THE NOMINAL DEFENDANT v SWIFT; WOLLONDILLY SHIRE COUNCIL v SWIFT

THE NOMINAL DEFENDANT v SWIFT; WOLLONDILLY SHIRE COUNCIL v SWIFT - [2007] NSWCA 56 - NSWCA 2006 case summary — Zoe

[12]

22 MARCH 2007 THE NOMINAL DEFENDANT v Craig Allan SWIFT WOLLONDILLY SHIRE COUNCIL v Craig Allan SWIFT Judgment 1 BEAZLEY JA: I agree with the reasons of Santow JA and his proposed orders, save as in respect of costs. I do not consider that this is a case where the Court, in the exercise of its discretion, should make a Bullock or Sanderson Order: Bullock v London General Omnibus Co [1907] 1 KB 264; Sanderson v Blyth Theatre Co [1903] 2 KB 533. 2 The authorities draw a distinction between those cases where a party sues more than one defendant to protect its own position, should liability not be established against one or other defendant, and where the conduct of a party creates an uncertainty as to who is the proper defendant. This sometimes occurs in cases where defendants are engaged in major construction work. Often, in that case, a plaintiff does not and could not reasonably know the contractual responsibilities as between proposed defendants. If the defendant found liable fails or refuses to advise the plaintiff of the correct position upon a request to do so, that may be conduct that is a cause of the plaintiff suing more than one party and which may thereby be a basis for making a Bullock or Sanderson Order. See generally Sved v Council of the Municipality of Woollahra (1998) NSW ConvR 55-842 at 56,605; Roads and Traffic Authority of New South Wales, Council of the Shire of Evans and Pioneer Road Services Pty Limited v Palmer (No 2) [2005] NSWCA 140; Wardle v Kick & Ors [2006] NSWSC 327; Almeida v Universal Dye Works Pty Ltd (No 2) [2001] NSWCA 156. 3 In my opinion, this case falls into the former category of case. The Nominal Defendant had a reasonable basis upon which to defend the proceedings. This Court has made a finding that the defence was not successful. That of itself does not amount to conduct which should result in a Bullock order against it. As no other conduct was relevant, I consider that the respondent should pay the costs of the Wollondilly Shire Council, both at first instance and on appeal. 4 SANTOW JA: INTRODUCTION Craig Allan Swift ("the respondent") suffered injuries when his truck overturned. The trial judge, Phelan DCJ concluded in his favour that both the local council and an unknown driver, through their negligence, had contributed to the accident. Accordingly, Mr Swift successfully recovered damages from the Nominal Defendant and Wollondilly Shire Council ("the Council"), liability being apportioned two-thirds to the Nominal Defendant and one-third to the Council. Each now appeal against liability and damages. The damages awarded at trial are set out below, at [14], alongside the appellant's contention as to what it contends should have been awarded. There is a cross-claim by the Nominal Defendant against the Council (Red, 6). On appeal, on liability, the Nominal Defendant supports the respondent against the Council, while the Council supports the respondent against the Nominal Defendant. 5 The accident occurred in the early hours of 17 May 1999 when the respondent was driving a prime-mover and trailer carrying coal on Wilton Road travelling towards Wilton. Mr Swift successfully alleged before the trial judge that he was required to take evasive action due to the presence of an unidentified vehicle travelling in the opposite direction. The latter was progressively moving across onto its incorrect side of the roadway so as to threaten a collision with Mr Swift's truck. There was in fact no collision. According to Mr Swift, his evasive action led him to veer from the road across the 1 metre verge or shoulder so as then to travel along the kerb and gutter with the result that, on returning to the road, the vehicle turned over. 6 The Nominal Defendant challenges the findings that (a) an unidentified second vehicle was involved, and (b) due search and inquiry was made under s28(1) of the Motor Accidents Act 1988 (NSW). 7 The trial judge found that a material contributing factor to the rollover of the vehicle was the presence of a trench or gutter on the side of the roadway with a drop off of between 120 millimetres and 160 millimetres. According to the trial judge it was that "lip" which contributed to the truck rolling over as it emerged from the gutter onto the roadway, following its evasive manoeuvre. 8 The trial judge thus found, expressly or implicitly: (a) a duty of care on the part of the Council owed to Mr Swift as a road user, (b) breach by Council's mode of re-sealing in creating a "lip" with a hazardous drop, and (c) causation by reason of that lip and drop materially contributing to an increased risk of the truck overturning as it did, so (d) giving rise to a one-third contribution to the accident on the part of the Council. 9 The Council challenges the finding that there was any duty of care on Council's part so breached. The Council also challenges the trial judge's conclusion as to causation in (c) above. The Council submits that if all other grounds fail, 10% is the correct order of magnitude of the Council's contribution, not 33 1/3%. 10 In so doing, the Council relied upon its expert's report from a Mr Johnston, in opposition to the expert's reports from Mr Keramidas for the Nominal Defendant and Mr Wingrove for Mr Swift. Council also contended, correctly as was conceded, that the trial judge had failed to give any reasons for preferring the expert opinions of Messrs Keramidas and Wingrove over Mr Johnston and had failed to refer either adequately or at all to Mr Johnston's expert evidence. Likewise he had failed to consider or take into account concessions made by Messrs Keramidas and Wingrove nor the evidence of Mr McTiernan, Council Manager of Traffic and Forward Planning. 11 The respondent conceded that he could not resist a new trial of his action against the Council. The Council made clear that, while it pressed primarily for a verdict in its favour based in the alternative on failure to show causation or breach of any duty of care, it sought a new trial if unsuccessful in its primary submission. 12 Both appellants challenge the trial judge's finding that the respondent was not contributorily negligent. That challenge is based upon the speed he was travelling and upon his failure to wear a seatbelt. 13 Both appellants dispute the damages award. Damages are disputed as to non-economic loss which the trial judge determined as 35% of the worst case. Disputed also is the trial judge's award for future economic loss, on the basis that Mr Swift's residual capacity to work was assessed too low. 14 Damages were awarded as set out in the table below. The column headed "appellants' contention" represents the matters contended for on appeal or their consequences. Future economic loss is challenged because Mr Swift's residual earning capacity is said by the appellants to be higher than that estimated by the trial judge, who gave no sufficient reason for his calculation of it. The respondent, by reference to the submissions made at trial, seeks to explain what he says must have been the trial judge's process of reasoning. HEAD OF DAMAGE RESPONDENT APPELLANT'S CONTENTION Non-economic loss $119,500.00 (35%) $16,000.00 (22%) Past economic loss $197,773.00 $197,773.00 Fox v Wood $13,960.20 $13,960.20 Future economic loss $368,007.00 $110,402.00 Future loss of superannuation $65,000.00 $11,593.00 Past out of pocket expenses $54,947.10 $54,947.10 Future out of pocket expenses $9,146.00 $9,146.00 Future domestic assistance $10,000.00 $10,000.00

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SALIENT FACTS 15 At 5.15 am on 17 May 1999 the respondent (Mr Swift) was driving in a westerly direction along Wilton Rd within the Wollondilly Shire Council ("the WSC") area towards Wilton. He was on a single lane portion of Wilton Road travelling west, with the eastern portion of Wilton Road being two lanes. The respondent was driving a tipper truck loaded with coal in an area where a number of other trucks were also transporting coal. The work practice between drivers was to stay in communication via radio in order to observe the noise restrictions associated with the residential area of Wilton and not to proceed in convoy. 16 The distance from the colliery along Douglas Park Road to the stop sign marking the entry point to Wilton Road was approximately 1.8 kilometres. At that point the driver would signal the driver at the colliery to follow so as to maintain an approximate three minute interval. There is then a further 2 kilometres to the accident scene just past Ashford Road near Wilton village. The ordinary travel time from colliery to the accident was under those conditions approximately three minutes though the possible time interval here is disputed. 17 Mr Thompson was the other truck driver proceeding west along Wilton Road in radio contact with the respondent. However, he was preceded by Mr O'Keefe who was also driving west and who arrived at the accident scene it appears about a minute before Mr Thompson. Mr O'Keefe arrived at the scene at about the same time as a third driver coming from the opposite direction. Mr Thompson and Mr O'Keefe both gave evidence that they saw no unidentified other driver or car. 18 There are several exit points from Wilton Road. These include Ashwood Road turning off Wilton Road, approximately 0.6 kilometres east of the accident site and approximately 1.4 kilometres west of the Douglas Park Road intersection (Blue, 19F,Wingrove report of 18 October 2002). The respondent contends that the likeliest explanation for Messrs Thompson and O'Keefe failing to sight any other east-bound vehicle was the latter's "guilty flight" down a side-road such as Ashwood before the other two vehicles could be in a position to observe that vehicle. 19 The trial judge purported to draw on his local knowledge of the area. That gave rise to a further ground of appeal. The respondent seeks to meet this by reference to s144 of the Evidence Act. The latter permits "matters of common knowledge" to be determined by the judge, there being no application by either party for a view. However, the Nominal Defendant contends that the location of streets was not a matter of common knowledge. I would agree. But there was such evidence available independently of that, derived from the location of the relevant streets; Blue, 8-9. 20 There is a dispute as to Mr Swift's speed from when he drove out of a right hand bend onto Wilton Road, onto a slight downhill slope but particularly just before the accident. The trial judge concluded that Mr Swift was a witness of truth. He accepted his evidence that his speed was within the speed limit of 80 kilometres per hour (Red, 55) and was between 60 to 70 kilometres per hour. He noted that Mr Swift had good reason for remaining within the limit because his employer (Heggies) regularly monitored truck noise at Wilton village, including such early times as when the accident occurred. He noted Mr Swift's concern for maintaining his licence as the basis of his livelihood and also his desire to move from Heggies' casual list of drivers where he was at the top of the list in order to attain permanency (Red, 33). The trial judge relied on these matters to conclude Mr Swift drove within the speed limit in the absence of any objective way of calculating his speed, such as an on-board computer. 21 The appellants challenge the finding that Mr Swift's speed was within the speed limit just prior to the accident. They contend that there was an objective way of calculating his speed. They rely on Mr Keramidas' and Mr Johnston's calculation of speed derived from the distance travelled by the truck to standstill after it rolled over, applying a coefficient of friction in accordance with the formula set out at Blue, 671 (Johnston report). That formula (v2 = u2 + 2as) is based on the physical principles embodied in Newton's equation of motion. 22 Mr Swift maintained that the accident occurred after an unidentified vehicle travelling in the opposite direction swerved onto the incorrect side of the road, requiring him to take evasive action by moving to the left and into the gutter. He said that after flashing his lights to no avail, with the unidentified vehicle continuing to bear towards him he veered to the left, at the same time applying medium pressure braking. The trial judge found that this manoeuvre caused him to lose control so that the truck tipped over as it emerged from the gutter back on to the road. 23 The trial judge also found the Council to have been negligent and to have materially contributed to the accident, by the way in which Council had re-sealed the roadway adjoining the gutter so as to create a difference in the levels between the roadway and the gutter below. There was approximately one metre of roadway between the edge line of the western bound lane and the edge of the asphalt. Running adjacent to that shoulder was a channel or gutter 0.75 metres wide. This gutter with its lip was the result of successive asphalt re-sealing operations by the Council, whereby it raised the level of the road alongside the gutter. This maintenance had been undertaken without any modification of the adjacent guttering, so creating a trench with its lip measured by reference to the edge of the road surface of between 120 millimetres and 160 millimetres. 24 It is not disputed that Mr Swift lost control of the truck after he had entered and had proceeded some 80 metres in that gutter. There is however a dispute between the experts as to the precise mechanism and events leading to the truck tipping over as it re-entered the road. The Council, in this respect not challenging Mr Swift's evidence, attributes the tipping wholly to Mr Swift's evasive action to avoid the unidentified car; however it attributes a much higher speed than the 60 to 70 km/h (approximate) claimed by Mr Swift and accepted by the trial judge. The Council did not seek to characterise the evasive action as unreasonable in circumstances of split second emergency action. However, the Nominal Defendant, consistent with its denial of there being any unidentified car, attributes the accident rather to excessive speed on the part of Mr Swift in conjunction with the lip. The Nominal Defendant also relied on what it described as a "retardation" effect on the truck whilst in the gutter. This was denied by both Council and Mr Swift. 25 What is not disputed is that the truck overturned as it came out of the gutter and onto the road. For the purpose of calculating speed under the formula immediately prior to the accident, a calculation is required of the distance from rollover to stand-still or completion. According to Mr Keramidas the most likely distance from rollover to completion was 95 metres. This was based on coal spill on the road, marks on the left hand rock-face and the fact that it was impossible for rollover not to take place at the same time for both prime-mover and trailer, according to the expert evidence. Mr Wingrove calculated the distance as twenty metres shorter, namely around 75 metres. I shall return under "Disposition" to the outcome of their and Mr Johnston's analysis of the probable speed. 26 It is against that broad factual background that I turn to the issues in dispute.

[15]

Another vehicle 28 The trial judge's finding as to the presence of an unidentified vehicle turned on the credibility he attributed to the respondent (Red, 56W-57B). The trial judge said (Red, 57-58), "I am satisfied on the balance of probabilities that the plaintiff was confronted by an unidentified vehicle which was negligently driven onto the wrong side of the road almost causing an impact with his vehicle. I am satisfied he acted reasonably in taking evasive action in first of all high beaming, braking within the caution of not jack knifing and going as far to the left as possible." 29 Although the appellants pointed to the lack of tyre braking marks as countering the respondent's account of a near collision and urgent evasive action, the trial judge did not accept that criticism. Rather, he was persuaded by the respondent's evidence (Black, 82) that he took appropriate evasive action and applied moderate braking pressure to avoid jack-knifing the truck. 30 The respondent gave a consistent account of what occurred involving an unidentified vehicle in all his evidence, and was not shaken from this account in cross-examination. The respondent initially believed he had in fact collided with the other car (Black, 84-85). He maintained this belief until his admission to hospital, when visitors and others convinced him a collision had not actually occurred (Black, 284U; 451). 31 None of the expert witnesses, discussed below, could exclude the involvement of another vehicle, based on the known times and distances surrounding the crash and the existence of the Ashwood Road exit. These circumstances included the possibility that the required 3-minute interval between trucks could extend to 5 minutes on occasion. The trial judge noted as much at Black, 34-35. Further, none of the experts accepted the proposition that a collision with the other vehicle, in the circumstances described by the respondent, was inevitable. 32 It was possible that Mr O'Keefe and Mr Thomson, the other drivers on the road who did not encounter any other traffic, had missed the unidentified vehicle as it drove away from the accident scene (Blue, 459H-K, Blue, 418S). Although at times Mr Keramidas expressed doubts as to the likelihood of another vehicle being involved, he effectively withdrew those reservations in cross-examination (Black 692-694). Two scenarios could be sustained that explained why the other vehicle was not sighted by the witnesses - 'guilty flight' down Ashwood Road or simply that the vehicle passed the Douglas Park Road intersection prior to the other vehicles entering the intersection. The evidence from Constable Stevens, who attended the scene of the accident, did not assist one way or the other on the question of whether another vehicle was involved (Blue, 396, Black, 31).

[17]

Due search and inquiry 34 The trial judge's finding in favour of the presence of an unidentified vehicle raised the question of due search and inquiry as required by s28(1) Motor Accidents Act 1988 (NSW) (the "MAA"), which relevantly provides, "An action for the recovery of damages in respect of the death of or injury to a person caused by the fault or the owner or driver of a motor vehicle in the use or operation of the vehicle on a public street in NSW may, if the identity of the vehicle cannot after due inquiry and search be established, be brought against the Nominal Defendant". 35 The trial judge found that this obligation had been discharged in the circumstances by notifying the police as to the accident (Red, 38). In the context of the 'guilty flight' scenario, the trial judge considered it unlikely that any further police enquiry would have been productive (Red, 37). 36 In Harrison v The Nominal Defendant (1975) 7 ALR 680; (1975) 50 ALJR 330, the High Court considered the requirement of 'due search and enquiry' in s30(2), Motor Vehicles (Third Party Insurance) Act 1942 (NSW), the predecessor to the MAA. Barwick CJ said (at 332), "The stipulation that the identity of the vehicle is incapable of being established is made for the protection of the Nominal Defendant. It imposes no obligation, as such, upon the plaintiff though, the plaintiff to succeed must establish that the identity is incapable of being established as in the terms of the section. The word "after" in the sub-section does not, in my opinion, require that some inquiry and search must necessarily in fact always precede some other event or the drawing of a conclusion. If in the circumstances of the case, it is evident that the identity of the vehicle could not be established by due inquiry and search, the stipulation in my opinion, may be held to be established, although no inquiry and search should have been made." 37 Barwick CJ also stated (at 332), "Whether or not the tribunal of fact is satisfied that the identity of the vehicle cannot be established after such inquiry and search of which the circumstances admit will depend on all the circumstances of the case. An affirmative finding that the identity of the vehicle cannot be established in terms of the sub-section is, in my opinion, a finding which a court of appeal must rarely be able to set aside as erroneous." 38 In the present case, I am not inclined to disturb the trial judge's finding. The relevant authorities indicate not only that such a conclusion should rarely be displaced, but also that the statutory obligation must be considered in a realistic manner. 39 The due search and inquiry requirement was considered in Nominal Defendant v Smith (1998) 28 MVR 165. In that case the plaintiff was a pedestrian who was hit by a car. The plaintiff refused medical treatment from ambulance officers at the scene and left by taxi. He was not immediately aware he had been injured, but later needed significant hospital treatment for a leg injury. He contacted local police stations approximately six months after the accident. Although the police had attended the scene at the time, the officers had unusually failed to make or retain any note as to the identity of the car or driver. A number of other persons, such as local residents and the ambulance officers who had attended, were also at the scene. Sheppard AJA (with whom Priestly and Meagher JJA agreed) said (at 174), "The question is whether, in all the circumstances, it was a case in which the respondent was required to do more. Harrison's case and other later cases remind us that we must be realistic about the requirement… The judgment of Barwick CJ in Harrison cautions against an over zealous interference with the findings of trial judges on matters of this kind." 40 Harrison is authority for the proposition that a plaintiff is not required to conduct a search that is obviously futile. This involved a departure from earlier authorities such as Blandford v Fox (1944) 45 SR (NSW) 241 that had adopted a more stringent approach. Prior to Harrison a dominant concern was the scope for abuse of the then novel idea of a statutory corporation created to meet liabilities arising from motor accidents where the defendant driver could not identified. As explained by Kirby P (with whom Clarke and Powell JJA agreed) in Oztan & Ors v NSW Insurance Ministerial Corporation (1995) 23 MVR 259 (at 265), "Ritual inquiries and charade procedures that may have been thought necessary in conformity with Blandford v Fox are no longer necessary if the tribunal of fact comes to the conclusion that "due" inquiry and search would have produced no real results to identify the motor vehicle." 41 In Oztan the plaintiff's car was stopped at traffic lights when it was struck from behind by another vehicle, which had in turn been struck from behind by a third vehicle. The third vehicle fled the scene. An eyewitness observed the third vehicle's number-plate and told the information to the second driver, who in turn told the plaintiff. This number was given to the police and the police computer check revealed the third vehicle was a stolen car. The police inquiries failed to identify the vehicle, leading to the conclusion that the number was mistakenly recorded. 42 The witness had forgotten the number-plate by the time legal proceedings were in train approximately three months later, but stated that the car definitely had NSW registration plates. No inquiries were made outside NSW, no advertisements were placed in newspapers and local residents were not canvassed. 43 Kirby P found that the requirement of due search and enquiry had been satisfied but that it was "at the borderline" and "not…an entirely clear case" (at 265). He distinguished the scenario from a case where the very existence of the unidentified vehicle was in issue, commenting (at 265), "The requirement of due inquiry and search is for the protection of the nominal defendant. But this is not a case (as many are) where there may be doubt that an incident occurred at all involving an unidentified vehicle. Here, there is no real room for dispute…[that the accident occurred as alleged]"

[20]

Significance of the step 48 The liability of the Council is premised on the significance of the drop between the road surface and the gutter. The negligence that is asserted relates to the presence of this step or channel beside the road, created as a result of the resurfacing methods adopted by the Council. Each expert identified a number of dynamic forces that accounted for the rollover, of which the step was only one. Mr Keramidas, quoted by the trial judge in his judgment at Red, 53, spoke for example of the successive dynamic effects of the drop into the channel, the angle of the channel area (i.e. the slope of the surface of the gutter), contact between the kerbing and tyres, the steering movement to return to the roadway, the reaction of the truck's suspension to these events and the potential for load shift within the vehicle (see Black, 546). Mr Johnston in addition emphasised the close proximity of the sandstone embankment to the gutter. Mr Keramidas also devoted some attention to the possibility that the hydraulics may have opened during the time when the truck was travelling along the channel, and that this was a possible destabilising event leading to the eventual rollover of the vehicle (Black, 602, 604-605). 49 It was incumbent on the trial judge to identify with some precision his findings as to causative contribution of the step relative to these other factors. The height differential between the gutter and roadway was potentially of significance as the cause of instability upon entering the gutter and/or as a cause of the rollover that followed the respondent steering the truck back onto the road surface. We know that the vehicle travelled some 80m from the tyre tracking in the gutter. 50 Speed was a relevant variable in respect to each of the constituent elements of the crash (the step, kerb, steering etc). In particular, there was evidence from Mr Keramidas that the dynamic impact of the step down into the channel and the step up when re-entering the roadway would be less significant at lower speeds (Black, 533). Mr Keramidas conceded that at 60-70km/h the significance of the step down would be significantly, if not entirely, diminished (Black, 768). The trial judge's finding as to speed (that the speed was 60 to 70 km/h and thus well within the 80 km/h speed limit) was based essentially on matters of credit going to the truthfulness of the respondent and inference based on broad generalities. It needs to be tested against the objective evidence; see later.

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Exiting the channel 54 The Council challenges the trial judge's finding that exiting the channel was a cause of the rollover. It disputes that any negligence could be attributed to the Council or such as could have had any causal effect in the rollover. Alternatively, the Council contends that even accepting that negligence by the Council as regards the different levels caused the problems occasioned by the channel, the apportionment of 30% liability in favour of the Council was excessive, given the other causative factors and should be around 10%. 55 In particular the Council points to the concessions made by Mr Wingrove and Mr Keramidas in cross-examination, and the neglect of Mr Johnston's evidence. 56 Mr Wingrove stated in paragraph 15 of his written report that the channel made it extremely difficult for Mr Swift to steer back onto the roadway. This was said to be because the truck tyres, being super single size, fitted into the channel. The trial judge appeared to rely on this contention, being impressed by Mr Wingrove's practical experience (Red, 34-35). Mr Wingrove had however also linked this channelling effect (the tyres being stuck in the channel) to (a) retardation of the vehicle and, (b) stable tracking along the stepped edge, in the same manner as had been postulated by Mr Johnston in regard to the stable tracking along the kerb edge (Black, 433). 57 However, he described the retardation as being "overcome" prior to rollover. Mr Wingrove declined to quantify the retardation effect (Black, 421), considering that such a calculation would be speculative. He also could not point to any physical indication in the form of tyre marks that demonstrated difficulty exiting the channel (Black, 404-405). Mr Johnston confirmed this opinion as to a lack of physical evidence on the point (Black, 765-766). 58 Mr Johnston's evidence on the issue was that the step between the pavement surface and the floor of the gutter did not cause the truck to hit the vertical rise of the kerb. In cross-examination Mr Johnson said, given the slope of the bottom of the gutter and the width of the tyres (350mm) relative to the width of the gutter (700mm), it was inevitable that the wheels of the vehicle would hit the vertical edge of the gutter (Black, 743N). 59 Mr Johnston's evidence during cross-examination was that although the step was an undesirable feature of the road (Black, 747X), it was not the critical problem. Rather, the key problem was the close proximity of the embankment to the kerb and guttering. Mr Johnston's evidence was that the exit angle created by the steering manoeuvre required to direct the truck out of the gutter meant the vehicle would have hit the embankment in any case. On this basis Mr Johnston maintained that rollover was effectively inevitable and not caused by the step out of the gutter (Black, 756). 60 I consider that the upshot of this evidence from each of the experts and taking into account concessions in cross-examination should have been to direct attention to the circumstances for steering back onto the roadway, rather than simply the step itself. Critically, Mr Johnston's evidence was that rollover was inevitable due to the lean, close proximity of the embankment and the steering manoeuvre to exit called for from the respondent. The trial judge did not engage with this aspect of evidence and did not provide reasons for ignoring Mr Johnston's analysis.

[23]

Significance of speed and the trial judge's finding based on credit 61 The trial judge accepted the respondent's assertion that he was travelling within the 80km/h speed limit (Red, 58J), the respondent's estimate being a speed of 60-70km/h. The trial judge expressly grounded this finding on his view of the credibility of the respondent, stating at Red, 55 L, "…in relation to the question of speed I think it really gets back to my assessment of the plaintiff as a witness who has impressed me by his truthfulness…" 62 This followed the trial judge's finding as to the presence of an unidentified vehicle, which he also described as a finding turning on questions of credibility, in the absence of other witnesses. 63 In making this finding as to speed the trial judge referred to his earlier comments on the good reasons the respondent had for observing the speed limit (Red, 32 to 33). These were that the respondent's employer monitored truck speeds and noise through Wilton village and supervising staff, pulled up drivers who transgressed the rules. The respondent, who was a casual employee, was keen to secure a permanent position and was close to achieving this promotion. He thus had an additional incentive to observe these limits. The respondent also maintained that he was careful to drive lawfully to avoid risking his licence, which was the basis of his livelihood. 64 The appellants challenge the trial judge's finding as to speed on this basis in circumstances where there was expert evidence from both Mr Keramides and Mr Johnson contradicting the respondent's assertion that he was travelling within the 80km/h speed limit. The finding here was based not just on an impression of truthfulness (in that sense credit) but also on matters of contestable inference. The trial judge's calling in aid that the respondent was a good worker and member of the community (Red, 55) afford no sufficient ground for drawing an inference as to his speed at the time of the accident nor do they add much weight to an inference in his favour, as against a calculation on the more objective basis below. The appellants submit that the trial judge's conclusion was in error, particularly given that there was no evidence the respondent had been looking at his speedometer at the relevant time. 65 Each of the experts noted that the question of the respondent's pre-accident speed was a difficult one, beset by uncertainties in the inputs relevant to the calculation. Mr Keramidas' estimate was a range of 85 - 105 km/h (Black, 705). Mr Johnston agreed, believing it was at least 90km/h (Black, 740). Mr Wingrove criticised Mr Keramidas' calculations but was later satisfied following some revisions and recalculations (Black 333-336). Based on a rollover point 75m from the point of rest (an estimate that favours a lower speed calculation), a pre-accident speed of not less than 82km/h was calculated (just over the speed limit) and was agreed between the three expert witnesses. The calculations of speed were made by Mr Johnston and Mr Keramides, and derived from the distance travelled to standstill after rollover, applying a coefficient of friction in accordance with the formulae v2 = u2 + 2as (Blue, 671, Johnston report). These calculations favoured the respondent as no braking was assumed (Black, 359). This was despite the respondent's own evidence that he had braked upon seeing the unidentified car approaching. Both Mr Johnston and Mr Keramidas thought the friction coefficient used was also conservative, given the likely obtrusions from the truck and coarse asphalt surface (Black, 360). Mr Keramidas was also of the view that rollover was more likely to have been 95m from the point of rest, which would again increase the ultimate estimated speed. 66 The trial judge was persuaded by the presence of 'unknowables' and therefore leaned towards Mr Wingrove's initial assessment, which was the most tentative expert view (Red 57). This approach did not engage with the variables identified by the experts, nor did it recognise that despite this uncertainty, and despite adopting conservative parameters, each expert concluded that the respondent had been travelling in excess of 80km/h. The trial judge did not take account of the concessions made by Mr Wingrove in cross-examination (Black, 353-354, 357) and the manner in which those concessions brought his view closer to the opinions expressed by Mr Keramidas. Critically Mr Wingrove agrees with Mr Keramidas' calculations (Black, 357), although he later reaffirmed his initial view in re-examination (Black, 436). The trial judge was in my respectful opinion, in error by failing to engage sufficiently with this evidence. 67 The trial judge did examine the evidence from Mr Keramidas and Mr Wingrove on the cause of the accident and in particular the sequence of events and the different causal significance of each event. Mr Keramidas' evidence, which the trial judge quoted from extensively, included the view that the respondent's pre-accident speed was an overarching uncertainty that would impact upon any assessment of the events as they occurred (Black, 546). A finding on speed bore centrally on the explanation pressed by the Nominal Defendant for the accident, namely excessive speed, not wearing a seat belt and there being no other vehicle requiring evasive action on the part of Mr Swift.

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Summing Up 68 I conclude that: (a) the trial judge was in error in assuming a speed less than 82 km/h, namely 60-70 km/h. The speed limit being 80 km/h means that a slight excess over it still accommodates that degree of prudent responsibility attributed to Mr Swift in his favour by the trial judge. It certainly does not justify any finding of contributory negligence on the part of Mr Swift based on excessive speed; (b) Nor do I consider that the cause of the accident could be attributed at all to the supposed negligence of the Council in allowing the road to be constructed with a difference in level between road and gutter. I consider that the evidence and expert analysis of Mr Johnston was correct and the conclusions which followed from it. He concluded that the step into the gutter did not cause the tyres to hit the vertical edge of the gutter. Rather, the slope of the gutter and the width of the tyres meant hitting the vertical edge of the gutter was inevitable on exiting. It was the exit angle created by the steering manoeuvre required to direct the truck out of the gutter which meant the vehicle would have hit the embankment in any case so that rollover was effectively inevitable. (c) I see no basis for interfering with the trial judge's conclusion that there was an unidentified vehicle which initiated the manoeuvre that ultimately led to the accident and resultant injuries. It is credibility based and does not depend on the less reliable impression by the driver of his speed. One either sees an on-coming car or one does not. Unlike the question of speed, there is no objective evidence which warrants a different conclusion to the effect that Mr Swift was lying when he attributed his evasive action to the on-coming vehicle. That the unidentified driver was not seen by the other two vehicles (Mr Thomson and Mr O'Keefe) can, I am satisfied, be adequately explained by that driver taking a "guilty flight" down a side street such as Ashwood Street. (d) I do not accept that the step of interviewing individuals who might have seen the unidentified driver, such as the households alongside the various exit points, was required to conform to s28(1) MAA in relation to the Nominal Defendant.

[25]

DAMAGES 69 The trial judge's findings on damages are challenged on five grounds, (a) the failure to reduce the award for contributory negligence by reason of the respondent driving at excessive speed; (b) the finding that the respondent's failure to wear a seat belt was not contributory negligence and thus did not justify a reduction in the damages awarded; (c) the finding that the respondent's injuries amounted to 35% of a most extreme case was excessive; (d) the trial judge's findings with respect to the respondent's reduced earning capacity, past economic loss and past wage loss were in error; and (e) the award of $500 per week for future economic loss was excessive and no reasons were provided for this award. 70 The ground alleging contributory negligence by reason of excessive speed is answered by my earlier findings as to causation. I would not on the evidence conclude that Mr Swift's speed was excessive. 71 The second allegation of contributory negligence relates to the respondent's failure to wear a seat belt. The trial judge was persuaded that the discomfort the respondent described (by reason of his height, the location of the belt and his long work hours of 12 hour shifts) was a reasonable basis for not wearing the belt at the time of the accident (Red, 58-9). It was not compulsory at the time to wear a seat-belt and while there were courses encouraging its wearing, it was still up to the individual driver. It was not suggested that Mr Swift was out of step with the practice of other drivers at the time. The trial judge said (Red, 59), "To have to wear a seatbelt of an uncomfortable type, as described by him, to my mind seems quite unreasonable particularly in circumstances where the legislation at that time recognised that truck drivers of more than one tonne did not have to wear seatbelts. In those circumstances I am not persuaded that contributory negligence has been established." 72 The submissions from the Council (which were adopted also by the Nominal Defendant) emphasised that the respondent was aware that seat belts were designed to minimise injury in the event of an accident, and pointed to the respondent's evidence to this effect (Black, 187-189). 73 Finally it was asserted, based on Dr Henderson's expert evidence, that his injuries would not have been suffered at all had he been wearing a seat belt, a matter going both to damages and causation. 74 I do not however accept these submissions. As to whether the injuries would have happened at all, had he been wearing his seat-belt, while there was no express challenge to Dr Henderson's report, I am not persuaded that the trial judge was in error in concluding that it was unreasonable to have required Mr Swift to wear a seat-belt in those circumstances. I am likewise not persuaded that the evidence reliably establishes that the injury would not have occurred had he worn a seat-belt, including that Mr Swift had no knowledge as to whether his shoulder struck the cabin door; Black, 188.

[27]

Challenges to the damages findings - non-economic loss assessed at 35% of a most extreme case 76 The trial judge assessed the respondent's condition as representing 35% of a most extreme case (Red, 76), as was required by s79, MAA. The Council's submissions on this issue turned on the asserted presence of pre-existing conditions, in particular the respondent's use of anti-inflammatory medication prior to the accident (Black, 137-138) to treat ongoing inflammation in his right knee. The Council also pointed to some instances of back pain in 1991, 1993 and 1997. 77 Other than recounting the respondent's evidence before the trial judge as to the respondent's medical treatment, recovery and gradual return to work, these submissions allege certain critical omissions from the trial judge's reasoning. There is a suggestion that the respondent's assessment of his pre-accident health as "normal" and "perfectly healthy" was inaccurate, yet there is evidence only of minor ailments and no particular conditions are identified that relate to the respondent's ongoing post-accident complaints. 78 The Nominal Defendant complains that no specific regard was had to the respondent's ability to lift his daughter (submission para 120), and points to other physical capacities for example in relation to family shopping. There is a further complaint about the trial judge's treatment of the respondent's post-injury capacity for work (submission para 128), including evidence as to the domestic tasks undertaken by the respondent and activities associated with his boat, which he purchased in 2003. 79 The Nominal Defendant submitted that the respondent's capacity to earn should have been based on full time security work, which the respondent had conceded he could perform under cross-examination (Black, 185). 80 The theme of these submissions is that the trial judge failed to give due attention to the respondent's capacities in his personal and work life, and failed to closely assess the argument that while receiving workers compensation payments at the full rate, the respondent was disinclined to maximise his earnings through work (para 135). 81 As to non-economic loss insofar as based on 35% of a most extreme case (s79 of MAA) the respondent submitted that 35% was well within a reasonable range, invoking as a discretionary assessment the constraints applicable to appellate intervention. In the respondent's written submissions, the respondent puts the following matters. These I consider justify the conclusion that the trial judge's discretionary determination of non-economic loss based on 35% of a most extreme case should not be disturbed. "48. In his submissions Counsel for the Nominal Defendant conceded that the Respondent would overcome the " significant impairment " threshold [Black 831V] and that the percentage " was more closer to 30 in the early 30s " but that ultimately it was a matter for His Honour as to where it falls [Black 831 W].

[42]

It is contended in the circumstances that the assessment of future economic loss at $500 net per week was not a proper reflection of the evidence, and critically the evidence of the respondent himself as to his demonstrated work capacity. It is contended that a more appropriate award reflecting a loss of earning capacity into the future was $150 net per week which, on the multiplier of 34 years, less 15% amounts to $110,402. Future loss of superannuation would also need to be appropriately reduced." 86 Like the Nominal Defendant, the Council challenged the figure of $368,007 for future economic loss. That challenge is based on what was submitted on the evidence to be an understatement of Mr Swift's residual capacity for work in the future; written submissions paras 102 to 135 dealing with that issue and the extent and consequences of his physical injury under the heading "35% of a most extreme case". 87 There is evidence of Mr Swift suffering continued post-accident back pain, as well as some pre-accident back pain but not such as to be debilitating. There is also evidence of his ultimately failed (but I interpolate genuine) attempts post-accident to return to driving and his fitness only for light duties since January 2000 (Black, 245). The respondent's chronology amply demonstrates his genuine attempts at finding work and that their outcome was ultimately limited to light security duties (Orange, 109). That evidence demonstrates Mr Swift's genuine attempts to rehabilitate himself and to maximise his residual earning capacity. For example in April 2002 he obtained his first aid certificate and a security licence, being unable earlier to afford the cost of the course (the $5,000 cost was paid for by the insurance company). 88 That led to his obtaining security work, described by the Council in its written submissions in these terms (omitting references): "128. In late July 2002 the Respondent obtained casual security work with Security Network. He worked 3-4 days per week for 7-hour shifts. He ceased this work in December 2002 when the contract was completed. The Respondent later applied for work with Chubb Security, however he failed the medical test. In October and November 2002 the Respondent was also doing long shifts engaged in other security work. However he stated he was unable to continue with that work because of pain in his back and stress symptoms. However, when cross-examined, the Respondent conceded that he believed he was able to do security work on a full-time basis and that he had done full working weeks in the past. He admitted that he was doing all the work that had been offered to him. He further conceded that he had suffered nausea and migraines (the stress symptoms) prior to the accident. His Honour never assessed this evidence and its impact on the Respondent's post injury capacity to work.

[43]

In November 2002 the Respondent undertook a course in the responsible service of alcohol and worked as a security officer for four hours per fortnight at the WIN Entertainment Centre. He said that he did "all right" at this. His hours are dependent upon what is on at the entertainment centre. He continues in this employment and is now working about 4-6 hours per week. He earns up to $400 per week. …" 89 Council submitted that this did not truly represent Mr Swift's capacity to earn but understated it. It is complained that the trial judge did not extrapolate from the four to six hours per week which he worked to what he would earn on a full-time basis. In addition to working at the WIN Entertainment Centre, Mr Swift had commenced employment mobile patrolling in about July 2003 with Gerringong Security. There he worked two nights a week for six-hour shifts. He continues in this employment. In that employment he earned approximately $200 gross per week. It was put that Mr Swift "admitted that he might have been working for Security Network, Night Guard and WIN Entertainment all at one time"; Black, 247-8. 90 The Council then points to Mr Swift spending time as at April 2004 in addition to working part-time on "getting the children ready for school, driving the children to school, doing some housework …, spending time on the computer looking for job opportunities and … fishing on his boat". The complaint is made that these activities should have been considered by the trial judge as representing some additional capacity for work, yet the trial judge made no reference to this in either his assessment of the most extreme case nor as regards his lost earning capacity; see para 132 of the Council's written submissions. 91 Likewise reference was made to his capacity to do the shopping; see written submissions at para 133. Finally, there are some submissions about whether or not Mr Swift was able to lift his daughter or carry a bag containing two x two litres of coke, but I do not consider anything really hangs on that. 92 The respondent concedes that the trial judge did not give meticulous reasons. But the respondent submits that he was not required to do so since the evidence justified a conclusion that he had lost earning capacity roughly quantified at $500 net per week, based on the following evidence. It is accurately summarised in the respondent's written submissions below: "57. … i. The Respondent gave evidence that he was next in line to become permanent with Heggies and he was pretty much happy to stay a truck driver pretty much till he retired and that he would still like to be a truck driver because it was well paid and it provided a good life for his family [Black 67 0- Q].

[47]

v. Dr Hume who was qualified by the Appellant assessed the Respondent on 18 December 2002. Dr Hume provided a report dated 18 December 2002 [Exhibit G] [Blue 517] in which he expressed opinions that the Appellant was not capable of working to his pre accident capacity [Blue 523 I-J]." 93 In addition, as the Nominal Defendant conceded, Mr Swift was unlikely on the evidence to be able to return to the truck-driving work he was doing before; Black, 831. 94 Finally, as regards Dr Prakash's report quoted by the trial judge at Red, 75, the respondent points out, correctly, that the trial judge confused his report with that of Dr Hume at Blue, 523. While Dr Prakash was wrongly quoted as describing Mr Swift as "being incapable of working to his pre-accident capacity because of pain in his back and left shoulder", Dr Hume, whose qualifications appear at Blue, 525 as a specialist orthopaedic surgeon, did so describe Mr Swift's condition. Thus at para 11.1 Dr Hume answers the question, "Whether the plaintiff is capable of working to his pre-accident capacity" in the negative and answers the further question, "if not, why not?" as because "He is complaining of pain in the back and in the left shoulder. Jolting makes the pain worse." 95 There is then a further question, "Whether there are any restrictions on his ability to work full-time in his chosen career" which requires any such restrictions to be listed and requiring Dr Hume to advise whether these restrictions are accident related. Dr Hume's answer was "See above. He still suffers the after effects of the accident." 96 Dr Hume then answers the question, "If there are restrictions due to the accident, please provide your opinion as to whether the plaintiff would be able to work full-time or part-time in other capacities", in these terms. "He is working part-time. He has not been offered full-time work". 97 Finally, at the end of para 13 at Blue, 524 the following is stated by Dr Hume, "I was most impressed by Mr Swift's determination to find work of some kind. He appears to have been frustrated on many occasions in his efforts to return to full-time work. I consider that following a course of injections and appropriate help to find work he could become a much more productive worker than he is at present".

[49]

OVERALL CONCLUSION, COSTS AND ORDERS 99 I consider that the trial judge's determination of damages does not warrant appellate intervention, save that I conclude that no damages are payable by the Council to the respondent, given that the Council's appeal as to liability should wholly succeed. I consider that the appeal by the Nominal Defendant should be dismissed with costs, as should its cross-claim against the Council. I consider, however, that the respondent was justified, even prompted, in bringing proceedings against the Council, by reason of the Nominal Defendant denying liability as it did disputing, inter alia, that it was an "unidentified vehicle". That action made inevitable the joining of the Council by the respondent. The cost orders I have proposed are intended to reflect that outcome on broad terms, including in particular order 3. This is by way of Bullock order reflecting Council's success on liability and failure on damages and the action of the Nominal Defendant in taking the stance it did. To my mind what was said by Priestley JA in Almeida v Universal Dye Works Pty Ltd (No. 2) [2001] NSWCA 156 at [9] and [13] can be drawn on in support of that conclusion; here the threshold issue was the status of the driver as unidentified (as distinct from who was the occupier of premises). '[9] What was submitted for Mrs Almeida was that the conduct of the Universal which justified the orders she was seeking was the position of the Universal vis-a-vis the other two respondents and the uncertainty that their relationships created as to whether it was safe to do other than proceed against all three. The specific incidents of conduct relied on were that Universal had accepted the quotation for the roofing work done by Mr Almeida's employer, that Universal and Newtown had a common directorship and that Mr Montebello had conducted business on behalf of all three respondents with Mr de Sylva the person in charge of the work being done at the time Mr Almeida fell to his death.

[50]

[13] Looked at from the point of view of the plaintiff, she was faced with the task of proving that some party was an occupier of the factory roof, either in an undefined sense or in a statutory sense; she had joined what she had some reason to believe was the company which had contracted to have the work done, the company lessee, and the company owner of the premises. The questions of occupation and whether Universal was the head contractor were put in issue by Universal. This alone would in my opinion have been sufficient conduct on the part of Universal to warrant the making of the orders against it which Mrs Almeida now seeks ." [emphasis added] 100 I recognise a difference between this case and Almeida (supra) though I do not consider it a sufficient basis of distinction. The ground sought to render the Council concurrently liable, was the state of the road or more precisely trench or gutter; whilst the Nominal Defendant was sought to be rendered liable on the basis that the unidentified driver had (by veering across to Mr Swift's side of the road) caused Mr Swift to take the evasive action that led to his accident. In Almeida it might be said that there was a closer connection between the two defendants and the precipitating events of the accident. It was a question which of the two was the occupier. But even there, Universal was also sought to be rendered liable as head contractor. 101 In Balesfire Pty Ltd t/as the Gutter Shop & Ors v Jamie Adams & Ors [2006] NSWCA 112 Almeida was followed. It was again a building case. Gutter Shop was a guttering firm that had contracted to supply and install gutters on the property. It had engaged the plaintiff as a subcontractor to do the installation which led to the plaintiff's injury by reason of the unsafe state of the roof for an installer, particularly by reason of the setback of a safety fence. The Bullock order was made against Gutter Shop, which it sought to displace on appeal. Gutter Shop disputed it was liable, forcing the plaintiff to join as defendants the owner and her husband in addition to their building company. Their respective roles in the workplace were distinct, though not, it might be said, wholly independent. Mason P observed: "[107] There is an air of unreality in Gutter Shop challenging the Bullock order while in the same breath arguing that Mr and Mrs Ekonomou [the owner and her husband] and Jemm [their building company] were in truth always liable to the plaintiff and therefore ought to contribute to any substantive verdict awarded against Gutter Shop. In any event, the substantive disposition of this appeal means that the trial costs orders have to be revisited as regards Mr and Mrs Ekonomou.

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Judgment (52 paragraphs)

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Cases Cited (9)

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