PARTIES: Tham Huu PHAM (Appellant) John SHUI (Respondent)
JUDGMENT OF: Santow JA Bryson JA Brereton J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 5575/03
LOWER COURT JUDICIAL OFFICER: Hungerford ADCJ
COUNSEL: S NORTON, SC/ M FRASER (Appellant) R R STITT, QC/ D M WILSON (Respondent)
SOLICITORS: Bryden’s Law Office (Appellant) Sparke Helmore (Respondent)
CATCHWORDS: TORTS – NEGLIGENCE – findings on causation - deduction for contributory negligence by cyclist riding on the footpath in breach of the Australian Road Rules. PROCEDURE – effect of certificate given under s61, Motor Accidents Compensation Act 1999 – whether certificate conclusive as to causation of loss as well as for the purpose of the damages threshold – whether appropriate to exclude additional reports and oral evidence as to economic loss, given issue of certificate. PROCEDURE – whether medical reports filed outside time justifiably admitted on the basis of exceptional circumstances within UCPR 31.18(4)
LEGISLATION CITED: Australian Road Rules Motor Accidents Compensation Act 1999 Pt 3.4, Pt 5.2, Pt. 5.3, s51, s58 s61, s63, s131 Uniform Civil Procedures Rules 31.18(4) Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 cl 26(1)
DECISION: Appeal allowed with costs. See orders at [106].
JUDGMENT:
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IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40251/06 DC 5575/03
SANTOW JA BRYSON JA BRERETON J
20 DECEMBER 2006
Tham Huu PHAM v John SHUI
Judgment
SANTOW JA:
INTRODUCTION
This appeal (should leave be granted) arises in the following circumstances. There was a collision between a negligent driver (the opponent) and an elderly bike-rider (the claimant). The latter was injured only after he dismounted from his bike. He did so in order to avoid the driver who was exiting slowly driving forward in his car from a driveway onto the footpath, in course of which he collided with the claimant, injuring him. The driver had been looking to the right at the on-coming traffic in order to turn left. He was, it appears, unaware of the claimant standing in front of him in the brief two seconds or so that the dismounted bike-rider had to react before he was knocked down.
(a) the finding of 35% contributory negligence, and
(b) damages assessed at $8,235.15 after that 35% reduction.
As to damages, issues raised are:
(a)The ambit of the conclusionary effect of the certificate given under s61 MACA following a review by a group of medical assessors under s63 of the Act; in particular, is such a certificate conclusionary beyond the threshold requirement for damages for non-economic loss and does it extend to the causation of the relevant impairment in a medical sense?
(b)If the answer to (a) is in the negative, were two medical reports for the claimant and some…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Pham v Shui [2006] NSWCA 373
Case
[2006] NSWCA 373
Decision Date
CaseChat Overview and Summary
The New South Wales Court of Appeal considered a dispute concerning negligence and contributory negligence. The claimant, Mr. Pham, a 72-year-old man with vision and hearing impairments, was riding his bicycle on a footpath when he was struck by a vehicle exiting a driveway. The claimant sustained significant injuries, including a fractured hip and femur, and later developed cognitive deficits and a stroke. The primary issue was whether the claimant's decision to ride on the footpath constituted contributory negligence, and if so, to what extent.
The court was required to determine whether the trial judge erred in finding the claimant contributorily negligent and in deducting 35% from the damages awarded. Additionally, the court considered the legal effect of certificates issued under section 61 of the *Motor Accidents Compensation Act 1999* (MACA) and whether these certificates were conclusive as to causation of loss, as well as the damages threshold. The court also had to assess whether the exclusion of certain medical reports and oral evidence regarding economic loss, given the issue of the section 61 certificates, was appropriate.
The Court of Appeal allowed the appeal, finding that the respondent had not discharged the onus of proving contributory negligence on the part of the claimant. The court reasoned that while the claimant had an obligation to look out for his own safety, the driver of the vehicle, a professional motorist, had a duty to exercise care for pedestrians. The court found that the driver had sufficient visibility and the capacity to avoid the collision, even at a late stage. Consequently, the court concluded that no deduction for contributory negligence was warranted. The court also addressed the ambit of section 61 MACA certificates, noting that the trial judge had accepted their conclusivity regarding the stabilisation of injuries, causation of disability, and the degree of permanent impairment.
The Court of Appeal set aside the orders made by the trial judge and ordered a re-trial limited to the question of damages for economic loss, without any deduction for contributory negligence. The respondent was ordered to pay the appellant's costs in both the Court of Appeal and the court below.
Orders
Orders of the court
The claimant should have leave to appeal and in my judgment
has succeeded in the appeal. Accordingly I propose orders as follows:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) The orders made by Hungerford ADCJ to be set aside.
(4) The matter to be referred back to the District Court
for a re-trial limited to the question of damages for
economic loss without any deduction for contributory
negligence on the part of the appellant.
(5) Respondent to pay the appellant's costs in this Court
and the court below and to have a certificate under the
Suitors Fund Act if qualified.
Background
Background to the litigation
Finally given that costs were awarded in accordance with liability (65% to 35%), in the event contributory negligence were successfully challenged, what implications does this have for the costs award? SALIENT FACTS On 1 February 2002 the claimant was riding his bicycle in a westerly direction along the northern footpath of Cabramatta Rd East at about 6.45pm. The claimant was aged 72 at the time of the accident. The claimant had vision problems (including cataracts) and rode on the footpath as he was fearful of road traffic. Evidence from the claimant’s daughter indicated that he also had problems with deafness in both ears and often removed his hearing aids due to irritation. The claimant had sought Department of Housing accommodation based on disabilities related to hearing, vision and arthritis. The claimant and his wife moved from a Granny Flat on their son’s property to a Department of Housing flat in late 2002. The footpath intersected with a driveway that allowed vehicles to exit a Burger King and a BP petrol station complex. Cars exiting the premises could only turn left on Cabramatta Rd East, and would commence this turn in the footpath area before reaching the roadway. As he approached this area the claimant saw the opponent’s vehicle about 5 or 6m away from him. He noticed the driver was checking the traffic to his right with his head turned in that direction. The claimant stopped, dismounted and took his helmet off in the vicinity of the driveway. The vehicle then collided with the claimant at a slow speed (estimated to be 5 km/h by the police officer attending). It was submitted, and not challenged, that the claimant had about two seconds to react. The claimant was taken to Liverpool Hospital by ambulance. As a result of the accident the claimant fractured his right hip and injured his right femur and knee and hit his head. He underwent surgery on 11 February 2002 to insert a rod and screws to secure his right femur. He later developed a post-operative pulmonary embolus (14 June 2002). The claimant did not recover his former mobility and suffered extensive cognitive deficits. The claimant was discharged from Liverpool Hospital on 1 March 2002 and immediately admitted into Braeside Hospital for rehabilitation. He was discharged from Braeside into the care of his family on 15 March 2002. The medical notes upon discharge indicated that the claimant had regained some mobility, with the assistance of a frame, and could shower himself. The claimant became an outpatient of Braeside Hospital. Notes from the Rehabilitation Registrar from 8 May 2002 record that the claimant had recovered well and was independent in terms of self-care activities and only required a walking stick for longer distances. The claimant then suffered a stroke, shown on a CT Brain Scan on 21 June 2002. The claimant’s daughter attended to the claimant while in both hospitals. When he returned to the granny flat, she visited him three to four times a week for 4-5 hours doing cleaning and cooking, with the claimant’s wife helping him to shower. The claimant’s wife (Ms Ho) gave evidence that she provided constant care to the claimant.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
While extrapolation from the facts of one case to another in negligence is notoriously unreliable, nonetheless the general observations made by the majority in Anikin v Sierra (2004) 211 ALR 621 at 46 are apposite: [46]This was not, therefore, a case like Luxton v Vines54 where the possibilities were equally open and neither could be said to be more likely. Nor was it a case like Derrick v Cheung55 where the defendant came upon the infant victim, emerging from two parked vehicles onto the road in the path of the defendant’s vehicle driving within the prescribed speed limit. Here, there was a range of visibility available to the bus driver, a professional motorist, if he were keeping a proper lookout. Most importantly, there was an unimpeded capacity to move the vehicle to the right. Had that been done even at a late stage the serious injury to the appellant would have been avoided. True, the appellant was obliged to keep a proper lookout for his own safety. However, the bus driver, who was in charge of a powerful vehicle had obligations to exercise care for pedestrians in the position of the appellant.56 54 (1952) 85 CLR 352. See also Nominal Defendant v Owens (1978) 22 ALR 128 at 132; Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 141, cited in Sierra [2003] NSWCA 11; BC200300879 at [12]. 55 (2001) 181 ALR 301 ; 33 MVR 393. 56 Pennington v Norris (1956) 96 CLR 10 at 16–17. Conclusion I conclude that the opponent as defendant had not satisfied the onus upon him to establish contributory negligence on the part of the claimant in the circumstances. Accordingly, no contribution, whether of 35% or a lesser percentage, was warranted in the circumstances. Ambit of the conclusionary effect of the certificates given under s61 MACA and whether medical assessments for the claimant were wrongly excluded In an interlocutory judgment of 7 November 2005 the trial judge began by identifying the following preliminary question: “That the certificates issued in this matter by medical assessors and a medical assessor’s review panel pursuant to s61(1) of the Motor Accidents Compensation Act 1999 are conclusive evidence in these proceedings of the matters so certified in them, namely (1) the relevant injury sustained has stabilised; (2) the relevant disability or impairment found was caused by the subject accident; and (3) the degree of permanent impairment of the plaintiff was not greater than 10 per cent.” The trial judge appears to have accepted in that judgment that the conclusivity of the certificates extended beyond whether the respective injuries had stabilised and whether the degree of impairment was less than 10%. Thus the judgment quotes the summarised elements of the certificate put by senior counsel for the opponent as including the following elements: “(2)They conclusively establish whether the degree of permanent impairment concerning each disability was caused by the subject motor vehicle accident and that the disability results from the injury in that accident. (3)They conclusively determine the degree of impairment as a result of the injury caused by the motor vehicle accident.”