Salmon v Meacham [2006] NSWCA 89 (5 May 2006)

Last Updated: 6 June 2006

NEW SOUTH WALES COURT OF APPEAL

CITATION: Salmon v Meacham [2006] NSWCA 89



FILE NUMBER(S):
40073 of 2005

HEARING DATE(S): 24 November 2005

DECISION DATE: 05/05/2006

PARTIES:
Ben Salmon (Appellant)
Jacquie Meacham (Respondent)


JUDGMENT OF: Handley JA Giles JA Santow JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 6107 of 2003

LOWER COURT JUDICIAL OFFICER: Herron ADCJ

COUNSEL:
P Deakin QC/D M Wilson (Appellant)
G Petty SC/A Stone (Respondent)

SOLICITORS:
Sparke Helmore (Appellant)
Slater & Gordon (Respondent)

CATCHWORDS:
NEGLIGENCE – contributory negligence – apportionment – no question of principle
ND

LEGISLATION CITED:
Compensation to Relatives Act 1897

DECISION:
1. Appeal allowed.
2. Judgment for the plaintiff for $800,000 set aside except as to costs.
3. In lieu thereof substitute judgment for the plaintiff for $533,333 with effect from 17 December 2004.
4. The judgment is apportioned as to $366,667 to the widow and the balance to the children equally.
5. The sum of $166,666 is to be paid into Court to be dealt with in accordance with the Damages (Infants and Persons of Unsound Mind) Act 1929.
6. The respondent is to pay one-half of the appellant’s costs of the appeal and is to have a certificate under the Suitors’ Fund Act 1951.
7. Liberty to the respondent to apply ex parte to Giles JA on two working days’ notice to vary the apportionment of the damages and as to the burden of costs not recovered from the defendant or the Suitors’ Fund 1951.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40073 of 2005

HANDLEY JA

GILES JA

SANTOW JA

5 MAY 2006

BEN SALMON v JACQUIE MEACHAM

CATCHWORDS

NEGLIGENCE – contributory negligence – apportionment – no question of principle

FACTS

The appellant was the driver of a four-wheel drive vehicle, which collided with a motorcycle resulting in the death of the rider. His widow brought proceedings under the Compensation to Relatives Act 1897 on behalf of herself and her two infant children and recovered damages which had been agreed at $800,000. The trial Judge declined to find that the deceased had been guilty of contributory negligence. The appellant challenged his Honour’s findings of negligence and contributory negligence. HELD: (1) The trial Judge was entitled to find that the appellant was guilty of negligence; (2) The appellant had been driving at a speed which was excessive in all the circumstances although it was well below the speed limit of 100kph; (3) When he applied his brakes they locked and his vehicle skidded further on to its incorrect side of the road where the collision occurred; (4) However by then he had almost stopped; (5) The deceased’s motorcycle was still travelling at a considerable speed when it collided with the appellant’s vehicle; (6) The trial Judge erred in failing to find that the deceased was also travelling as an excessive speed and was guilty of contributory negligence; (7) Responsibility must be apportioned between the parties in accordance with their culpability: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16 and the causative potency of their negligent conduct: Barisic v Devenport [1978] 2 NSWLR 111 at 140-141; (8) The contributory negligence of the deceased was a substantial cause of his injuries because the appellant had practically stopped when the collision occurred; (9) The Court should find that the deceased was one-third responsible for his injuries and the damages should be reduced accordingly.

ORDERS

(1) Appeal allowed.

(2) Judgment for the plaintiff for $800,000 set aside except as to costs.

(3) In lieu thereof substitute judgment for the plaintiff for $533,333 with effect from 17 December 2004.

(4) The judgment is apportioned as to $366,667 to the widow and the balance to the children equally.

(5) The sum of $166,666 is to be paid into Court to be dealt with in accordance with the Damages (Infants and Persons of Unsound Mind) Act 1929.

(6) The respondent is to pay one-half of the appellant’s costs of the appeal and is to have a certificate under the Suitors’ Fund Act 1951.

(7) Liberty to the respondent to apply ex parte to Giles JA on two working days’ notice to vary the apportionment of the damages and as to the burden of costs not recovered from the defendant or the Suitors’ Fund 1951.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40073 of 2005

HANDLEY JA

GILES JA

SANTOW JA

5 MAY 2006

BEN SALMON v JACQUIE MEACHAM

Judgment

1 HANDLEY JA: At about 1.00 pm on 23 July 2000 a head on collision occurred on Sawyers Ridge Road, Reidsdale in the Braidwood area between a four wheel drive Toyota Land Cruiser utility driven by the appellant and a motorcycle ridden by the late Craig Meacham who suffered fatal injuries in the accident. His widow brought an action under the Compensation to Relatives Act 1897 for the benefit of herself and her two children by the deceased. The action succeeded before Herron ADCJ and she recovered judgment for $800,000 which was apportioned as to $550,000 to herself and as to $250,000 to the two children equally. The defendant’s appeal challenged the findings of negligence and no contributory negligence.

2 Sawyers Ridge Road was an unsurfaced bush road which was only 3.5-3.6m wide at the point of impact although there were sandy verges 0.5m wide on each side. The speed limit was 100 kph. It ran generally in an east-west direction. Traffic tended to drive in the centre of the road and there were ruts on either side of the crown. At the time the weather was fine and the road was dry. The appellant was driving his Land Cruiser eastward. He was accompanied in the cabin by Mr Crannis and a child and he had 10 bales of hay on the back. The vehicle was 1.7m wide and 4.98m long (blue 124).

3 The accident occurred on a level section at a bend, which angled to the right for the deceased, and to the left for the appellant. The road sloped downwards from both east and west to this level section. The deceased and two of his friends were riding their motorcycles in convoy with the deceased in front. Mr Murphy who was riding behind him had a good view of the accident. He saw the deceased brake as he entered the bend then he saw the dust generated by the appellant’s vehicle and then the vehicle itself (black 5). He said the deceased was on his correct side of the road travelling at about 80 kph. Although the deceased applied his brakes he left no skid marks. The appellant applied his brakes heavily and his wheels locked causing skid marks which were measured and plotted by Sergeant Colliston the next day (blue 159).

4 The appellant’s near side skid marks started 1.1m from the northern edge of the road. Since the vehicle was 1.7m wide its offside was obviously over the imaginary centre line leaving only between 0.7 and 0.8m for oncoming traffic. At the point of impact, identified by an abrupt change of angle in the skid marks, the near side mark was 1.9m from the northern edge. The vehicle was then angled across the road with its offside front wheel on the verge completely blocking the correct side of the road for the deceased.

5 Mr Murphy said that the deceased remained in control of his bike and it was steered to its incorrect side where it collided with the near side front of the bull bar on the appellant’s vehicle. The appellant’s vehicle had practically stopped. The force of the impact pushed the Land Cruiser to its right and it stopped in 3m. Its speed when the appellant became aware of the approaching motorcycles was 50-60 kph.

6 The Judge accepted the evidence of Mr Murphy and that given by Mr Richardson, an expert called in the plaintiff’s case. The defendant did not go into evidence but the plaintiff had been compelled to tender the statements that he and Mr Crannis had given to the police as part of the material that Mr Richardson had relied on. The Judge found that the appellant had been driving on the crown of the road and should have been able to adjust his speed and move over to his left to leave room for the deceased to pass safely on his correct side of the road. The appellant was familiar with the road, knew that there was a bend coming up, and knew that there was barely enough room for two vehicles to pass. Instead of moving over he applied his brakes so hard that his wheels locked and he skidded in a straight line into the bend further onto his incorrect side. According to Mr Richardson, once the appellant’s wheels locked, the vehicle could no longer be steered and there was nothing that the appellant could do at that stage to avoid the accident.

7 The appellant challenged the Judge’s use of the statements given by the appellant and Mr Crannis to the police. The Judge said that these were not tested in cross-examination and did not have the same probative force as evidence which had been tested in this way. The plaintiff’s counsel had been forced to tender those statements to overcome an objection taken by counsel for the defendant to the tender of Mr Richardson’s report. Once admitted they became evidence of their truth in accordance with s 60 of the Evidence Act 1995.

8 The Judge said that the use of these statements should be limited because otherwise they would be unfairly prejudicial to the plaintiff and he referred to s 136 of the Act. Mr Deakin QC for the appellant complained that this use of the section had not been raised with counsel and the appellant had been denied procedural fairness. He also criticised the Jones v Dunkel inference that the Judge had drawn because neither the appellant nor Mr Crannis had been called as witnesses. The Judge concluded at this point:

“I think however the matter really is to be resolved by the evidence which was given by Mr Murphy and which I think is corroborated by the other evidence to which I have referred. He saw the accident and as I have said gave, in my view, an accurate description of what in fact happened.”

9 On this basis the application of s 136 and the Jones v Dunkel inference became immaterial. In any event the Judge had no need to invoke s 136 in order to give little or no weight to the exculpatory material in these statements. Long before s 136 existed a tribunal of fact was entitled to act on the admissions in such a statement and to give little or no weight to any exculpatory material it might contain. In my judgment the appellant has not established error in either respect but in any event the Court would have found that there had been no substantial wrong or miscarriage and refused under SCR Pt 51 r 23(1) to order a new trial on these grounds.

10 The appellant submitted that the objective facts were inconsistent with the Judge’s finding that negligence on the part of the appellant had been established but I cannot agree. He was driving this large vehicle in the middle of the road as he came down the hill towards this bend. When he saw the leading motorcycles through the trees he attempted to avoid an accident but was unable to control his vehicle and move to his correct side of the road. The Judge found, correctly in my view, that the appellant, driving where he was, was driving at a speed which was excessive in the circumstances as he approached this bend. The incontrovertible evidence of the skid marks made by the appellant’s vehicle established negligence even without the evidence of Mr Murphy.

11 The deceased was riding his motorcycle on the correct side of the road as he entered the bend at a speed of about 80 kph when he was confronted with a sudden emergency. He applied his brakes and retained control of his motorcycle but could not avoid a collision and was still travelling quite fast when he collided with the bull bar on the appellant’s vehicle.

12 The Judge was not persuaded that the defendant had discharged the onus of proving contributory negligence. He was undoubtedly correct in refusing to find contributory negligence based on the position of the deceased’s motorcycle on the road when he was confronted with the emergency or in the way he then reacted but he made no reference to the speed at which the motorcycle was being ridden downhill towards this bend.

13 The deceased was familiar with the road having ridden over it with his companions 10, 15 or 20 times (black 100). He knew that it was narrow, that he was approaching a bend, and that cars and similar vehicles tended to drive in the centre of the road. On Mr Murphy’s evidence, which the Judge accepted, the deceased was doing 80 kph (black 37 & foll) and may have been doing more. Mr Murphy said that the appellant’s vehicle had almost stopped before the impact (black 27). The motorcycle hit the bull bar with such force that it bounced back 3 or 4m (black 8-9, blue 46) before the Land Cruiser rolled up to it, a bolt in the bull bar was sheared off, and the bull bar itself was deformed (blue 178-180).

14 The skid marks made by the Land Cruiser also indicate that it had been pushed to its right while its wheels were still locked near the end of its skid. Mr Murphy did not give any estimate of the deceased’s speed at the moment of impact, and there is no other evidence on which this Court could properly act. However the circumstantial evidence shows that the motorcycle must still have been travelling at a considerable speed at that time.

15 The inescapable conclusion is that the deceased was travelling too fast as he rode downhill towards this bend. The fact that he was travelling below the speed limit of 100 kph cannot protect him from the finding of contributory negligence any more than it could protect the appellant from a finding of negligence. If the deceased had been travelling at a lower speed he may have been able to stop in time, or pass on the Land Cruiser’s incorrect side. Even if the vehicles had still collided his injuries would have been much less severe, perhaps minor. In the circumstances this Court must intervene and substitute a finding that he was guilty of contributory negligence.

16 In apportioning responsibility between the appellant and the deceased the Court must weigh the culpability of both parties, that is the degree of departure from the standard of care of the reasonable man which each exhibited: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10, 16. It must also weigh the causative potency of the negligent conduct of each party: Barisic v Devenport [1978] 2 NSWLR 111 at 140-141 per Samuels JA. The Court is concerned with both responsibility for the accident and responsibility for the damage: Froom v Butcher [1976] QB 286 CA, 292-3 per Lord Denning MR.

17 The appellant must bear a substantially greater responsibility for the accident than the deceased. He had under his control a large and heavily laden vehicle which took up almost half the road with a bull bar which protected it and its passengers from most collisions. Although the appellant was not at risk himself he was a potential danger to others, particularly if his vehicle were to move onto its incorrect side. For most practical purposes the deceased’s conduct was not a risk to others but only to himself, and that was certainly the position in this case.

18 On the other hand the causative potency of the deceased’s lack of care for his own safety exceeded that of the appellant. The appellant’s vehicle was practically stopped when it collided with the deceased’s motorcycle. Had the deceased been able to reduce his speed to the same extent as the appellant had done his injuries would probably have been minimal. Weighing these matters together leads me to conclude that the appropriate apportionment is one-third to the deceased and the two-thirds to the appellant. As suggested by Mr Petty SC during argument the reduced award will be apportioned between the widow and the infant children as before but there will be liberty to apply to this Court for a different apportionment. I would therefore make the following orders:

(1) Appeal allowed.

(2) Judgment for the plaintiff for $800,000 set aside except as to costs.

(3) In lieu thereof substitute judgment for the plaintiff for $533,333 with effect from 17 December 2004.

(4) The judgment is apportioned as to $366,667 to the widow and the balance to the children equally.

(5) The sum of $166,666 is to be paid into Court to be dealt with in accordance with the Damages (Infants and Persons of Unsound Mind) Act 1929.

(6) The respondent is to pay one-half of the appellant’s costs of the appeal and is to have a certificate under the Suitors’ Fund Act 1951.

(7) Liberty to the respondent to apply ex parte to Giles JA on two working days’ notice to vary the apportionment of the damages and as to the burden of costs not recovered from the defendant or the Suitors’ Fund 1951.

19 GILES JA: I agree with Handley JA.

20 SANTOW JA: I agree with Handley JA.

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LAST UPDATED: 06/06/2006