Citation: Connors v Nominal Defendant (No 4) [2020] NSWDC 438
Court: District Court of New South Wales
Date: 16 June 2020
Judge: Neilson DCJ
Background
The plaintiff was a young woman who brought a claim for mental harm damages following the death of her father in a single-vehicle motor accident on 22 September 2013. Her father was a passenger in a vehicle driven by his de facto partner. The vehicle left the carriageway and collided with a power pole; the father was airlifted to hospital and died three days later. Because the vehicle's registration had expired and it was uninsured, the Nominal Defendant was the proper defendant in the proceedings.
The driver and the deceased had attended an all-night dance party and neither had slept during the approximately 32 hours leading up to the crash. The driver admitted to police that she had fallen asleep at the wheel, and she later pleaded guilty to dangerous driving causing death. She had also admitted consuming alcohol and illicit drugs at the party, including substances she believed to be MDMA and amphetamine.
The Nominal Defendant admitted liability for the crash but raised a defence of contributory negligence on the part of the deceased, arguing he bore 70% responsibility. The plaintiff's claim for mental harm damages then fell to be assessed on that basis.
Legal Issues
- Whether the defendant established contributory negligence on the part of the deceased, and if so, to what degree
- Whether the driver's admissions about alcohol and drug consumption were proved by the defendant as facts binding on the assessment of the deceased's contributory negligence
- What weight the court should give to the driver's police interview compared with her later oral evidence
- The quantum of damages to which the plaintiff was entitled for mental harm, past and future economic loss, out-of-pocket expenses, and domestic assistance
Decision
Contributory negligence: drugs and alcohol unproved. The defendant sought to argue that both the driver and the deceased were impaired by alcohol and drugs at the time of the crash. Neilson DCJ accepted that the driver had made admissions about consuming alcohol and drugs, but emphasised that those admissions did not bind the plaintiff. Critically, the defendant called no expert evidence to establish that any alcohol or drug remained present in the driver's blood or breath at the time of the accident, and led no evidence of how any such substance would have affected her driving capacity. On that basis, the defendant failed to prove this aspect of the contributory negligence plea.
Contributory negligence: sleep deprivation proved. The court found, however, that the deceased did contribute to his own death through his knowledge of the driver's prolonged sleep deprivation. The driver had been awake for approximately 32 hours, working a shift and then attending the dance party without sleeping. The deceased was aware of how long the driver had been awake. Significantly, the driver had asked the deceased twice to stay awake and keep her awake during the drive. The deceased fell asleep instead. The court found these circumstances established contributory negligence on the part of the deceased.
The contributory negligence fraction. Neilson DCJ rejected the defendant's claim of 70% contributory negligence and instead assessed the deceased's share at one-third. While the driver bore primary responsibility as the person actually at the wheel, the deceased's awareness of the risk created by the driver's exhaustion, and his failure to assist in keeping her alert, constituted a meaningful contribution to his own death.
Damages. The plaintiff's total damages (before reduction) were calculated at approximately $1,025,096, covering non-economic loss, past and future economic loss, out-of-pocket expenses, and past and future domestic assistance. The court declined to apply the traditional 15% vicissitude discount to future heads of damage, reasoning that the prospect of the plaintiff suffering some intervening misfortune within the six-year future period allowed was too remote to warrant the reduction. After applying the one-third contributory negligence reduction, the plaintiff was awarded $683,739.
Orders Made
- Verdict and judgment for the plaintiff against the defendant for $683,739
- The defendant to pay the plaintiff's costs
- Certification for counsel to take the judgment
Key Takeaways
- A defendant relying on a passenger's contributory negligence based on the driver's intoxication must adduce evidence that alcohol or drugs were actually present in the driver's system at the time of the accident and, if so, that they materially affected the driver's ability to drive. Admissions by the driver do not suffice to establish those facts against the plaintiff.
- Where a passenger knows the driver has been continuously awake for approximately 32 hours and is expressly asked to help keep the driver alert, falling asleep can constitute contributory negligence, even though primary responsibility for the crash remains with the driver.
- The District Court assessed the deceased passenger's contributory negligence at one-third rather than the 70% the defendant claimed, reflecting the proportionality between a driver's primary duty and a passenger's more limited obligation to take care for their own safety.
- Where a court limits its future damages assessment to a defined short period, it may decline to apply the standard vicissitude discount on the basis that the risk of an intervening misfortune within that narrow window is too remote to justify the reduction.
- The Motor Accidents Compensation Act 1999 and Civil Liability Act 2002 both applied to the assessment of this claim, with the Nominal Defendant standing in the position of insurer for the unregistered, uninsured vehicle.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW)
- Motor Accidents Compensation Act 1999 (NSW)
Cases
- Clyde v State of NSW (TAFE Commission) [1995] NSWCC 38; (1995) 12 NSWCCR 541
- Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15
- Zlojutro v GIO (NSW), Court of Appeal, 40569/89, 11 August 1995