Dalton v Price & Anor [1991] QSCFC 40

A ;',nn fcui <r' FULL COURT BEFORE: IN THE SUPREME COURT OF QUEENSLAND Appeal No. 90 of 1990 ou- o 1 Mr. Justice Shepherdson Mr. Justice Williams Mr. Justice de Jersey 10 BRISBANE, 17 MAY 1991 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) 30 BETWEEN : MARJORIE DALTON (Plaintiff) Respondent -and- GLENN RONALD PRICE (First Defendant) Appellant -and- 20 30 GLENDA K. PRICE (Second Defendant) Appellant JUDGMENT MR. JUSTICE WILLIAMS: In my opinion the appeal should be allowed and the judgment appealed from set aside. ' There will be judgment for the plaintiff/respondent for $19,845.28. I publish my reasons. 40 MR. JUSTICE WILLIAMS: Having heard submissions on the question of costs, in my view the order for costs made in the District Court should stand and the plaintiff/respondent should pay the appellant's costs of the appeal. I order that the defendants pay the plaintiff's costs of and incidental to the action, including reserved costs, 50 _____________________ ___________________________ ____________________________________ 60 - Govt. Printer. Qld. 1 [1991] QSCFC 40 -- 1 of 18 -- to be taxed on a party and party basis up to and excluding 11 October 1989, and on a solicitor and client basis from 11 October 1989. I order that the plaintiff/respondent pay the appellants ’ taxed costs of the appeal. MR. JUSTICE SHEPHERDSON: I agree with the orders proposed . MR. JUSTICE de JERSEY; I agree. MR. JUSTICE SHEPHERDSON: The orders of the Court are the orders indicated by my brother Williams. G214— Govt. Printer, Qld. 2 -- 2 of 18 -- IN THE SUPREME COURT A OF QUEENS LA-ND FULL COURT ¥G \. 11 OH- O NO. 90 OF 1990 BETWEEN MAJORIE DALTON (Plaintiff) Respondent AND GLENN RONALD PRICE (First Defendant) Appellant AND GLENDA K. PRICE (Second Defendant) Appellant SHEPHERDSON J WILLIAMS J de JERSEY J Reasons for judgment delivered by Williams J on 17 May 1991. Shepherdson J and de Jersey J agreeing with the reasons of Williams J and with the orders proposed . "APPEAL ALLOWED AND THE JUDGMENT APPEALED FROM SET ASIDE AND IN LIEU THERE BE JUDGMENT FOR THE PLAINTIFF/RESPONDENT FOR $19,845.28. ORDER THAT THE DEFENDANT PAY THE PLAINTIFF'S COSTS OF AND INCIDENTAL TO THE ACTION, INCLUDING RESERVED COSTS TO BE TAXED ON A PARTY AND PARTY BASIS UP TO AND INCLUDING 11.10.89, AND ON A SOLICITOR AND CLIENT BASIS FORM 11.10.89. FURTHER ORDER THE PLAINTIFF/RESPONDENT PAY THE APPELLANT'S TAXED COSTS OF THE APPEAL." -- 3 of 18 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 90 of 1990 Before the Full Court Mr. Justice Shepherdson Mr. Justice Williams Mr. Justice de Jersey BETWEEN : MARJORIE DALTON (Plaintiff) Respondent AND: GLENN RONALD PRICE (First Defendant) Appellant AND: GLENDA K. PRICE (Second Defendant) Appellant JUDGMENT - G.N. WILLIAMS J. Delivered the j day of 1991 . CATCHWORDS : Negligence - right of way - heavy rain - motorist failing to yield right of way held 2 /3 to blame. Damages - widow's loss of dependency - no evidence to support finding she would have ceased work three years after accident. Counsel: S. Williams Q.C. and R. Trotter for Appellant. I. Hanger Q.C. and G. Robinson for Respondent. Solicitors: O'Mara Patterson & Perrier for Appellant. Carl Blumen for Respondent. 7th-Ap^iX, 1991. Hearing date: -- 4 of 18 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 90 of 1990 BETWEEN : MARJORIE DALTON (Plaintiff) Respondent AND: GLENN RONALD PRICE (First Defendant) Appellant AND: GLENDA K. PRICE (Second Defendant) Appellant JUDGMENT - G.N. WILLIAMS J. Delivered the ( ~~j day of 1991 . After a trial in the District Court at Brisbane the respondent (widow) recovered in a Lord Campbell's Act action the sum of $87,959.82 (which included interest under the Common Law Practice Act). The respondent's husband died as a result of injuries he sustained in a motor vehicle collision which occurred on 10th August, 1984. The learned trial Judge held that the collision was caused solely by the negligence of the appellant G.R. Price, who was driving as the statutory agent of the vehicle's owner, the appellant G.K. Price. The appeal is brought against the finding that the deceased (the driver of the other car) was not contributorily negligent, and also against the assessment of damages. -- 5 of 18 -- 2 The collision occurred at about 7.45 p.m. on Friday, 10th August, 1984 at the intersection of Annerley Road and Cornwall Street, Dutton Park. Price was driving in a southerly (outbound) direction along Annerley Road, and the deceased was in the process of negotiating a right-hand turn from Cornwall Street which would take him onto the inbound side of Annerley Road. At the time it was raining heavily. The headlights on each vehicle were operating. Photographs taken by investigating police on the night of the incident were admitted in evidence, and they give the court a reasonable appreciation of the scene at the time. However no evidence was led from the police investigators as to the relevant road features, including relevant distances. Such evidence came from a Mr. King, who described himself as a "safety consultant". Amongst his other qualifications he has a Certificate in Traffic Planning and Control from the University of New South Wales and a degree in mechanical engineering from the University of Queensland. However his evidence went much further than placing a detailed description of the accident scene before the court. Unchallenged evidence, presented on the basis that he was an expert, included opinions as to how the accident happened. In my view much of his evidence ought not to have been admitted as the expressions of opinion fell within the ordinary range of human experience, and the court was capable of assessing the evidence and drawing relevant inferences without the assistance of such opinions. The legal issues as to the admissibility of such evidence are fully discussed in R. v. Faulkner (1987) 2 Qd. R. 263. Further, a number of King's opinions were based on -- 6 of 18 -- 3 assumed facts which were not the subject of evidence at the trial. However it is not necessary for this Court to say more about the evidence than that. Clearly King's evidence describing the scene and as to measurements which he took was admissible; indeed counsel for the appellant relied heavily on the plan which formed part of King's report. In this judgment I place no reliance at all on the opinions of King. If only because he placed far too much reliance on King's evidence the findings of the learned trial Judge must be reviewed by this Court. There was a stop sign facing the deceased as he arrived at the intersection. The photographs make it clear that the stop sign was positioned some metres back from the stop line marked on the roadway. The only evidence as to what the deceased did is to be found in the evidence of the respondent. She said: "We stopped at Cornwall Street because there's a stop sign." Based on that the learned trial Judge made the finding that the deceased brought his vehicle "to a halt near the 'stop' sign which required it to be halted in Cornwall Street." King took measurements from the stop line and those measurements appear to have been adopted by the learned trial Judge when analysing the evidence. It would therefore appear that the learned trial Judge accepted that the deceased stopped virtually on the stop line. In any event that would appear to be the only reasonable finding open on the evidence. The court is concerned with the features of Annerley Road inbound from the intersection, that is to the deceased's right as he was stopped at the stop line. Annerley Road, immediately to the right of the intersection, crossed over a railway line, -- 7 of 18 -- 4 and the railings of that bridge are well depicted in the photographs, especially those taken by King. The distance across the railway is about 52 metres, and over that length there is a traffic island dividing the carriageway into outbound and inbound sections. The outbound section is divided into two marked lanes, one 3.7 metres wide and the other (the closest to the island) 3.1 metres wide. All the evidence is that Price was driving in the lane nearest to that island. According to King his photograph no. 1 shows the visibility to the right of the driver of a vehicle "positioned with the front of the vehicle at the edge line". That indicates clear visibility of the centre lane in which Price was travelling well beyond the northern extremity of the traffic island which extends across the bridge. King measured the distance from the centre line of Cornwall Street at the stop sign to the northern end of that traffic island as 58.8 metres. Indeed his evidence was that visibility from the point defined was some 92.3 metres. There can also be no dispute from the photographic evidence that visibility to the right increases as a vehicle moves out from the stop line and commences crossing Annerley Road. The respondent gave evidence that she observed the deceased wind the right-hand side window all the way down, but she was unable to say whether he looked at all in either direction. The impact (as found by the learned trial Judge) was to the "forward right-hand side including the driver's door and the right front road wheel" of the deceased's vehicle, and it occurred when that vehicle was crossing the outbound lane closest to the traffic island. The learned trial Judge concluded that the deceased -- 8 of 18 -- 5 travelled "approximately eight metres" from where he had been stationary, and that would appear to accord with the measurements taken by King. Price gave evidence that he "seen the vehicle come out from Cornwall Street from the intersection" and that he "applied the brakes, however the car just slid and by the time I applied the brakes it was virtually on my side of the road and as I skidded, I veered to the right to try and go around." Under cross-examination he said that he was towards the end, but not right at the end, of the traffic island across the bridge when he first saw the deceased's car. He then qualified that by saying he was "about half-way". Whilst in the witness box Price was not asked about his speed, but his statement to the investigating police officer was before the court. It recorded him as saying that his speed "would have been the normal speed limit 60 k.p.h.". On the basis of that he was asked in cross-examination: "Did it occur to you a speed of about 60 kms an hour may be a touch fast to be driving at that place at that time?" He replied: "It did not occur to me at the time, no." Apart from that there was no mention at all of his speed during the evidence. The learned trial Judge made a finding that Price was "driving at a speed of at least 60 k.p.h.". To the extent that such a finding contains a suggestion that he was travelling in excess of 60 k.p.h. it must be rejected on the ground that there was no admissible evidence to support it. There was nothing in the evidence which indicated that a speed of not more than 60 k.p.h. was improbable or that the accident could not have occurred if Price was only travelling at 60 k.p.h. The accident -- 9 of 18 -- 6 is fully explicable on the evidence with Price travelling at 60 k.p.h. The basis of the learned trial Judge's finding of negligence on the part of Price can be ascertained from the following extract from his reasons: "A reasonable person in Mr. Price's then position and circumstances would have perceived that his moving vehicle, if not driven by him so that he could bring it to a halt within the limits of his effective vision forward, would be the source of a risk of injury and damage to other persons including the plaintiff and the deceased. Mr. Price was driving in darkness, in heavy rain, on a suburban arterial road, then likely to be carrying other heavy vehicular and pedestrian traffic. ... I have concluded that the particulars of negligence pleaded by the plaintiff have been established - i.e. driving at an excessive speed in the circumstances, failing to keep a proper lookout, and failing to manage the vehicle so as to avoid the collision ..." Senior counsel for the appellants did not challenge the finding that Price was negligent; the thrust of his submissions was that not only was the deceased guilty of contributory negligence, but he should in the circumstances bear the major portion of the blame for the collision. I should mention that the learned trial Judge purported to find that Price's speed at impact was not less than 30 k.p.h. That was pure speculation. It is not made any the less 'so because King expressed an opinion to that effect based on his assessment of the damage to the vehicles. That portion of King's evidence was clearly inadmissible and ought not to have been given any weight though its admissibility was not challenged. The learned trial Judge analysed times and distances relevant to the movement of the deceased's vehicle from its stationary position to the point of impact. Probably relying on -- 10 of 18 -- 7 O o some of King's opinion evidence he spoke of the deceased's vehicle taking something in excess of nine seconds to move a distance of eight metres. That would seem to be improbable. Such a reconstruction was necessary if Price's vehicle was to be placed further away - reference was made to it being 150 metres away. But such considerations were not in accord with the evidence. Then His Honour set out a number of hypotheses said to be relevant to an evaluation of the deceased's driving. He concluded that at least two of those hypotheses were consistent with no negligence on the deceased's part, and as he considered those hypotheses to be of equal force with others imputing negligence to the deceased, he came to the ultimate conclusion that contributory negligence had not been proved. The two hypotheses referred to were that "the deceased saw Mr. Price's vehicle to the north along Annerley Road at such a distance from him that he concluded, carefully but, as events then to come showed, wrongly, that it was safe to drive forward", and secondly that "Mr. Price's vehicle was not within the range of vision available to the deceased along an 'empty' Annerley Road to the north until after the deceased drove his vehicle forward from its halted position." In my view neither of those hypotheses was reasonably open on the evidence or on the facts as found. The uncontradicted evidence from Price was that he was travelling at no more than 60 k.p.h. and saw the deceased's vehicle emerge from Cornwall Street when he (Price) was approximately 30 to 40 metres from the point of impact. It is obvious, using simple arithmetic, that the collision could well have occurred given those parameters. -- 11 of 18 -- All the evidence strongly points to the fact that the deceased, having brought his vehicle to a halt at a stop sign before entering an arterial road, then moved out at a time when there was a high risk of collision with a vehicle, then in the range of his vision, travelling from his right at a speed of not more than 60 k.p.h. Given that he was entering an arterial road at a T-junction controlled by a stop sign there was a special onus on the deceased to ensure that he yielded right of way to vehicles travelling from his right. Given the prevailing weather conditions there was a clear obligation on him to ensure that Annerley Road was clear for a reasonable distance on his right before moving across the outbound lanes. In my view the evidence in the case clearly established that he failed in the duty to take care for his own safety and he was therefore guilty of contributory negligence. If the appellant's speed of 60 k.p.h. was negligent it was only because of the prevailing weather conditions. He was entitled, at least to some extent, to expect that a vehicle would not move out across his path when he was only about 40 metres away. In those circumstances I have come to the conclusion that the greater proportion of blame must rest with the deceased. There are a number of reported cases in which appellate courts have considered apportionment in situations not dissimilar to that under consideration here. Because there was particularly heavy rain at the time of the accident, each driver was obliged to drive more carefully. Other vehicles are more difficult to see in such weather conditions, particularly at night, and it is 8 -- 12 of 18 -- 9 well known that water on the roadway frequently extends the distance taken for stopping a vehicle. In those circumstances I have come to the conclusion that the deceased should bear two-thirds of the blame for the collision, and the appellant one-third. The contrary conclusion reached by the learned trial Judge should be set aside because it is not based on the evidence, and was the product of attaching too much weight to King's evidence. I now turn to quantum. The appellants accepted as correct the learned trial Judge's finding of a $3,000.00 per annum dependency as at the date of death. They also accepted the finding that with adjustments for: inflation the measure of dependency as at the date of trial was $3,880.00. However they submitted that the learned trial Judge was not justified in finding that the respondent would have, in any event, ceased work in about June 1987 and thereafter been dependent on the deceased to the extent of 66.6 per cent of his notional net income. Such a finding has a significant impact on the loss of dependency. It is clear that the respondent was not asked any question about her intentions, immediately prior to the death, with regard her continuing to work in the future. Counsel for the appellants also submitted, and this was conceded by the respondent, that the learned trial Judge erred in stating that "from June 1987 to June 1990 the deceased's notional net (after income tax) income would have approximated $57,250.00." On the evidence that figure should have been approximately $44,000.00. But, as counsel for the respondent pointed out, that admitted error does not necessarily mean that the ultimate award was erroneous. -- 13 of 18 -- 10 As at the date of death of the deceased the respondent was working as a domestic, and had been so employed for a number of years. In fact she ceased work in July 1987. As at the date of death of the deceased the matrimonial home was subject to a mortgage in favour of the Queensland Housing Commission requiring yearly payments of approximately $720.00. The respondent gave evidence on 17th July, 1990 and when asked whether that mortgage was still being paid off she answered: "No, I finished it off about two year ago, three year ago." That would mean that it was probably paid out about July 1987 and to that extent the learned trial Judge was justified in saying: "This mortgage the plaintiff continued alone to pay. She paid it out in about July 1987, which was the month in which she elected to cease employment." The respondent was born on 10th March, 1932, making her 52 at the time of the accident and 58 as at the date of trial. The deceased was born on 11th March, 1928, and thus was aged 56 at death. The evidence from the respondent was that both she and the deceased were in good health prior to the accident. It was their intention that the deceased should work until aged 65 when they would retire to Palm Beach; it would be necessary for them to buy a home there, but undoubtedly that purchase price would be offset by the sale of their Brisbane home. As already noted the respondent gave no evidence as to her intentions so far as work was concerned. She could not drive a motor vehicle and was to some extent dependent upon her husband for transport because she worked awkward hours . The mortgage repayments were minimal in the context of the overall earning capacity of the parties, -- 14 of 18 -- 11 and the inference is not reasonably open that the respondent was only working in order to pay off the mortgage. On that basis an inference is not justified that it was her intention to cease work once the mortgage had been paid out. On the evidence given by the respondent there is no basis, in my view, for the court concluding that (if her husband had remained alive) she would not have continued working until about the time the husband retired in 1993 when the respondent would have been 61 . Perhaps she may have retired at age 60, but subject to that it must be said that the evidence points to a conclusion that she would have continued working for as long as her husband was working. On that basis the loss of dependency prior to trial commenced at a level of $3,000.00 per annum as at the time of death, and increased to $3,880.00 per annum as at the date of trial. If one adopts as a broad average the figure of $3,500.00 per annum that gives a total loss of dependency to trial amounting to $21 , 000.00. From the date of trial loss of dependency has to be calculated with respect to a period of three years during which the husband would have worked (that is, until reaching age 65) and thereafter some dependency derived either from earnings or the joint pension. Bearing in mind also the possibility that the respondent could have ceased work prior to her husband's retirement, and therefore for some period have had a greater dependency on him, it seems to me appropriate to allow the respondent a continuing dependency for a period of 10 years from the date of trial at the then level, namely $3,880.00 per annum. Using the three per cent table in order to obtain the -- 15 of 18 -- 12 present sum required to provide for such a dependency one arrives at a figure (in round terms to take account of relevant discounting factors) of $30,000.00. I am therefore of the view that the proper assessment of the respondent's dependency for purposes of this action is the figure of $51,000.00. That is manifestly lower than the figure of $70,000.00 which was the assessment made by the learned trial Judge before adding interest . In my view the assessment of the learned trial Judge should be set aside and the loss of dependency should be assessed in the sum of $51,000.00. I would allow interest at the rate of six per cent per annum (the figure adopted by the learned trial Judge) on the component for past loss of dependency from the date of death. That gives a figure for interest of $7,560.00. It was also agreed that the respondent was entitled to $975.85 for funeral expenses. The total assessment therefore in favour of the respondent is $59,535.85. Applying the necessary apportionment in consequence of the finding with respect to contributory negligence, the plaintiff is entitled to judgment for $19,845.28. The appeal should be allowed, the judgment appealed from set aside, and there should be judgment for the plaintiff-respondent for $19,845.28. -- 16 of 18 -- 13 It is not clear from s. 43(2) (c) itself what precisely is to be approved by a Judge, however sub-s. (3) suggests that it is the use of a listening device pursuant to sub-para. (2) (c)(i) which is to be approved. Carter J. approved the use of listening devices in connection with a particular investigation and in particular, approved that, "Kenneth Charles Scanlan by himself or by means of any other person engaged in or, assisting the investigation of the said matter use any listening device ..." (my underlining) . It may be that the approval should have been limited to members of the Australian Federal Police or the Queensland Police, but as I have observed, there is no appeal against the order. The reference in condition (4) to the, "intended procedures set forth in the affidavits of Kenneth Charles Scanlan and John William Adams", demonstrates that his Honour contemplated the authorisation by Scanlan of members of the Australian Federal Police. The appointment by the Acting Commissioner cannot be understood without reference to the order of Carter J. which is incorporated into it. That order cannot be understood without reference to the procedures set out in the affidavits of Scanlan and Adams which are specifically referred to in the order. The authority given by Redmond was in the use of listening devices in the way contemplated by the order. This included both Scanlan's use and the use by other persons to be authorised by him. Although the drafting of the authority is inelegant, it is unduly technical to suggest that it is other than an appointment as contemplated by s. 43. -- 17 of 18 -- 14 Thus I conclude that any member of the Australian Federal Police who was authorised by Scanlan was appropriately authorised for the purpose of using a listening device pursuant to s.43(2)(c)(i). It is not necessary to determine whether all of the persons actually involved in the surveillance were so authorised, nor is it possible to know whether or not the individual members who actually recorded the presently relevant conversations were so authorised. However this is a factual matter which can be determined in the criminal proceedings . In light of my conclusions, it is not necessary to consider the question of the operation of s. 12. For the reasons which I have given, I would set aside all of the orders made by the learned Chamber Judge. Until the identities of the proposed witnesses as to the tape recordings are known, it is not possible to decide whether or not the prohibition in s . 46 applies to such witnesses. Thus no appropriate declaration can be made at this time. I would allow the appeal and make the orders proposed by McPherson S. P . J .. -- 18 of 18 --