Court of Appeal (Qld)|1997-05-06|Before: Before McPherson J, Davies J, Mackenzie J

Suncorp Insurance & Finance v Fitchett [1997] QCA 104 (6 May 1997)

At about 7.00 pm on 16 July 1991, the plaintiff, who is the respondent to this appeal, was driving a truck in a northerly direction along the Gunnawarra Road when it collided with the rear of a large trailer attached to a prime mover belonging to the second defendant. The trailer was stationary on a straight stretch of road facing in the direction in which the plaintiff was travelling. Where it stood it occupied the whole of the left hand carriageway of the bitumen surface of the road, which was, in all, some 6 metres wide, with a 4.4m. trafficable gravel shoulder at the left.

The driver, who is the first defendant in the action, had stopped the prime mover and trailer in order to adjust the tarpaulin on the load. He could, as the learned trial judge found, safely have parked the vehicle on the shoulder to the left of the bitumen so as to leave little or none of it projecting on to the bitumen surface. On the other hand, the judge also found that the rear lights of the trailer were illuminated at the time of the collision. They consisted of a clearance light, a dim red tail light, two lights on the rear number plate and another clearance light, which were located across the back of the trailer. In addition, there were two clearance lights on the prime mover. At the time the headlights of the prime mover were also illuminated.

The appellant, which is the defendant by election, challenges the judge's apportionment of responsibility for the plaintiff's loss, which attributed 80% of the blame to the defendants and only 20% to the plaintiff. His Honour considered that there had been contributory negligence on the part of the plaintiff in not seeing the illuminated trailer lights and slowing down sooner than he did; but leaving the headlights of the prime mover illuminated might have created the impression in the mind of a following driver that the prime mover and trailer were not stationary but moving forward along the road. There was an oncoming vehicle travelling in the opposite direction which passed by the stationary trailer, and then passed the plaintiff's vehicle shortly before the collision. It may, his Honour considered, have diverted the plaintiff's attention away from the trailer or its rear lights as he approached it. The gravel shoulder of the road to the left of where the trailer was parked was firm, dry and well compacted. If the prime mover had been parked there, it would have left the whole, or almost the whole, of the left hand side of the bitumen unobstructed.

At the time of the collision, the first defendant was either in front of the prime mover or moving forward to the front of it along the side of the trailer. The first he knew of the collision was when he heard a bang. Injuries sustained by the plaintiff in the collision left him with no memory of the accident or events leading up to it. In consequence, any attempt to assess the plaintiff's response and stopping time on seeing the trailer lights was left to depend largely on inferences derived from skid marks made by the tyres of the plaintiff's vehicle on the road surface. Police Sgt. Girling, who measured them on the day following the accident, said they were 10m. in length. However, the plaintiff's father, who photographed the skid marks after first painting them white, produced a map or sketch, which was admitted at the trial as ex. 19. It shows a set of parallel tyre marks in continuous lines leading up to the point of collision. Those on the left measured 19.5m and those on the right 17.5m. These measurements were mentioned by the judge in the course of arriving at his assessment of contributory negligence.

On appeal, it was submitted that in calculating when or where the plaintiff had first applied his brakes, it was necessary to allow for the length of the truck itself. If it was taken into account, it would, it was submitted, show that the plaintiff had begun to brake his vehicle at a point closer to the rear of the defendants' trailer than the judge had assumed. On that footing, the extent of the plaintiff's contributory negligence was more serious than was found by the judge at the trial. The precise length of the truck does not appear from the material in the record. As a factor potentially affecting the calculation of the plaintiff's braking time or distance, it was a matter that was adverted in the course of the trial; but counsel for the parties were not in agreement about its significance. The difference was not resolved at the time the matter was mentioned, and it is not possible, without further evidence, to determine precisely what it was that Sgt. Girling measured as 10m., or whether the line of skid marks as painted on the road surface were made by both front and rear tyres combined, or either and which of them. As so often happens in cases of this kind, skid marks found on the road surface are not necessarily a reliable indication of the distance over which the brakes were applied. In the present instance, it ought not be assumed from the reference to the measurements in the reasons for judgment that his Honour adopted them as a basis for his assessment of contributory negligence..

In this state of the evidence before this Court, it is not now possible to reach a firm conclusion that the plaintiff was any more to blame for the collision than his Honour found him to have been. The unassailable fact remains that the defendant's prime mover and trailer obstructed the whole of one side of the highway and did so under conditions which made its presence there both unexpected and unnecessary. Had the trailer been driven on to and parked on the left hand gravel shoulder, the plaintiff could almost certainly have succeeded in avoiding the collision. There is nothing in the particular facts of the present case that would lead this Court to abandon its conventional reluctance to interfere with an apportionment based on an assessment at trial of the relative responsibility of two parties for a loss to which, in some degree, both plainly contributed.

The remaining question on appeal was the quantum of damages awarded. The plaintiff, who was a member of a grazing partnership was 28 years old at the time of the accident in 1991 and 33 at trial. He sustained a serious injury to his left leg resulting in a permanent disability assessed by Dr Boys as amounting to 45% loss of function, and by Dr Clark as likely, in the longer term, to increase to 70%. The injuries to both his right and left legs aggregated to a loss of total bodily function of 10%. In consequence his capacity to engage in mustering and the heavier work of a grazier was permanently restricted. It was also found that he would have to cease work five years earlier than he would otherwise have done.

As to quantum the defendant's appeal was confined to the amount awarded for future economic loss, which was assessed at $173,000. Of this, an amount of $26,400 represented compensation for the final five year period from ages 58 to 63 during which, on the medical evidence, the plaintiff would be unable to work at all. No criticism was levelled at this component. It was arrived at by ascertaining the present value of the cost of replacement labour at $400 per week during that period of total unemployability, which amounted to $26,400.

The appellant's complaint is directed to the amount of compensation allowed for the intervening 25 year period of partial incapacity from ages 33 to 58, for which $146,600 was awarded. It was calculated by starting with a replacement labour figure of $200 per week, which was adopted as the loss to the partnership produced by the cost of employing additional labour to supplement the plaintiff's input reduced as it was by his partial incapacity for work during that period. The present value of that sum was $146,600, giving a total for future economic loss of $173,000.

The criticism made of this component of $146,600 is that it assumes that the plaintiff was already substantially incapacitated from working at and from the date of trial, whereas his own evidence was that since December 1993 he had been working a 10 to 12 hour day (which was similar to the hours he worked before the accident) and was still earning about $20,000 p.a. Of course, he was unable to do some work, or to do it as efficiently or quickly as before, so that some replacement labour was needed; but ex. 18, which was a schedule of the cost to the partnership of replacement labour, suggested a figure of only about $3,000 p.a., which at present value for 25 years came to about $43,500 and not the $146,600 adopted by the learned trial judge for that period. What in effect the judge had done, it was submitted, was to over-compensate the plaintiff for the risk that he might have to cease working, but had treated the risk as if it had already been realised at the date of the trial and not at some uncertain date in the future. Overall, it was said, the result was to assess the plaintiff's post-accident working capacity as diminished by 55% from the date of the trial.

The fallacy, if that is what it is, arises from the judge having adopted as the basis for his assessment an amount of $200 per week or $10,000 p.a. as the replacement labour cost for the first 25 years from the date of trial, whereas the evidence derived from ex. 18 showed that at the date of trial the actual cost being incurred on that account was only about $3,000 p.a. The consequence, according to the appellant, is that the plaintiff had been compensated for the risk of losing his present secure employment by an award of about $100,000, which was said to be excessive in the circumstances.

An accurate assessment of that risk is necessarily a difficult task. It is not correct, as Mr Pack of counsel for the respondent urged upon us, simply to say that the plaintiff was being compensated for his loss of earning capacity rather than his loss of income. The current income being earned by him provides some evidence of the extent to which, even with his considerable physical disability, the plaintiff's present income earning capacity has been reduced. The real problem is to determine the duration for which the present state of affairs is likely to continue. The partnership is a family business consisting of the plaintiff's parents, the plaintiff and his two brothers. The family element reduces the risk, at least for the time being, that the partnership will be dissolved thus throwing the plaintiff on the open labour market; but, even allowing for that, it cannot be assumed that all the younger members of the partnership will continue to acquiesce in carrying the additional replacement labour cost for an indefinite future period. The business has been affected by the drought in recent times, and to keep it going it has been necessary to dispose of some capital assets. It is plain that, in assessing the risk that the plaintiff may be forced to find employment elsewhere, the court should not be ungenerous. Even if the risk may not be great, its consequences for the plaintiff are likely to be severe.

We were offered an alternative calculation based on the contingency that the plaintiff may be totally incapacitated as much as 10 years before reaching the age of 63 rather than only five. The effect would be to allow $62,240 for that 10 year period rather than $26,400 for five years. Again, this appears to underestimate the seriousness to the plaintiff of the risk of his being thrown on the open labour market at some unpredictable future time. All matters considered, the case appears to be one in which, as Mr Pack suggested, the plaintiff should be compensated by awarding a global figure which it is not possible to justify by reference to any strict mathematical formula. In the end, we consider that he should be allowed an amount equal to about half that awarded at trial for future economic loss, or about $90,000 in all.

The appeal should be allowed with costs and the judgment varied by reducing that component in the assessment from $173,000 to $90,000. The total damages would then be diminished from $337,778 to $254,778 which, after allowing for 20% on account of the plaintiff's contributory negligence, would produce a judgment sum of $203,822 in place of $270,228.80 in the court below.

APPEAL ALLOWED; JUDGMENT AWARDED BELOW FOR FUTURE ECONOMIC LOSS REDUCED TO $90,000 PRODUCING A JUDGMENT SUM OF $203,822 IN PLACE OF THE $270,228.80 AWARDED IN THE COURT BELOW.

CATCHWORDS: CIVIL - INSURANCE - Motor vehicle accident -Future economic loss - Quantum.

Suncorp Insurance & Finance v Fitchett [1997] QCA 104

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Suncorp Insurance & Finance v Fitchett [1997] QCA 104 (6 May 1997)

Parties