Yip v Zreika

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40068 of 2001 DC 83 of 1998 MASON P MEAGHER JA YOUNG CJ IN EQ

Wednesday, 19 December 2001 YWAU HEI YIP v ABDULLAH ZREIKA

The respondent rode a brakeless bicycle down a sloping driveway onto Cabramatta Avenue. The appellant was driving up Cabramatta Avenue and collided with the respondent. The appellant appealed against the trial Judge's finding of negligence against the appellant, the assessment of contributory negligence, and quantum of damages.

HELD per Meagher JA (Mason P & Young CJ in Eq agreeing): (i) There is no reason to dispute his Honour's finding of negligence against the appellant.

(ii) The act of propelling a brake-less vehicle onto a main road was a major act of contributory negligence. The contributory negligence of the respondent should be increased from 30% to 50%.

(iii) The respondent's non-economic loss should be assessed at 25% of a most extreme case for the purposes of s 79A of the Motor Accidents Act 1988.

(iv) Damages for past economic loss should be $1,000.

Per Young CJ in Eq (Mason P agreeing): (v) Damages for loss of earning capacity should be $71,033. Per Meagher J (dissenting): Damages for loss of earning capacity should be $9,000.

ORDERS 1 Appeal allowed in part. 2 Judgment and verdict below set aside and in lieu thereof a verdict for the respondent in the sum of $52,334.00. 3 The respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40068 of 2001 DC 83 of 1998 MASON P MEAGHER JA YOUNG CJ IN EQ

Wednesday, 19 December 2001 YWAU HEI YIP v ABDULLAH ZREIKA

Judgment 1 MASON P: I agree with Young CJ in Eq. 2 MEAGHER JA: The plaintiff, Mr Abdullah Zreika, sued the defendant, Mr Ywau Hei Yip, the present appellant, for damages for negligence arising out of an accident on Cabramatta Avenue, Miller, on 15 February 1997. He succeeded before Moore DCJ in obtaining a verdict of $266,205.72. 3 Although, in the end, the case turned out not to be an easy one, the essential facts may be stated shortly. Cabramatta Avenue, at the relevant place, ran north and south. Mr Zreika entered it on the western side, travelling in an easterly direction. He rode his bicycle (called, in the transcript, a "push-cycle") down a sloping driveway, across a level footpath, and out onto the Avenue. His bicycle had no brakes. Moreover, as will be seen later, he must have been going at some speed. Unhappily, the appellant was at that time travelling north up Cabramatta Avenue, having just entered it from the west, at a point about 40 metres away. (His Honour said that "The precise distance was not in evidence", despite the fact that a police officer gave undisputed evidence that he had stepped it out.) 4 The inevitable collision left the plaintiff badly injured. 5 Mr Hoeben SC, learned senior counsel for the appellant, whilst making a formal submission that his Honour's finding of negligence against his client was unjustified, agreed that the evidence on which his Honour relied in this regard did exist. The appellant admitted that, when entering the Avenue, he saw Mr Zreika, he could have stopped but did not, he knew that the risk of a collision would arise if both parties continued their trajectories uninterrupted, and he took no immediate steps to brake his car. He also knew, obviously, that his motorcar was a more powerful vehicle than Mr Zreika's bicycle. In these circumstances, I can see no reason to dispute his Honour's finding of negligence against the appellant. 6 On the other hand, I would find it very difficult to sustain his Honour's findings on contributory negligence. That Mr Zreika was guilty of some contributory negligence is not in doubt. His Honour found that he did not keep a proper (or any) lookout. Of course, if he had, he would have seen the appellant coming. His Honour did not find that any other head of contributory negligence was made out. I should have thought that the mere act of propelling a brake-less vehicle into a main road was an act (and a major act) of contributory negligence. In the same way pedestrians who rush blindly onto a highway are regularly found to have been contributorily negligent (see for example, Schieb v Abbott (1998) 27 MVR 285). This act of contributory negligence was all the greater in that Mr Zreika must have been riding his bicycle at some speed. This can be inferred from the fact that there was another car, about one car's length ahead of the appellant's car, whose driver did not see Mr Zreika and whom Mr Zreika did not see. 7 On this topic his Honour said: "Some of the particulars of negligence alleged by the defendant against the plaintiff, were that the plaintiff's cycle had no brakes. The plaintiff readily admitted that lack. This element is not material in assessing negligence in this case. The plaintiff's negligence lay in not keeping a proper lookout to his right. Having committed that negligence, there was no call for him to attempt to stop, as he rode on, oblivious of the defendant's presence. The defendant's account is that the plaintiff simply kept on coming."

I am afraid I quite fail to understand his Honour's reasoning. To propel a brake-less vehicle into a main road is courting disaster, if for no other reason because it means one cannot stop when the occasion to do so arises, and this must therefore be a central issue on the question of negligence. Indeed, there is strong room for argument that the total culpability for the accident should be divided as to 66% to Mr Zreika and 34% to the appellant; but I am content with a determination that both parties were equally liable for the accident. 8 This brings one to the question of damages. Various heads of damages were decided. As his Honour pointed out, it was exceedingly difficult to ascertain just what damages were suffered. This is so, for many reasons. One is that Mr Zreika's credibility is not immaculate. He told different stories to different doctors. He concealed facts. He told untruths. He had a lengthy criminal record for various offences, including offences involving dishonesty. Sometimes his testimony was so bizarre that one is left gasping; for example, he gave evidence that he had once run in the City to Surf race, which he then described as a race which began and ended in the City. Nevertheless, his Honour basically believed him (although with reservation) and there is medical evidence consistent with his complaints. What were his complaints about the damage he suffered? He suffered an injury to his right saphenous nerve, but it did not prevent him from running, and it caused a permanent disability to the leg of no more than 1%. His Honour believed him when he complained that he suffered frequent neck pain due to soft tissue injuries; but (a) on his own story, the pain is mild, (b) it was not reported until 6-9 months after the accident, and (c) he has never sought or received any treatment for it. He said (and his Honour believed him) that he suffered from post-concussion headaches, which apparently arose well after the accident. He suffered a closed tibial fracture, which has now united so that he is able to walk on it without a limp. One of his doctors said of this: "he has had an excellent reset from the fractured tibia." 9 The most severe damage he claimed was psychiatric. This is an area which is particularly difficult to describe. All his life before the accident he had a disturbed personality, and in particular (to quote his Honour) "a grossly abnormal difficulty in controlling his temper". He had a disturbed childhood, and was physically abused by his father. He had been on many occasions to a psychiatrist before the accident. He had a long list of criminal convictions, many of them for crimes of violence. By the time he was 19 years of age, at the date of the accident, he had spent over three years in prison (as compared, incidentally, to two days in employment). His evidence on this topic, which his Honour accepted - although one would have to be sceptical - was that the accident exaggerated his psychiatric problems until he suffered from an extreme case of Intermittent Explosive Disorder with homicidal tendencies; there was some medical evidence which substantiated his case, although it was mainly conceived as a result of massive falsehood on Mr Zreika's behalf. 10 On the basis of this evidence, his Honour assessed non-economic loss at 45% of a most extreme case for the purposes of s 79A of the Motor Accidents Act 1988. In my view, in light of the facts I have endeavoured to summarize, the "loss" (which is a measure of his deterioration from his pre-accident position), could not possibly be so high. I cannot see how a figure higher than 25% could be justified. 11 Likewise, his Honour's figures for past economic loss ($52,384.43) and future economic loss ($179,178.00) seem equally extravagant. The former was calculated on the basis that Mr Zreika but for his injury would have obtained full-time employment and would have retained such employment without losing a day from work to the date of trial. The latter was calculated on the basis that Mr Zreika but for his injury would have engaged in full-time employment as a labourer without losing a day from work to the age of 65, although his work capacity had been reduced by 50% due to the accident. Both these bases are fanciful in the extreme. They are not supported by any evidence at all, and really reflect benevolent guesswork. Nor do they seem to take into account Mr Zreika's lack of job skills (which were close to zero), the volatility of the labour market (particularly, perhaps, in the Campbelltown area), his pre-injury work history (all two days of it), and his pre-injury personality problems (which arose out of the fact that he seems to be an unstable personality with a criminal record). The totality of the economic loss should be $10,000. 12 The award of interest on damages is governed by s73 of the Motor Accidents Act (1988). s 73(3) provides that no interest is payable on damages for non-economic loss. In assessing whether interest is payable on the remaining heads of damage, it is necessary to consider s73(4) of the Act. 13 The appellant made a formal Offer of Compromise in the sum of $4,000, on 13 January 1999. This was before he had received the reports of Drs Parkington, Cole and Scarf. Under s73(4)(a)(iv) of the Act, interest is not payable unless the amount offered is unreasonable having regard to the information available to the defendant when the offer was made. I agree with his Honour that the offer of $4,000.00 was an unreasonable amount. Accordingly, the appellant is liable to pay interest on damages. s73(6) provides that the rate of interest is to be "three-quarters of the rate prescribed for the purposes of section 95 of the Supreme Court Act 1970…", say 7%. 14 In the result, I would allow the appeal, and substitute for his Honour's verdict a verdict in the sum of $21,317.23. This sum is comprised of:

Out of pocket expenses: $1,249.45 Non-economic loss: $15,500.00 Past loss of earning: $1,000.00 Loss of earning capacity $9,000.00 Future medical and para-medical treatment: $15,815.00 Interest on past loss of earning at 7%: $70.00 $42,634.45 50% reduction for contributory negligence: $21,317.23

1 Appeal allowed in part. 2 Judgment and verdict below set aside and in lieu thereof a verdict for the respondent in the sum of $21,317.23. 3 The respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act. 16 YOUNG CJ in EQ: I have read the reasons for judgment of Meagher JA. 17 Although I believe his Honour's reasons may be slightly over-generous to the respondent, I am prepared to agree with all that his Honour says with the exception of His Honours assessment of damages. 18 I agree that the trial judge's assessment was excessive. The basic fault with it was an over-optimistic assessment of what the plaintiff would have earned but for the accident. 19 As Palmer J said in RT & YE Falls Investments Pty Ltd v NSW [2001] NSWSC 1027, "A court must not, under the guise of compensation, award plaintiffs castles of marble where, if no wrong had been suffered, they would probably had but castles in the air." 20 The only figure adopted by Meagher JA with which I would quarrel is his figure for loss of earning capacity. 21 With respect, the learned Judge was able to accept on the evidence before him that there was a probability that the plaintiff would have settled down and been able to get a job. The Judge's error was, in my view, that he would have had a job for 42 years. This, as Meagher JA has said, is fanciful. 22 I would allow only a third of this period as being a period for which the plaintiff might work. The multiplier for 14 years is 529.3 which, when reduced by 15% for vicissitudes produces $228,099.32. This figure is too large as it assumes that it is the next 14 years that will be affected. The probabilities are that 14 of the next 42 years will be affected. I thus reduce this figure by one-third to arrive at $142,066. As half the earning capacity is affected, the relevant figure is $71,033. 23 Accordingly, I would reduce the verdict of the plaintiff to $52,334.00 made up as follows:

Out of pocket expenses $1,249.45 Non economic loss 15,500.00 Past loss of earnings 1,000.00 Loss of earning capacity 71,033.00 Interest 70.00 Cost of future medicals 15,815.00 $104,667.45 Less 50% contributory negligence 52,333.73 $52.333.72

Rounded off verdict for the plaintiff/respondent for $52,334.00

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