Reasonable minds may differ – the difficulties of challenging contributory negligence assessments – Boateng v Dharamdas [2016] NSWCA 183

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Last updated: 02 Sept, 2021

Originally Published by Harry Black on Monday, August 8, 2016 12:00:00 AM


Author: Harry Black

Judgment Date: 2nd August, 2016

Citation: Boateng v Dharamdas [2016] NSWCA 183

Jurisdiction: New South Wales Court of Appeal1


Principles

  • A challenge to a trial judge's assessment of contributory negligence will only be successful if that assessment is found to be outside an appropriate range.

  • An adverse credit finding, when it stems from the provision of inaccurate or incomplete medical histories to expert doctors, ought to be taken into consideration by a trial judge when assessing damages.


Background

The claimant walked down Bourke Street, Waterloo, until he reached the 'T' intersection with Potter Street. He turned left before cutting across Potter Street, where he was struck down by a taxi driven by the insured. The insured had just turned right from Bourke Street into Potter Street.

The trial judge, Sorby DCJ, found the insured was negligent in failing to keep a proper lookout. He assessed contributory negligence at 40%. The trial judge found that a reasonable driver in the insured's position would have taken the precautions of having looked where he was going and proceeded at a slow speed. He found the insured had a clear view onto Potter Street as he was waiting to turn right and could have observed the claimant, but did not.

The insured challenged the trial judge's findings in respect of negligence, causation, contributory negligence and damages. The claimant cross-appealed on the contributory negligence issue.


Decision

Negligence

The insured's attack on the finding of negligence was on the issue of what a reasonable person in the insured's position would have done in response to any foreseeable risk of harm to another road user.

The New South Wales Court of Appeal (Court of Appeal) found the insured was aware that a pedestrian crossing existed and that Potter Street was not deserted (as the insured had observed two council workers sweeping the gutters). If the insured had kept a proper lookout, he would have observed the claimant. There was thus no error in the trial judge's finding of negligence.

Causation

The causation argument focused on the trial judge's findings in respect of the response time available to the insured. The insured contended that the occurrence of the accident was not caused by his negligence, because he would not have been able to stop in time to avoid a collision. There was competing expert evidence on the issue of response time.

Ultimately, the Court of Appeal preferred the evidence of the claimant's expert. The Court of Appeal was not persuaded that the insured's evidence demonstrated that there was insufficient time available to him to avoid the collision, even if he had kept a proper lookout.

Notably, the claimant's expert did not give oral evidence at trial and thus his findings establishing causation were unchallenged.

Contributory Negligence

The trial judge found the claimant made a significant contribution to the occurrence of the collision. He only looked straight ahead once he stepped onto Potter Street. The insured's culpability was also high, given he did not observe the claimant until the collision occurred.

The Court of Appeal found the claimant did not pay due attention to the presence of oncoming traffic turning into Potter Street, nor did he check for oncoming traffic from Bourke Street once he stepped off the kerb. His failure to take reasonable care went 'beyond mere inadvertence'.

The Court of Appeal found that as the insured was the driver of a vehicle which had the potential to cause significant damage by impact with pedestrians, the trial judge's assessment that the insured's culpability was slightly higher than that of the claimant was not outside an appropriate range.

Damages

The trial judge awarded undiscounted damages of $1,154,326.24. The insured complained that the trial judge failed to:

  • Take into account the claimant's significant pre-accident symptoms and conditions

  • Apply an appropriate discount for the claimant's reduced life expectancy

  • Take into account that the claimant had given an incorrect and incomplete history to the medico legal experts.


The Court of Appeal found the trial judge's reasons did not reveal that an adverse credit finding was taken into account when assessing damages, despite the trial judge himself having said that it should be. It was found the trial judge erred in basing his assessment of quantum on an acceptance of medical opinions, which were based on incomplete or inaccurate histories provided by the claimant.


The Court of Appeal also found that the judge had erred in failing to address evidence as to the claimant's reduced life expectancy in his reasons.

The Court of Appeal remitted the matter to the District Court of New South Wales for a new trial on damages only.


Why this Case Note is important

This decision highlights the sanctity of a trial judge's assessment of contributory negligence. The apportionment decision is difficult to challenge on appeal because reasonable minds may differ as to where, within a particular range, the appropriate result is to be found.

In this case, the Court of Appeal explicitly does not deal with the issue of whether a driver of a motor vehicle has a greater responsibility to avoid harm than a pedestrian, noting there is divergent authority on this question. That said, the Court of Appeal's acceptance of the trial judge's decision to ascribe higher culpability to the driver is preceded by a statement that pedestrians are naturally vulnerable to motor vehicles.

Insofar as assessment of damages is concerned, an adverse credit finding, when it stems from the provision of inaccurate or incomplete medical histories to expert doctors, ought to be taken into consideration by a trial judge when assessing damages.


  1. Gleeson and Leeming JJA, Davies J.