Nominal Defendant v Rowland-Smith

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:

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.
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.
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 the circumstances of this particular case the Respondent was faced with an impending emergency that required her to make a split second decision.
It is not for this Court to tinker with the Trial Judge’s discretionary determination of damages. Nor is it for this Court to substitute its own discretionary judgment within a range of legitimate differences, when no appellable error of the kind justifying intervention has been identified.

ORDERS

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

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

Judgment

GILES JA: I agree with Santow JA
SANTOW JA:
INTRODUCTION AND OVERVIEW
The Respondent was injured when she collided on her bike with the second of two parked cars about 22 metres apart on 27 January 1997 in daytime conditions of good visibility. At the time, the Respondent had been cycling up an incline on Pittwater Road Collaroy and was travelling at approximately 30km/h. She said that she sensed a car was fast approaching her from behind when she was in the left-hand side of the second of three lanes going east. She said that as she thought it was too close, she corrected to the left from the second lane after she passed the first parked car, thinking she could then avoid the second parked car. But she just failed to do so.
The Respondent was an expert, highly experienced, skilled cyclist who had competed in international triathlons and had been currently successful in “Masters” competitions. Her evidence was that she rode something in the order of 300 kms per week and had done so for some years and, through that experience, she claimed she was able to tell in what lane a vehicle coming from behind was likely to be. The Trial Judge recounts her evidence (Red, 13) that she continued to hear the vehicle as it approached and formed the view it was in her lane. “She could hear it, and sense movement and sensed it was getting close to her”. The Trial Judge accepted that evidence (Red, 20M, O to V).
The Respondent suffered serious facial and spinal injuries. She has undertaken a gruelling rehabilitation program and through her determination her recovery has been regarded as excellent. The Trial Judge having accepted her account, made the following findings:
“I find on a balance of probabilities the Plaintiff had entered lane 2 to pass the first parked car and was forced to deviate back into the kerb lane because of the reasonable perception she would otherwise be hit by a vehicle approaching from behind. To do otherwise, as she saw it, would be to court disaster. I find the manner in which this unknown and unidentified vehicle approached the Plaintiff involved negligence on the part of its driver as pleaded by the Plaintiff. I find the Plaintiff’s evidence demonstrates it was being driven at an unsafe speed and there was a failure on the part of its driver to keep a proper lookout and a total failure to warn the Plaintiff of its approach. The consequence was that it came to be driven too close to the Plaintiff causing her to take evasive action.”
Those findings grounded the Trial Judge’s conclusion that:
(a)there was an unidentified car,
(b)its driver had been negligent,
(c)negligence caused the injuries suffered, and
(d)there was no contributory negligence on the part of the Respondent.
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
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).
Pittwater Road relevantly runs east-west and consists of three traffic lanes in each direction divided by a central median strip. The eastbound traffic lanes are divided by broken lane lines, the kerbside lane being about 3.6 metres wide, the other lanes being about 3.2 metres wide.
West of No. 913 Pittwater Road is essentially straight with T junctions being formed on the northern side of it by South Creek Road, Westmoreland Avenue and Hadleigh Street. South Creek Road is approximately 700 metres west of No. 913. The approach to No. 913 is uphill.
Approximately 15 metres east of, and thus beyond, No. 913 a fairly sharp left hand curve commences (Blue, 398O).
At about the intersection of South Creek Road and Pittwater Road, that is 700 metres west of No. 913 Pittwater Road, she passed a cyclist travelling very slowly on a mountain bike (Mr Murphy) (Black, 16T-R). She proceeded up the hill in the centre of the kerbside lane (Black, 17N).
She had been and continued to ride up the hill at about 28-30 km per hour (Black, 18Q) accelerating to "work the hill" (Black, 18S). She rode back in her saddle (i.e. with her head up) looking ahead (Black, 11E; Black, 36F-L) as this was a requirement of her training (Black, 10T-W).
She saw two parked cars up the hill about 100 m ahead close to where the road curved (Black, 17U) on the kerbside lane ahead of her (Black, 36A-E). The second of these parked cars was a Camira. It was in her mind that she had to pass the parked vehicles (Black, 17W), which were metres apart, probably the length of a cricket pitch (Black, 18E; Black, 36E) or as she also said, some 22 metres apart (Black, 17R-18F). When she was a short distance from the first parked car (Black, 18I), that is some 10 to 20 metres, she moved out from the kerbside lane before the first parked vehicle after indicating with her right hand and looking over her shoulder to see if there were cars in the centre lane (Black 18K-X), but saw no car in that centre lane (Black, 18J-M, W). She described herself moving to the southern side of the kerbside lane or slightly into the next (middle) lane.
She had so moved into the left hand side of the middle lane, having in mind that she needed clearance in case the doors of the parked vehicles opened (Black, 18X; 19C). She intended to pass both parked vehicles and return into the kerbside lane depending on what she found around the corner (Black, 19S), as the Trial Judge accepted. As she approached the first of the parked cars she said she heard a car "coming down" from behind (Black, 19U-20D). She said she could hear it accelerating and could sense it approaching in the lane in which she was travelling (Black, 20I-S; 44O-R) and said she sensed it was getting too close. In that context, she said, and the Trial Judge accepted (Red, 13M, 20M), that riding as she did some 300 kms per week for some years, through that experience she was able to tell in which lane a vehicle coming from behind was likely to be. The Trial Judge thus found on the balance of probabilities, with her acknowledged expertise from road-cycling “that that experience creates a mind-set concerning the conduct of others, on the road and creates an automatic reaction” (Judgment Red, 20M).
The Trial Judge found “on a balance of probabilities that the Plaintiff had entered lane 2 to pass the first parked car and was forced to deviate back into the kerb lane because of the reasonable perception she would otherwise be hit by a vehicle approaching from behind.” Her evidence was that to avoid a collision, she corrected to the left thinking that she could get back around the second vehicle after the unidentified vehicle had passed (Black, 20TW). Thus she said “I thought I could get in there and get back out again around the parked car and that’s what I attempted to do” (and see also Black, 45R). Unfortunately, she was, just, unable to "correct back out again in time" (Black, 21E; Black, 41S-W) and collided "face first" into the back of the top right hand corner of the second parked vehicle (Black, 21F; 22E; Blue, 50). Her helmet, which was tendered in evidence, was undamaged. The facial damage was to her mouth and nose.
The Respondent fell but remained attached and tangled in her bike (Black, 21W; Black, 22H-P). She recalled the ambulance attended to her at the scene and the ambulance trip but nothing much after that (Black, 22R-23O).
On 31 January 1997 she underwent a C5/6 anterior cervical decompression and fusion. She was told that she would be unable to walk (Black, 24O). She did not accept this and became consumed with her rehabilitation and walking again (Black, 24T-W).
On 18 February 1997 the Respondent was transferred to Moorong Spinal Unit. At the Unit she worked at the gym every day from after breakfast until they "threw her out at about six" (Black, 25H).
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.
Against any significance in that omission to others is both her own statement of 1 September 1997 (Blue, 325 at 327) and the evidence given in Court of the Respondent’s husband, being his account of what she said to him. It is accurately paraphrased by the Trial Judge (Red, 15) as follows:
“The Plaintiff’s husband, Rob Rowland-Smith, also gave evidence, saying he had attended his wife at Hospital when she was in intensive care. He was there when she woke and noted she could only move her eyes and mouth. When asked what had happened, she had said she was riding her bike and felt something close, turned her head and the next thing she recalled was being on the ground. She did not specifically mention a parked car. In cross-examination he added that she had said she thought there was a car and she had the feeling it was a moving vehicle at her side.”

The husband in evidence (Black, 59B-E, 59W) mentioned that she repeated that explanation on one or two other occasions at the hospital, without pinpointing precisely when.
Senior Constable Murphy did however speak to the Respondent at Royal North Shore Hospital Spinal Unit during the early afternoon of the day following the accident (Black, 54L; 54W). He said that she had told him that she hit a parked car but that she could not remember anything else about what happened (Black, 54Q; 55P).
He understood that she was a paraplegic (Black, 55I) and she appeared in pain and was groggy (Black, 55L-O). He had been told that she had just taken a sedative and painkillers and that she was not fit to be interviewed (Black, 55R; 57F). Notwithstanding this, he persisted in interviewing her (Black, 55T-56T) until a nurse told him that he had to leave (Black, 57L).
As to the husband’s evidence, the Trial Judge concluded (Red, 16):
“The Defendant argued I should reject this evidence since it was not supported by the Plaintiff and was not information relayed to the Plaintiff’s solicitors, I do not believe the evidence establishes that, although it is true that at one stage the Plaintiff did say she did not recall telling that to her husband. Later she came to say she did. To me, that is more evidence of her basic honesty and the likely state of her awareness on the day of the accident than it is evidence of any inconsistency. I also see it as evidence of her likely condition when she was interviewed by Constable Murphy and of the danger which would arise if one accepted what he heard as evidence of a fact which precluded the presence and involvement of a motor vehicle in this incident. It is reasonable to accept the Plaintiff was then in no condition to properly respond to the constable’s questioning. I do not accept that the records of the Ambulance or admission notes of the Hospital can be accepted as providing evidence of a statement by the Plaintiff and I note no one was called to suggest they do.
Accordingly I have no reason to doubt that Mr Rowland-Smith was accurately recording, in his evidence, what had passed between him and his wife shortly after this accident. I should note, in that context, the evidence of there now being a strained relationship between them.”
The Respondent’s Counsel Mr Campbell, SC points out that no witness was called by the Appellant to ascribe the form of question asked of the Respondent by the ambulance attendant or by the hospital, nor by Dr Nguyen at Moorong (Blue, 123) nor by her chiropractor a year after the accident (Blue, 172). It was not surprising that she gave to those various people who spoke to her in a medical or hospital context, an explanation of the immediate and physical cause of her injuries, namely the end-point of a collision with the (parked) car. As she said (Black, 37P-T):
“Q. I suggest to you that at no time did you ever offer to any of those persons who inquired the reason that you give the Court today that you were forced off the road because of a vehicle coming behind you or that you were scared because of the vehicle behind you causing you to deviate into a parked car?
A. I think at that stage I was just trying to get better. People used to ask me ‘what happened’ and I would just say ‘I hit a parked car.’”
Senior Constable Murphy does not, however, fit in that hospital or medical category of enquirers. But she was in pain and sedated when he pressed his questions upon her. It is true that the same can be said of her state in intensive care when her husband spoke to her, but it must be remembered he was no stranger to her, and it was open to the Trial Judge to accept his evidence as he did.
This is a case where the Trial Judge has had the advantage of having seen the Respondent and her husband, to test their veracity. If they were cooking up a story together, it would not readily fit the spontaneous way in cross-examination she blurted out in court her talking to her husband about the car coming from behind (Black, 37V-38E), Her husband provided substantiation later that day in Court (Black, 58-60). He confirmed that the conversation with her which mentioned the other car, was when she was in intensive care in hospital that day.
The credibility of the Respondent was wholly accepted by the Trial Judge (Red, 19-20):
“The Plaintiff did not seek to put a gloss on her story concerning the events leading to her accident. She simply said she had felt threatened by a motor vehicle approaching from behind and perceived to be in the lane she had entered in the context of passing the parked vehicles. She did not seek to glorify her story as she might well have been able to do, by identifying a make, model or colour of the motor vehicle. She did not assert more forceful conduct by its driver. Consistent with her understatement, which seemed to me a feature of her evidence, she restricted her allegation of fact.
The Trial Judge (Red, 19) then tests the veracity of her story by considering and rejecting three alternatives to her story (I return to the second, concerning Mr Mirabito, an NRMA driver, later):
“One needs to look therefore at the alternative to her story. If there was no other vehicle then it is necessary to accept that this highly qualified and experienced cyclist, working hard, as she pedalled up the hill with her head raised, moved from the kerb-side lane around a vehicle which was parked in that lane and then for a reason that is unexplained moved back into the kerb lane and came into collision with the second of the two parked vehicles.
……
The third alternative would have a vehicle in lane 2, proceeding in the absence of any negligence as to its driving, with the Plaintiff somehow making assumptions that it constituted a threat to her, when it did not, and taking evasive action as a consequence. That, to my mind, also flies in the face of the acknowledged expertise of the Plaintiff secured during her long-term commitment to road cycling. She says, and I accept on a balance of probabilities that that experience creates a mind-set concerning the conduct of others, on the road and creates an automatic reaction.”
Evidence of second cyclist Andrew Murphy (Blue, 365-366)
Mr Andrew Murphy said that he did not see the accident and that he did not have any idea how it happened (Blue, 365K). He first saw the Respondent when she overtook him between the intersection of Pittwater Road and South Creek Road and the intersection of Pittwater Road and Westmoreland Avenue. He was riding just above walking pace. When the Respondent passed him she “was flying” and travelling at least 3 or 4 times as fast as he was travelling. She disappeared out of his vision as she rode up the hill. The Respondent’s expert Mr Schnerring, as does the Trial Judge, thus accepts that he was travelling no more than 10 km/h.
He said that he was not particularly aware of other vehicles and that there was light traffic. He estimated that a period of 3 to 5 minutes elapsed from the time when she overtook him to when he drove past, stopped, and returned to her on the roadway. He rendered assistance and saw that she was bleeding profusely from the nose and mouth and that all of her teeth had been knocked out. Mr Andrew Murphy also gave evidence that he arrived at the accident scene at the same time as the next lay witness, the driver of an NRMA truck, Mr Mirabito.
Evidence of Mirabito
He said that he was travelling in the third or centre lane up the hill when he first noticed something that he thought was “out of the ordinary” towards the footpath between two parked vehicles. He thought, "something had fallen over". He did not realise that a bicycle was involved and he did not see anything falling over (Black, 68B-J). He said that it was possible that there had been another vehicle but that he had no reason to remember (Black, 68R; Black, 71B).
He pulled over and parked his NRMA van in the kerbside lane about two car lengths in front of the parked vehicle and before the bend (Black, 66I-O). When he got to the scene of the accident he saw the Respondent tangled up in a bike (Black, 65G).
He did not remember passing any cyclist as he was concentrating on the road (Black, 66T-X). The first time that he was aware of any other cyclist was when Murphy arrived on the scene. He arrived on the scene at the same time as the first cyclist (Black, 65V; 66F; 68P; 71I).
He was asked about the words "flurry of action" which were in a written statement attributed to him in these terms:
“As I approached the top of the hill where the road bends to the left, out of my peripheral vision to my left I saw a flurry of action which suggested to me that something out of the ordinary may have taken place… My first impression was that someone had fallen off a push bike… I do not recall seeing a car in the middle lane between myself and the kerbside lane… I definitely did not see another car force the pushbike rider into the back of a parked car… I stopped my car… walked back to where I thought that I had seen the accident take place”. (Blue, 369K-W)
Mr Mirabito when cross-examined said that they were not his words (“flurry of action”) but the words of the person who took the statement. He agreed that he simply saw something, which he thought, might have been a “pushbike rider who had fallen off" (Black, 72E-K). If he saw any movement, he was not sure what it was (Black, 72S-W). He said that he did not force the Respondent off the road (Black, 72W). That tends strongly against the Appellant’s hypothesis (Orange, 16) that Mr Mirabito might have been the unidentified driver, more especially as he was, on his own evidence, in the third or centre lane and thus never behind the Respondent in the Respondent’s lane.
Mr Mirabito's written statement is at Blue, 369-371. He said that prior to becoming aware of something “out of the ordinary” on the road he had not noticed a pushbike rider on the road or a parked car. Something simply caught his attention and he thought that he should stop and take a look.
His first impression was that someone had fallen off a pushbike but he was not sure whether it had happened on the road or on the footpath. He said that he did not recall seeing a car in the middle lane but that he was not saying that there was no other car.
He said that traffic conditions were light and that there were other cars on the road and that it was possible that there was another car and that he was simply not paying attention. He pulled over and stopped about 10 m in front of the second parked vehicle.
He said that he then walked back to where he thought he had seen something and when he got there he saw another pushbike rider who “had been coming up the hill and stopped”. He placed seeing the injured cyclist after he saw the pushbike rider stop.
The expert evidence
Mr Schnerring, consultant engineer, provided a report dated 2 February 2000 (Blue, 374-409). His conclusions were based on consideration of the place where the respondent overtook Mr Murphy and their relative speeds (Blue 388N-R), the time that it would have taken Mr Murphy to arrive at the crash site and the fact that Mr Murphy and Mr Mirabito arrived at the crash site at the same time. That they did arrive at the same time was according to Mr Murphy’s evidence. Mr Schnerring concluded that Mr Murphy and Mr Mirabito must therefore have arrived at the crash site about 2 minutes after it had occurred and thus that Mr Mirabito was about 2.5 km away from the crash site when it occurred (Blue, 389E). Hence it must follow that Mr Mirabito played no role in causing the accident. He also concluded that the unidentified vehicle, if it had been travelling at 70-80 km/h, would have been out of sight and around the curve in 1.5 to 3 seconds after impact. (Blue, 389M).
The Appellant points to this evidence as being pivotal to the Trial Judge’s deciding in favour of the Respondent (see also his costs judgment, six months later, in Orange, 245 where he confirms the importance of the expert evidence). It is also, says the Appellant, wrong. The Appellant submits it is wrong because the Trial Judge having accepted Mr Mirabito as an honest witness, then must accept his other evidence, upon which he was not re-examined. It was that there was a time lapse of three minutes between him observing the flurry of action and reaching the Plaintiff, including parking and walking back. Thus (Orange 16):
“Mr Schnerring’s hypothesis was false. Mr. Mirabito’s evidence, upon which he was not re-examined, was that there was a time lapse of three minutes between him observing the flurry of action and reaching the plaintiff. His Honour did not make reference to this evidence in his judgment. Such evidence confirms Mr Mirabito’s vehicle, contrary to his Honour’s findings, was virtually alongside the plaintiff when the fall occurred and may have played a vital role in influencing the course taken by the plaintiff in that it is probable that what the plaintiff heard was the sound of Mr Mirabito’s vehicle in the median lane as it approached her from behind, that vehicle being a two litre four cylinder van (Black, AB, page 70N, 71P-R) carrying heavy equipment and emitting a louder engine noise than that of an ordinary car (Black, AB, page 70O-T);”
To this the Respondent answers that, conceding that the Trial Judge did not refer to the three minutes in his judgment, nonetheless wherever Mr Mirabito’s NRMA van was, it was undoubtedly in the centre lane, on Mr Mirabito’s own evidence, not in the adjoining lane where the Respondent was travelling. I consider there is no basis for upsetting the Trial Judge’s acceptance of her evidence that, as a vastly experienced expert rider, she was able to tell in what lane a vehicle coming from behind was likely to be.
Nor should it be overlooked that the Trial Judge gave two reasons for rejecting the theory, relied on by the Appellant to refute negligence on part of the Nominal Defendant. That theory was that the Respondent “was frightened or otherwise influenced by the approach of Mirabito when he was actually in lane 3 but she perceived him to be in lane 2”. The first reason for rejecting it, before the Trial Judge even gets to Mr Schnerring’s calculations, is “that theory flies in the face of Mirabito’s own evidence”. That evidence was as to the lane he was in (the centre lane) and Mr Mirabito saying that he did not force the Respondent off the road (Black, 72W).
The damage to the bike and the Camira, consistent with the injuries of the Respondent, bear out that the accident was indeed a very near thing. Thus it was the right-hand rear portion of the Camira, on the near edge of the vehicle that was damaged. Likewise, the wheels of the bike were not damaged, but the fork of the bike was bent as was the racing bar; see Blue, 327Q-S 327U (Respondent as to the bike) and 379P-S (expert as to the bike), and as to the Camira Black 21H-M (Respondent), Blue, 380F-J (expert), Blue, 366S-U (Murphy), 376X-368C, K-Z (Bures).
The Appellant, perhaps because it would have been a two-edged sword, did not make much of the expertise of the Respondent, in attempting to obviate causation or in ascribing contributory negligence. However for the appeal to succeed contrary to the Trial Judge’s finding, one must either
(a)disbelieve the Respondent’s story about a vehicle coming too close upon her in the same lane behind her, or
(b)ascribe contributory negligence to her manoeuvres in failing to avoid the second car.
The first proposition requires that the finding reached by the Trial Judge disclose appellable error. But that finding has support in the evidence and is fundamentally based on credibility. There is no incontrovertible fact, consistent only with the opposite conclusion, or rendering the Trial Judge’s findings glaringly improbable; compare Agbaba v Witter (1977) 14 ALR 187. The medical and hospital records, and Detective Constable Murphy’s evidence, when weighed against the Respondent’s and her husband’s evidence do not require the drawing of an inference contrary to that drawn by the Trial Judge. The Trial Judge simply made a choice between competing inferences. The choice he made was well open to him on the evidence without in any way misusing his advantage.
What of the second proposition, the assertion of contributory negligence on the part of the Respondent? The Appellant first sought to attack the Trial Judge’s reliance on the so-called “agony of the moment” rule, as failing to grapple with issues of causation and contribution, based on old cases such as Leishman v Thomas (1957) 75 WN(NSW) 173 at 175 per Street CJ. These it was said provide too generous an escape from liability. But one may restate that so-called “agony of the moment” rule by reference to the immediate circumstances, here of split second emergency. This was what Stein JA did most recently in Abdallah v Newton (1998) 28 MVR 364. Appeal to those circumstances still justifies the result the Trial Judge reached. Thus at 365 Stein JA says:
“The reasonableness of a defendant’s conduct must be judged according to the circumstances of the particular case. …”
So stated, and accepting the finding that the Respondent, in taking the avoidance action she did, acted reasonably in keeping a proper look out with her head held upright (Judgment Red, 11), there is no sufficient basis for treating her conduct as interrupting causation or constituting contributory negligence. The Appellant nonetheless seeks to challenge causation (Orange, 19) with this submission:
“The kerbside lane was 3.6 metres wide. The Camira, presumably like any other vehicle of this type, was 1.8 metres wide. If it was parked the normal 15 centimetres from the kerb the trafficable area for the plaintiff whilst remaining in the kerbside lane was of the order of 1.6 metres. The plaintiff’s evidence was that she anticipated she would be able to move back into the kerb lane and then safely pass the Camira (Black AB, page 20TU). This is obviously so having regard to the width of the lane and the space taken by the Camira. That she failed to do so was due to error on her part (Black, AB, page 21D, 45Q-S). It is submitted the sole cause of the accident was the plaintiff’s failure to avoid the Camira.”
The fallacy is to equate “error on her part” with negligence. Negligence would require a failure to do what the reasonably prudent cyclist would have done in the circumstances, here of sudden emergency. One starts with the Trial Judge’s unimpeached findings as to the precursor to the accident including that she kept a proper look-out. She is executing a difficult manoeuvre at speed in fractions of a second justifiably in order to avoid much worse injury, from a reasonably perceived threat of being hit by a car closing at speed from behind. How could that failure, by inches, to carry off that difficult manoeuvre amount to negligence?
The Appellant essays these attempted answers, apart from the earlier stated description of the width of the car and lane, in contending for at least contributory negligence, namely:
(a)the plaintiff having moved into the kerbside lane failed to steer clear of the Camira;
(b)the plaintiff moved further into the kerbside lane than was necessary, in that there was no reason for her to move so far into the kerbside lane as to create a need to turn to avoid the Camira;
(c)she failed to apply the brakes which would have lowered her speed thus enabling her to more easily clear the Camira, or alternatively, to have reduced the degree of injury suffered;
(d) she failed to keep a proper lookout;
(e)she failed to keep a proper lookout when she looked to the rear when about to move out to pass the first of the parked cars in that she failed to observe the approach of the unidentified vehicle;
(f)she pulled out into the path of the unidentified vehicle without giving adequate warning;
(g)she failed to look behind when she heard the sound of the approaching vehicle to ascertain whether it posed any threat to her.

Taking each in turn, answer (a) is a statement simply of what happened, and begs the question whether failure to steer clear of the Camira bespoke negligence. On the Trial Judge’s findings, the Respondent was aware of the parked vehicles and endeavoured to steer clear of them. I agree that the findings of fact point to the only reasonable conclusion namely that the sole cause of the collision was the actions of the driver of the unidentified vehicle and that any misjudgment on the part of the Respondent was explicable by the circumstances of sudden emergency.
Answer (b) is speculative – we simply do not know how far into the kerbside lane she had moved. Nor do we have any basis, in expert evidence or otherwise, for assuming that what she did in moving so far into the kerbside lane was unreasonable, when seeking to avoid the greater danger, as she reasonably perceived it, of being hit from behind by a fast approaching car.
Answer (c), failure to apply the brakes, presupposes that it was negligent to fail to do so in the split second manoeuvre she was executing, in circumstances of sudden emergency that were not of her making. She in fact was seeking to avoid a worse accident. That she was an expert cyclist does not mean that in the circumstances of an unexpected crisis or emergency, she should be held to a substantially higher standard than a less expert cyclist. The most that could be said is that her expertise, while not altering the legal test of negligence, would allow her to gauge the risks of the manoeuvre she was executing with greater precision. But she would still have to carry it out, expert or not, with all its risks, or risk greater injury from the fast-closing car she perceived in the lane behind her.
But as to negligence in the execution of that manoeuvre, as Trindade and Cane, The Law of Torts in Australia, 3rd ed, 1999, at 458 conclude: “a person faced with an emergency is only required to exercise such care and skill as a person of ordinary prudence, firmness and experience might have exhibited in the circumstances of an emergency.” The authority for this proposition is Cortis v. Baker [1968] SASR 367. This proposition demonstrates that even if the situation in which the cyclist found herself was not a true ‘agony of the moment’ situation such as to completely defeat a defence of contributory negligence, “allowance can still be made for the fact that under pressure and ‘in the heat of the moment’ less care and foresight can reasonably be expected than when there is ample time for reflection and planning”; Leishman v Thomas (supra). That this proposition applies equally to negligence of a defendant and contributory negligence of a plaintiff was established in Shelly v. Szelly [1971] SASR 430 per Bray CJ.”
As to answers (d) and (e), failure to keep a proper look out, this is simply not made out. This is more particularly so when, as the Trial Judge found, the approaching car was in her lane, approaching fast. The evidence accepted by the Trial Judge is that she looked behind her and signalled appropriately when she moved from the kerbside lane to the centre lane. Even if there were a failure on her part to see the unidentified vehicle at that point, there was no evidence that it contributed to the accident, which occurred further up the hill.
As to answer (f), failure to give adequate warning when pulling out into the path of the unidentified vehicle, that presupposes that one rejects her evidence that she gave a hand signal in time. There is no basis for upsetting the Trial Judge’s finding (Red, 13G) as to that.
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.”
It will be readily apparent from this catalogue of continuing disability, that despite the enormous effort she has put into her physical rehabilitation, there remain lasting disabilities of a relatively serious kind. Concededly, views may legitimately differ around 5%, or so as to whether 75% was the correct percentage. But it is not for this court to tinker with the Trial Judge’s discretionary determination of damages. Nor to substitute its own discretionary judgment within a range of legitimate difference, when no appellable error of the kind justifying intervention has been identified.
The remaining matter is increasing the (conceded) 15% for vicissitudes to 25% for a work period from age 65 to 70 years. I agree with the Respondent that the Trial Judge gave sufficient reasons for arriving at his conclusions, which he did with respect to the respondent working to age 70 (Red, 29C-I). While there is difficulty in any person obtaining and keeping employment to age 70, that was a conclusion open to him in relation to this plaintiff. The evidence which supported such a finding included that she enjoyed working, she was very fit, her husband had started a new business, she did not have much by way of assets having been a single mother and she wanted to compete and travel for as long as she could, which required her to keep working. There was evidence that some Masters competitors compete into their 80s (Black, 29G-30P).
Accordingly, I find no basis for disturbing the determination of damages being calculated on the basis that she worked to age 70.
OVERALL RESULT
The Appellant fails in its challenges on both liability and quantum. I propose orders that the appeal be dismissed and the Appellant pay the Respondent’s costs, though applying by agreement 15% for vicissitudes. This will affect future economic loss and superannuation, reducing the total damages from $841,223.40 to $776,348.40.
ORDERS
I would propose the following orders:
1.Set aside the verdict and judgment for $841,223.40 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.
GZELL J I agree with Santow JA.
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LAST UPDATED: 14/04/2003

[2003] NSWCA 65

4 April 2003