Kennedy v Mangos [2001] ACTSC 92 (19 September 2001)

Last Updated: 29 January 2002

LORETTA JELENA KENNEDY v ROLAND MANGOS [2001] ACTSC 92

(19 SEPTEMBER 2001)

CATCHWORDS

APPEAL - motor vehicle accident - contributory negligence - apportionment.

ASSESSMENT OF DAMAGES - whether grossly disproportionate - regard to be had to other awards.

CROSS-APPEAL - sick leave - how account should be taken in a damages award.

Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424

Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10

Planet Fisheries Pty Ltd v La Rosa & Anor [1968] HCA 62; (1968) 119 CLR 118

Fuller v Galvin (unreported, Supreme Court of NSW Court of Appeal, 7 April 1995)

Hebditch v Sheppeard (unreported, Full Court, Supreme Court of the ACT, 12 July 1996, Gallop, Higgins and Ryan JJ

Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190

Graham Baker [1961] HCA 48; (1961) 106 CLR 340

Livingstone v Rawyards Coal Co (1880) 5 App Cas 25

Lammas v Macarounas (unreported, Blackburn CJ, ACT Supreme Court, 17 July 1980

Povey v W E & E Jackson [1970] 1 WLR 969

APPEAL AGAINST THE MAGISTRATES COURT

No. SCA 40 of 2001

Judge: Gray J

Supreme Court of the ACT

Date: 19 September 2001

IN THE SUPREME COURT OF THE )

) No. SCA 40 of 2001

AUSTRALIAN CAPITAL TERRITORY )

APPEAL AGAINST THE MAGISTRATES COURT

BETWEEN: LORETTA JELENA KENNEDY

Appellant

AND: ROLAND MANGOS

Respondent

ORDER

Judge: Gray J

Date: 19 September 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal and the cross-appeal be dismissed.

1. This is an appeal and cross-appeal as to both liability and damages from a decision of a Magistrate giving judgment for the appellant (plaintiff) in a motor vehicle accident claim in the sum of $18,669.00.

2. The appellant claimed damages in respect of a motor vehicle accident that occurred on 4 March 2000 at the intersection of Canberra Avenue and Ipswich Street, Fyshwick. At the intersection, which is controlled by traffic lights, the respondent (defendant) turned across the path of the appellant's vehicle.

3. The appellant's case was that at the time of the collision the traffic lights facing her were showing green. She was supported in this by the evidence of two witnesses who were in a vehicle following her. The respondent maintained that he was turning right on a green turn arrow. He was supported by two witnesses in a car waiting to turn right but on the other side of Canberra Avenue to the respondent. From the position that the car was in, it was not possible to see the state of the traffic lights facing the respondent. However, those witnesses gave evidence of other cars following the respondent in the right hand turn.

4. Having considered all the evidence before her, the Magistrate found that the appellant was proceeding through a green light at approximately 70 km/ph when her vehicle collided with the van driven by the respondent who was attempting to execute a right hand turn against a red traffic arrow. The Magistrate found the respondent negligent. The Magistrate also found that the appellant was negligent in not seeing the respondent until the impact was imminent. She apportioned liability 90% to the respondent and 10% to the appellant.

5. As to quantum, the Magistrate accepted the appellant's evidence as to her injuries and disabilities. The appellant suffered chest and neck injuries which caused her pain as a result of bruising to her chest and the soft tissue injuries to her neck. She was on sick leave from her employment for two weeks after the accident. She has taken pain killers and anti-inflammatories as well as undertaking physiotherapy. Her symptoms are expected to resolve, but she will still need physiotherapy for some time.

6. Neither the appellant nor the respondent challenged the Magistrate's factual findings both as to liability or quantum. On the issue of liability, it was contended by Mr Parker, for the appellant, that the Magistrate should have found on the facts that the appellant was not guilty of any negligence.

7. The submission was based on the Magistrate's finding that the appellant entered the intersection on a green light, that the respondent made a right hand turn against a red turn arrow, travelling across two lanes of traffic before the collision with the appellant's car. There was evidence given by one of the witnesses of another vehicle travelling in the same direction as the appellant which took evasive action to avoid colliding with the respondent's vehicle.

8. The appellant's evidence was quite clear in that she did not see the respondent's vehicle until the collision was imminent. She also did not give any evidence of seeing any other vehicle travelling in the same direction as she was. The Magistrate's finding was in these terms,

"I am of the view that the defendant was very largely responsible for the accident, but the plaintiff was nevertheless negligent in not seeing the defendant until he was in front of her and the impact was imminent. This is based significantly on the evidence that the defendant's slow travelling vehicle had to cross two other traffic lanes before reaching the plaintiff's lane and yet the plaintiff was unaware of the defendant's vehicle until the two vehicles collided."

On the facts found by the Magistrate, this inference was open to her and she could properly make the finding of apportionment of liability that she did.

9. For his part Mr Stretton, for the respondent, put an argument by way of cross-appeal that the apportionment of 10% awarded by the Magistrate against the appellant was too low and that principle required a proper apportionment akin to that of a driver who approaches an intersection with right of way. He cited the well known case of Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424. However, that case, as Mr Stretton conceded, dealt with the duties of drivers approaching an uncontrolled intersection. In this case not only was the intersection controlled by lights, but on the Magistrate's findings the respondent turned against a red traffic light. I am unable to see any error in the approach taken by the Magistrate to the question of apportionment nor can I see any matter that was overlooked. I do not consider that the apportionment which the Magistrate arrived at after a careful consideration of all the matters before her can be successfully challenged (cf Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 15 and 16).

10. On the question of quantum, neither the appellant nor the respondent alleged any factual error on the part of the Magistrate. The appellant's argument was pitched in terms that error was manifest insofar as the award is so grossly disproportionate to the injury and its consequences having regard to the evidence before the Magistrate. In that regard, Mr Parker referred to and relied upon the principles derived from the High Court decision in Planet Fisheries Pty Ltd v La Rosa & Anor [1968] HCA 62; (1968) 119 CLR 118. He also made the point that the Court in that case rejected a submission that in deciding whether or not the award of general damages was excessive could be resolved by reference to some norm or standard supposedly arrived from amounts awarded in a number of other specific cases.

11. I have regard to what the Court said in that case at 124, 125:

"It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that it can be set aside. Whether it is so or not is a matter of judgment in the sound exercise of a sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases."

12. It is also recognised that there is an awareness as the product of general experience in appeal courts which enable the court to say that the result arrived at in such an assessment is so unreasonable or plainly unjust. Kirby P (as he then was) in Fuller v Galvin (unreported, Supreme Court of NSW Court of Appeal, 7 April 1995) observed that this was so and made the further observation that the existence of that broad norm in the experience of appellate courts was recognised in Planet Fisheries Pty Ltd (supra at 125).

13. Having regard to what the Full Court of this Court said in Hebditch v Sheppeard (unreported, 12 July 1996, Gallop, Higgins and Ryan JJ), and having regard to the fact that in this jurisdiction decisions on quantum are made by a judicial officer and not a jury, there is every good reason for me making myself aware of, at least, the previous decisions of this court on quantum. In Hebditch v Sheppeard the Court said (at 15):

"It goes without saying that in assessing damages the Court must draw upon its own experience, rely upon its own analysis of the evidence in the particular case and reach an opinion about the correct assessment of compensation for the injury sustained, the pain and suffering, loss of amenities and all the other matters that are required to be taken into account in assessing general damages.

The Court must recognise also that no two cases are wholly alike and that apparent similarities are often superficial. Because the elements which constitute the basis of an assessment of damages for personal injuries vary so infinitely, there can be no fixed or unalterable standard for assessing the amounts for those particular elements. Nevertheless, it is not out of place for the Court in its endeavour to assess damages within a recognised range to search for any trend of awards in reasonably comparable cases and use a current path as a guide to making its assessment.

By looking at comparable cases the Court does not leave itself little room for flexibility. The proper award cannot be arrived at by adopting fixed limits. But it is proper for a Judge to take notice of recent assessments made by other Judges of this Court in cases which bear a reasonably close resemblance to the case under consideration."

In the result, I have familiarised myself with awards of this Court that have included cognate injuries to those in the present case so as to place myself in the position assumed in Planet Fisheries Pty Ltd (supra).

14. In the present case, as I have said, Mr Parker accepted that he needed to show that the award of damages was grossly disproportionate to the injury and its consequences established by the evidence. He did not refer to any awards in reasonably comparable cases in either this or the Magistrate's jurisdiction. His written submissions, in effect, took up as reasons for what he said was the disproportionate award, the findings that the Magistrate made. Those findings accepted the appellant's evidence as to her injuries and disabilities in its entirety.

15. The medico-legal report from the appellant's consultant surgeon some six months after the accident reported that she suffered acute musculo-ligamentous sprain, cervical and cervico-dorsal tissues. The appellant also sustained contusive injuries to her chest wall and breast from the effect of the seat belt. The injuries had slowly resolved at the time of the report and he described her as "symptomatic at a low level". The consultant surgeon expected total resolution of the injuries and the Magistrate found that would occur over the next 12 to 24 months after the accident. The appellant had only been off work for the 10 days after the accident had occurred.

16. The Magistrate awarded her $10,000.00 by way of general damages with $6,000.00 attributed as past loss. In the circumstances relied upon by the Magistrate, it is difficult to conclude that such an award is "grossly disproportionate" to the injury, even though I might think it in the lower range for injuries of this nature which carry an on-going period of pain and inconvenience. The significant features in this case are the brief period of time off work and the short period that she was restricted in undertaking her major recreational pursuit of walking, together with the minimal discomfort and symptoms that the appellant's physiotherapist expected to occur in the future. In my view, the amount assessed could not be regarded as so inadequate as to be beyond the limits of what a sound discretionary judgment could adopt (Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190).

17. As well as cross-appealing on the question of liability, the respondent claimed that the Magistrate had erred in awarding an amount of $1,999.00 "to the plaintiff to enable her to be recredited by her employer with ten days sick leave".

18. Before me, the parties agreed that the appropriate principle to be applied was that considered by the High Court in Graham Baker [1961] HCA 48; (1961) 106 CLR 340 at 351 namely, that the diminution of sick leave credits may, in an appropriate case, result in some damage to the plaintiff to the extent of the loss of benefit of those credits.

19. The Magistrate seems to have taken the view that these credits can be repurchased from the appellant's employer and hence she allowed a sum to enable this to be done. Such an approach does not give effect to the principle upon which damages are awarded to put a plaintiff in the same position as the plaintiff would have been in if the plaintiff had not sustained the wrong (Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 29). Rather it directly gives a benefit to a plaintiff, arguably, more than the loss sustained. It is certainly not an approach that can be justified on any principle. The proper approach is to value the chance that during the future course of the appellant's employment with her present employer, she might need more sick leave than her accrued entitlement and the extent to which the accident has left that chance unprovided for (see Lammas v Macarounas (unreported, Blackburn CJ, ACT Supreme Court, 17 July 1980). This is clearly not the basis upon which she has awarded the sum that she did.

20. I note that the award for the repurchase of sick leave was made in the context of a global claim for general damages although the Magistrate's view would seem to regard it as a species of special damages. I cannot help but think that the ascertainment of the amount which the Magistrate arrived at may have influenced, or has not properly been considered in, the quantification of the general damages. As I have said, I would regard the award of general damages as in the lower range, if I were to send the matter back because of the error concerning the sick leave, there could be the issue of whether I should send back the general damages as a whole for re-assessment. Moreover, there is some authority for the view that I should be satisfied that the assessment as a whole is so wrong as to call for appellate interference (cf Povey v W E & E Jackson [1970] 1 WLR 969). At least I should be satisfied that the award as a whole is demonstrably wrong, and I am not so satisfied.

21. It has always been conceded that some award is justified for the loss of the benefit of the sick leave credits. Having regard to the sum involved and the possible consequence that the general damages as a whole should be set aside and re-assessed, I consider that I should not interfere with the award made.

22. For the above reasons, I dismiss the appeal and the cross-appeal. In view of that result, I would make no order as to costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 19 September 2001

Counsel for the Appellant: Mr F G Parker

Solicitor for the Appellant: Baker Deane & Nutt

Counsel for the Respondent: Mr G A Stretton

Solicitor for the Respondent: Abbott Tout

Date of hearing: 26 July 2001

Date of judgment: 19 September 2001