Nominal Defendant v Rowland-Smith

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NEW SOUTH WALES COURT OF APPEAL

CITATION:      The Nominal Defendant v Rowland-Smith [2003]  NSWCA 65

FILE NUMBER(S):
40286/01

HEARING DATE(S):               05/03/2003

JUDGMENT DATE: 04/04/2003

PARTIES:
The Nominal Defendant  (Appellant)
Judith Louise ROWLAND-SMITH  (Respondent)

JUDGMENT OF:       Giles JA Santow JA Gzell J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 2352/98

LOWER COURT JUDICIAL OFFICER:     Clifford Boyd-Bowland ADCJ

COUNSEL:
J D Hislop, QC  (Appellant)
D Campbell, SC /F Tuscano  (Respondent)

SOLICITORS:
Moray & Agnew  (Appellant)
Leitch Hasson Dent  (Respondent) 

CATCHWORDS:
NEGLIGENCE- challenge to Trial Judge's findings of fact - causation - contributory negligence - duty and standard of care of a highly experienced cyclist
NEGLIGENCE - assessment of damages - whether Trial Judge's discretionary assessment of damages should be set aside

LEGISLATION CITED:

DECISION:
1.  Verdict and judgment for $841,223.40 set aside and in lieu thereof, verdict and judgment for $776,348.40
  2.  In all other respects, the appeal is dismissed
  3.  Appellant to pay the Respondent's costs of the appeal.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40286/01
DC 2352/98

GILES JA
SANTOW JA
GZELL J

4 APRIL 2003

THE NOMINAL DEFENDANT  v  Judith Louise ROWLAND-SMITH

Catchwords

NEGLIGENCE  -  challenge to Trial Judge’s findings of fact – causation – contributory negligence – duty and standard of care of a highly experienced cyclist

NEGLIGENCE  –  assessment of damages – whether Trial Judge’s discretionary assessment of damages should be set aside

Facts

The Respondent suffered serious injuries after she collided, while riding her bike, with a parked car. The Respondent gave evidence that she swerved into the parked car to avoid impact with an unidentified vehicle that she sensed was approaching her from behind. In undertaking the swerve, the Respondent had intended to avoid the parked car, but accidentally did not. The Respondent was a highly experienced cyclist and gave evidence that she could sense the proximity of a vehicle approaching from behind. The Respondent at first instance was successful in her negligence claim against the Appellant and the Appellant’s claim against the Respondent of contributory negligence failed.

Held per Santow JA, Giles JA and Gzell J agreeing:

  1. The finding of the Trial Judge that the driver of the unidentified vehicle had been negligent was supported by evidence and was fundamentally based on the Trial Judge’s assessment of credibility of witnesses. There was no incontrovertible fact, consistent only with the opposite conclusion, or which rendered the Trial Judge’s findings glaringly improbable.

  2. The failure of the Respondent, an expert cyclist, to properly execute the difficult swerving manoeuvre required, in a split second emergency, to avoid the approaching car, did not amount to negligence. It neither interrupted causation nor constituted contributory negligence.

  3. In evaluating the reasonableness of the Respondent’s conduct it is appropriate to have recourse to the “agony of the moment” rule as restated more broadly that “[t]he reasonableness of a defendant’s conduct must be judged according to the circumstances of the particular case” (per Stein JA in Abdallah v Newton (1998) 28 MVR 364). In…

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Details
Case
[2003] NSWCA 65
Decision Date

CaseChat Overview and Summary

The appeal concerned a negligence claim brought by the Respondent against the Nominal Defendant. The dispute centred on the Trial Judge's findings of fact regarding causation and contributory negligence, and the subsequent assessment of damages. The Respondent, an experienced cyclist, alleged she was forced to take evasive action due to an unidentified negligent driver, resulting in her collision with a parked car. The Appellant challenged the Trial Judge's acceptance of the Respondent's account of the unidentified vehicle and her subsequent actions.

The court was required to determine whether the Trial Judge erred in finding that the Respondent's actions did not interrupt causation or constitute contributory negligence. Specifically, the court had to consider whether the Respondent, as a highly experienced cyclist, acted reasonably in her response to a perceived risk from an approaching vehicle. Furthermore, the appeal challenged the quantum of damages awarded, with the Appellant arguing that the assessment for non-economic loss was excessive and that a discount for vicissitudes should have been applied differently.

The court upheld the Trial Judge's findings regarding causation and contributory negligence, concluding that the Respondent's actions were a reasonable response to a perceived risk. The court found that the Respondent was not negligent in her attempt to avoid the perceived danger, given the split-second nature of the manoeuvre. However, the court did find that the Trial Judge's assessment of damages for non-economic loss was excessive. The court reduced the award for non-economic loss, finding that the Trial Judge's assessment of 75% of a most extreme case was too high.

Consequently, the verdict and judgment for the Respondent were set aside and a reduced judgment of $776,348.40 was entered in lieu of the original $841,223.40. The appeal was otherwise dismissed, and the Appellant was ordered to pay the Respondent's costs of the appeal.

Orders

Orders of the court

1. Verdict and judgment for $841,223.40 set aside and in lieu thereof, verdict and judgment for $776,348.40

2. In all other respects, the appeal is dismissed

3. Appellant to pay the Respondent's costs of the appeal.

Background

Background to the litigation

Most of the factual circumstances are not in dispute. This is save as to the critical matter of whether there was or was not an unidentified car and if there was, whether the driver of that unidentified car had been negligent. I start with uncontroversial facts concerning the Respondent’s background. Background to Respondent The Respondent was 50 years of age at the time of the accident. She had been a successful schoolgirl athlete. She had represented her State in hockey, running, touch football and had played a lot of squash and tennis (Black, 3M-O). Her first marriage was to a successful first grade rugby league player and coach (Black, 2X-3E). She operated a fitness centre on the Gold Coast with him in the early 1980s (Black, 3F). At the age of 44, she became interested in triathlons and commenced a rigorous training program (Black 4I-M). This was for the Olympic distance involving a 1.5 km swim, 40 km ride and a 10 km run (Black 4R-V). Her outstanding sporting achievements are set out at Blue, 1-30. In 1993 she competed at the World Veterans Games in Japan. She represented Australia in triathlon in Manchester and at the Royal Track and Field Veterans event in Japan (Black, 5C). She held the World 800 m record for her age group in 1993 (Blue, 26). In 1995 she competed at the World Veterans Championships in Buffalo, New York (Black, 6C) and won silver and bronze medals (Black, 6E). At the time of the accident, the Respondent was training for the World Veterans Athletic Championships to be held in Durban in July 1997 and the World Triathlon Championships to be held in Perth in October 1997. Her training regime included riding 300 kilometres per week on the open road (Black, 5M-Q; Black, 20G-I). She described herself as a “defensive” driver. She was doing sprint and endurance running at least three times per week and swimming three mornings per week (Black, 5S-Y). She also did weight training. She regularly trained with athletes who had attained Olympic standard (Black, 7K). She worked full-time and ran a home (Black, 4O-R; Black, 6S-W). By 1995 the Respondent had married her second husband who was an athletics coach and a physical education teacher. Apart from coaching, he also competed in track and field events including triathlons and marathons (Black, 6O). At the end of 1996 her husband resigned from his teaching job and started a business as a fitness consultant. She had intended to become involved in that business (Black, 7H). The accident The Respondent set out on a 30 km training run on her bicycle at about 7 am on Monday 27 January 1997 (Black, 7R-J). She was riding a Cannondale racing bike, which she had owned for about five years (Black, 8R-V). She was wearing a bright floral, hot pink top and a helmet (Black, 8V-9G) and black lycra pants with white piping. There was no dispute as to her visibility on what was a sunny morning. Traffic conditions were light and the road was dry. The speed limit was 70 km per hour. The accident occurred outside 913 Pittwater Road, Collaroy about 700 m east of South Creek Road and about 15 m west of the start of a 55-kph left hand curve. The Respondent was familiar with the road as all of her training involved travelling on it (Black, 9P).

Evidence

Evidence Before The Court

By the time that she was discharged from Moorong she was able to walk with the assistance of canes. After her release, she continued to do nothing but exercise and attend to her rehabilitation (Black, 25R; 25T). Lay evidence The first ground of attack required the Appellant to establish that notwithstanding the Trial Judge’s acceptance of the Respondent as an honest, credible witness, that she was either mistaken, or lying, about the unidentified vehicle being reasonably perceived as in the lane behind her, and closing up on her. This the Appellant primarily sought to do by resort to what the Respondent said, and did not say, to ambulance officers, hospital staff and the police both contemporaneously with the accident and in the period following. In particular, that only to her husband did she mention the unidentified car closing behind her, so (it was contended) suggesting that she was lying. This is said to be because, in speaking to the other witnesses, she described her accident merely in terms of colliding with the second car with no mention of a car closing in behind her. When the Police Officer, Senior Constable Scott Murphy, arrived at the scene of the accident, the Respondent was lying on the roadway behind a parked vehicle with the bicycle still connected underneath her (Black, 53T). He did not take statements on the day of the accident (Black, 54 F) but next day (see below). Mr Mirabito, though he had an opportunity to speak with the Respondent, was not asked about any conversation (Black, 63-72). The only other lay witness who might have had occasion to speak to the Respondent in her injured state that day before she was admitted to hospital was the ambulance attendant. At Blue, 116 there is a note in the “Patient Report”, under the heading “Chief Complaint”; “This 50 year o[old] into parked car” (sic). Mr Hislop, QC for the Appellant sought then to rely on (i)this record, made when her “Glasgow Coma Scale” was 15, in order to demonstrate that she was oriented, and (ii)the omission of any reference to the unknown car in that or any of the later hospital notes, which only refer to the collision with a stationary or parked car. As to (ii) above these comprise (a)Hospital Records dated 27 January 1997 (Blue, 33J; 38J; 40G; 43G; 45H; 50E; 51G; 51M; 165N) and 28 January 1997 (Blue, 57V-W; 58M) and 5 February 1997 (Blue, 85Q); (b)Interagency Nursing Transfer undated (Blue, 100M); (c)Reports of Dr Nguyen dated 27 March 1997 (Blue, 123P); (d)Report of Occupational Therapist Ms Jo-Anne White dated 27 March 1997 (Blue, 225Q); (e)Surgical operation notes dated 30 January 1997 (Blue, 159N); (f)Pain Team Consultation Sheet undated (Blue, 166H); (g)Report of Ms Eva Pilowsky dated 9 February 1998 (Blue, 171); (h)Handwritten notes of patient history undated (Blue, 232R). It would not be unexpected that the hospital records and the various reports describing the accident in terms of what was medically relevant simply replicated what had been said in previous reports, originating with the first report, without being based on any contemporaneous questioning of the Respondent. There was no cross-examination to elucidate this. Thus not much need be attributed to the mere weight of repetition of the omission of reference to the collision, as distinct from the collision itself, when only the latter would be relevant in a medical context.

Decision

Reasons for decision

GZELL J
As to answer (g), failure to look behind when she heard the sound of the approaching vehicle, that incorrectly presupposes that she would have had time to do so, and still have a chance of executing any necessary avoidance manoeuvre in the split second available to do so. Conclusion There is no basis for concluding, contrary to the findings of the Trial Judge, that the Respondent’s actions or omissions interrupted causation, or constituted contributory negligence. This was not a beginner cyclist who wobbled, lost control or suffered a lapse of concentration at the sound of some traffic, misplacing its location. She was an expert who took a deliberate, reasonable measure, forced on her in reaction to a reasonably perceived risk. It was however a risk with potentially disastrous consequences, namely being hit, unprotected, by a fast-moving car. The risk of the latter was fairly perceived to exceed the risk attendant on the manoeuvre to avoid danger. Though the latter was clearly difficult to execute in the split second available to carry it out, she was not shown to be negligent in only just failing to carry it out. Damages The first attack is upon the assessment of non-economic loss at 75% of a most extreme case. The Appellant would substitute 55% to 60%. It is submitted that such assessment is excessive because (quoting from the Appellant’s written submissions): “(a) the plaintiff is a married woman born on 6 October 1946; (b)it is undoubtedly the case that she sustained serious injuries which had the potential to render her permanently quadriplegic. Fortunately this did not occur; (c)the plaintiff has not lost major functioning powers nor has she suffered any form of brain damage (Red, AB, page 27S-T); (d)she is capable of and has returned to a fitness regime which is regular and arduous (Red AB, page 27Q-R, Black AB, page 47Q-48D, 51E-52C); (e)she has returned to employment which she will be able to maintain to a greater or lesser degree for some considerable time (Red AB, page 27R-S, Black AB, page 46I-50L); (f)she is able to drive a motor vehicle without difficulty (Black AB, page 32L-P); (g)she is able to do virtually all housework Black AB, page 32J-L); (h)she presents as a positive, fit woman who has got on with her life since the accident(h) she presents as a positive, fit woman who has got on with her life since the accident.” To this the Respondent replies as follows (quoting from the Respondent’s written submissions): “59.The assessment of damages for non-economic loss at 75% of a most extreme case was at the low end of the range. Nevertheless, the trial judge was best placed to assess the extent of the respondent’s injury and the ongoing effect that it has had on her. He had the benefit of seeing and assessing her and after considering her evidence and the medical reports, he concluded that she had a tendency to understate her problems. 60.The respondent's oral evidence with respect to ongoing disabilities included evidence that she has very little, if any, involuntary movement. That she had to “talk to her legs” to get the message to them and make them move (Black 25M-R). Her whole body was stiff and on some occasions her legs have "a mind of their own" and she has to concentrate in order to get them to move at all (Black 26G-S). 61.She has days when all she can do is "fall out of bed" when "nothing's going to work" and she cannot do very much. She experiences "heavy pins and needles" and burning sensations in her hand and leg particularly when sitting and lying down. Her right leg feels like a block of cement. Her sleep is constantly interrupted by spasms and she only manages 2-3 hours of uninterrupted sleep per night (Black 33E). She experiences severe grabbing cramps and spasms during the day as well as the night (Black 27V-28W). She always feels tired (Black 33C). 62.She continues to have pain in her right hand and neck (Black 32W). Her back continues to give her problems with spasms requiring her to have regular massage and acupuncture. This can keep her out of action for up to two weeks at a time (Black 31C). 63.Her ability to enjoy sexual activity has been severely diminished because of pain and she has lost the ability to orgasm (Black 31J-R). Her relationship with her husband has become strained and she feels that she is no longer "the person that he married" (Black 33O). 64.She lost some of her teeth, has scarring and has trouble breathing through her nose (Black 33C-W). 65.She continues to have bowel and bladder weakness, which can lead to embarrassing episodes (Black 31S-32I). 66.She cannot do heavy housework (Black 32J). She cannot drive a manual vehicle (Black 32M-P). 67.She still suffers episodes of depression and tearfulness in public and in private. She has become more introverted (Black 33H-N). 68.She still has problems with her balance. Her balance problems have not allowed her to get back to bicycle riding in any serious way and she does not have sufficient strength in her legs and her hand to properly control the gears and brake (Black 26T-W). 69.She has had significant weight loss and has to constantly exercise in order to maintain her weight and stop her muscles from wasting (Black 26D). She can jog slowly but not on some days (Black 26L). 70.She has lost the ability to compete as an athlete, which she expected that she “would be able to do forever” (Black 29B). 71.Although she maintained a job, she only maintained it because of a sympathetic employer. She could work as she chose except that she had to be available on one particular day every month. By the end of the day's work her energy levels were very low (Black 27L-V). 72.Otherwise, there was no significant difference in the opinions expressed in the medical reports and all the evidence was that the respondent's condition would deteriorate significantly in the future.”

Ratio Decidendi

Legal Principle Established

Established by: GZELL J

On appeal the Appellant challenges each of those conclusions, principally by attacking the findings that underlie them. It also challenges the quantum of damages submitting that: (a)the Trial Judge’s determination that damages for non-economic loss should be assessed, not as the Trial Judge did, at 75% of a most extreme case (i.e. $231,000), but at 55% to 60% of a most extreme case (i.e. $170,000 - $185,500), and (b)the Trial Judge should have applied a discount factor for vicissitudes as to future economic loss of 15%, this being conceded by the Respondent, and (c)the Trial Judge’s conclusion that she would work to age 70 was in error; age 70 was justifiable only if the discount for vicissitudes was increased to 25% to take account of her greater risk of illness at that age. ELABORATION OF FACTUAL CIRCUMSTANCES Most of the factual circumstances are not in dispute. This is save as to the critical matter of whether there was or was not an unidentified car and if there was, whether the driver of that unidentified car had been negligent. I start with uncontroversial facts concerning the Respondent’s background. Background to Respondent The Respondent was 50 years of age at the time of the accident. She had been a successful schoolgirl athlete. She had represented her State in hockey, running, touch football and had played a lot of squash and tennis (Black, 3M-O). Her first marriage was to a successful first grade rugby league player and coach (Black, 2X-3E). She operated a fitness centre on the Gold Coast with him in the early 1980s (Black, 3F). At the age of 44, she became interested in triathlons and commenced a rigorous training program (Black 4I-M). This was for the Olympic distance involving a 1.5 km swim, 40 km ride and a 10 km run (Black 4R-V). Her outstanding sporting achievements are set out at Blue, 1-30. In 1993 she competed at the World Veterans Games in Japan. She represented Australia in triathlon in Manchester and at the Royal Track and Field Veterans event in Japan (Black, 5C). She held the World 800 m record for her age group in 1993 (Blue, 26). In 1995 she competed at the World Veterans Championships in Buffalo, New York (Black, 6C) and won silver and bronze medals (Black, 6E). At the time of the accident, the Respondent was training for the World Veterans Athletic Championships to be held in Durban in July 1997 and the World Triathlon Championships to be held in Perth in October 1997. Her training regime included riding 300 kilometres per week on the open road (Black, 5M-Q; Black, 20G-I). She described herself as a “defensive” driver. She was doing sprint and endurance running at least three times per week and swimming three mornings per week (Black, 5S-Y). She also did weight training. She regularly trained with athletes who had attained Olympic standard (Black, 7K). She worked full-time and ran a home (Black, 4O-R; Black, 6S-W). By 1995 the Respondent had married her second husband who was an athletics coach and a physical education teacher. Apart from coaching, he also competed in track and field events including triathlons and marathons (Black, 6O). At the end of 1996 her husband resigned from his teaching job and started a business as a fitness consultant. She had intended to become involved in that business (Black, 7H). The accident