian by taking greater care for his or her own safety.
[16] For his part, the deceased acted either with a high degree of carelessness, or made a serious error of judgment in respect of the oncoming taxi. However, the driver of the vehicle not only acted with a high degree of negligence in driving in the manner he did, the likely seriousness of the harm in the driver not taking the precaution of driving more slowly was such that the taxi driver should bear a high proportion of the blame for the accident.
[15] …The harm which the motor vehicle is likely to cause to the pedestrian is, on one view, precisely the same harm which should have been foreseeable to the pedestrian. However, the precautions which each should reasonably take will be different in kind. … [20] Apart from the mistake in relation to the traffic lights, the responsibilities of each for the accident fell within a similar range. Thus, each should have seen the other in ample time to take evasive action.
There is a perception (which may reflect the reality) that many lower courts are more indulgent to plaintiffs than to defendants. In some cases judges have expressly applied a lower standard of care for contributory negligence. This may result, for example, in motorists being required to keep a better lookout than pedestrians. In the Panel’s view, this approach should not be supported.
The speed and size and weight of the vehicles in contributing to the severity of the damage should be taken into account, not merely those factors which contributed to the collision ... For example, where the collision is between a semi-trailer or other juggernaut vehicle and a pedal bicycle, even if the driver and the plaintiff rider each made an equal contribution to causing the collision, it would generally be just and equitable to reduce the plaintiff's damages not by half, but by much less.
[99] Assuming that the requirement that people should take responsibility for their own lives and safety is now reflected in s 5R, and was intended to override the approach of Murphy J in Watt, there is a question as to whether the statements in Talbot-Butt still reflect the law in this state. The potential dangerousness of heavy machinery and fast vehicles can no doubt be applied universally, although the consequence of its application will vary depending on whether one, both or neither party is in control of such a vehicle. On the other hand, applying the general principles in s 5B(2) one could approach the matter differently. Thus, the probability that harm would occur if care were not taken and the likely seriousness of the harm would operate differentially with respect to the driver of the forklift and the pedestrian, but with the same result. That is, no distinction is made between the fact that from one perspective the driver is in control of a vehicle that could cause serious harm to a pedestrian, whilst from the perspective of the pedestrian, it was the likelihood of serious harm which was to be considered. If the plaintiff were aware, or ought to have been aware, of the presence of a large forklift operating in the area and if the forklift driver were aware, or should have been aware, of the likely presence of pedestrians, and if each were equally careless, liability should be shared equally. [100] A purposive approach to the operation of s 5R (and s 5B) requires that this approach be adopted. To approach the matter in this way is not to decline to follow applicable earlier authority of this court. Talbot-Butt long pre-dated the Civil Liability Act; it also pre-dated s 74 of the Motor Accidents Act, the forebear of s 138 of the Motor Accidents Compensation Act.
In Cosmidis, McColl JA held in dissent at 405–406: [48] While s 5R must be applied to determine whether a person has been guilty of contributory negligence, it says nothing about how, if that issue is determined by a finding adverse to a plaintiff, the relative culpability of the plaintiff and defendant are determined. That exercise is governed prima facie, by s 138(3) and, arguably also by s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (the “1965 Act”) which deals with apportionment of liability in cases of contributory negligence and, in particular, s 9(1)(b) which provides that “the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”.
McColl JA continued at 410:
[70] Turning to the apportionment issue, it is relevant to take into account in assessing the parties’ relative culpability both the appellant’s control of the site and implementation of the systems in which its employees as well as entrants were required to work as well as the fact that a driver is “in charge of a powerful vehicle [and has] obligations to exercise care for pedestrians in the position of the appellant”: Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452 at [46] whereas the pedestrian’s conduct, although contributorily negligent, does not endanger the driver of the vehicle or anybody else: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16; Smith v Zhang [2012] NSWCA 142; (2012) 60 MVR 525 at [13] - [16] per Macfarlan JA; at [29] per Meagher JA (with whom Tobias AJA agreed).
It may be seen that in each of Chivas and Cosmidis, a majority held that s 5R of the CLA requires that the approach taken in cases such as Pennington v Norris is no longer to be applied. In each case, the majority held that the driver and pedestrian should be equally conscious of the capacity of a motor vehicle to cause damage to a pedestrian and each should adjust his or her own behaviour accordingly. In Cosmidis, the majority also held that the same result is reached when the general principles in s 5B(2) of the CLA are applied and the probability that harm would occur if care were not taken and likely seriousness of the harm is considered. The consequence is that the fact that the driver is in charge of a motor vehicle capable of causing great damage does not, of itself, mean that the driver’s culpability is relatively greater than that of the pedestrian. The dissenting judge in each of Chivas and Cosmidis took the opposite view.
The reasons given by both the majority and minority judges in Chivas and Cosmidis are cogent and persuasive. The differing conclusions reflect a difference in approach to the interpretation of ss 5R and 5B of the CLA. The majority in each case emphasised a purposive approach, giving effect to the legislature’s presumed intention to adopt the Ipp Report’s recommendation that motorists should not be required to keep a better lookout than pedestrians. The dissenting judge in each case placed more emphasis on the statutory language, which does not, in terms, reflect the view expressed in the Ipp Report.
An intermediate appellate court should not depart from a decision of an intermediate appellate court in another jurisdiction unless convinced that the decision is plainly wrong: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151–152 [135]; CAL (No 14) Pty Ltd v MAI Board (2009) 239 CLR 390 at 411–412 [49]–[51]; Hili v The Queen (2010) 242 CLR 520 at 538 [57]. This principle is particularly important where the decision concerns the interpretation of provisions that are either uniform or very similar in each State and Territory (with the exception that the Civil Law (Wrongs) Act 2002 (ACT) does not have an equivalent of s 5R of the CLA). There is considerable force in the reasons of the majority in Chivas and Cosmidis, and they cannot be considered to be plainly wrong. Accordingly, there is no basis for this Court to depart from the views of the majority.
It follows that the Master ought to have applied ss 5R and 5B of the CLA and should not have applied the approach in Pennington v Norris. In so holding, we intend no criticism of the Master, who was not pressed with the argument now made in the appeal. Having found error in his Honour’s approach, it is necessary for the Court to make its own assessment of contributory negligence.
In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34 the High Court said at 494:
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) 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 appellant argues that if the approach of the majority in Chivas and Cosmidis is accepted, contributory negligence should be assessed at no less than 70%. The appellant contends that such an apportionment is justified by the relative ease with which the respondent could have seen the approach of the appellant’s headlights, contrasted with the difficulty faced by the appellant in seeing the respondent on the roadway, given the poor lighting and the respondent’s dark clothing.
The appellant’s argument ignores the evidence that the respondent had walked across the street from an area that was well lit and that the street was wide and it took some time for the respondent to reach and cross the centre line. In these circumstances, as the Master concluded, the appellant “was plainly there to be seen”. We consider that the appellant and the respondent were equally responsible for the collision and the respondent’s injuries. The appropriate assessment of contributory negligence is 50%.
Damages
The Master conducted a separate hearing on the question of damages and provided his judgment on 9 April 2014. After further argument and correction for mathematical errors his Honour gave judgment for the respondent in the amount of $1,323,516.25, net of the deduction of 30% for contributory negligence.
The major component of the damages awarded by the Master was $600,000 for “future care”. The Master calculated these damages based on findings that:
(a) for 9 months after the judgment, the respondent’s wife would continue living with the respondent and caring for him in their home;
(b) the respondent’s wife would then move out, but would continue to provide some gratuitous care to him for a further 5 years;
(c) about 5 years, 9 months from the judgment, the respondent would move into a residential aged care facility, and the respondent’s wife would no longer provide him with much care; (d) the respondent would remain in a residential aged care facility until his death, estimated to be about 7½ years from when he moved into the facility;
(e) damages for “future care” in the residential aged care facility would be assessed at a rate for commercial care of $50 per hour for 8 hours per day, or $2,800 per week.
(a) the length of time the respondent would remain in an aged care facility before his death; and
(b) the allowance of 8 hours a day for care while in the aged care facility.
As to the first of these alleged errors, the appellant submits that despite his Honour’s reasons stating that a life expectancy of 11 to 12 years would be applied to calculate future losses, his Honour proceeded to use a life expectancy of about 13½ years. The appellant relies upon his Honour’s statement that, “I propose to work on a life expectancy of between eleven and twelve years…”. The appellant submits that if the mid-point of 11½ years is used, then if the respondent enters a residential aged care facility in 5 years, 9 months, he would remain in that facility for 5 years, 9 months before his death. The appellant submits that, accordingly, his Honour made an error in allowing an amount for care for 7½ years after the respondent enters the facility instead of 5 years, 9 months.
The respondent submits his Honour was correct to proceed on the basis that the plaintiff’s life expectancy is 7½ years from when he enters an aged care facility, but that his Honour’s earlier statement that he would work on a life expectancy of 11 to 12 years was incorrect.
Two of the controversial issues at the hearing on damages were whether the respondent’s traumatic brain injury was likely to result in dementia in the future and whether his life expectancy would be reduced. The first issue was relevant to the nature and extent of the care that the respondent would require in the future and the second was relevant to how long he would require care for.
As to the first issue, his Honour held:
Nevertheless I accept that the plaintiff is at increased risk of the development of dementia, but that so far there is no evidence that he has begun to develop it.
The present plaintiff has already survived ten years, from age 63 to age 73, and there is no suggestion in the evidence apart from this statistical material that he is at increased risk of dying from any particular condition in the foreseeable future. There seems to me no justification for reducing damages calculations based on the normal life expectancy for a man of his age, other than to reflect the ordinary vicissitudes of life.
His Honour indicated that as the respondent was 73 years old, he had a life expectancy of about 13½ years. The parties were in agreement that this finding was made by reference to the Australian Bureau of Statistics Life Tables.
Despite his finding that the respondent was not at any increased risk of dying from any particular condition, his Honour later said:
There is some evidence of a reduction in life expectancy by reason of the head injury, but nothing like the amount suggested by the defendant’s doctors. I propose to work on a life expectancy of between eleven and twelve years…
When the plaintiff goes into aged care accommodation, he will have a life expectancy of a further 7.5 years or thereabouts.
I note that the life expectancy figures already take account of the vicissitudes of life in both directions. In those circumstances no reduction on account of vicissitudes is appropriate.
Later, his Honour calculated an amount for care after the respondent enters a residential aged care facility on the basis of a life expectancy of 7½ years from that point, but discounted the figure “to take account of the probable negative vicissitudes of life by that stage, as the plaintiff approaches the end of his life.”
His Honour then proceeded to calculate damages for “future care” using the method we have described earlier.
There are several inconsistencies in his Honour’s findings concerning the respondent’s life expectancy.
Firstly, his Honour made a finding that there was no justification for reducing damages calculations based on normal life expectancy for a man of the respondent’s age (which was approximately 13½ years), other than to reflect the ordinary vicissitudes of life; but his Honour later referred to evidence of a reduction in life expectancy by reason of a head injury immediately before saying he would work on a life expectancy of 11 to 12 years.
Secondly, his Honour said that he proposed to work on a life expectancy of between 11 and 12 years; but his Honour’s calculations were based on a life expectancy of about 13½ years.
Thirdly, his Honour acknowledged that the statistical life expectancy figures already take into account the vicissitudes of life in both directions and said that no reduction on account of vicissitudes is appropriate; but his Honour then took into account probable negative vicissitudes, which appear to be vicissitudes involving the risk of early death.
These inconsistencies cannot be easily reconciled. We accept the appellant’s submission that the inconsistency between his Honour’s statement that he would work on a life expectancy of 11 to 12 years and the calculation of damages by applying a life expectancy of 13½ years, reveals error. However, we consider that the error lies in his Honour’s statement, rather than the calculation.
We accept and adopt the Master’s reasoning that, on the evidence, the respondent has a normal life expectancy for a man of his age about (approximately 13½ years from the date of judgment). His Honour rejected the opinions of Dr Zeman and Professor Caplan that the respondent’s brain injury would reduce his life expectancy. When his Honour later said that there was “some evidence of” a reduction in life expectancy but nothing like the amount suggested by Dr Zeman and Professor Caplan, we do not consider he was there accepting that there would in fact be such a reduction.
We also accept and adopt the Master’s finding that, as the respondent has a normal life expectancy, the damages calculations should not be reduced other than to reflect the ordinary vicissitudes of life. As the life expectancy tables already reflect the ordinary vicissitudes of life, the damages should not be further discounted for such vicissitudes: Hulanicki v Walton (2015) 70 MVR 326 at 333 [40]. It follows that his Honour’s calculation of damages for “future care” on the basis of a life expectancy of about 13½ years was appropriate.
I certify that the preceding seventy-nine [79] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.
Associate:
Date: 6 November 2015
Steen
Senton by his litigation guardian The Public Advocate of the Australian Capital Territory [2015] ACTCA 57
(2004) 211 ALR 621
(1993) 177 CLR 485
(1990) 169 CLR 279
(1975) 49 ALJR 219
(2014) 86 NSWLR 393
(2009) 239 CLR 390
(1979) 25 ALR 325
(1986) 162 CLR 1
(2003) 215 CLR 317
(2013) 64 MVR 249
(1982) 31 SASR 228
(2007) 230 CLR 89
(2014) 66 MVR 241
(1979) 141 CLR 594
(2010) 242 CLR 520
(2001) 207 CLR 21
(2015) 70 MVR 326
(1977) 15 ALR 629
(2013) 66 MVR 1
(1982) 150 CLR 310
(1956) 96 CLR 10
(1985) 59 ALJR 492
(2012) 60 MVR 525
(1950) 81 CLR 418
(2014) 67 MVR 297
(1990) 12 MVR 70
(1985) 59 ALJR 481
(1982) 56 ALJR 760
(2004) 79 ALJR 452
Based on a life expectancy of 13½ years, when the appellant enters aged care accommodation in 5 years, 9 months, he will have a life expectancy of a further 7 years, 9 months. The Master rounded that life expectancy down to 7½ years. The respondent makes no complaint about that rounding down.
The appellant also complains about the Master’s use of a life expectancy of 7½ years to calculate the loss of income as a result of paying a bond to enter the residential aged care facility. For the same reasons, that complaint cannot be sustained.
The second of the errors alleged by the appellant is that his Honour erred in allowing 8 hours of commercial care per day, when all nursing care will be provided in the residential facility so that no commercial care will be needed at all. His Honour allowed 8 hours per day of commercial care at $50 per hour ($2,800 per week) after the respondent enters the residential aged care facility, for a period of 7½ years. His Honour then reduced the resulting figure to take into account the probable negative vicissitudes of life and allowed $600,000. The appellant submits that, instead, his Honour should have allowed an amount of $772.80 per week to reflect the maximum fees that would be charged by an aged care facility.
The respondent submits that the allowance of 8 hours per day for commercial care while he is in the aged care facility was appropriate and, in fact, seems to suggest that his Honour understated the damages by not including the fees that would be charged by the residential care facility.
His Honour did not explain why he allowed 8 hours per day commercial care. Both parties submit that his Honour intended to allow 8 hours per day commercial care on top of the care that he would receive from staff in the residential aged care facility. That submission is understandable because his Honour described the $600,000 as being part of the allowance for “future care”. However, as will be seen, we consider that both the appellant’s and the respondent’s submissions misconstrue his Honour’s reasons.
When his Honour’s reasons are read as a whole, it seems to us that his Honour intended the 8 hours care per day at $50 per hour to reflect the cost to the respondent of residing in a residential aged care facility, as well as some allowance for gratuitous services that will be provided by family members. We reach that conclusion because his Honour did not separately award an amount for the cost of residential aged care, despite specifically finding that the respondent would enter such a facility in the future and making an allowance for the loss of income as a result of paying a bond to such a facility. The amount of $2,800 per week, calculated by reference to the cost of 8 hours per day commercial care at $50 per hour, reflects a degree of speculation because of the paucity of evidence about the actual cost of residential aged care for a person with the particular needs of the respondent.
The respondent conducted his case at first instance on the basis that he would never move into an aged care facility, but would remain in his own home and require both commercial and gratuitous care for the remainder of his life. That approach was rejected by the Master. The respondent did not adduce any evidence as to the cost of residence in an aged care facility.
The appellant’s case at first instance was that the respondent would enter a residential aged care facility in the future. The appellant produced some, but limited, evidence as to the cost of residence in an aged care facility. An occupational therapist, Dr Shepherd, gave evidence that the respondent would be best looked after by placement in a low care residential aged care facility with capacity to cater for “in place aging”. Her report identified the cost of a low care facility at a maximum of $772.80 per week. Her report indicated that a low care facility would provide meals, daily activities, administration of medication and attendance to domestic chores.
The Master accepted that the respondent is at increased risk of the development of dementia, but that so far there is no evidence that he has begun to develop it. His Honour found that the respondent needs to have someone with him most of the time while he is awake to monitor his activities. His Honour also found that the number of hours of assistance that the respondent will require will increase over the next 5 years or so before he enters a residential aged care facility. His Honour found that when the respondent moves into such a facility, it does not make any significant difference, from that point, whether or not he succumbs to dementia, so far as the cost of his care is concerned.
The Master’s findings do not suggest that the respondent will require only a low care facility. His Honour accepted that the respondent requires a facility that has the capacity to provide high level care, whether or not he develops dementia. It seems that his Honour had in mind that the respondent would move into a residential aged care facility that was able to provide increasing levels of support as his needs increase.
In our opinion, the Master’s method of assessment of the cost of a residential aged care facility, and some gratuitous services, was not appropriate. There was no evidence that the cost of commercial care to a person living in their own home is comparable to the cost of residence in an appropriate aged care facility. Nor is there any explanation for why 8 hours per day of commercial care was chosen as the appropriate measure. The approach taken by his Honour was too speculative in circumstances where there was a somewhat more certain basis to determine these heads of damages.
There was evidence that the maximum cost of a low care facility was $772.80 per week. There was no specific evidence of the cost of a high care facility, but it could be expected to be considerably higher. Taking into account the likelihood that the respondent will require high care, we think it is appropriate to allow an additional 50%. Therefore, an allowance should be made for the cost of residence in an aged care facility of $1,160 per week for 7½ years commencing 5 years, 9 months from the date of the judgment below.
The Master found that at the time when the respondent moves into a residential aged care facility, his wife’s age means that she is unlikely to be able to provide him with much care. However, he has the support of family members and it is likely that they will provide him with assistance with services unlikely to be provided by the staff of the facility, such as some grooming, outings and assistance with paperwork. We would allow 7 hours per week for such care at $22 per hour, or $154 per week, for 7½ years commencing 5 years, 9 months from the date of judgment below.
There should be no discounting of the damages for the cost of residential aged care and gratuitous services because the vicissitudes are both positive and negative.
It is not possible, on the material before the Court, to make a final calculation of damages. That is because it is not apparent from the material before us what the final amounts for each component of the award of damages are. Further, the Court was informed that the judgment sum includes a component for the cost of administration of the fund, and it is possible that the cost may be affected by the amount of the fund to be administered. We would order that the parties attempt to agree, and provide to the Court, draft orders reflecting these reasons.
The appellant has succeeded in his contributory negligence case by relying on an argument not raised at first instance. The appellant has succeeded in only one of the two aspects of his argument as to quantum. In these circumstances, we would make no order as to the costs of the appeal.