Pham v Shui

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.