NSW Court of Appeal upholds finding that plaintiff’s injuries were caused by being struck by an unidentified motor vehicle but that he was guilty of contributory negligence

In Issue

  • Whether the plaintiff's injuries were caused by him being struck by an unidentified motor vehicle
  • The consistency of expert evidence with the nature of the plaintiff's injuries and other evidence
  • Contributory negligence

The Background

On 27 February 2012 the plaintiff was found lying seriously injured on the footpath near his first floor apartment in an inner west suburb of Sydney. He alleged that he was struck by an unidentified motor vehicle when he stepped onto the road and was thrown onto the footpath. He commended proceedings against the Nominal Defendant on the basis that the driver of the unidentified vehicle was negligent, and, in the alternative, that his injuries were the result of a ‘blameless motor accident’ under the Motor Accidents Compensation Act 1999 (NSW) (MACA).

The Decision at Trial

Pursuant to s 7C MACA, an allegation by a plaintiff that a motor accident was a ‘blameless motor accident’ is evidence of that fact in the absence of evidence to the contrary.

The Nominal Defendant conceded that if the plaintiff established that his injuries were caused by being struck by a motor vehicle then they resulted from a ‘blameless motor accident’. The critical question was therefore whether the plaintiff established that he had been struck by a motor vehicle by evidence providing a foundation for an inference to that effect. The Nominal Defendant argued that the plaintiff’s injuries were either resultant from a fall from a balcony awning or that he was assaulted. Limited attention was however given to the alleged assault at trial and it was not put to the plaintiff in cross-examination.

The trial judge accepted the plaintiff’s evidence that, except in very limited respects, he had no recollection of the relevant events. His evidence was that he found himself in the street, walked past some rubbish bins and then felt a “powerful surge going backwards”. The plaintiff also gave evidence that he had never climbed out onto the balcony awning of his apartment, and that he believed that he had been hit by a car.

Photographic evidence of the scene indicated blood stains on the footpath where the plaintiff was found, in the gutter and on an adjacent car.

While both parties sought to rely on expert evidence from forensic engineers, the trial judge rejected that evidence on the basis that it was largely hypothetical and the various facts relied on by the experts were unproven assumptions.

Although the trial judge accepted that the evidence was not strong, and that the decision was ‘close to the line’, he concluded that it was more likely that the plaintiff had been hit by a motor vehicle than the other possibilities (the assault or the fall).

As for contributory negligence, the trial judge found that as a ‘blameless motor accident’ proceeds upon the assumption that the defendant driver is not at fault, it is applied in a different manner to the usual comparative analysis of responsibility undertaken in personal injury cases. The trial judge concluded that the impact was more likely due to the plaintiff’s failure to lookout for cars as he proceeded onto the road and assessed contributory negligence at 50%.

The Issues on Appeal

The Nominal Defendant appealed the findings on liability and, in the alternative, argued that contributory negligence should have been assessed at 80%. The plaintiff also cross-appealed arguing that he was not guilty of contributory negligence at all, or in the alternative, if he was, a lesser figure in the range 15%-20% was appropriate.

The Decision on Appeal

The Court of Appeal dismissed both the Nominal Defendant’s appeal and the plaintiff’s cross-appeal.

The trial judge’s decision that the plaintiff’s injuries were caused by him being struck by a motor vehicle, and the assessment of 50% contributory negligence, were upheld.

Implications for you

The Court of Appeal’s unanimous judgment again highlights that decisions based on factual findings by a lower court will only be reviewed by an appellate court in limited circumstances. This is because the trial judge has the benefit of hearing all of the evidence and is therefore in the best position to make findings of fact.