Potts, Joshua Andrew v Frost, Darren Stephen Ian

• Jurisdiction: Tasmania
• Judge: Evans J,Blow J,Tennent J
• Judgment Date: 19 December 2012
• Docket Number: 946/2011
• Court: Full Supreme Court
• Date: 19 December 2012

[2012] TASFC 6

SUPREME COURT OF TASMANIA (FULL COURT)

Evans, Blow and Tennent JJ

946/2011

Potts, Joshua Andrew

and

Frost, Darren Stephen Ian

REPRESENTATION:

Counsel:

Appellant: D J Gunson SC and C H Hobbs

Respondent: J Ruskin QC and K E Read SC

Grimsey v Southern Regional Health Board (1997) 7 Tas R 67; Southern Regional Health Board v Grimsey (1998) 8 Tas R 116, followed.

Griffiths v Kerkemeyer (1977) 139 CLR 161; Van Gervan v Fenton (1992) 175 CLR 327, discussed.

Aust Dig Damages [34]

Paff v Speed (1961) 105 CLR 549; Bresatz v Przibilla (1962) 108 CLR 541; Atlas Tiles Ltd v Briers (1978) 144 CLR 202, referred to.

Aust Dig Damages [39]

Damages — Measure and remoteness of damages in actions for tort — Measure of damages — Personal injuries — Method of assessment — Voluntary obligations — Expenditure by relatives of plaintiff — Whether for ‘services of a domestic nature or services relating to nursing and attendance’.

Common Law (Miscellaneous Actions) Act 1986 (Tas), s5.

Damages — Measure and remoteness of damages in actions for tort — Measure of damages — Personal injuries — Loss of earnings and earning capacity — Legal principles — Method of calculation — Allowances for residual earning capacity and contingencies.

Orders of the Court

• 1 Appeal dismissed.

• 2 Cross-appeal allowed.

• 3 Judgment varied by reducing the judgment sum from $1,840,335 to $1,698,298.

REASONS FOR JUDGMENT

FULL COURT

Evans JBlow JTennent J

1 This appeal relates to a tragic motorcycle accident in January 2002. The appellant, Joshua Potts, was a pillion passenger on a motorcycle driven by the respondent, Darren Frost. They were friends. They and others were staying at a shack at White Beach. Late on the night of 8 January, they went for a ride together. The bike left the road and hit a tree. As a result, both the appellant and the respondent are now paraplegics. Neither of them has any memory of the accident or the events leading up to it. The appellant sued the respondent for damages for negligence. The case went to trial before Porter J. His Honour found that the respondent was the rider of the motorcycle, that he was negligent, and that there was contributory negligence on the part of the appellant in travelling on the motorcycle as a pillion passenger. He reduced the damages by 30% to allow for contributory negligence and, taking into account that reduction, awarded him $1,840,335: Potts v Frost [2011] TASSC 55.

2 The appellant is not satisfied with that judgment, and has appealed. His notice of appeal raises contentions to the following effect:

• • That there should not have been a finding of contributory negligence (ground 1).

• • That the learned trial judge did not give adequate reasons for the 30% reduction for contributory negligence (ground 3).

• • Alternatively, that the reduction of 30% for contributory negligence was excessive (ground 2).

• • That the learned trial judge made an error in assessing damages for future economic loss, by reason of which he awarded too little under that head (ground 4).

• • That that error resulted in too little being awarded as damages for the loss of future superannuation entitlements (ground 5).

3 The respondent has cross-appealed. The contentions raised by his amended notice of cross-appeal can be summarised as follows:

• • That the learned trial judge should not have made a finding of negligence against him (grounds 1, 1A and 1B).

• • Alternatively, that the reduction for contributory negligence should have been substantially greater than 30% (ground 2).

• • That the learned trial judge made various errors that resulted in an excessive award of damages (grounds 3, 4, 5 and 6).

4 But it is not as simple as that. The appellant contends that the learned trial judge made a number of errors in assessing damages that are not the subject of grounds of appeal; that those errors were unfavourable to him; and that, assuming that the outcome of the cross-appeal is such that he retains an entitlement to damages, this Court can and must re-assess his damages for the purpose of correcting those suggested errors, whatever may be the result of the appeal, and whatever may be the result of the cross-appeal in relation to damages. The respondent contends, in effect, that what is good for the goose is good for the gander, and that there were errors in the assessment of damages, not referred to in the notice of cross-appeal, that should also be taken into account if this Court decides to re-assess damages on the basis suggested.

The liability of the respondent

5 As we have said, neither of the parties has any recollection of the accident. There were no eye witnesses. The evidence of negligence was circumstantial, and it was somewhat thin. It came mainly from two witnesses — a friend of the parties named Adam Bates, and a police officer who went to the scene of the accident, Constable Leary.

6 The appellant, the respondent, Mr Bates, and a Mr Stirpen had been staying at Mr Stirpen's father's shack. Tuesday 8 January was a rainy day. The four men spent the day at the shack playing card games and otherwise entertaining themselves. They made a trip to a bottle shop in Nubeena, bought a carton of beer, took it back to the shack, and drank it. Mr Bates gave unchallenged evidence of all this. He said that the trip to purchase the beer was ‘more likely in the afternoon’; that he, the appellant and the respondent shared the carton of beer about equally; that they finished it before the appellant and the respondent went for the ride on the motorcycle; and that, as far as he knew, that ride was nothing more than a joyride. There was no evidence as to whether the beer was full strength or light beer, nor as to the time it was purchased, the time the men started drinking, or the time they finished drinking.

7 The learned trial judge made a finding that the accident occurred at about 11pm. That finding is not challenged in these proceedings. His Honour accepted Mr Bates' evidence as to the events before and after the accident, which was to the following effect. The two men set out on the motorcycle, not wearing helmets. Mr Bates got the keys to the appellant's car, got into that car, and set out to follow the two men on the bike. When asked why he followed them, he said, ‘Just an instinct that it was safer to be — it just felt wrong, no helmets, no — basically no safety gear, just shorts and a tee-shirt’. He went on to say that he ‘just wanted to be there, just in case’. He caught up with the two men at a point where the bike was stationary on the left side of the road. He suggested to them that they should head back to the shack. He said that because he felt ‘everything was unsafe’. They both agreed with his suggestion. They turned around, and started to head back towards the shack on the bike. He did a three point turn, after which he could no longer see them. He drove back to the shack without seeing them. He returned with Mr Stirpen. They eventually found the two men with the motorcycle, off the road and seriously injured.

8 There was no evidence that the respondent was drunk. A sample of his blood was taken at the Royal Hobart Hospital at 2.41am, nearly four hours after the estimated time of the accident. No alcohol was found in that sample. There was no expert evidence as to metabolism rates and so forth, and the learned trial judge was therefore not able to make any finding as to the maximum possible concentration of alcohol in the respondent's blood at the time of the accident or anything of that nature. There was no evidence of drunken behaviour, slurred speech, unsteadiness, or any other sign of intoxication. There was no evidence of irresponsible behaviour other than in relation to the motorcycle journey.

9 There was a body of uncontroversial evidence as to the course taken by the two men on the motorcycle. They travelled from the place where Mr Bates spoke to them for a distance of some hundreds of metres to the place of the accident. The road was almost straight, curving very gently to the left. At the place of the accident, there was a right hand bend which the respondent failed to take. It was not a sharp or difficult bend. Constable Leary took measurements, which he recorded on a sketch plan. The bike left a skid mark about 6.2 metres in length before it travelled onto grass. It travelled a further 17.8 metres through grass and undergrowth to a tree, which showed signs of a recent impact. The front of the bike was found 24 centimetres from the tree. The road was sealed. Its surface was in good condition. The road was wet at the time of the accident, but it had stopped raining.

10 At trial the appellant relied on the principle of res ipsa loquitur. The learned trial judge reviewed a number of authorities as to that principle, and reached a conclusion to the effect that this was a case to which the principle could be applied. He referred to Lafranchi v Transport Accident Commission (2006) 14 VR 359, a decision of the Victorian Court of Appeal, as authority for the propositions that the principle can apply in a case where a vehicle ends up off the road, but does not apply in every case when a vehicle crosses to the wrong side of the road, veers off the road, or in some other way ends up where it ought not to be. His reasons for finding that the respondent had been negligent were expressed as follows:

‘47 In this case, the line of travel as shown by the braking mark which commences at the gravel verge is of particular significance. The mark itself commences at a point just before the apex of the corner. Expert evidence is not required to conclude that, allowing for human reaction and mechanical response times, the braking action would have occurred a little distance before the commencement of the mark. Following the line of the roadway to the commencement of the mark shows that the rider had commenced to negotiate the corner...