SUPREME COURT OF QUEENSLAND

1. PINCUS JA and DAVIES JA:  The appellant was injured in a highway accident in 1992.  He sued the driver (whom we shall call "the respondent") of the motor car with which his motor cycle collided and was awarded $120,987 damages.  The learned primary judge assessed damages at $181,481, but awarded the lesser sum only, because his Honour reduced the award by one-third for what he found to be the appellant's contributory negligence.

2. The appeal challenges the views reached by the primary judge both as to negligence and quantum.

Negligence

The collision occurred when the appellant was riding his motor cycle at a T‑junction.  The appellant was riding out of the leg of the T, to the right across the path of the respondent, who was driving along the top of the T.  As the respondent approached the junction, he travelled under a bridge which is about 100 metres from the point of collision.  The speed limit at that point was 60 kph, but the respondent was travelling in excess of that, at about 80 kph.  The judge noted that there was an advisory speed sign showing 40 kph at a point where the respondent's vehicle passed under the bridge.  As the respondent's car travelled towards the junction its movements were constrained by double lines in the centre of the road.  The judge found that "quite some distance" before the double centre line stopped the respondent moved his vehicle one or two feet onto the incorrect side of the road. 

3. At the junction the double lines ceased and the road on which the respondent was driving became a one-way road; the top of the T, on which as we have said the respondent was travelling, curves to the right in the respondent's direction of travel. The judge found that the point of impact was at least to some extent on the respondent's wrong side of the road, that the appellant had at that point "significantly completed" a turn he was making to the right (intending to travel in a direction opposite to that taken by the respondent). His Honour also held that the impact occurred some short distance towards the bridge which we have mentioned.

4. The judge found that the respondent was principally to blame for the collision. The basis of that view, which is unchallenged before us, was that it must have been obvious to the respondent that the appellant's motor cycle was turning right and that, instead of moving his car some one or two feet onto the incorrect side of the road, the respondent should have slowed his vehicle and moved left, in order to travel safely behind the motor cycle. His Honour also found that, as mentioned above, the respondent's speed until shortly before impact was about 80 kph, 20 kph above the lawful speed and 40 kph above the advisory speed.  The judge was of the view that the respondent did not apply his brakes until some 10 or 15 metres prior to the point of impact.

5. The opinion reached by the primary judge about the conduct of the respondent is not in dispute, but its details are of importance, since the relative responsibilities of the parties have to be fixed. According to the argument of Mr Geraghty, for the appellant, the accident was solely caused by the respondent. The judge's finding was that the appellant had, instead of stopping at a "give way" sign which was against him, proceeded through at a slow pace; the judge held that, had he stopped, the appellant would probably have realised that the respondent's vehicle was travelling at greater than "normal speed", creating a danger.

6. Mr Geraghty pointed out that, on the figures given at trial, it must have taken the respondent about five seconds to travel from the bridge, 100 metres or so to the point of collision. He also urged upon us the view, which appears to us somewhat doubtful, that the appellant had to travel only 10 metres beyond the "give way" sign to reach a position of safety. But if one accepts that, there should have been no difficulty in the appellant completing his turn and being well over to the left hand side of the road before the respondent's vehicle arrived.

7. The collision was one between a motor cycle turning right at a "give way" sign across the intended path of a vehicle travelling, rather too fast, from the right. It is of course possible for such a collision to occur without any negligence on the part of the vehicle turning right, but here the respondent's vehicle was visible a considerable time and distance before it arrived at the junction. From the events which occurred, it is evident that there was a risk of collision if the appellant did not do as the judge said he should have done, namely, stop at the sign and assess the risk of proceeding. The collision would never have happened if the respondent had been travelling at a more moderate speed, but that does not mean that the respondent's conduct was the sole cause of the collision.

8. A subsidiary point taken by Mr Geraghty was that the judge was wrong in giving consideration to the circumstance that because of curves in the roadway it was hard for a person in the position of the appellant to ascertain quickly whether the oncoming vehicle was travelling, to any extent, on its incorrect side of the road. It does not appear to us that his Honour treated that as an important factor, nor can this limitation on the extent of the appellant's view of the respondent's course be regarded as quite immaterial.

9. Mr Geraghty also argued that if we were of opinion that the judge was right in holding the appellant partly to blame for the accident, we should reduce the proportion (one‑third) of responsibility attributed to him.  It is our opinion that there is no sound reason for differing from the judge's opinion that there was a degree of negligence on the part of the appellant;  it is hard to avoid the conclusion, unpalatable though it may be to the appellant, that had he taken proper care for his own safety his motor cycle would never have come into collision with the respondent's car, which he observed well before it reached the junction.  As to the proportions of liability, it must be conceded that on the findings it would have been open to the primary judge to assess the extent of the appellant's contribution at a lower figure than one‑third;  but the case was one in which the figure chosen was, at least to some extent, a product of the impressions created by the witnesses who were seen and heard by the judge. 

10. In our opinion the appeal must fail, so far as it relates to the question of liability.

Future Economic Loss

11. When the appellant suffered his injuries he was 19 years of age and working as a cadet draftsman for an engineering firm; he was also studying at QUT for an associate diploma in civil engineering, but had it in mind to study for a degree in civil engineering. His right leg was badly injured in the collision and he underwent a number of operations in June 1992 and also another, to remove materials used in fixing his fractures, in April 1994. The appellant gave a brief account, in his evidence, of the difficulties he was experiencing at the date of trial, in July 1999, but more information is obtained in the medical reports and in the report of H L Coles.  It is desirable to go into some details about this, because there is some uncertainty as to whether a difficulty which the appellant has with his back is due to the accident.

12. The specialists who saw the appellant assessed the right leg disability at figures between 25 and 40 per cent – three of them tending to favour the lower figure. Dr Pentis was told in 1993 that the appellant had trouble with his spine and the doctor attributed that to "walking awkwardly because of the fracture [in the leg]".  Later Dr Pentis suggested that the appellant might have injured his back in the accident.  But Dr David Morgan said in effect that there could have been a fracture in the thoracic spine, but if there was, it could not be connected with the accident.  Dr B Martin, who saw the appellant in 1994, was told that most of his symptoms emanated from his back;  that doctor was of opinion that the back trouble was unrelated to the accident.

13. Lastly, Dr I C Dickinson said in effect that the appellant "might have a possible crush fracture at T8", but did not believe that the back symptoms were of any great significance. The complication which arises is that, particularly if the back is, as it appears to be, a major reason given by the appellant for his inability to carry on his pre-accident employment, it seems quite uncertain whether the back trouble was caused by this accident. There was a previous accident which had caused some back injury.

14. The appellant told the occupational therapist H L Coles that after the injury he went back to his former employment but had difficulty "with the standing for long and position required (sic)". He also said then (December 1996) that had the injury not occurred he would have continued studying to become a civil engineer but had "difficulty sitting for long enough at the end of his course to study". He explained to H L Coles that he had left the employment as a draftsman which he had at the time of the accident to do similar work at another firm, but "had difficulty sitting for long and doing field work on the one occasion required". He told the therapist that he left this second job because of back pain.

15. The learned primary judge found that before the accident the appellant had an ambition to complete a course at university to obtain a degree in civil engineering, but did a diploma course instead because that was what his employer preferred. He went back to his employer about five months after the accident and a year later left to "obtain employment that he could cope with more readily". The reason was that in this second employment (discussed in the preceding paragraph) he was able to sit most of the time but, the judge found, he could not cope with sitting all day. It will be noted that the appellant had attributed this to back pain, not leg pain.

16. In April 1994 the appellant was operated on to have material, attached for surgical purposes, removed from his leg; after recovery from that he began to work with his father and gave up his ambition to obtain a degree in civil engineering. The father's business, which was run as a discretionary trust, supplied engineers and architects with drafting materials, copies of plans and other similar things. The appellant initially worked in the business as a salesman. The argument advanced on behalf of the appellant below, as to loss of earning capacity, was based on the assumption that he would, but for the accident, have completed a degree course in engineering and been employed at the median base salary obtained by professional civil engineers. Those earnings were compared with the earnings of the appellant working in his father's business, the latter figure being $26,800 per annum. It is the judge's assessment of loss of future earnings which is the main focus of the appellant's challenge to the award.

17. The appellant is a young man, with a long working life ahead of him. His prospects of earning a substantial income may as time goes by become better or worse. As was pointed out on his behalf by Mr Geraghty, the business controlled by his father might fail. The judge was of opinion that, as the appellant's father was aged 60 at the date of trial, there was "every prospect" that the appellant would succeed his father as owner of the business. It must be conceded in the appellant's favour that any business connected with drafting or design is vulnerable to technology changes, which could render the services it supplies obsolete. It must also be conceded that the appellant's attaining ownership of the business was by no means a certainty; nor is it by any means clear that it will necessarily prove to be advantageous for him to work in the business until retirement.

18. But, as against these considerations, others, favourable to the respondent's case, must be kept in mind. One is the uncertainty, discussed above, as to whether the back trouble, which seems to have made a contribution to the appellant giving up the career path he had previously chosen, can be held to have been caused solely, or indeed at all, by the accident in question. Another is that the calculations placed before the judge assumed that as a result of the accident the appellant would until retirement earn less than the average wage, whereas there was an obvious chance of his improving his earnings substantially, if his father retired and arranged for the appellant to take control of the business. Again, the appellant's proposed career as a professional engineer before the accident, might not have eventuated; he had not, when the accident occurred, completed his diploma course, let alone begun the degree course.

19. The judge referred to evidence adduced on behalf of the appellant that was said to justify the conclusion that he had lost the chance of earning, as a civil engineer, sums having a present value of about $230,000 more than what were said to be his likely earnings in the father's business. The judge discounted the figure of $230,000 by nearly 60 percent, awarding $95,000 for future economic loss. The figure does not strike one as being particularly generous, but it appears to us very hard to conclude that the primary judge reached an erroneous conclusion, in the difficult task of estimating the effect of the appellant's leg injury on his economic prospects. His Honour took into account that the appellant had by the date of trial been injured in no less than four motor cycle accidents, two of which occurred after the injuries the subject of this litigation were sustained. Although Mr Geraghty criticised his Honour's reference to the other motor cycle accidents, it is our view that it would have been wrong to ignore them; they at least illustrate the adverse contingencies which might, whether or not the subject injury had been sustained, have affected the appellant's working capacity.

20. The appellant is plainly an intelligent person who has up to the present engaged and will very likely in the future engage in work which is sedentary, or at least mainly indoors, not in manual work. It is difficult to accept that the injuries he has suffered have made it impossible or indeed impractical for him even now to attain a professional qualification as, and work as, a civil engineer, subject to a degree of limitation on his mobility over broken ground and the like. It is our respectful opinion that the primary judge is not shown to have erred in the exercise of what was essentially a discretionary judgment, assessing the future economic loss at $95,000. The appellant's outline argued that since the appellant's evidence that he had in mind completing an engineering degree was uncontested, the judge was obliged to find that he would do so; that he intended to embark on that course may very well be accepted, but it does not follow either that he would, but for the accident, have done so or that the accident has prevented him from doing so.

Past Economic Loss

21. The judge awarded past economic loss at $2,900, being 20 weeks at $145 per week, figures which were agreed. It is common ground that, apparently due to a misunderstanding, no allowance was made for a period not covered by the agreement, namely the loss due to a further 12 week period of unemployment due to the accident.  The parties are at one in saying that, subject to a point we shall mention, an adjustment of $2,106 should be made in favour of the appellant on this account.  Interest must be added, also, making the total $3,006.

22. Mr Munro has argued that such an adjustment would be contrary to the principle adopted in Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258:

"... if there is nothing more than a wrong estimate of one component [of the award] which has no substantial effect on the total, the award stands.  The pointing out of a relatively small error in one estimated component of a judgment which is in substance a sum of estimates does not necessarily make the judgment as a whole wrong.  It may be that some types of estimates, for example arithmetical errors, will require correction irrespective of their effect on the total award, but the general rule should be as we have stated". (265)

This statement was made with reference to awards of damages for personal injuries or death.  Acceptance of Mr Geraghty's contention that the adjustment should be made requires that one treat the mistake as to the content of the agreement concerning past loss of wages as one requiring correction irrespective of its effect on the total award.  Two considerations favour acceptance of this argument.  First, the judge's allowance for past loss of wages was not in reality an estimate, but a sum dependent simply upon multiplication of the period of absence of work by the wages lost, neither figure being in dispute.  Secondly, the error was one of a mechanical kind akin to an arithmetical mistake:  the parties had made an agreement applicable to a certain period of time which was taken, through a misunderstanding, to be applicable to that period plus another.  Although, as Mr Munro for the respondent correctly points out, the amount involved is small compared with the total award, it is our opinion that the appellant should not be disadvantaged by the mistake which occurred.

23. There remains the question of costs. In our view the appeal should fail entirely on the question of liability and should fail, but for correction of the slip just mentioned, as to quantum. Although the appellant's outline filed in September 1999 and the respondent's filed in November 1999 were in agreement that the slip mentioned occurred, the respondent has never agreed that a correction should be made. The appeal has substantially failed, but there is in our opinion insufficient justification for awarding costs of the appeal against the appellant who was entitled to have the error corrected. And having almost entirely succeeded, the respondent should not pay costs.

24. We would allow the appeal, but without costs. We would replace the judgment given at trial for $120,987 by one for $123,993 with the costs ordered by the primary judge.

CHESTERMAN J: 

LIABILITY -

25. The appellant’s complaint that he should not have been found contributorily negligent is founded on the respective positions of his motor cycle and the first respondent’s motor car at the moment of impact. The trial judge found that, at that moment, the car was on its wrong side of the road by a foot or two. It must therefore be concluded, the appellant argues, that his motor cycle had completed its turn to the right and was completely on its correct side of the road so that no responsibility for the collision could be attributed to the appellant.

26. There are two fallacies in the argument. The trial judge found that the appellant “had significantly completed the right hand turn before impact”, and rejected the appellant’s contention “that he had completed his turn, fully straightened up, and travelled some distance before impact”. It is implicit in these findings that the appellant was still in the process of turning across the path of the first respondent’s car when they collided.

27. More significantly it is unrealistic to focus only upon the position of the vehicles at the precise moment of impact and to ignore immediately preceding events. One of those was that the appellant turned across the first respondent’s direction of travel without taking sufficient care to ascertain whether he could do so safely. He was obliged by the “Give Way” sign and the traffic regulations to yield right of way to the car. In the days when authorities were cited in motor car litigation it was said that the “right of way rule” “constitutes a fundamental rule in the regulation of traffic”, and, “the duty upon a driver who has another driver upon his right (is) much higher than the duty of the driver on the right hand side”, per Lucas J (with whom Douglas and W B  Campbell JJ agreed) in Thomas v Macfarlane [1969] Qd R 178 at 183.  Courts do not, of course, apply any mechanistic approach to the apportionment of liability but that case remains authority for the proposition that a factor, more or less important, in the determination of negligence or contributory negligence is disobedience to a regulatory obligation to accord right of way.

28. Had the appellant assessed the situation carefully he would have appreciated that the car on his right was approaching too fast to allow him to turn safely in front of it. His failure in that regard was a cause contributing to the collision.

29. There is no basis for disturbing the trial judge’s apportionment.

QUANTUM

30. The appellant’s claim for future economic loss was predicated upon the fact that, because of the injuries sustained in the collision, he would not qualify as a civil engineer and earn remuneration commensurate to that profession and that, but for his injuries, he would have done so. The process of assessing the value of the lost chance in such a case involves two separate inquiries:

1. The extent or degree of probability that the chance, the hypothesis, would have occurred in fact;  and

2. The financial effects of the hypothesis occurring.

Both inquiries involve an evaluative process.  In most cases, including the present, a great deal of uncertainty will surround each of them.  The assessment of damages will continue to be an art rather than a science.

31. The remarks of the minority, Brennan and Dawson JJ in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 640 that:

“Damages founded on hypothetical evaluations defy precise calculation”

appear to have been approved by the joint judgment of Dawson, Toohey, Gaudron & Gummow JJ in Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485 at 499. 

32. The facts relevant to the evaluation are summarised in the joint judgment of Pincus and Davies JJA. Despite the difficulties of doing so, a trial judge is obliged to make the adjustment referred to in Malec by reference to a judgmental process of determining from the relevant factors the degree of likelihood that a hypothesis might have been realised and the financial consequence of its being realised.  An appellate court should not interfere unless it appears the judgment appealed from is infected by a misapprehension of the facts or some error of principle.  Nothing of the kind is demonstrated by the appellant who does no more than express dissatisfaction that the assessment was not as favourable as he wanted.  There is no basis for disturbing the amount allowed for future economic loss. 

33. I agree with Pincus and Davies JJA with respect to the adjustment for past economic loss and with the proposed order for the costs of the appeal.