Crook v Hayward & Ors [1991] QSCFC 102

fc- rTRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE. O. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND FULL COURT Date 1: 1 neporttnn Bure ■8/0CT,199? McPherson acj THOMAS J BYRNE J No 4267 of 1986 LESLIE ROY CROOK (Plaintiff) and BRIAN HAYWARD and HELEN HAYWARD (First Defendants) and BARRY JOHN WILLIAM MOORE and (Second Defendant) FAI GENERAL INSURANCE COMPANY LIMITED (First Defendant by Election) and SUNCORP INSURANCE AND FINANCE (Second Defendant by Election) Respondent Appellant Appellant BRISBANE ..DATE 13/9/91 JUDGMENT 1 [1991] QSCFC 102 -- 1 of 20 -- 130991 JUDGMENT THE ACTING CHIEF JUSTICE: I would dismiss this appeal with costs. I agree with the reasons about to be delivered by my brother Byrne. MR JUSTICE THOMAS: I also agree with the reasons about to be delivered by my brother Byrne and with the orders he proposes. MR JUSTICE BYRNE: I agree with the orders proposed by the Acting Chief Justice. I publish my reasons. THE ACTING CHIEF JUSTICE: The order of the Court is: appeal dismissed with costs. -- 2 of 20 -- IN THE SUPREME COURT F c *t(//oz_ OF QUEENSLAND FULL COURT Writ No. 4267 of 1986 BETWEEN : AND AND AND AND LESLIE ROY CROOK (Plaintiff) Respondent BRIAN HAYWARD and HELEN HAYWARD (First Defendants) BARRY JOHN WILLIAM MOORE (Second Defendant) FAI GENERAL INSURANCE COMPANY LIMITED (First Defendant by Election) Appellant SUNCORP INSURANCE AND FINANCE (Second Defendant by Election) Appellant MCPHERSON ACJ THOMAS J BYRNE J Reasons for judgment delivered by Byrne J on 13th September 1991. McPherson ACJ and Thomas J agreeing with the reasons of Byrne J. All concurring as to the order. "APPEAL DISMISSED WITH COSTS II -- 3 of 20 -- IN THE SUPREME COURT OF QUEENSLAND No. 4267 of 1986 Before the Full Court Mr Justice McPherson A.C.J. Mr Justice Thomas Mr Justice Byrne BETWEEN : LESLIE ROY CROOK (Plaintiff) Respondent AND : BRIAN HAYWARD and HELEN HAYWARD (First Defendants) AND : BARRY JOHN WILLIAM MOORE (Second Defendant) AND : FAI GENERAL INSURANCE COMPANY LIMITED (First Defendant by Election) Appellant AND : SUNCORP INSURANCE AND FINANCE (Second Defendant by Election) Appellant JUDGMENT - BYRNE J. Delivered the 13th day of September 1991 Counsel: J.R. Webb for appellant R.A.I. Myers for respondent Solicitors: Bradley & Co for appellant George Hatzis and Associates for respondent Hearing date: 21 August 1991 -- 4 of 20 -- IN THE SUPREME COURT OF QUEENSLAND No. 4267 of 1986 BETWEEN : AND: AND: AND: AND: LESLIE ROY CROOK (Plaintiff) Respondent BRIAN HAYWARD and HELEN HAYWARD (First Defendants) BARRY JOHN WILLIAM MOORE (Second Defendant) FAI GENERAL INSURANCE COMPANY LIMITED (First Defendant by Election) Appellant SUNCORP INSURANCE AND FINANCE (Second Defendant by Election) Appellant JUDGMENT - BYRNE J. Delivered the 13th day of September 1991 The respondent sustained a severe disability of his right upper limb through an injury to the brachial plexus when struck from behind by a prime-mover while he was walking beside the Warrego highway near Hattonvale. The trial judge awarded compensation, including interest, of $253,375.90. The appellants challenge (i) the finding that the negligence of the driver of the prime-mover was the sole cause of the injuries; and (ii) the economic loss components of the award. Liability The trial judge was presented with quite different accounts of the accident. Before discussing them it is -- 5 of 20 -- 2 convenient to mention some facts which were either common ground at the trial or else were the subject of findings which are not now disputed. On the afternoon of 24 January 1985 the respondent and his 21 year old son travelled to a property west of Brisbane. They went there to provide a quotation for installing plastic lining for dams. The respondent and his son spent a few hours measuring up the dams. A heavy downpour of rain fell later in the afternoon. The two men and the owner of the property took shelter in a caravan and waited for the storm to pass. Several attempts were made to drive from the area in the property owner's vehicle but the vehicle became bogged and attempts made to recover it were unsuccessful. The respondent and his son assessed their choices: they could either spend a rainy night in a mosquito infested caravan with broken windows or walk to a telephone and arrange to be collected. They chose the latter - and, at about nightfall, set off cross country towards the Warrego highway. They reached the road about two hours later only to discover that their objective, a service station, had closed. The Warrego highway at this point is a long, straight stretch of road. Looking towards Brisbane the respondent could see the lights of a shop about a kilometre away. The area had no street lighting and, as the respondent described the scene, "it was a dark night; no moon out". A lighted telephone booth near the shop became the new destination. The booth and shop were on the opposite (southern) side of the highway . -- 6 of 20 -- 3 In this area the Warrego highway is bitumen-surfaced with two lanes for traffic in each direction. The lanes are separated by a grassy, gully-like strip more than 15m wide. The middle of the two east-bound lanes was marked by a broken white line. The northern edge of the bitumen surface of these lanes was marked with a continuous white line. There was a small strip of bitumen on the northern side of this marking. His Honour made no specific finding about its width and estimates of it varied. The respondent put the distance from the line to the northern edge of the bitumen at "probably a couple, of feet" . His son thought it was "a foot at its widest" and agreed that it was generally "less than that". The son's impression accords with a photograph (ex. 30) which, according to an investigating police officer, depicted the road surface on this night. Beyond the northern edge of the bitumen was a shoulder where the grass was , according to the respondent, "ankle high". A short distance farther to the north the ground fell away. Light rain was falling as the respondent, wearing a white T-shirt and shorts, moved off in front of his son to walk in an easterly direction on the northern side of the road. He intended to cross the highway near there. Visibility was so poor that the respondent could not make out the road shoulder on the southern side of the highway. Without crossing the road, he could not tell whether it was practicable to reach his destination by walking along the southern side of the west-bound traffic lanes. His son walked about 10m behind him. Their journey was without incident for 10 minutes or so -- 7 of 20 -- 4 until they reached a place about 300m from the telephone. There the respondent was struck from behind by the prime-mover which was drawing a trailer loaded with pigs. Most of the other facts which matter to liability are contested. The respondent maintained he was off the bitumen surface when struck. The appellants contend that he was both on the bitumen and holding his right arm out as if to signify that he wanted a driver to stop and take him as a passenger. The learned trial judge preferred the respondent's account. We were pressed with the submission that the evidence required a determination that the respondent had not proved that the negligence of the driver was a cause of his injuries, so it is necessary to discuss the driver's testimony and some other evidence. The driver said that he was travelling towards Brisbane in the northern lane with his lights on high beam. Not long before he arrived at the place where the accident occurred, he put the lights on low beam in response to thei dipping of the headlights of a car moving west on the other side of the gully. After that vehicle passed by, the driver put his lights back onto high beam. Straight away he noticed someone walking towards Brisbane with his left foot "on the white line" marking the edge of the bitumen. This person, he said, "had his right arm projected straight out as though he was going to hitch a ride". The driver said that he saw someone else in the "grass alongside" and "immediately swung the truck to the right hand side of the road, trying to miss him." Next he heard "a bump on the left hand side of the front of the -- 8 of 20 -- 5 prime-mover" . He pulled up at the side of the road, inspected his vehicle and found a cracking to the top of the grill and some other damage which "wasn't there before". The learned trial judge rejected the driver's account, considering that he had attempted to reconstruct the incident from "little more than a blur" . In particular, his Honour did not accept that the respondent, who had only a few hundred metres to go to the telephone, held his arm out in a hitchhiking gesture or was walking on the bitumen. His Honour found that the driver "was driving very close to the left hand side of the road", adding "it is possible that he deviated further to the left, although I am not sure about that" and expressed a general preference for the respondent's evidence. The respondent testified that he was on the grassy verge to the north of the bitumen when hit. This was corroborated by the son's evidence. Not surprisingly, they differed in how far the respondent was from the bitumen. The son put his father "about 2-3 feet left of the white line" when the accident occurred: an estimate which, as the son had estimated the width of the bitumen strip to the north of the white line, meant (as he conceded in cross-examination) that the prime- mover must have been driven "off the side of the bitumen". The respondent, however, was not confronted with that proposition, no doubt because the cross-examiner did not detect any inconsistency between the respondent's distance estimates and the wheels of the prime-mover all remaining on the bitumen. The respondent said: "I reckon I would have been at least two feet to the left of the white line" when struck. -- 9 of 20 -- 6 He, it should be remembered, described the distance between the far northern edge of the bitumen and the white line at "probably a couple of feet". If consistent in those two estimates, the respondent, on his own account, was very near to the bitumen: so close that he might have been struck by the prime-mover although its wheels did not leave the bitumen. The learned trial judge concluded that (i) the wheels of the prime-mover had not left the bitumen; and that (ii) parts of the left hand side of the cabin protruded beyond the wheel and therefore "could have protruded beyond the edge of the road" without any tyre having left the road. These findings were amply supported by the evidence and were not subjected to criticism on the appeal. (It was not only the cabin which extended beyond the passenger's side tyres. A large metal protective device described as a bull-bar was fixed to the front of the prime-mover. It too protruded beyond the tyres. I mention this because the bull-bar may possibly have first struck the respondent's arm raising it before it came into contact with the grill. But this possibility is by the way). The appellants ' argument that the learned trial judge 's conclusions were implausible seemed to assume a finding that the respondent was 2-3 feet from the bitumen when struck. There was, however, no such finding. His Honour did not say that he accepted the son's estimate that the respondent was 2-3 feet from the white line when struck. The son's evidence was regarded as having "general reliability". His Honour accepted the respondent's testimony; and, as I have said, assuming consistency in his estimates of the width of the -- 10 of 20 -- 7 bitumen strip beyond the white line marking and the distance he was north of that marking when struck, the material findings that the respondent was not, but the tyres of the vehicle were, on the bitumen are quite compatible. Because part of the cabin (and, if it matters, the bull-bar) protruded some inches beyond the tyres, there is no demonstrable error in the learned trial judge's conclusion that the respondent was north of the bitumen when he sustained his injury. Indeed, towards the end of his submissions, I understood Mr Webb to concede as much. Mr Webb's principal concern on liability appeared to be to show that a conclusion that the respondent could not have been 2 feet or more from the bitumen was implausible, at least if, as his Honour found, the respondent was not holding his arm out in a hitchhiking gesture. But there was no such finding. What his Honour said was that the respondent was "off the road surface." Negligence of the driver was proved. Two grounds of appeal address contributory negligence. The first contends for a finding that the plaintiff was guilty of contributory negligence "in walking with his back to traffic": see ground (b) of the notice of appeal. Ground (d) complains: "The learned trial judge ought to have found that the plaintiff was negligent in or guilty of contributory negligence in failing to cross the highway so as to enable him to walk towards approaching traffic in obedience to the Traffic Regulations and to thereby give himself the opportunity of avoiding being struck by a motor vehicle." As the case was argued at trial and in this Court, both grounds were relied on to make out the same basic proposition. -- 11 of 20 -- 8 It was not that the respondent should have crossed to the west-bound lanes and then walked on the bitumen surface. The appellants' case is simply that the respondent failed to take reasonable care for his own safety because he did not cross over to walk beside the southern extremity of the bitumen surface of the west-bound lanes. The facts do not disclose any contravention of Regulation 42(2). The respondent was proceeding beside, not along, the carriageway: see the definition of "carriageway" in s. 9 of the Traffic Act 1949 . But that his conduct did not infringe the regulation is no answer to the contention that reasonable care for his own safety required him to walk on the far side of the highway beyond the bitumen. I have expressed the issue in that way because the notice of appeal did not raise an alternative case along these lines: that, if the respondent were off the bitumen when struck, nevertheless he was so close to it as to evince an absence of reasonable care for his own safety. As the contributory negligence issue was developed, and there being no suggestion that the respondent should have walked near the southern boundary of the east- bound lanes, the question is whether the failure to walk beside the boundary of the lanes set aside for west-bound traffic involved a departure from the standard of care reasonably to havd been expected of the respondent. His Honour, having pointed out that a driver approaching the respondent and his son from behind would have had an unobstructed view of them, mentioned two considerations bearing upon the respondent's decision to walk along the -- 12 of 20 -- 9 northern side. One was that crossing to reach the southern side would have exposed some risk. The risk was not significant; and the respondent had to cross the road at some point. The road was fairly level and straight for a considerable distance on both sides at any point where the respondent may have crossed it. So there was comparatively little risk to his safety in attempting that exercise. A more important factor was that the respondent could not have known without investigating the scene whether it was practicable to walk on the southern side of the highway. Mr Webb submitted that the respondent could safely have crossed and quickly dispelled any doubt as to its suitability. Even if there were puddles or the grass were a little high, the respondent, Mr Webb submitted, should have put these discomforts behind considerations of personal safety. This submission assumes that the southern shoulder of the west-bound lanes could safely have been used. However, our attention was not drawn to any evidence adduced to show that it was practicable to walk near that southern extremity and the photograph (ex. 30), which gives a general view of the scene, is the only evidence of the condition of the southern shoulder . It lacks sufficient detail of the condition of the shoulder to establish that the respondent could, let alone reasonably should, have used that area to walk to the telephone. The appellants have not discharged the burden of proving contributory negligence and the learned trial judge ' s conclusions on liability should not be disturbed. -- 13 of 20 -- 10 Quantum The plaintiff was 46 years old when injured. He was 52 at trial. The injury left him with a permanent major disability of his dominant arm. The respondent had attended rehabilitation training and made every reasonable attempt to obtain employment but he had few work skills and had not succeeded in obtaining work. There is little chance he will work again. Past economic loss was assessed at $72,500. $124,642 (the figure yielded by allowing $250 per week for 13 years, using the 5 per cent tables) was allowed for diminution in future earning capacity. These awards are challenged as manifestly excessive. The respondent left school at the age of 13 and had been in regular employment since then. He had worked in many capacities over the years: in furniture manufacturing, "office work", truck driving, as a meat worker, as a storeman, and in a plastics factory. His work was largely manual. In his last four years as an employee, the respondent worked for a manufacturer of above-ground swimming pools. This interested him in earning his future income from an involvement in swimming pools. At the time of his injury the respondent had been engaged in the "pool business" for about three years. His hopes for the future were to continue to earn income from installation of swimming pools until after he turned 65. Assessing what the future held for him had he not been injured was a difficult exercise. In the year ended 30 June 1979 the respondent derived a pre-tax income of a little more than $10,400 from employment. -- 14 of 20 -- 11 In the 1980 year, in which he worked for a week as a forklift driver, the respondent began his pool business. It was conducted in partnership with his wife. His income tax returns declared having received $1,935 from the pool business that year. The business was at first part-time. The tax returns disclose this state of affairs for later years :- Year ended 30 June 1981 Salary paid to the respondent by the partnership business $2,080 Share of partnership profit (50%) $ 542 Other income (four jobs) $2.366 TOTAL $4.988 Year ended 30 June 1982 Salary paid by the partnership business $3,600 Share of partnership profit (50%) $ 511 TOTAL $4.111 Year ended 30 June 1983 Salary paid by the partnership business $3,800 Share of partnership profit (50%) $1.106 TOTAL $4.906 In the 1984 financial year the partnership derived a gross profit of $18,299. Expenses amounted to $8,166 yielding a net, pre-tax profit of $10,183. 1984 was the business's best year. For the period 1 July 1984 to 24 January 1985 the tax returns showed gross receipts of $11,425. The respondent said he hoped to earn $25,000 from his installation work in another year - a projection which seems unduly optimistic, at least if -- 15 of 20 -- 12 the income tax returns were a reliable indication of the returns of the business. The pre-tax profit in the last complete income year was, according to the return, $200 per week. The anticipation of a $25,000 year was founded on the view that the business earned $480 from every pool installed under the arrangements in place in early 1985. Unfortunately, the franchisee which had contracted with the respondent and his wife to do the work did not pay for several pools installed. Without more business in association with a different franchisee, a pre-tax income of $25,000 a year was unlikely to have been attained in 1985 or 1986. By 1985 the respondent enjoyed what his Honour described as a "fairly good lifestyle"; and his material acquisitions were not insubstantial. He had his own home where he lived with his wife and two dependent children. (He was still making payments to reduce a mortgage debt ). He owned two small boats, three cars and another block of land. However, the evidence did not present a clear picture as to his income. His Honour was satisfied - indeed the respondent admitted - that it exceeded the amount disclosed in the tax returns, but the size of the discrepancy between what was declared and what was received did not emerge with precision. Before the accident the respondent was a healthy, hard working man with the chance of deriving a reasonable income from his pool-installation business until he retired after age 65. If that business were not profitable, his prior work history made it likely that he would revert to full-time work: -- 16 of 20 -- 13 employment of the kind in which he had earned more than $8,000 net after tax in the 1979 income year. As no more than "some indication" of the financial loss the respondent had sustained, his Honour had regard to wages a forklift driver would have earned. The respondent had performed many semi-skilled tasks in the past and had worked for a week driving a forklift. The appellants did not adduce evidence to suggest that forklift drivers were better paid than other semi-skilled, manual workers. A forklift operator who had been employed full-time from 24 January 1985 to trial would have received about $80,000 after tax, i.e. about $13,500 annually. This rate exceeds both the level of profit the respondent's business had produced and the $8,000 net received in the 1979 year. On the other hand, the business had grown from a part-time activity in 1980 to return a pre-tax income of $200 per week in 1984. And his Honour assessed the respondent as someone "who has been able to earn a good income in the past" and who probably would have exploited to the maximum his capacity to earn: that is, if the business did not produce an adequate income for the respondent and his wife, he would return to full-time employment . $72,500 (approximately $250 per week) was awarded for economic loss to trial. The question is whether this is beyond the range of a sound discretionary judgment. Having regard to the probable earnings in the four years before his accident, the allowance seems high. Yet it assumes an average annual income of little more than $12,000: a modest -- 17 of 20 -- 14 sum. In view of the assessment his Honour formed of the respondent, particularly that he would have exploited his earning capacity to a substantial degree, I am not persuaded that $72,500 demonstrably exceeds fair compensation justifying this Court's intervention. At trial the award rate for a forklift operator was $347.60 per week. The net weekly remuneration was somewhat less than $300. Again, this evidence was put forward as some indication of the earnings the respondent could have derived in the kind of occupation for which he was suited by experience and aptitude. His Honour was impressed by the respondent 1s evidence concerning his work intentions ( that he would work until 65 or later) and, to cater for "various contingencies", allowed $250 per week for 13 years. This approach was criticised as not sufficiently allowing for contingencies adversely affecting future income. It is not difficult to envisage incidents operating to reduce future income: ill-health, early retirement or poor business sense, for example. But, for most people at any rate, life is not all misfortune: and in my opinion his Honour's approach does not disclose an error in principle or result in an unduly generous award. Post-judgment interest Mr Myers asked for an order pursuant to s. 73 of the Common Law Practice Act 1867 fixing a post-judgment interest rate higher than the 10 per cent prescribed: cf. Serisier Investments Ptv Limited v. English [19891 1 Qd.R. 678, 680. The application was supported by an affidavit of the -- 18 of 20 -- 15 respondent's solicitor deposing to attempts to persuade the appellants to pay, including a letter dated 12 July 1991 threatening execution. That was an available option. Regulation 11(1) (c) of The Motor Vehicles Insurance Regulations of 1968 provides that if an insurer elects, as prescribed by Regulation 10, to be joined in a proceeding, "judgment may be given for or against the insurer . . . and process may issue thereon accordingly." Mr Webb did not suggest that the Court's powers under O. 70 r. 11 of the Rules of the Supreme Court do not extend to making such an order, and I am content to assume that the Rule authorises that course. It is undesirable that unsuccessful litigants be tempted to resist prompt payment of liabilities established by judgment. A significant disparity between a post-judgment interest rate and what can be earned on retained funds must tend to have such an effect. No doubt that is a consideration which influences the Governor-in-Council in fixing the post judgment rate. It is also a factor properly to be considered in a trial judge's discretion to impose a higher rate. The prospect of execution must be an incentive to a licensed insurer to pay. But that steps might have been taken against the appellants' assets is not a complete answer. Execution can be expensive. A better incentive is an interest bill which diminishes the attraction of withholding moneys from the judgment creditor although, as Thomas J. said in Serisier (at p. 682), "the fixation ... of a figure of 10 per cent for -- 19 of 20 -- 16 post-judgment interest is a matter to which some weight may be attached in an assessment under s. 73". In this case, however, there is no evidence showing either the cost to the respondent or the value to the appellants of delayed payment. In these circumstances, it would not be appropriate to assume that the interest the respondent could have received on his damages had the moneys been invested since his Honour delivered judgment about eight months ago justifies a special order under s. 73 fixing a rate higher than the prescribed 10 per cent per annum. Orders I would dismiss the appeal with costs. -- 20 of 20 --