Citation: Dowedeit v Nominal Defendant [2015] NSWDC 182
Court: District Court of New South Wales
Date: 5 August 2015
Judge(s): P Taylor SC DCJ
Background
The plaintiff, a registered nurse employed at Royal Prince Alfred Hospital, was found seriously injured on a footpath in Dulwich Hill on the evening of 27 February 2012. He was lying near the gutter, adjacent to a parked white car, with significant bloodstains on the footpath and blood on the vehicle's rear tyre and panel. He had no memory of how he came to be there.
The plaintiff brought a claim against the Nominal Defendant (the statutory defendant under the Motor Accidents Compensation Act 1999 where the responsible vehicle is unidentified) on the basis that his injuries were caused by an unidentified motor vehicle. The Nominal Defendant disputed causation, arguing that the plaintiff had instead fallen from a broad external ledge on the first floor of his apartment building, approximately 3.4 metres above the footpath.
The plaintiff's apartment had a balcony with a concrete barrier opening onto this ledge, and a hat belonging to the plaintiff was found on it. Three competing explanations were considered across the proceedings: a motor vehicle impact, a fall from the ledge, and a possible assault.
Legal Issues
- Whether the plaintiff's injuries were caused by an unidentified motor vehicle, a fall from height, an assault, or some other cause
- Whether, if a motor vehicle impact was established, the plaintiff was involved in a "blameless accident" within the meaning of the Motor Accidents Compensation Act 1999
- Whether contributory negligence applied, and if so, to what degree
- The appropriate quantum of damages across various heads of loss
Decision
Causation: the competing theories
The District Court rejected the engineering expert evidence on both sides as being of limited assistance. Because of the large number of unproven assumptions underpinning each expert's analysis, combined with factual errors in the reports and unconvincing oral evidence, the Court found itself in at least as good a position as the experts to assess the likely cause of injury from the primary evidence. The Court considered and rejected the possibility of a deliberate jump, found no credible evidence to support an assault, and approached the remaining theories of a motor vehicle impact and a fall from the ledge as the two realistic alternatives.
The Court ultimately accepted on the balance of probabilities that the plaintiff was struck by an unidentified motor vehicle. Several circumstantial factors supported this conclusion: blood found on the rear tyre and panel of the adjacent parked car; the plaintiff's own fragmented recollection of a powerful surge pushing him backwards; and medical evidence consistent with the injury pattern of a motor vehicle collision. The Court also found the fall hypothesis to be less convincing, noting that the geometry of the ledge and the footpath made it difficult to account for where the plaintiff came to rest and for the bloodstaining on the rear of the parked vehicle.
Blameless accident and contributory negligence
The Court found the accident was a "blameless accident" under the Motor Accidents Compensation Act 1999. However, the Court also found that the plaintiff had been consuming alcohol before the incident and, on the evidence, had contributed to the accident by stepping onto the roadway in circumstances where his judgment or awareness was impaired. Contributory negligence was assessed at 50%, reducing the total damages award by half.
Damages
Gross damages were assessed at $349,100, covering non-economic loss ($200,000), past and future economic loss, past and future out-of-pocket expenses, and past and future care. The Court accepted that the plaintiff had returned to full-time work within a year and continued to maintain his fitness, but recognised a real prospect that his injuries would combine with aging to affect his capacity for full-time work in the future. After the 50% reduction for contributory negligence, the net judgment sum was $174,550.
Orders Made
- Judgment in favour of the plaintiff in the sum of $174,550.
- The Nominal Defendant to pay the plaintiff's costs.
- Order as to costs stayed for two weeks and until further order if further submissions on costs were received within that time.
Key Takeaways
- The District Court confirmed that causation in a Nominal Defendant claim can be established by inference from circumstantial evidence, even where no witness observed the vehicle impact and the plaintiff has no memory of the event.
- Where expert engineering evidence rests on a large number of unproven assumptions and contains factual errors, a court may give it little weight and prefer its own assessment of the primary evidence.
- A finding of "blameless accident" under the Motor Accidents Compensation Act 1999 does not preclude a finding of contributory negligence on the plaintiff's part; the two inquiries are distinct.
- Contributory negligence of 50% was applied where the plaintiff's consumption of alcohol before the incident was found, on the balance of probabilities, to have contributed to his stepping into the path of a vehicle.
- In assessing future economic loss for a plaintiff who had returned to work, the Court applied a "cushion" approach, discounting for contingencies including vicissitudes, rather than calculating loss by reference to a precise projection of future incapacity.
Legislation and Cases Referenced
Legislation
- Motor Accidents Compensation Act 1999 (NSW), ss 7B, 7C, 7F, 7G
Cases
- Axiak v Ingram [2012] NSWCA 311
- MWJ v R (2005) 222 ALR 436
- Nominal Defendant v McLennan [2012] NSWCA 148
- Pennington v Norris (1956) 96 CLR 10
- West v Mead [2003] NSWSC 161