K & S Freighters Pty Ltd v Nelmeer Hoteliers Pty Ltd

[2001] NSWCA 151

Reported Decision: (2001) 33 MVR 467

New South Wales

Court of Appeal

CITATION:	K & S FREIGHTERS PTY LTD v NELMEER HOTELIERS PTY LTD [2001] NSWCA 151
FILE NUMBER(S):	CA 40179/00
HEARING DATE(S):	8 May 2001
JUDGMENT DATE:	8 May 2001
PARTIES :	K & S FREIGHTERS PTY LTD v NELMEER HOTELIERS PTY LTD
JUDGMENT OF:	Mason P at 1; Handley JA at 27; Stein JA at 28

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 8960/98
LOWER COURT JUDICIAL OFFICER :	BELL DCJ

COUNSEL:	Appellant: M Cashion SC/ M W Hadley Respondent: C A Needham SC/ I G B Roberts
SOLICITORS:	Appellant: Shaw McDonald Respondent: Minter Ellison
CATCHWORDS:	Negligence - motor vehicle accident - property damage - driver suffers heart attack - failure to stop before crashes into hotel. (ND)
DECISION:	Appeal dismissed with costs.

CA 40179/00

MASON P

HANDLEY JA

STEIN JA

K & S FREIGHTERS PTY LIMITED v NELMEER HOTELIERS PTY LTD

JUDGMENT

1    MASON P: This appeal challenges a verdict in the District Court in which the respondent recovered judgment for $232,742 for damage done to its hotel. The damage was caused when an eight tonne International truck being driven by the appellant’s employee left the road and crashed into the side of the hotel, causing considerable property damage.

2    The driver, Mr Fitzhenry, was aged fifty-three at the time of the accident, which was in August 1996. Unfortunately, he died before trial. The only evidence from his lips as it were about the circumstances of the accident came from a signed statement he gave to the police and a medical history he gave to Emeritus Professor Hickie on 31 May 1999. Dr Hickie was a cardiologist consultant physician retained by the respondent’s solicitors.

3    To the police, Mr Fitzhenry said:

I was driving down Parramatta Road and I felt pain in my chest and arms. I took an Anginine tablet and afterwards felt a bit dizzy and sweaty. I wanted to get off Parramatta Road and turned left at the Rosehill Hotel. I don’t remember anything after that.

4    The history as recorded in Dr Hickie’s report is in the following terms:

On 19 August 1996 while driving his truck he experienced retrosternal chest pain as he approached traffic lights. He placed an Anginine under his tongue and felt faint and found he was sweating. He attempted to pull in to a side street but blacked out and recovered consciousness in his truck when he had run into a hotel building.

5    Dr Hickie concluded in light of other medical evidence that Mr Fitzhenry had had a myocardial infarct.

6    The traffic lights being approached that are referred to in the history recorded by Dr Hickie appear to be the lights at the intersection of Good Street and the Great Western Highway, Granville although it is possible it was a set of lights to the west of that point. As I say, the probability on all the evidence seems to be that it was the Good Street intersection.

7    Two blocks further to the east along the Great Western Highway, which was the direction the truck was travelling, is an intersection going off to the left of Alfred Street and the highway. The respondent’s hotel is on the corner. Mr Fitzhenry turned the truck left into Alfred Street, obviously seeking a place of refuge, proceeded about forty metres down from the highway before leaving the road and crashing into the side wall of the hotel abutting onto Alfred Street.

8    The trial was before a most experienced judge, Bell ADCJ. His Honour concluded that there was negligence by the driver which he summarised in the following terms:

I am of the view that as submitted by Mr Roberts the appropriate course was for the driver to stop his vehicle when he found that he was suffering the symptoms that I have described and not continued to Alfred Street.

9    This conclusion of negligence is challenged and that challenge is the sole issue that has been debated in this appeal.

10    The principal thrust of the appellant’s submissions is that the medical advice previously received by the driver and his own prior medical history and the experience which it gave did not establish, the onus of course being on the respondent, that there was negligence in the driver’s reaction to the symptoms he experienced on the road that morning.

11    The accident occurred at about 8.45am. I think the Court can take judicial notice of the fact that the Great Western Highway at Granville is a much frequented road. However, the P4 police report records that on the day in question the traffic density was light. We really have no other material to go on, nor did the trial judge have any other material to go on as to what conditions were like at the time.

12    The distance between the intersection of Good Street and the intersection of Alfred Street has not been measured. All the judge had to go on were two versions of the street directory and the photographs that give some indication of the distance. It certainly would appear to be a couple of hundred metres.

13    Emeritus Professor Hickie’s report provides the principal source of the information about the driver’s relevant medical history. He summarised that by stating that:

Mr Fitzhenry has coronary atherosclerosis with ischaemic cardiomyopathy, two previous myocardial infarcts, previous coronary artery bypass graft surgery and generalised vascular disease involving the coronary arteries, the vessels in his lower limbs and the carotid arteries. He is on appropriate but significant medical therapy at this time, has occasional angina and intermittent claudication.

14    The history of heart disease goes back to 1984 when Mr Fitzhenry began suffering chest pain and when he was first admitted to hospital to discover there that he had had a myocardial infarct. There was coronary bypass surgery in 1991. Nevertheless, it is clear that the heart problems remained. There were continuing episodes of chest pain diagnosed as angina pectoris and Mr Fitzhenry was taking Anginine tablets as required to relieve that pain. These tablets caused occasional flushing and heat in his head but not apparently faintness, according to the history that he gave to Dr Hickie. He had discussed with his medical advisers the appropriateness of him continuing working as a truck driver but had not been advised to give up such work.

15    The onset of the symptoms experienced by Mr Fitzhenry on the day in question prompted him to respond by taking an Anginine tablet which he obviously carried around with him at all times. I do not however read the medical evidence and in particular that of Professor Hickie as indicating that the side effect of that tablet was the cause of the accident. Professor Hickie concluded that Mr Fitzhenry’s loss of consciousness shortly before the accident was probably due to a drop in blood pressure related to the onset of a coronary thrombosis with a subsequent myocardial infarct. He noted that this may have been aggravated by the use of an Anginine tablet at this time but stated that the symptoms of angina preceded the use of the Anginine tablet.

16    As indicated, the learned trial judge concluded that in all of the circumstances the driver should have stopped his vehicle at least before continuing into Alfred Street. Had he done that, then self-evidently the particular crash and property damage that brings this matter to Court would not have occurred.

17    The appellant submits that this finding ignores the paucity of the evidence about the traffic conditions at the time. Leaving to one side the medical issue for the moment, it is submitted that his Honour did not know enough about the situation to have been able to have concluded that the driver should have stopped in Parramatta Road. It is submitted that it was 8.45am on a weekday. Nevertheless there is the P4 material to which I have adverted. It is obvious that the stopping of a large truck in a two lane highway on a Monday morning would cause considerable disruption. But bearing in mind that the relevant duty of care is one owed to people with regard to personal injury as well as owners of property, then if the circumstances called for that, then clearly that would be the appropriate response. I am not satisfied that his Honour erred in drawing that conclusion in light of the traffic density.

18    Like many tort cases that this Court deals with, this case turns upon a fairly close call as to whether negligence is established or whether this is a case of inevitable accident. This Court would require to be persuaded that the trial judge erred in his conclusion before overturning the judgment notwithstanding that it does not turn upon questions of credibility. I am not persuaded of that.

19    The principal thrust of the appellant’s submission was that the medical advice previously given to the driver, combined with his own experience of his heart condition and its symptoms, did not trigger a more radical response to the onset of the chest pain. More specifically, it did not enable the trial judge to infer negligence in all of the circumstances.

20    A considerable part of that submission related to the medical advice and/or personal knowledge of the side effects of the Anginine tablets. In my view, that is not ultimately relevant, given the opinion of Professor Hickie as to the probable cause of the accident. That cause was, as indicated, the myocardial infarct or heart attack, the first symptoms of which manifested themselves on this occasion at least two blocks back up the road.

21    The appellant also submitted that the report of Dr Wong, coupled with the material in Professor Hickie’s report, to the effect that the driver had received the medical imprimatur to continue his job as a driver meant that negligence was not made out on this occasion. I think that is to elide two different cases. The case that might have been brought but was not was a case that he should never have got in the truck in the first place. But this was not the case that was run. Rather, the case that was run and succeeded was that he had sufficient warning of a condition which might put the driving at risk for him to have responded by stopping the truck some time before turning into Alfred Street.

22    The relevant legal principles were summarised by this Court in Dowsing v Goodwin (1997) 27 MVR 43. In my judgment with which Handley JA and Powell JA agreed I said (at 45- 46):

Negligence law in Australia remains wedded to the fault principle and the requirement that the plaintiff bears the onus of proof. A plea of inevitable accident is simply a denial of negligence. A sudden and unheralded incapacitating event, such as a bee sting or a stroke, may preclude a finding of negligence where the driver had insufficient time to avert the ensuing accident. Since the duty is to take reasonable care, it follows that in Lord Blackburn’s words when a man is suddenly and without warning thrown into a critical position, due allowance should be made for this - but not too much. Not too much, because the reasonable driver is aware of the potential risk of the activity and may be expected to drive defensively in the sense of making some allowance for dangerous situations not flowing directly from his or her own neglect. Thus even when the driver is subject to a sudden and unavoidable onset of pain or other disabling factor, he or she will be expected to exercise reasonable care by slowing down or pulling over to the side of the road if such a reaction to the emergency is possible.

23    The authorities cited for the last-mentioned proposition were Roberts v Ramsbotham [1981] WLR 823 at 832 and Leahy v Beaumont (1981) 27 SASR 290.

24    Continuing, from Goodwin, I said:

A driver cannot take refuge in the fact that he or she was unconscious at the moment of impact if that dangerous situation was the product of lack of reasonable care. Even if the state of unconsciousness comes upon the driver unawares, there may still be liability if the driver should not have allowed himself or herself to be behind the wheel at the time.

25    In my view, Bell ADCJ did not err in the approach he took to the issue before him, nor in his conclusion on the facts. The report of Professor Hickie indicates that Mr Fitzhenry had a history of chest pain which had on occasions resulted in myocardial infarcts. It is true that that chest pain was capable of responding to Anginine tablets. The fact is that it was part of his known medical history and that history did include circumstances where that chest pain had progressed to a serious heart attack. This was, as I have said, a case reasonably close to the line. But I do not think that the trial judge erred when he concluded that in the circumstances of this case there was sufficient warning that something was amiss and that the response to that should have occurred prior to turning the truck into Alfred Street.

26    In my view, the appeal should be dismissed with costs.

27    HANDLEY JA: I agree.

28    STEIN JA: I also agree.

29    MASON P: That is the order of the Court.

***********