FEDERAL COURT OF AUSTRALIA

Nominal Defendant v Australian Capital Territory [1999] FCA 446

APPEAL – appeal against judgment of Full Court of Supreme Court setting aside apportionment of damages by Master – principles applicable – whether Full Court applied correct principles – it did.

TORTS – joint tortfeasors – apportionment of responsibility and damages – plaintiff steps over side of bridge in darkness when frightened by approaching vehicle – apportionment between driver of unidentified vehicle and Territory responsible for design of bridge.

Law Reform (Miscellaneous Provisions) Act 1955 (ACT), s 11, s 12

Lovell v Lovell (1950) 81 CLR 513 considered

A V Jennings Construction Pty Ltd v Maumill (1956) 30 ALJ 100 considered

British Fame (Owners) v MacGregor (Owners) [1943] AC 197  considered

Pennington v Norris (1956) 96 CLR 10  considered

House v The King (1936) CLR 449  referred to

James Hardie & Co Pty Limited v Seltsam Pty Ltd [1998] HCA 78  referred to

Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200   considered

Covacevich v Thomson [1988] Aust Torts Reports 80-153  considered

Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362  referred to

Wilson v Peisley (1975) 50 ALJR 207  referred to

Norbis v Norbis (1986) 161 CLR 513  referred to

J G Fleming, The Law of Torts, 8^th edn, at 264

ON APPEAL FROM THE FULL COURT OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

THE NOMINAL DEFENDANT v AUSTRALIAN CAPITAL TERRITORY AND CINDY VAN DER GEVEL

AG 113 OF 1998

MILES,  COOPER, WHITLAM, MATHEWS AND MADGWICK JJ

15 APRIL 1999

CANBERRA

ON APPEAL FROM THE FULL COURT OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondents’ costs of the appeal to be taxed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FULL COURT OF THE

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

REASONS FOR JUDGMENT

MILES J:

1                     As I am the only dissentient in this appeal, I state my reasons briefly.

2                     The essential question is not whether the Master was right but whether the majority of  the Full Court of the Supreme Court was wrong in interfering with the Master’s assessment of the relative contribution to the plaintiff’s damages that was to be borne by each of the two respective defendants.  The Master’s assessment was constrained only by the statutory requirement of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT) that the contribution be “such as is found by the court to be just and equitable, having regard to the extent of that person’s responsibility for the damage”.  Unless there can be shown to be some error on the part of the trial court an appeal court has no part in interfering with a discretionary judgment, particularly an apportionment of damages between tortfeasors.  No doubt an appeal court may and will set aside the judgment if the result is so obviously unjust that it shows that some error, although unidentifiable, must have been made.  But as Latham CJ said in Lovell v Lovell (1950) 81 CLR 513 at 519, the failure must be so serious that it “really amounts to a failure to exercise the discretion actually entrusted to the court”.

3                     Thus in A V Jennings Construction Pty Ltd v Maumill (1956) 30 ALJ 100 the High Court, sitting directly on appeal from the judgment at first instance in the Supreme Court of Tasmania, set aside the apportionment of one-third to two-thirds as between defendants and third party and substituted its own apportionment of two-thirds to one-third respectively.  The High Court approved the statements of Lord Wright in British Fame (Owners) v MacGregor (Owners) [1943] AC 197 at 201 that apportionment “involves an individual choice or discretion, as to which there may well be differences of opinion by different minds” and of Viscount Simon LC at 198-199 that “the cases must be very exceptional indeed … to alter the allocation of blame made by the trial judge”.  The High Court held that by approaching the question of apportionment of responsibility on this basis, the trial judge had left out of account a critically important feature of the case, namely the decision of the defendant driver to pull out past a parked vehicle into the path of oncoming traffic.

4                     Similarly, in a case concerned with apportionment for contributory negligence, the High Court itself, in Pennington v Norris (1956) 96 CLR 10, found (at 16-17) that the trial judge’s apportionment of equal responsibility must have overlooked certain elements in the case, such as the defendant’s speed, the number of people in the vicinity and the weather conditions, although the High Court could not identify which.

5                     The major issue at trial and in the Full Court was whether the Territory was negligent at all and the question of apportionment was dealt with briefly at both levels.  The case reflects Fleming’s comment in The Law of Torts, 8^th edn, at 264:

“Trial judges do not make a practice of elaborate explanations for their apportionment, being usually content merely with the conclusion that it would be ‘just and equitable’ to divide responsibility in the stated proportion.  This conforms with the general admonition that apportionment should be ‘dealt with somewhat broadly and upon common sense principles’.  What is thereby lost in precedential value is gained in discouraging appeals.”

6                     With respect to the majority judgment in the Full Court, it does not appear to have approached the matter of apportionment in accordance with these principles.  The acknowledgement in the judgment that “both defendants agree that what is involved is a common sense appreciation of the relative culpability of the contributing parties”, is a correct statement of principle to be applied at the trial level, but that was not the test for the Full Court itself.  In my view, the expression of opinion that “to place two-thirds of the liability upon the Territory in those circumstances seems to me excessive”, and the consequent reduction of the Territory’s contribution to 25 percent, does not constitute a judgment either that the Master had made some error or that the Master’s apportionment was so far outside the boundaries of what might reasonably be concluded that it showed that the Master had in effect failed to exercise the discretion entrusted to him.  In my respectful opinion, the Full Court did no more than substitute its own apportionment for that of the Master.

7                     I would add that the Full Court judgment is couched to some extent in terms of whether the action of the driver or the failure of the Territory was “the more operative cause”.  That approach is in conflict with what was said in Pennington v Norris at 16, namely that apportionment in accordance with the statute requires a comparison of the respective departures by each party from the standard of care of the reasonable person.  If such comparison were to be made in the present case it would involve concentrating on a number of issues raised by the evidence which were not addressed before the Master or before the Full Court (and which were only touched on in this Court).  This should have provided further reason for allowing the Master’s judgment to stand.

8                     I would uphold the appeal.

Associate:

Dated:    15 April 1999

ON APPEAL FROM THE FULL COURT OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

REASONS FOR JUDGMENT

COOPER, WHITLAM, MATHEWS AND MADGWICK JJ

9                     On 10 September 1994 the second respondent suffered personal injuries while walking along Coulter Drive, Belconnen in the Australian Capital Territory.  Master Connolly of the Supreme Court found that both the first respondent, the Australian Capital Territory and the appellant, the Nominal Defendant, were responsible for the damage suffered by the second respondent and attributed responsibility at two-thirds to the first respondent and one-third to the appellant.

10                  The first respondent appealed to a Full Court of the Supreme Court against the finding of liability.  It also appealed against the apportionment made between it and the appellant in contribution proceedings brought under s 11 and s 12 of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT) (“the Act”).  By a majority (Higgins and Crispin JJ) the appeal against the award of damages for negligence in favour of the second respondent was dismissed.  On the issue of contribution the majority upheld the appeal against the apportionment and itself apportioned responsibility on the basis of one-quarter against the first respondent and three-quarters against the appellant.

11                  The present appeal is by the Nominal Defendant against the judgment of the Full Court of the Supreme Court setting aside the judgment of the Master in the contribution proceedings and itself making the apportionment of responsibility for the damage suffered by the second respondent which it did.  The reasons of the majority are to be found in the judgment of Higgins J, with which Crispin J agreed.

12                  The appellant submitted that the Full Court was not entitled to interfere with the broad discretion of the Master given by s 11 and s 12 of the Act in other than exceptional circumstances:  Pennington v Norris (1956) 96 CLR 10 at 16;  A V Jennings Construction Pty Ltd v Maumill (1956) 30 ALJ 100 at 101. 

13                  The appellant submitted that the present case was not of that character because Higgins J did not state that the Master had misapplied the law, proceeded upon any demonstrably wrong finding of fact, or, made a decision so unjust that error was to be implied.  In the absence of appellable error the substitution of a different apportionment by the majority, the appellant submitted, was merely to substitute its own subjective view of what it considered was just and reasonable for that of the Master.  The appellant submitted that the Full Court was not entitled to do so and thereby fell into appellable error:  House v The King (1936) 55 CLR 449 at 504 - 505.

14                  Section 11(1) of the Act provides :-

“11(1)This section applies where damage is suffered by a person as a result of a tort (whether a crime or not).”

15                  Section 12 of the Act provides :-

“12.     In the proceedings for contribution under section 11 the amount of the contribution recoverable from a person is such as is found by the court to be just and equitable, having regard to the extent of that person’s responsibility for the damage, and the court has power to exempt a person from liability to make contribution, or to direct that the contribution to be recovered from a person shall amount to a complete indemnity.”

16                  The discretion under s 12 of the Act is a broad one and one which requires that considerable latitude be given to the Court in arriving at a judgment as to what is just and equitable:  Pennington v Norris at 16;  James Hardie & Co Pty Limited v Seltsam Pty Ltd [1998] HCA 78 at 79 per Kirby J with whom McHugh J agreed.  Within the exercise of that broad discretionary judgment the Court is required to compare the culpability of each of the negligent parties, the relative importance of the acts of the negligent parties causing damage and to subject to comparative examination the whole conduct of each party in relation to the circumstances of the events giving rise to the negligently caused loss:  Covacevich v Thomson [1988] Aust Torts Reports 80-153 (Queensland Full Court) at 67,373.  The discretion is not limited to such factors alone.  It involves consideration of all relevant matters which go to the issue of what is the just and equitable sharing of responsibility for the damage suffered by the plaintiff:  Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 at 212 - 213.

17                  The facts out of which the liability of the appellant and the first respondent arose can be stated briefly.  At about 11.00 pm the second respondent was walking in a southerly direction on Coulter Drive facing any oncoming traffic.  She was walking on the concrete curbing to the road and between her and the verge was a metal safety barrier.  The barrier was to prevent vehicles leaving the road and proceeding down the steep slope on the other side.  As the second respondent walked along she saw a car approaching her.  The car started to swerve across into the emergency lane towards her and then back out over the middle broken line on the roadway.  The car continued to swerve back and forth as it came towards her.  She could see arms and a head and could hear a lot of jeering and shouting.  She said in evidence, which was not challenged on the trial:

“... at that stage the initial reaction was that the car had already frightened me a lot because the way that they were driving made me extremely frightened that I was going to get run over and the jeering and the yelling of the people inside the car also added to that at which time I decided I’d take my chances in the fields rather than stay on the road and I stepped over the barrier, lost my footing and fell down.

Now, when you say you fell down, did you know what was on the other side of the barrier?---Most definitely not.

Was there any lighting in the area at all?---Not at all.

So, you stepped over and did you almost immediately start to fall?---Yes.”

18                  At the point where the second respondent stepped over the safety barrier there was an underpass under Coulter Drive to allow horses and stock to pass under the roadway.  The underpass was four metres below the level of the road.  The Master found that the first respondent was negligent in failing to provide “... some form of warning or protection against the extraordinary hazard of a steep fall to an underpass concealed beneath the roadway.”

19                  The question of contribution was determined by the Master on the following basis :

“The final matter for determination is to divide this between the two defendants.  Counsel for the Territory primarily based his submissions on the proposition that there should be no finding of liability against the Territory, but said that, if the Territory was to be found liable, the distribution of damages should reflect the proposition that the motor vehicle was the primary cause of the accident.  Counsel for both the plaintiff and the Nominal Defendant submitted the contrary, that the primary responsibility for the plaintiff’s injuries and ongoing disabilities should lie on the Territory.

The facts of this case certainly demonstrate the fallacy of attempting to apply a ‘but for’ test to the causation of damages in personal injuries claims.  This much, however, can be said.  The motor vehicle was clearly negligent, and it was this negligence which caused the plaintiff to seek shelter behind the vehicular safety barrier.  Had she done this at virtually any other point along Coulter Drive where a vehicular barrier is erected, she would have found safety on a grassy verge.  At the particular point where she crossed, however, she faced a severe drop to a hard surface.  There was no warning or protection, and I have found this to amount to negligence on the part of the Territory as the owner and operator of the road.  On these considerations, I find myself in broad agreement with counsel for the plaintiff and the second defendant.  I attribute responsibility at two thirds to the first defendant, and one third to the second defendant.”

20                  The grounds of appeal pleaded by the first respondent in its appeal to the Full Court stated :

“2(ii)   The Master’s discretion in apportioning liability between the Defendants must have miscarried in circumstances where only one third of the responsibility for the accident was ordered to be borne by the driver of the vehicle whose actions led directly to the Plaintiff’s stepping over the barrier.

(iii)      the Master did not take into consideration the fact that the w beam barrier was itself a warning of danger.”

21                  The reasons of Higgins J on this issue have to be read against these grounds of appeal.  His Honour said :

“32.     As to apportionment, both defendants agree that what is involved is a common sense appreciation of the relative culpability of the contributing parties in the context of the causal contribution to the plaintiff’s injury by

each defendant.  That is the test suggested by the High Court in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506.

33.       The main focus, however, should not be upon the extent of injury in the present circumstances.  It is not a case of successive injuries.  It is a case where the danger posed to pedestrians walking along the side of the road combined with the conduct of a negligent or malicious motorist, so as to cause the plaintiff to step over the vehicle barrier.

34.       At any point there would have been some risk of injury to the plaintiff by reason of her leaving the paved shoulder of the roadway and entering the unmade area beyond the vehicle barrier.  The plaintiff, even if the area had been as she expected - a grassy sloping verge - could have stumbled and fallen.

35.       The only reason she stepped over the barrier was because of the behaviour of the motorist and his passengers.  She did so in ignorance of the serious consequences of doing so at that point.

36.       To place two-thirds of the liability upon the Territory in those circumstances seems to me excessive.  Of course, there may be other situations in which the culpable cause, other than the unguarded underpass, was less significant.

37.       So much depends on the circumstances.  Had the plaintiff been walking behind the vehicle barrier rather than on the carriageway side of it, the Territory’s negligence would have been overwhelmingly the more operative cause.  However, in the circumstances as they appear, the conduct of the motorist was the more operative and culpable cause.

38.       I would uphold the appeal against the apportionment.  I would reduce the Territory’s contribution to 25 percent.”

22                  In the result, the majority in the Full Court reduced the contribution of the first respondent from approximately 66% to 25% of the damages awarded.  That is a reduction of approximately 41% of the total damages award.  Such a reduction cannot be categorised as only or merely tinkering at the margins of what is otherwise a judgment within the range of a sound discretionary judgment.  The magnitude of the change demonstrates that the majority formed the view that the order of the Master apportioning responsibility stood so far outside the range of a sound discretionary judgment that it was a wholly erroneous estimate of what was a just and equitable apportionment.  Notwithstanding there is no finding by the Full Court of identifiable error of law or fact by the Master, error in fact may be inferred because the award was so far outside the limits of a sound discretionary judgment.  It would not be right to infer, merely from an appellate court’s silence on the subject, that it had overlooked principles so fundamental to the review of a decision attended by a broad, discretionary factor as those in House v The King.  In those circumstances the Full Court was entitled to intervene.  In so doing, the Full Court did not fall into error:  House v The King at 504 - 505;  Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 369;  Wilson v Peisley (1975) 50 ALJR 207 at 212, 214,  Norbis v Norbis (1986) 161 CLR 513 at 520. 

23                  Having determined that there was error to the degree that it vitiated the Master’s decision on the issue of contribution, it was for the Full Court to substitute its own decision if it was in a position to do so.  In the present case nothing depended upon the advantage of the Master in seeing the witnesses on trial.  The question involved a resolution of the issues referred to above and a comparison and balancing of culpability in the context of the facts and circumstances of the case as found by the Master and set out above.

24                  The Full Court attached significant weight to the circumstance that the conduct of the motorist was the more operative and culpable cause of the damage.  That was a view which was open to the Full Court.  Neither the reasoning of the Full Court nor the extent of the apportionment made by it demonstrates error on the part of the Full Court.  Absent error, there is no basis for this court to interfere.

25                  The appeal will be dismissed with costs.

Associate:

Dated:              15 April 1999