Hans Juergen Kuhn v Cheryl Douise Pendrick Sca [1992] ACTSC 48 (15 May 1992)

SUPREME COURT OF THE ACT

HANS JUERGEN KUHN v. CHERYL DOUISE PENDRICK
S.C.A. No. 126 of 1991
Appeal - Interest - Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1), Gallop(1) and Higgins(1) JJ.

CATCHWORDS

Appeal from the Master - Damages - Assessment - Personal injury - Motor vehicle accident.

Interest Interest on general damages incorrectly assessed at 4% - Rate of 2% assessed.

Practice and procedure - Incorrect assessment of interest rate to be applied - Correction under slip rule preferred to appeal process.

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

HEARING

CANBERRA
15:5:1992

Counsel for the Appellant: Mr J. Hartigan

Instructing solicitors: Messrs Crossin Power Haslem

Counsel for the Respondent: Mr G. Stretton

Instructing solicitors: Messrs Snedden Hall and Gallop

ORDER

The Court orders that:
1. The appeal be allowed only so far as is necessary to vary the award of interest.

2. The amount of interest awarded by the Master be reduced to $3,425.00 and the verdict to $54,534.00.

3. The appellant pay the respondent's costs of and incidental to this appeal.

DECISION

This is an appeal from a decision of the Master given on 29 October 1991.

2. The respondent claimed damages for personal injury arising out of a collision which occurred between motor vehicles driven respectively by the appellant and the respondent.

3. The facts of the matter are set out in the Master's reasons for judgment. We will not repeat them.

4. There were conflicting accounts given as to how the collision occurred. Indeed, the account given by the respondent herself to police following the collision conflicted, to some extent, with the evidence she gave in Court before the Master.

5. Her version, as given in Court, was that she was approaching a green traffic light at a speed of about 50 kph. She was in the right lane in Canberra Avenue travelling in a westerly direction. A vehicle, described as a van, was stationary in the middle of the intersection waiting to turn right into Hindmarsh Drive. The appellant's vehicle was, unknown to her, stationary within the intersection, having been travelling east and was waiting to turn right into Ipswich Street.

6. The respondent did not see the appellant's vehicle. She said that her view of it was obscured by the van. As she approached the intersection and was about half a car length away from the white line marking its beginning, the traffic lights facing her turned amber. She maintained acceleration. As she did so, she noticed the appellant's vehicle in front of her. It had emerged from behind the van. The collision then occurred.

7. On that version of the events, the collision was plainly the fault of the appellant. The respondent was entitled to enter the intersection notwithstanding the amber light as she was, on her account of it, too close to the intersection to have stopped with safety. Further, as she had no view of the appellant before his vehicle emerged in front of her, it would follow that no finding of contributory negligence would have been warranted.

8. The appellant's version as given to police was contrary to this. Two persons, the appellant's sister-in-law and her husband, were following the appellant. Their version supported that of the appellant. They had the respondent travelling at not less than 80 kph and disobeying a red light.

9. There was, however, an independent witness, Mrs Hinton. Her evidence supported the version given in Court by the respondent. She did not see the appellant's vehicle until it appeared in front of that of the respondent. That version, if accepted, had the same effect as did that of the respondent. The Master did accept it. He had the advantage of seeing and hearing all the witnesses. Whilst he did not find that the respondent was an acceptable witness, he did find Mrs Hinton's evidence acceptable. He was entitled to do so. As a result, this Court should not interfere (see Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167).

10. The appellant submitted that the damages awarded were excessive.

11. The Master was entitled to accept, and did accept, that the respondent's back condition not only was significant but included an L4/5 disc bulge. It was, of course, open to him to have decided otherwise but he did not.

12. Another significant injury was scarring to the respondent's face in the area of her chin. It seems that the scarring was regarded as significant by the respondent. She said it worried her. She now usually wore make-up, which she did not like to do, to cover its effects. She had not been in the habit of using make-up before the accident although she had done so on some occasions.

13. There were other minor injuries.

14. The Master had the advantage of seeing the respondent, of viewing the scars and assessing the impact upon her of the various injuries she had sustained. The appellant could not point to any error in the Master's assessment of the respondent's injuries or in his assessment of the medical evidence relevant thereto. The amount awarded is not so high as to indicate some error of principle.

15. In those circumstances, it cannot be asserted that the Master's assessment of damages was wrong.

16. It is conceded that the award of interest for past pain and suffering is incorrectly assessed. It should have been assessed at 2% not 4% (see Hallet v Schoevers (unreported, Full Court of the ACT Supreme Court, 5 March 1992). We would reduce the interest to $3,425.00 and the verdict to $54,534.00.

17. It should be noted that where there is no dispute that interest on past pain and suffering has been wrongly calculated by the application of an effective rate of other than 2% per annum, that aspect could and should have been corrected under the slip rule rather than by the processes of appeal.

18. We would order the appellant to pay the respondent's costs of and incidental to this appeal.