Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491 (10 April 1963)

HIGH COURT OF AUSTRALIA

TEUBNER v. HUMBLE [1963] HCA 11; (1963) 108 CLR 491

Damages

High Court of Australia
Dixon C.J.(1), McTiernan(2), Windeyer(3) and Owen(4) JJ.

CATCHWORDS

Damages - Negligence - Pedestrian struck by motor car - Both parties negligent - Apportionment of responsibilty.

HEARING

Adelaide, 1962, October 5;
Sydney, 1963, April 10. 10:4:1963
APPEAL from the Supreme Court of South Australia.

DECISION

1963, April 10.
The following written judgments were delivered:-
DIXON C.J. This appeal is from a judgment of the Supreme Court of South the plaintiff in an accident which occurred at about 11.30 p.m. on 12th May 1960. (at p492)

2. The case comes to us in an unusual form. A trial of the action took place before the late Brazel J., beginning on 16th August 1961. His Honour reserved judgment but unfortunately died, not having delivered judgment. The action was then put down for retrial before Chamberlain J. from whose judgment this appeal comes. The parties agreed that the evidence should not be recalled and contented themselves with putting the transcript of the evidence taken before Brazel J. before Chamberlain J. His Honour therefore did not see the witnesses but decided the case on the transcript of the evidence. A further difficulty in the case is that the plaintiff's injuries were of such a character that at neither trial was he capable of giving evidence and his account of the accident has not been placed before the Courts. (at p492)

3. The circumstances of the accident, too, are unusual. The plaintiff was a senior photographer, indeed it is said that he was the head photographer, for the Adelaide newspaper called "The News". On the day of the accident, namely 12th May 1960, a violent storm occurred in Adelaide and the plaintiff was sent late that day to take pictures for his newspaper of the difficulties and devastation caused by the storm, particularly along the coast. For that purpose at about 10 p.m. he took a taxicab from North Terrace and drove to Largs Bay by way of Port Adelaide. On his journey back he saw a sheet of water lying on the road through which motor traffic was ploughing. The plaintiff seems to have thought that this scene would provide him with material for his newspaper, the taxi was stopped and he took photographs. The sheet of water is described as lying on the road in Shierlaw Terrace near Hindmarsh Bridge. The taxi was pulled up on the other side of the road from the sheet of water. It parked on the eastern side, near the corner of Winwood Street which runs west. Shierlaw Terrace seems to be a chain wide and carries four lanes of traffic. The plaintiff occupied somewhat over a quarter of an hour in taking photographs and then went to cross back to the taxi. The evidence appears to show that it was raining though not as heavily as it had been ; the street lights ought to have been sufficient to show up the plaintiff. However, in crossing the street the plaintiff was struck by the defendant's car. (at p493)

4. The plaintiff was not called as a witness ; the accident was described by others. The driver of the taxi said that he took the plaintiff as a passenger on the night of 12th May. He was not sure at what time he picked him up but it was possibly half-past nine or ten. He went from North Terrace where he had picked him up, through the Port and down along the seashore to Largs Bay. The plaintiff took a few pictures of the storm damage on the seashore. They then came back to the Port. The plaintiff took some more pictures in St. Vincent Street and after making some further enquiries about storm damage, the plaintiff re-entered the taxi and was driven back towards the city along the Port Road. He stopped at Southwark and parked at the corner of the street named Winwood Street on the north-west corner. The plaintiff got out of the car with his camera and went across the road to a very large area of water spreading across the Port Road. He had an overcoat on of dark grey material. The time was about 11 p.m. There was, the witness thought, a light above his taxi and a light twenty or thirty yards behind him. The witness described the plaintiff's movements as he took photographs and then said that the plaintiff looked as if he was finished and started to walk across the road with his camera in his hand. The plaintiff got to the middle of the road, the witness looked to his front and then heard a crash. He looked out, the plaintiff was lying in the middle of the road, his camera was flying along the road in front of him towards the witness. He saw a car going by them, moving north. Through his radio the witness sent a message to his base and told them to send an ambulance in a hurry. He got out of his taxi. He saw another car going straight past. There were lights on the car but the witness did not care to say what lights they were. He found the plaintiff lying face down on the road, his head to the north. His leg was twisted under him. He was lying probably just off the line down the middle of the road, twenty yards back from the taxicab. An ambulance arrived and police took statements from people there. The witness spoke to the driver of the other car, that is the defendant. He said he was the driver of the vehicle involved and he just said he had not seen the plaintiff crossing the road. To the question, "Did you believe he" (the plaintiff) "was doing something dangerous ?" the witness answered, "No. Just crossing the road. It was raining very lightly." (at p494)

5. It appears from the evidence that the photographs that the plaintiff took were of cars going towards the city. He apparently wanted photographs of cars ploughing through the water. The tendency of the cars was to pull towards the centre of the road to get out of it, that is to say, to the right-hand of the traffic as it went to Adelaide. As a result of the accident the photographs were lost and apparently were never developed. The plaintiff seems to have been hit by the defendant's car on his left-hand side. His injuries were very serious and he was taken to the Adelaide Hospital. (at p494)

6. A constable of police arrived at the scene of the accident about a quarter to twelve midnight and saw the defendant there, the plaintiff having been by that time moved. The defendant said to the constable that his speed before the accident was between 20 and 25 m.p.h., that he wore spectacles, that with spectacles his eyesight was normal and that he was wearing spectacles at the time of the accident. He had received a driving test on the very day of the accident, 12th May 1960. He had been driving in a northerly direction at the time of the accident about ten feet from the western kerb. He said his windscreen wipers were working and his lights were working, and that the plaintiff was about ten to twelve feet away from the vehicle when he came into view in the light of the headlights of his car. He told the constable that the man rolled along the bonnet of his car and the windscreen broke and the man appeared to fall from the car to the road, along-side the defendant's side of the car. The constable asked him about stopping and the defendant said he eased, then went on. (at p495)

7. Another constable who attended the scene of the accident at approximately midnight said that he talked to the defendant only about the point of impact and he prepared a sketch plan on what the defendant said. There were no marks to guide him. This showed the camera as it lay in the road about thirty feet south from the notional extension of the kerb of Winwood Street and about twenty-one feet from the west kerb in Port Road. The witness saw no brake or skid marks. At that time it was still raining heavily. (at p495)

8. At the end of the plaintiff's case the defendant gave evidence. He said that his car was a Morris Oxford. He himself was seventy-five years of age and until very recently his eyesight had been good and then he changed his spectacles. At the time of the accident his vision was good. He had been to a police test in the morning. He had been at a Bowling Club that night. He had had no alcohol. He had been invited by a friend to join him in a cup of coffee at his home at Wood Street, Millswood, and on leaving his friend's house he had re-entered his car which had been parked in the driveway and had proceeded from there to the point of the accident. He saw a man near the front of his car at a point approximately seven to eight feet from his own sitting position and roughly fifteen to twenty degrees on his right. The witness went on to say : "Slightly to the right of my course he was. The next instant I found his hat, a felt one, drawn over his head, and he was holding the collar of his coat" (the witness indicated by turning up the left lapel of his coat and holding his head down). "He was in that position, hurrying, when I struck him about the left hip. . . . He appeared to slide over the front corner, the top of the lamp, he was struck" (indicating) "and he fell to the ground and a wheel passed over him. Front wheel I presume. I am not very clear on that point. I felt a bump. Soon another object, which I did not know nothing of that time, bounced on the bonnet and crashed the windscreen. It went across in front of me. I saw a camera on the road after. I believe now it was a camera that I saw bounce on the bonnet. I was travelling about twenty m.p.h., not more." In answer to a question, "Did you have headlights on", the witness said, "I think I must have. I had lights on on the car, but which they were I do not know. I would normally have the ordinary headlights on, on low beam." He said that it was raining and that his windscreen wiper would be working. The nearside of his car was about ten or twelve feet out from the kerb. He said he was at his friend's place for probably three-quarters of an hour. The accident was at half-past eleven or a little later. (at p496)

9. In cross-examination the witness said that he did not see the plaintiff cross the double line on the road. He was asked could he see to his right at all through the window of his car and he replied, "No". A little earlier, after turning into Port Road, he had closed the side window. He had had it open all the way. He had closed it to get a little extra comfort. Immediately the car fogged up. He had to open it again and wipe the inside of the glass all round. He closed the window just after turning from the "Police Barracks" around the corner. He had to open it again almost immediately. Immediately prior to the accident it was open. He closed it a few hundred yards previous to the accident. It then fogged up. He opened it again. Immediately after the accident that window was open. "If there was no fog on the window I could see through it if I wanted to." He said that looking ahead practically the only clear view he had was through the semicircle made by the windscreen wiper ; that he did not expect anyone to come from the right at that particular part. He remembered making a statement to an insurance adjuster some time after the accident in which he said, "I presume I had my headlights burning, but it has been worrying me that I may have only had my dimmers on." Cross-examining counsel asked, "On thinking it over afterwards you were not quite sure whether you had your headlights or dimmers on?" Witness answered, "That is so. I am still not quite sure. It might have been the alternative lights, the road lights." By way of explanation the witness said, "With the stress of an accident like that, it turns over in your mind all the time. . . . I would naturally think under normal circumstances I would have been able to see a lot more with the road lights. The night being dark and stormy, the lights were different to what they were on an ordinary clear night. My reckoning of it, I came to the conclusion lights were not as bright as they would be on a normal night. I was not quite sure whether it was because of only having dimmers on. It was more or less a point of conversation." (at p496)

10. The plaintiff was unable to give evidence and the medical evidence showed that when he came into the hospital he was deeply unconscious, the right limbs were twitching, the left ones were in spasm, the left hip socket was fractured, the left thigh was fractured in the upper part of the shaft with widely displaced bone ends. His condition was extremely serious. No major surgical procedure was carried out so far as the head injury was concerned. The fracture of the thigh was treated but the patient was extremely irrational and lashed about with his active limbs, the bone ends came near to piercing the skin and it was decided that operative fixation of the fracture must be undertaken. There is no point in enumerating his injuries or describing his present condition. It is sufficient to say that he had no memory of the accident and in any case was not able to give evidence. Chamberlain J. said the first the defendant saw of the plaintiff was when he was seven to eight feet from him and some fifteen to twenty degrees to his right. He had his hat on and was holding up the left lapel of his coat evidently to protect his face from the rain, and looking down, and was hurrying, although the defendant did not claim to know if he was running. The plaintiff was struck by the offside headlight and was thrown up on to the bonnet where either he or his camera broke the windscreen. He fell on to the roadway and was run over by a wheel of the car. The defendant's version was that he was travelling at a speed of between twenty and twenty-five m.p.h. about twelve feet out from the western kerb alignment so as to keep clear of parked vehicles and that he was keeping what he believed to be a proper lookout. "I see no reason to doubt any of this. However, he made two admissions on which Dr. Bray has placed great reliance. In the first place, approaching the scene, he was not conscious of the presence of a street light and in fact he believed that because of the lateness of the hour the lights were off. In the second place, some time after the accident he had made a statement to an insurance adjuster (representing a conflicting interest) in which he expressed some doubt as to whether he had his headlights alight or merely his parking lights" (1962) SASR, at pp 119-120 . (at p497)

11. His Honour found that the defendant and the plaintiff were each guilty of negligence contributing to the results which followed. He then proceeded to deal with the apportionment of damages to give effect to the language of the statute which required that the plaintiff's damages should be reduced to such extent as is just and equitable having regard to his share in the responsibility for the damage. He said, "The apportionment is between, on the one side, a defendant driving at a very modest speed, and keeping what I have no doubt he believed to be an adequate lookout in difficult circumstances, but failing through some unconscious lapse in perception to see a pedestrian whom I am obliged to hold that a reasonably vigilant driver would have seen, and on the other side a plaintiff absorbed in his own and his employer's affairs and in protecting himself from the weather, for the moment forgetful of his own safety" (1962) SASR, at p 120 . His Honour said, "I think that the plaintiff was clearly guilty of contributory negligence such as would have defeated his action at common law. He set out to cross a busy highway in conditions of difficult visibility, from a point where pedestrian traffic would be highly unlikely, and proceeded without any real regard to his own safety. Whatever lights were showing from the defendant's car, if the plaintiff had given even an ordinary glance to his left before stepping on to the down track, he should have seen its approach and waited for it to pass. The defendant's negligence was of a different order. The most that can be said against him is that he failed to see a pedestrian whom a vigilant driver should have seen. Assuming that he was travelling at about eight times the speed at which the plaintiff was walking, he would have been about eighty yards away when the plaintiff left the eastern side of the road. The plaintiff should have been in his view if he had looked sufficiently carefully, for a substantial part of this distance. When the plaintiff was five yards from the point where he was struck, the defendant's car would have been forty yards away, which at his speed would have given him three or four seconds in which to apply his brakes or move to the left. In these circumstances I think he must be held guilty of negligence, but there are a number of things that mitigate the degree of his culpability" (1962) SASR, at p 121 . His Honour then mentions the fact that it would be at least unexpected for a pedestrian to walk into his path from the other track. Next, that the plaintiff was wearing a coat which when wet would have had a tendency to merge into the landscape. His Honour referred then to the care required of a driver of a motor vehicle as compared with that required of a pedestrian according to certain authorities. His Honour ends this discussion by saying, "The defendant's departure from the standard of care of the reasonable man was relatively slight, the plaintiff's neglect of his own safety verged on the suicidal" (1962) SASR, at p 122 . His Honour found that the responsibility for the damage should be apportioned equally between the plaintiff and the defendant. His Honour fixed the general damages at 5,000 pounds for pain and suffering and 6,000 pounds for what may be called economic loss, special damages at 1,724 pounds 13s. 0d. and loss of wages at 8,695 pounds 4s. 0d. The total of damages was therefore 21,419 pounds 17s. 0d. His Honour reduced this by half and awarded 10,790 pounds 18s. 6d. (at p498)

12. I find myself unable to agree in his Honour's observations or in the apportionment. It must be remembered that we are not dealing with a case in which the learned judge appealed from had before him oral evidence by witnesses whom he saw and heard. It is a question of what appears from a transcript and what conclusions should be reached. It seems to me to be going too far to say that the plaintiff is shown to have been almost suicidal in what he did. All he did was to attempt to cross a road on a wet night. It was necessary for him to get to the other side where his taxi was and when he had, as evidently he thought, got on to the further side of the road with no advancing traffic he pulled up the lapel of his coat to shield his face from the rain. It appears to be an ordinary case of a motorist failing to see a pedestrian who was in his path but in conditions where visibility was difficult. No doubt the burden must fall on us under s. 27a (3) of the Wrongs Act 1936-1959 to assess the degrees of culpability on which the apportionment is to rest. It is rather remarkable that his Honour should express himself so strongly about the degree of culpability of the pedestrian and still more remarkable that he should nevertheless apportion the damages equally. On the whole I think that the apportionment should be one-third to the plaintiff and two-thirds to the defendant. (at p499)

13. As to the quantum of damages, I am prepared to accept the figure proposed by Windeyer J. (at p499)

McTIERNAN J. I agree in the reasons and in the conclusion of Windeyer J. (at p499)

WINDEYER J. This case comes to this Court as an appeal from a judgment of Chamberlain J. in an action, a running down case, in the Supreme Court of South Australia Teubner v. Humble (1962) SASR 117 . The appellant was the plaintiff in the action. The trial took place before Brazel J., who reserved his decision, and died without delivering it. The action then came on again for hearing before Chamberlain J. who, with the assent of the parties, read the transcript of the evidence given before Brazel J. The witnesses were not recalled. This necessarily placed his Honour in some difficulty. He was asked to draw inferences of fact, to decide a contested issue of negligence and to determine degrees of negligence without hearing any witness. The disadvantages are now obvious. We have to hear an appeal on a question of fact without having the benefit of the opinion of any judge who heard the witnesses. The course taken, although understandable, was undesirable: Bolton v. Bolton (1949) 2 All ER 908 . But the recent decision of the Privy Council in Chua Chee Chor v. Chua Kim Yong (1963) 1 All ER 102 had, of course, not been given when this case was before his Honour; and the parties made no objection to the course taken. They apparently desired it. Although his Honour had no more material than we have on which to come to a conclusion, yet the case comes to us as an appeal from his decision. We must, therefore, approach it by considering what his findings were and his reasons for them. His Honour's conclusions both on the issue of liability and as to damages are attacked by both parties. (at p500)

2. The essential facts are simple. The respondent was driving his motor car late at night in a northerly direction along the Port Road near Adelaide. The car came into collision with the plaintiff, who was crossing the road on foot from east to west. The respondent is said to have been driving at twenty or twenty-five miles per hour. It was a wet night and visibility was much below normal. There had been a violent storm some time earlier, and the plaintiff, a press photographer, had gone in a taxi cab to Largs Bay to take photographs of storm damage there. On his way back he noticed a large sheet of water on the road near the Hindmarsh Bridge. He had the taxi stop, and crossed the road to take photographs of cars splashing through the water. He had been there for about a quarter of an hour when he set out to recross the road to where the taxi was waiting. It was while doing so that he was hit. By reason of his injuries he has no recollection of the events and could give no evidence. The respondent did not see him until just before the front offside headlights of the car hit him. He was wearing a dark overcoat with the collar turned up against the weather. The headlights of the car - a Morris sedan - were alight, but whether they were on low beam, which would be usual, or were dimmed the respondent could not say with certainty. There was, it seems, nothing that would have prevented him seeing the appellant sooner than he did had he been keeping a proper lookout, unless it was that mistiness on his windscreen partly obscured his vision. It is not disputed that his outlook was in fact restricted by the rain, for he could see only through the parts of the windscreen that were being kept clear by the wipers. The inside of the windscreen also was constantly becoming fogged; and in the course of his journey he had more than once opened the side window and wiped the inside of the windscreen to clear it. Indeed he had opened the window only just before the accident; he "might",he said, "have travelled a hundred feet or so" afterwards. So that within a matter of seconds before the collision his attention and his outlook had apparently been somewhat diverted to the side window and the state of the windscreen. There was a street light near where the accident occurred. And the appellant is said to have been standing in the light of it when he went to cross the road. It may be that, if the respondent's headlights were shining brightly, the street light did not aid, but may even have hindered his seeing the appellant in time; for it is a fact that in certain circumstances objects on a lighted roadway are sometimes not seen so soon in the headlights of a car as they would be if there were no competing illumination. I do not regard the street lighting as necessarily so important in the appellant's favour as counsel suggested. (at p501)

3. His Honour thought both parties were negligent and that the damages that the appellant suffered should therefore be apportioned. He expressed his conclusion as follows: "The apportionment is between, on the one side, a defendant driving at a very modest speed, and keeping what I have no doubt he believed to be an adequate lookout in difficult circumstances, but failing through some unconscious lapse in perception to see a pedestrian whom I am obliged to hold that a reasonably vigilant driver would have seen, and on the other side a plaintiff absorbed in his own and his employer's affairs and in protecting himself from the weather, for the moment forgetful of his own safety" (1962) SASR, at p 120 . (at p501)

4. In the upshot his Honour decided that the damage should be apportioned equally. He assessed the appellant's damages at 21,419 pounds 17s. 0d.; and as, according to his finding, the appellant had to bear half of this himself, he entered judgment for him for 10,709 pounds 18s. 6d. The appellant complains that the assessment is inadequate and complains too of the apportionment in equal shares. The respondent, by cross-appeal, contends that the respondent was not guilty of any negligence, alternatively that the appellant's responsibility was greater than that of the respondent, indeed that the appellant's negligence was the sole effective cause of the accident, and that the assessment of damages was excessive. (at p501)

5. I agree with his Honour's conclusion that the respondent was negligent, and that his negligence was an effective cause of the accident. The case is not at all like one in which a pedestrian walks from among vehicles on a busy street into the path of an oncoming car. In a case of that sort, if nothing more be known, the pedestrian may sometimes fail in an action, either because he has not proved his case or because, his own negligence was the sole cause, in a legal sense, of the accident. But here, whatever the explanation of the respondent's failure to see the appellant in time to avoid hitting him - a blurred windscreen, driving too fast in weather conditions that imposed a special need for caution, or mere inattention - it is, I think, more probable than not that he was not keeping a proper lookout in the circumstances and that this negligence was a cause of the accident. (at p502)

6. Turning to the conduct of the appellant, his Honour held that he was himself responsible to a serious degree for his injuries. What he said was: "The defendant's departure from the standard of care of the reasonable man was relatively slight, the plaintiff's neglect of his own safety verged on the suicidal" (1962) SASR, at p 122 . Yet he found them equally at fault and apportioned responsibility equally. I find it hard to reconcile what he said with what he decided. It may be that the expressions he used were prompted by an opinion expressed in relation to arguments addressed to him as to the operation of s. 27a of the Wrongs Act (S.A.). In that connexion he said that "the plaintiff was clearly guilty of contributory negligence such as would have defeated his action at common law" (1962) SASR, at p 121 . I do not think this is so. Moreover, I entirely agree with his Honour that this conclusion was not necessary to attract the operation of the Wrongs Act. The doctrine of last opportunity, which again we heard mentioned, has really no application: see Chapman v. Hearse [1961] HCA 46; (1961) 106 CLR 112, at pp 122-124 . I do not agree with the suggestion that his Honour misconstrued the Wrongs Act. I think he did not; but his condemnation of the appellant's conduct seems over vigorous and his description of the respondent's fault too mild to justify his apportionment of responsibility. The view that I have formed of the events of this case is that, while the appellant is not to be acquitted of all responsibility for the accident, there was no evidence that he was reckless of his own safety. It may be that if he had been watching attentively and seen the lights of the respondent's car, he would not have started to cross the road when he did. It is reasonable to conclude that he was imprudent. And it is possible that, as was suggested, he did not stop to look and did not notice the car because he was hurrying to get back to the taxi to escape from the wet and to get to the newspaper office with his photographs. But there is no sure ground for deciding that this was so. He may have seen the car and miscalculated the time and space factors involved in getting across in front of it, or assumed that the driver would see him and swerve out to pass him. (at p503)

7. How then should the damages be apportioned? For myself, I always find difficulty in the apportionment that the statute requires. I am reluctant not to accept the views of those who have had more experience of the system than I have, although I confess I have at times been surprised at the nicety of the fractions in which they have been able to calculate. I therefore hesitate to differ from the opinion of the learned trial judge that the damages should be borne equally. But, as I have said, this seems scarcely to accord with his description of the conduct of the parties; and that description does not accord with my own view of the facts. I think the respondent was more at fault than was the appellant. I agree in the apportionment of two-thirds and one-third proposed by the Chief Justice. (at p503)

8. I should add that we were referred by counsel to a number of decisions in other cases of road accidents. But decisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application that a pedestrian is always entitled, or that a motorist is always obliged, to act in some particular way. That would lead to the substitution of a number of rigid and particular criteria for the essentially flexible and general concept of negligence. Perhaps the tendency to this has come about because so many common law actions are now tried by judges instead of by juries. Judges give reasons for their decisions and their reasons get into law reports; and lawyers, accustomed to arguing from precedents, are inclined, as this case shows, to quote the reasons that one judge has given for his finding of fact in one case to other judges in other cases. Lord Somervell and Lord Denning each referred to the unfortunate consequences of this in Qualcast (Wolverhampton) Ltd. v. Haynes (1959) AC 743, at pp 757-759 . And I would respectfully echo what their Lordships said, especially the passage quoted from the judgment of du Parcq L.J. in Easson v. London & North Eastern Railway Co. (1944) 1 KB 421 that, "There is a danger, particularly in these days when few cases are tried by juries, of exalting to the status of propositions of law what really are particular applications to special facts of propositions of ordinary good sense" (1944) 1 KB, at p 426 . For these reasons I refrain from discussing in detail the cases that were cited by Dr. Bray. I would say only that the statement that, as he put it, the motorist and the pedestrian are on different planes in respect of negligence is, I think, likely to mislead. If it means only that the degree of care that must be exercised in any operation varies with the risk involved, this goes without saying. The question is one of fact. I know of no relevant rule of law except that a man driving a motor car must act as a reasonable and prudent man driving a motor car would act in the circumstances: and a pedestrian must act as would a reasonable and prudent pedestrian in the circumstances. Whether or not either has done or failed to do so is essentially a question of fact. A motor car does not become anything different from what it is by calling it "a lethal weapon". Doing so may bring home, if it be not sufficiently obvious, that if the driver of a motor car does not drive carefully he may kill somebody: whereas the carelessness of a pedestrian is a carelessness for his own safety rather than a disregard of the safety of others. But when both are at fault the question is how far in the circumstances did the motorist depart from the standard of care of a reasonable man driving a motor car, and the pedestrian from the standard of care of a reasonable pedestrian. (at p504)

9. Turning to the damages. The consequences of the accident for the appellant are sufficiently described by the learned trial judge as follows: "The accident has deprived him of everything that made his life worth living. He has had a leg amputated and is partially paralysed so that he has no prospect of living elsewhere than in bed or a wheel chair. He requires constant nursing attention. His intellectual processes have been damaged so that he cannot properly take in the meaning of a printed page, and he talks with some difficulty. He has no possibility of future employment of any sort. The pain and misery which he has suffered and will suffer in the future are incalculable, but it is somewhat reassuring to notice in the report of Dr. Sangster, who examined him in June of this year, that he does not complain of pain except occasional spasmodic discomfort in the hip joint of his amputated leg, and that he sleeps well with the help of sedatives. Apparently he derives some pleasure from the wireless and television and can carry on a reasonably intelligent conversation. He has been an inmate of the Home for Incurables at Fullarton since April of 1961 except for two visits to the Royal Adelaide Hospital for treatment and occasional visits to his home. The only future for him is as an inmate of this institution. Two of the three medical men whose opinions are available think that his expectation of life has been reduced, and I would feel no doubt that this is so, although no-one has attempted to estimate to what extent. It must, however, clearly be substantial" (1962) SASR, at pp 122, 123 . (at p505)

10. His Honour's assessment of the damages at 21,419 pounds 17s. 0d., included 1,724 pounds 13s. 0d. special damages. The amount he allowed for general damages cannot be said to be clearly inconsistent with what one might expect for the injuries suffered, having regard to the general pattern of awards of general damages for personal injuries. I strongly suspect that if his Honour had not thought that the plaintiff should bear half of the damage himself we would never have heard a complaint that the assessment was inadequate. However, we are not to look at the figure simply as if it were a jury's verdict. His Honour arrived at it by considering very carefully the amounts he should allow for various items or heads of damage and placed a figure against each. It thus becomes necessary to notice the processes of calculation he adopted. Nevertheless, it is important to remember that an amount to be awarded for general damages is a single amount that is appropriate in the circumstances of the case, and that it is not the sum of rigidly separate and independent items. So-called principles of assessment of damages for personal injuries can be made the subject of almost endless discussion. The consequences of such injuries are not all susceptible of evaluation in money, and seeming logic can be pushed too far. Some "principles" are much a matter of an individual approach to a particular case. The conventional headings, economic loss, deprivation of amenities, and pain and suffering, provide a convenient reminder of matters that ought not to be forgotten. But it is not always appropriate, I think, to consider them as if they were distinct items in a balance sheet; for one may overlap and impinge upon another. (at p505)

11. Broadly speaking there are, it seems to me, three ways in which a personal injury can give rise to damage: First, it may destroy or diminish, permanently or for a time, an existing capacity, mental or physical: Secondly, it may create needs that would not otherwise exist: Thirdly, it may produce physical pain and suffering. (at p505)

12. In the first category there is usually one element that is, up to a point, calculable by conventional means, namely the economic loss that a permanent or temporary destruction or diminution of earning capacity causes. This is commonly called "loss of earnings", sometimes "loss of working time". There has recently been a good deal of discussion of these descriptions in text books and articles. I think that the damage arises really from the destruction of a faculty or skill, and that this is the best way in which to consider its assessment. The sum that might have been earned by the exercise of a faculty or skill then becomes the measure of the economic value to the individual of the faculty or skill in respect of which he has been damaged. The destruction or diminution of a faculty has another, and non-economic, result because of the deprivation of the ability to participate in normal activities and thus to enjoy life to the full and to take full advantage of the opportunities that otherwise it might offer. This element is commonly and conveniently (but not, I think, very happily) called a "loss of amenities". It results from the destruction or impairment of a faculty, just as does "loss of wages". But a man's labour and skill have a market value. He can sell them. So that compensation for loss of capacity to earn money is susceptible of pecuniary assessment, although it is not precisely determinable because of the uncertainties of the future. But a man cannot sell his capacity for enjoyment. It has no calculable monetary value. The destruction of the one is thus not, I think, to be compensated on the same principles as the destruction of the other. An injured man is entitled, it seems to me, to have monetary compensation for whatever is the monetary loss attributable to his incapacity to work for what, apart from the accident, would have been the period of his working life. It matters not that he may have been so injured that money has no use for him. How he may use, and whether he himself can use at all, the money he gets as damages for loss of what he might have earned is immaterial. But suppose a person deprived of all his powers of mental or physical activity: Is he to have as damages for loss of enjoyments and amenities a sum that exceeds the utmost that can be used to provide for his nursing, and his comfort, that is to have money that he can never use, which can not be used for his benefit, and which he cannot even dispose of by will for ex hypothesi he has been deprived of testamentary capacity? I have considered what has been said in the reported cases about "objective" as against "subjective" tests in this connexion. But, until the matter be definitely concluded by a considered judgment of this Court or by some authority binding on us, I am not prepared to accept the view that damages for loss of enjoyment, loss of amenities, can properly exceed any sum that the injured person can in any way enjoy or which can be used to provide him with comforts or amenities. Damages are given as compensation to the injured man for his injuries. So far as his injuries consist of loss of enjoyment, I do not see that money that he cannot use and which cannot be used for him, and the possession of which can mean nothing to him, is compensation. This case is, of course, not of that kind. I mention the matter, however, because of some things that were said in the course of the argument, and to emphasize that, in my opinion, there is a clear distinction between damages given because money that might have been earned cannot be earned and damages given because life cannot be enjoyed as previously it was. The former should, I consider, be based upon what it is considered would have been the probable duration of the injured man's working life if the accident had not destroyed or impaired his capacity for work. The latter are often considered in relation to the time for which after the accident he is likely to live and the ways in which money can actually be used by him or used for his benefit. It is perhaps natural to think that when cases of personal injury are set alongside one another the more serious physical injuries should always attract the highest damages. I do not think this is necessarily so. Damages are to be awarded as fair compensation to a particular individual. What is fair in his case is what has to be considered. (at p507)

13. Passing from considerations arising from faculties or capacities destroyed or diminished to those arising from specific needs created: In most cases the most obvious of such needs are the cost of past and future medical and nursing attention, and of special equipment, crutches, a wheel chair and such like. But the list is not closed. Any requirement which arises as a consequence, and a not too remote consequence, of the injury, can I think be considered. In the present case his Honour thought that the cost of alterations at the appellant's home, which would facilitate his staying there on visits from the institution of which for most of his time he must be an inmate, should be allowed. There was no reason, I think, why that should not be so. The main difficulty in assessing damages for needs created is in the impossibility of surely predicting the future. What medical attention is likely to be needed, for how long the injured man is likely to live - these are things that can only be estimated. (at p507)

14. Pain and suffering fall into another category. What is usually contemplated by the description is actual physical pain. Of all forms of damage this is perhaps the one that is least susceptible of monetary assessment. But in so far as the possession of money can in a particular case give pleasure or provide comfort, money can properly be said to compensate for pain and suffering. It is of some importance that persons who calculate damages under separate heads should bear in mind that the distress of mind and the feeling of frustration that come from an incapacity to take part in activities are often spoken of as involved in "loss of amenities". If so they are not to be introduced again under the heading "pain and suffering". This merely illustrates that, as I have said, damages that result from personal injuries cannot ultimately be regarded as made up of completely separate components. I would add that I appreciate Dr. Bray's contention that the appellant's worry and anxiety that he is not able to provide for his wife and family are a consequence of the accident. But to regard them as entering directly into the calculation of damages would, I think, be a serious mistake. The worry and anxiety arise because he has lost an economic capacity, his ability to earn money. That loss is to be compensated for by giving him such sum as it appears reasonably represents what but for the accident he probably would have earned. (at p508)

15. With these considerations in mind, I turn to the facts of this case and the method his Honour adopted in making his assessment. His Honour first took the economic factor, which he described as "loss of wages, actual and prospective" (1962) SASR, at p 123 . He took into account in mitigation of this the amount that the appellant actually received from his employer after the accident for a period during which he remained on the pay-roll. In this he was, I consider, obviously quite right, having regard to the evidence and recent pronouncements of this Court. The criticism of his assessment at this point fails. A more substantial criticism is of the way in which he dealt with prospective future earnings. The appellant was aged fifty years and seven months at the date of the accident. His Honour took as his starting point the value at the date of trial of an annual sum of 1,570 pounds per annum (which was what the appellant had been earning before the accident) payable weekly until age sixty-five. Based upon figures provided by the Government Actuary calculated at an assumed rate of five per cent interest the figure was 14,918 pounds 16s. 0d. Five per cent has been commonly accepted for the purpose of such assessments. No just complaint can be made of the base figure so arrived at by his Honour. But he reduced it by a third, having regard to what he described as "the usual deduction of one-third to one-quarter for contingencies" (1962) SASR, at p 123 . This, of course, would be quite correct if he thought that the "contingencies" that he foresaw for the appellant in the future justified such a reduction. But I find it hard to understand why there should be a convention that in all cases one is to take off a third for bad luck, or rather for the balance of future bad luck over future good luck. And, with respect, I am unable to agree in his Honour's reasons for refusing to make any allowance for what he said was the probability that the appellant's rate of pay would have gone up had he remained in his employment until he reached the age of sixty-five. His Honour said that the increases that "might fairly have been expected" "may have done no more than follow the fall in the purchasing power of money and may well not have represented any increase in real terms" (1962) SASR, at p 123 . But the very fact that wages measured in money go up as the value of money declines is one of the reasons why damages assessed in money have gone up so much in recent times. If damages are to be given for the incapacity to earn wages in the future they should be assessed having regard to the monetary wages that might have been earned in the future. The method adopted produced only the present monetary value of future receipts of wages assumed to continue at the same rate. (at p509)

16. His Honour considered that the appellant's life had been shortened by the accident. He does not say by how much. But apparently he thought the appellant would not live to sixty-five. This, his Honour thought, additionally supported the deduction of one-third. He referred to the decision of the Court of Appeal in Oliver v. Ashman (1962) 2 QB 210 which he accepted as authoritative, saying that "it is not necessary to seek for the logic of this rule" (1962) SASR, at p 123 . I have considered that case and also Wise v. Kaye [1961] EWCA Civ 2; (1962) 2 WLR 96 , which followed it. In each there is some variety of reasoning in the judgments. I am not satisfied of the correctness of the view that in assessing damages for loss of earnings the years of life of which the injured man has been deprived by the injury are to be disregarded. In so far as the two English decisions were based upon the provisions of the Law Reform (Miscellaneous Provisions) Act 1934, and on decisions that causes of actions for curtailment of expectation of life survive for the benefit of a deceased man's estate, they are not applicable in South Australia. The Survival of Causes of Action Act 1940 (S.A.) contains an express provision, s. 3 (a), to the contrary. And I am inclined, on more general grounds, to doubt the correctness of the decision of the Court of Appeal on this point. It seems to me that the monetary measure of the destruction of the skill and capacity to earn, which the appellant formerly had and had exercised, is not diminished by showing that, in addition to being deprived of his capacity to earn while alive, he has been deprived of part of his expected span of useful earning life. If the view of the Court of Appeal be correct then I see no answer to Dr. Bray's proposition that damages for loss of an expectation of life ought not to be arbitrarily limited. However, rather than reduce a monetary loss flowing from destruction of a man's capacity to exercise his skill or follow his trade for what would have been his expected working life, I would, in a case such as this, exclude any sum for loss of expectation of life separately considered. But I do not think it necessary in this case to express any concluded opinion on the question discussed by the Court of Appeal. It can wait until it directly arises for us. His Honour referred to it only incidentally. Even if one accepts the doctrine as correct, it seems to me that, in the absence of any evidence of for how long the appellant may be expected to live, it ought not to be invoked to justify curtailing by one-third the damages calculated on an assumed working life until sixty-five. And I see no other ground for making such a deduction. Of course, the contingencies that might, in any event, have occured must be allowed for. But I see nothing in the evidence to suggest that for the appellant the prospects of the future were such that adversity would be likely so greatly to outweigh prosperity. Against all the risks of adversity must be set the prospects of an increase in wages and the possibility that the appellant's ability and willingness to work in some remunerative occupation might have continued beyond the age of sixty-five. Doing the best I can on the evidence, such as it is, as to this man's health, character, age and prospects, I see no convincing reason for assuming that his economic loss should be assessed at less than 14,000 pounds. At that figure I would estimate it. From it must be subtracted the amount of wages actually received up to the date of the hearing found by his Honour to amount to 1,876 pounds. So that the amount of general damages attributable to economic loss is 12,124 pounds. (at p510)

17. As to the other heads of damage considered by his Honour: He decided that 6,000 pounds should be allowed to provide for the appellant's future care in the Home for Incurables. This was not challenged. And I do not think that it should be disturbed. The damages of a more general character - for loss of the capacity to enjoy life and destruction of so much that made life worth living, for past and continuing pain and discomfort, for emotional disturbances, and other sad consequences of the accident - the learned judge allowed 5,000 pounds. I do not think this part of his Honour's assessment should be disturbed by an appeal court. (at p510)

18. The result is that, in my view, the appellant's damages should be assessed at 23,124 pounds (being 12,124 pounds plus 6,000 pounds plus 5,000 pounds). To this must be added 1,724 pounds.13.0., special damages, making in all 24,848 pounds 13s. 0d. This should be reduced by one third. So that, in my opinion, the appellant is entitled to recover 16,565 pounds 15s. 4d. I would allow the appeal with costs, dismiss the cross-appeal with costs, and substitute the above amount for that awarded by the judgment of the Supreme Court. (at p511)

OWEN J. The appeal and cross-appeal in this case arise out of an action in the Supreme Court of South Australia in which the plaintiff sought to recover damages for injuries received by him in an accident which occurred when he was struck by a motor car driven by the defendant. The action first came on before Brazel J. who heard the evidence and reserved judgment. Before judgment was delivered, however, his Honour died and, by consent of the parties, the case was re-heard by Chamberlian J. on the transcript of the evidence already given, no oral evidence being led except as to some minor matters which are not material to the appeal. His Honour found that the accident was due to the negligence of both parties in that neither of them was keeping a proper look-out at the time. He considered that each was equally to blame and, having assessed the damages at 21,419 pounds 17s. 0d., awarded one-half of that sum to the plaintiff. The plaintiff now appeals on the grounds that he should not have been found guilty of contributory negligence or that, if he was negligent his share of the blame was less than that of the defendant ; and that in any event the amount awarded was inadequate. The defendant cross appeals on the ground that he should not have been found to have been negligent or, in the alternative, that the equal apportionment of responsibility was wrong and that the plaintiff should bear a greater share of it. A further ground that the amount of damages was excessive was not pressed. (at p511)

2. The accident occurred at about 11 p.m. on the night of 12th May 1960. There had been a violent storm during the day and the plaintiff, a press photographer, had been sent earlier in the evening to take photographs of damage done by the storm at Largs Bay. He was returning in a taxi cab and while driving along a road in Adelaide called Shierlaw Terrace he noticed a large sheet of water on the roadway through which motor cars were ploughing. Shierlaw Terrace is a four-lane trafficway running north and south with a roadway 65 feet wide. The water lay on the eastern side of the road adjoining a park which fronted it. The plaintiff took a number of photographs of cars going through the water and then began to walk back across the road to his taxi cab which was parked on the western side. It was raining heavily. He was wearing a dark overcoat and was looking down and holding the left lapel of his coat up to protect himself from the rain. The defendant, an elderly man, was driving a Morris Oxford car along Shierlaw Terrace in a northerly direction at from 20 to 25 miles per hour and about 12 feet out from the western kerb. He said that he first saw the plaintiff when the latter was 7 or 8 feet from the car and slightly to its right front. The car lights were on although there is some doubt whether they were on high or low beam. The offside headlight of the car struck the plaintiff and as he fell to the roadway some part of his body was run over by one of the wheels of the car. The learned trial judge was of opinion that the defendant was negligent in failing to see the plaintiff until just before the moment of impact and that the plaintiff was negligent in failing to see the approaching car. Notwithstanding the many arguments which were submitted on the appeal, my reading of the evidence leads me to the conclusion that his Honour was right in taking the view that the accident was due to the negligence of both parties and, although I am not in agreement with all the reasons which he gave for thinking that the blame should be equally shared, I am of opinion that in the result that apportionment was the proper one to make. Coming then to the question of damages, there is no doubt that the plaintiff suffered very serious injuries, as a result of which it eventually became necessary to amputate his left leg at the hip joint. He also sustained a fractured skull and serious brain injury and is partially paralysed with the result that he must spend his life in bed or in a wheel-chair. He requires constant nursing attention and, apart from occasional short visits to his home, will have to remain permanently in a nursing institution in which he now is. His mental processes have been affected to a major extent. He expresses himself with difficulty, his memory and powers of concentration are impaired and he can only read and understand simple statements. His expectation of life has been reduced. The learned trial judge dealt with damages under various heads, only two of which have been criticized. The first of these was the loss of earning capacity calculated as from the date of the accident. The plaintiff had long been a photographer employed by a newspaper published in Adelaide and was well regarded by his employer. His net salary for the year ending 30th June 1960 appears to have been 1,481 pounds per annum but, by the date of the trial the net salary for the work he had been doing had increased to about 1,750 pounds per annum. He was nearly 51 years of age. After making a number of calculations, which are set out in detail in his reasons for judgment, the learned trial judge arrived at a figure of 8,695 pounds 4s. 0d. The only criticism made of this is based upon the fact that from the date of the accident up to the date of the trial, his employer continued to pay the plaintiff the amount which he would have received had he remained at work. Of the amount so paid a proportion represented workmen's compensation payments which the plaintiff will be required to refund out of the damages recovered by him. His Honour refused to allow a claim to have included in the damages the difference between the amount of these workmen's compensation payments and the total amount paid to him by his employer during this period. Counsel for the plaintiff had submitted - as he did on the appeal - that the amounts in question were voluntary payments and not payments of salary. It appeared, however, that the award under which the plaintiff was employed provided that a contract of employment such as he had could not be terminated by either party except on notice as prescribed by the award. No such notice had been given and his Honour therefore held that the amounts paid to the plaintiff, over and above the amount of the workmen's compensation payments, were to be regarded as having been paid and received by way of salary. In my opinion, this ruling was correct. The other head of damages which is attacked is that relating to the award for pain and suffering, the loss of the amenities of life, the shortening of expectation of life and what his Honour described as the "loss of intellectual power and personality change" (1962) SASR, at p 125 . In respect of these matters his Honour arrived at a figure of 5,000 pounds and this, it has been submitted, was inadequate. Although I have felt some doubt whether this was sufficient, I am not satisfied that his Honour's estimate was wrong. I would therefore dismiss the appeal. (at p513)

ORDER

Appeal allowed with costs.

Cross-appeal dismissed with costs.

Order that the judgment of the Supreme Court of South Australia be discharged and in lieu thereof find that the total damages which would have been recoverable if the plaintiff had not been at fault were the sum of 24,848 pounds 13s. 0d. ; and adjudge that the plaintiff recover from the defendant the sum of 16,565 pounds 15s. 4d.

Case remitted to the Supreme Court to determine how the costs of the action, including the two trials, in that Court should be borne.