Dowedeit v Nominal Defendant

The incident

1. On 27 February 2012 Mr Dowedeit returned home after finishing work at about 5 or 5.30pm. The journey took about half an hour. Mr Dowedeit sat on his balcony and enjoyed the sunset and a couple of glasses of wine.
2. Sometime after sunset ("it was just getting dark. It was still light") Mr Dowedeit "went out" and "found [himself] in the street". He remembers "bypassing the bins" that were on the footpath, being in the street, and then a "powerful surge going backwards", and "going backwards, slow motion". During cross-examination, he recalled a "thump" or a "hit" and recalled lying on the ground and speaking to a person who lived in his unit block who called the ambulance. His next recollection is "when I went to the RPA".
3. No other lay witness gave evidence of what had occurred. An ambulance officer, Matthew McKay, subsequently attended the scene. The evidence of Mr McKay, the police and ambulance records, and the police photographs indicate that Mr Dowedeit was found lying on the footpath parallel and close to the gutter adjacent to the rear passenger side of a white car parallel parked on the road. The gutter separating the footpath from the road was about 2.6m in horizontal distance from the edge of the broad ledge.
4. The police photographs, taken shortly after Mr Dowedeit was taken away in an ambulance, indicated significant bloodstains on the footpath about 50cm from the gutter, as well as blood in the gutter and on the rear tyre and rear panel of the adjacent motor vehicle. The vehicle was shown by CCTV footage to be present prior to the incident. The footage did not show the incident.
5. The police records indicate that Mr Dowedeit was questioned by the owner of the white car who dismissed him as drunk, and by Reuben Mubiru, a fellow resident of the apartment block who called the ambulance. Mr Mubiru asked Mr Dowedeit what had happened and was given the response "I have no idea". The ambulance and hospital records and police records indicate that Mr Dowedeit was amnesic about the events. The ambulance document recorded a Glasgow Coma Score of 15, indicating that Mr Dowedeit was capable of communicating and was not confused, although the integers of that score may have been determined later when the ambulance was at the hospital. Mr McKay thought the score was actually 14 and that Mr Dowedeit manifested some confusion. The hospital records contain references to Mr Dowedeit being a pedestrian, "Pedestrian vs. car" and "Hit by car". The latter reference was not pressed by the plaintiff as evidence of that fact. The hospital records also record "? assaulted".
6. The police investigators considered a theory that Mr Dowedeit fell from the broad ledge after attempting to retrieve a hat which lay thereon, but were equivocal as to any conclusion. They record that Mr Dowedeit said he "Was Going to Shops on Dulwich Hill Rd". No such road exists, although a shop Mr Dowedeit described as "my little corner shop" is on Hill St near Dulwich St. The shortest route on foot to that shop from his apartment would require a right turn as Mr Dowedeit left his building, which would appear to have been necessary in order for Mr Dowedeit to be hit by a motor vehicle on the road and propelled to the position on the footpath where he was found. The police records indicate that Mr Dowedeit said, of his direction of travel, that he "Has never walked right", although Mr Dowedeit gave evidence that "Well that sounds really ludicrous to me".
7. The police found Mr Dowedeit's balcony door open. Mr Dowedeit said that this was not unusual for him when leaving the building. He also commonly would leave his front door "open", "ajar" or unlocked, as entry into his building was protected by a security code.

Injuries

1. As a result of the incident, Mr Dowedeit suffered pulmonary contusions and pneumothorax, a broken pelvis in two places, nine broken ribs (six on his right side), two broken vertebra (C2 and L5) and a broken radius in his forearm. He had a thoracotomy. An infection developed in his chest wounds. He suffered no scrapes or abrasions on his legs and no head, face or brain injuries.

Theories and conclusion

1. These proceedings have some features in common with Nominal Defendant v McLennan [2012] NSWCA 148, namely a possible motor vehicle accident and a period of amnesia. But there are also significant differences: there was no attention given in evidence (and little in submissions) in this case to the possibility of assault, and there was also not a strong challenge to Mr Dowedeit's credit.
2. Mr Dowedeit's case is that he exited his apartment building, walked across the footpath and onto the street where he was hit by a car and came to rest on the footpath where he was found. The Defendant advanced an alternative at trial that he fell off the broad ledge onto the footpath. Other possibilities that were raised, directly or indirectly, included the possibility of assault. I do not accept that there was any real possibility that Mr Dowedeit jumped off a ledge 3.4m high as a deliberate but unsuccessful suicide attempt.

(a) Hit by a car

1. Each party called expert engineering evidence to support the likelihood or otherwise of a motor vehicle impact, and the likelihood or otherwise of a fall from the broad ledge. In both cases the conclusions rested upon assumptions about the type of vehicle, the speed of the vehicle, the position of the vehicle, the direction of movement of the vehicle, the position of Mr Dowedeit on impact, the speed of Mr Dowedeit on impact, and perhaps also the direction Mr Dowedeit was facing. All of these matters were unable to be proved by other evidence. The large number of unproven variables rendered opined conclusions of what had occurred of limited value. The Defendant's expert, Dr Andrew Short, assumed Mr Dowedeit was found in the gutter, which was not supported by either Mr McKay, who found him, or the bulk of the bloodstain which was located on the footpath.
2. Because of the large number of unproven assumptions, the errors made in the reports, the unconvincing nature of both experts' oral evidence, and the circumstance that the Court was, in my opinion, in at least as good a position to determine the likely cause of injury as the engineering experts (because the Court had the precise evidence of Mr Dowedeit and all the police and medical evidence). I found the causation conclusions in the evidence of the engineering experts to be of little assistance in determining the cause of Mr Dowedeit's injuries.
3. The problems with the theory that Mr Dowedeit was hit by a motor vehicle are two-fold. First, there was no evidence of any impacting vehicle. This matter was left to inference from other facts.
4. There was some medical evidence to indicate that the injuries were consistent with a motor vehicle accident, and also that Mr Dowedeit may have expressed a belief of a motor vehicle accident whilst in the hospital. Other than confirming that a motor vehicle accident was a possible cause, this evidence was also of limited value.
5. Secondly, the position where Mr Dowedeit was found raised a question of how the impact by a vehicle could cause him to end up in that position.
6. The physical location of Mr Dowedeit prior to being transported by the ambulance was a matter of importance. The Defendant submitted that because Mr Dowedeit was found on the footpath beside the rear passenger side wheel of the white station wagon, his injuries were unlikely to have been the result of a car accident.
7. This issue requires the determination of where precisely Mr Dowedeit was found. One possibility based on the bloodstains on the footpath suggested that Mr Dowedeit's torso was about 50cm from the gutter. The alternative, based on Mr McKay's evidence, was that Mr Dowedeit was closer to the gutter. The difference between these two views was not great in distance but was said to be significant to the issue of cause. The closer Mr Dowedeit was to the gutter, the more the white station wagon operated as a "shield" towards the road, and the more unlikely that Mr Dowedeit could have been propelled from the road to that position by the impact of a motor vehicle.
8. I accept that Mr McKay retained a recollection of the incident, as he testified, and there could be no suggestion that his evidence was other than honestly given. However, recollections almost three and a half years after the event are, in my view, capable of being in error on matters of precise detail.
9. The bloodstains, on the other hand, were recorded by police photographs in the hours after the incident. Although the Defendant made a submission that the bloodstains, including apparently fresh bloodstains on vegetation in the gutter and on the white station wagon, were not necessarily Mr Dowedeit's blood, no other explanation for their presence was advanced. The police reports and photographs support the conclusion that the bloodstains are from the incident. In my view, a finding on the balance of probabilities that the blood was from Mr Dowedeit as a result of the incident is the only finding reasonably open.
10. That being so, I regard the significant bloodstains on the footpath as the most reliable aid to determining Mr Dowedeit's position immediately after the incident, and I conclude that he was located so that his torso was in the area of the bloodstains. I accept Mr McKay's evidence that Mr Dowedeit's feet were towards the north or rear of the white station wagon, his head towards the south, with his body lying parallel to the roadway.
11. One other matter provides further support for this conclusion. Mr Dowedeit's neighbour, Mr Mubiru, according to the police records, found Mr Dowedeit face down whereas the ambulance officers found Mr Dowedeit on his left side. Although Mr Dowedeit may have been largely unable to move, it is possible that he may have rolled onto his side. I do not overlook that rolling from being face-down on the bloodstains to being on his left side closer to the gutter (as Mr McKay says he found Mr Dowedeit) requires him to roll three-fourths of a turn (or 270 degrees), not merely one quarter. In any event, this evidence indicates that Mr Dowedeit may have moved after he initially came to rest on the footpath. That may reconcile the evidence of Mr Mubiru, Mr McKay and the bloodstains.
12. Dr Short, the Defendant's expert, rejected as unlikely a motor vehicle impact principally because of the position of Mr Dowedeit after the incident. Dr Short concluded that Mr Dowedeit would travel in a straight line after any impact and that from the assumed position of collision the rear of the white station wagon would have precluded Mr Dowedeit being propelled into the gutter, beside the rear wheel on the passenger side of the white station wagon. Mr McKay's positioning of the body, on the footpath just out of the gutter, was said by Dr Short to lie also in the "shadow" of the car. I was not persuaded of this, particularly because the point of impact could not be ascertained, the boundaries of the "shadow" compared to Mr McKay's positioning of the body were not clear, and because the impact of limbs (or any impact) against the white station wagon was not the subject of deflection tests. In any event, Dr Short accepted that there was a "clear line of sight" from the assumed position of the impacting motor vehicle to the position of the bloodstains on the footpath and thus, it was possible that impact with a motor vehicle could have caused Mr Dowedeit to come to rest in the place I have found.
13. Much was made by the Defendant of the police records, apparently based on conversations with Mr Dowedeit in the hours or days after the incident, evidencing that Mr Dowedeit never turned to the right after exiting his building. This evidence did not persuade me that when Mr Dowedeit left his apartment building he intended to turn left to travel south to New Canterbury Rd. Rather there remained a real possibility that he intended to turn right and walk towards the corner shop. If that occurred he may well have reached a point where a motor vehicle could have collided with him and propelled him to where he was found.
14. The fact that Mr Dowedeit had no face, head or brain injuries as a result of a serious pedestrian and car impact, and the lack of any grazing to his legs, are matters militating against the likelihood of impact with a motor vehicle. His amnesia was also not explained by any evidence, but may have arisen from the shock occasioned by the seriousness of his injuries (see e.g. McLennan at [9]). The lack of knee injuries may be explained by a larger van causing the damage.
15. In my view, collision with a motor vehicle being the cause of Mr Dowedeit's injuries was a possibility not excluded by the evidence.

(b) Fall from the balcony

1. This theory rests upon police notes that Mr Dowedeit's hat was found on the broad ledge, that he climbed over the balcony walls and garden bed to retrieve it and accidentally fell.
2. This theory involves a rejection of Mr Dowedeit's evidence. He testified that he had never been on the balcony walls or on the broad ledge, that he was unaware of any hat of his on the broad ledge; and vehemently denied that he fell off the balcony or had been on the broad ledge.
3. I found Mr Dowedeit to be a persuasive witness. He did not exaggerate his injuries or his disabilities. Nor did he appear to exaggerate his knowledge of the events. The contemporaneous records indicate that while he lay injured on the footpath he had no memory of what had happened. I find that amnesia to be genuine and that it persists to this day.
4. Mr Dowedeit was asked: "Q. … You believe you were hit by a car because you knew that if you just told them you fell off the balcony, you wouldn't get any compensation for your injuries, that's right, isn't it? A. Absolutely not." The phrasing of this question might not be ideal but the intent of it is plain enough: that Mr Dowedeit lied to get compensation. That does not sit comfortably with his initial amnesia at a time when he had potentially life threatening injuries. I do not believe Mr Dowedeit was giving evidence dishonestly.
5. I accept that Mr Dowedeit believed that he was hit by a car, and I accept his evidence that he did not climb over the balcony walls onto the broad ledge, or fall from there. Falling from the broad ledge did not explain the absence of any face, head or brain injuries, and seemed to me to be less likely to result in the numerous serious injuries suffered by Mr Dowedeit. It also seemed to be less likely to have resulted in Mr Dowedeit lying parallel to the road in excess of 2m in horizontal distance away from the broad ledge.
6. The factors suggested in favour of this theory are not strong. They do not cause me to doubt the reliability and honesty of the matters Mr Dowedeit remembers. As I accept Mr Dowedeit's testimony, I must reject the possibility that he fell from the broad ledge.

(c) Assault

1. The only remaining possibility raised even faintly is that Mr Dowedeit was assaulted. This was not the focus of any expert evidence, any cross-examination or other evidence. It was recorded as a question in the hospital records and mentioned briefly in the Defendant's closing submissions.
2. The possibility of an assault seems not to be an explanation for the absence of any face or head injuries, at least while Mr Dowedeit was standing. Once he is on the ground, it is possible to conceive of kicks and blows to the body which inflict the injuries suffered by Mr Dowedeit without causing injury to his face or head.
3. However, this theory of assault was never put to Mr Dowedeit. He has therefore been denied the opportunity to give or call evidence to dispute it or render it less likely. Mr Dowedeit's limited recollection of the incident indicates that his oral evidence might not have assisted, yet evidence about surrounding circumstances such as any missing wallet, cards or keys may have been probative about the likelihood of an assault. Although Mr Dowedeit bore the onus of excluding other possibilities as being more likely, so as to persuade the Court that a motor vehicle impact was the most likely cause of his injuries, those possibilities need at least to be raised by the Defendant to indicate that they need to be met. That did not occur until closing submissions, which offends the application of the rule in Browne v Dunn. The rule requires counsel to give witnesses, in this case Mr Dowedeit, the chance to respond to submissions that form part of counsel's case (cf MWJ v R (2005) 222 ALR 436 at [38]-[39]). A cross-examiner must put to the witness any non-obvious implications which the cross-examiner proposes to submit can be drawn from the evidence or case: West v Mead [2003] NSWSC 161 at [99].
4. The CCTV footage indicates that Denison St at the front of Mr Dowedeit's apartment had cars and persons passing from time to time. An assault, compared to a motor vehicle impact, is likely to be productive of more sustained action and sustained noise, and is likely to be more gradual, than the immediacy of a motor vehicle impact. This suggests that it might more likely be productive of a memory in Mr Dowedeit of at least some of the features of the assault.
5. For the same reasons, it may also be more likely to have been seen by others. While an assault by a known person might provide a reason for Mr Dowedeit not to reveal someone's identity, it does not provide a reason not to provide to the ambulance and hospital other details concerning the circumstances of the injury to assist with treatment. On the other hand, it may fairly be said that these matters, not being the subject of evidence, are all matters of speculation. In any event, I am not persuaded that Mr Dowedeit's amnesia was other than genuine.
6. I am persuaded that Mr Dowedeit's injuries are more likely due to impact by a motor vehicle rather than an assault, and that a motor vehicle impact is more likely than not the cause of his injuries. In these circumstances, I conclude on the balance of probabilities that the cause of Mr Dowedeit's injuries was that he was hit by a motor vehicle. I accept that the evidence is not strong, and the decision is something close to the line, but it seems to me to be both more likely than the possibility of assault and more likely than the other possibilities (assault and fall) together, on the evidence that I have found. This conclusion is influenced by the limited attention given to assault at the hearing, especially in cross-examination, and the resultant absence of any opportunity given to Mr Dowedeit to answer or raise evidence to dispute an assault.

Negligence

1. There is no evidence of the speed of the car, its position or direction of travel. At the time of the incident it was dusk, twilight or almost dark, and there is no evidence of whether Mr Dowedeit was visible or hidden by a vehicle before he stepped onto the road. There is some evidence that his clothes were dark. There was also no evidence of whether he proceeded onto the road in an unchanging and constant direction. In these circumstances, there is no evidence of negligence by the owner or driver of the motor vehicle. I am not satisfied that there was any negligence by the driver of the motor vehicle.

Blameless accident

1. Section 7B of the Motor Accidents Compensation Act 1999 deems that the injury to Mr Dowedeit is caused by the fault of the owner or driver of the motor vehicle if the accident was a blameless motor accident. It was common ground that if I found that the injuries were caused by a motor vehicle and that there was no negligence, then the incident was a blameless motor accident.
2. Additionally, s 7C of the Motor Accidents Compensation Act 1999 presumes the motor accident to be blameless if that is alleged, and there is no evidence to the contrary. Both these requirements were satisfied in the present case.
3. Accordingly, Mr Dowedeit is entitled to recover damages for his injuries.

Contributory negligence

1. Section 7F of the Motor Accidents Compensation Act 1999 in its application to the present case provides that damages can be reduced by reason of the contributory negligence of Mr Dowedeit, and s 7G provides that the person liable, in this case the Defendant, can recover contribution from a person "whose fault actually caused the … injury". That person can include Mr Dowedeit.
2. As there is little evidence of the motor vehicle accident, there is also little evidence of it being caused by contributory negligence. However, the test is whether it is more likely than not that Mr Dowedeit failed to take reasonable care for his own safety, so as to cause or contribute to the accident.
3. Mr Dowedeit conceded that it was getting dark, that it was prudent to look to his right to ensure that there were no vehicles coming, that sometimes he did not look when walking out onto the street but assumed that there were no cars coming, that if he had looked right he would have seen any car coming, and that the circumstance of him walking onto the roadway without looking could have happened that night.
4. It seems to me likely that if Mr Dowedeit had seen a car he would have stopped and avoided injury (cf Pennington v Norris (1956) 96 CLR 10 at 15.7). Thus, given Mr Dowedeit's evidence above, the accident likely resulted from his failure to see the car, because he failed to look. Other possibilities exist, such as that the car may not have had its headlights on, but Mr Dowedeit testified that "[i]t was still light", presumably to some extent, and that if he looked right he would have seen the car. For these reasons, I am of the view that, having concluded on the balance of probabilities that impact with a car was the more likely cause of Mr Dowedeit's injuries, I also conclude on the balance of probabilities that the impact was more likely due to Mr Dowedeit's failure to look out for cars as he proceeded onto the roadway.
5. The assessment of the level of contribution to be awarded in blameless motor accidents was considered in Axiak v Ingram [2012] NSWCA 311, where the Court of Appeal determined that, because there is no fault in the driver, a "comparative examination of culpability" and assessing "the relevant importance of the acts of the parties in causing the…injuries" is "inappropriate" (at [82]-[84]).
6. Rather, the exercise involves "inquiring how far the plaintiff has departed from the standard of care he or she is required to observe in the interests of his or her own safety" (Axiak at [85]). Thus, being the sole cause of an accident does not of itself warrant a 100% level of contribution (see Axiak at [86]). It involves "an evaluative judgment on which minds may differ" (Axiak at [90]).
7. In this case, the street was said to be "very quiet", and Mr Dowedeit was apparently not intoxicated, having a blood alcohol content of 0.024g per 100ml of blood.
8. On the other hand, Mr Dowedeit was an adult, he knew it was getting dark, when visibility is diminishing, and he also stated, somewhat inconsistently with it being a quiet street, that in respect of a corner in the street to the north, "there's a very sharp bend on that road and cars are just racing around that corner".
9. In my view, Mr Dowedeit has departed from the standard of care he is required to observe in the interests of his own safety by failing to keep a proper lookout for vehicles when he proceeded to enter the roadway. The level of departure from the standard is lessened to some degree by the relative quietness of the street. I assess the level of contributory negligence at 50%.

Damages

1. I have mentioned Mr Dowedeit's injuries. He was terrified and fearful for his life after the accident when he recognised that he was seriously injured. He underwent a thoracotomy for lung surgery some weeks later which was extremely painful. After his lengthy time of about seven weeks in hospital, it took several months for him to recover sufficiently to return to work on light duties, and another seven months for him to resume his pre-accident duties.
2. Mr Dowedeit had help from friends during his recovery period. He now does his pre-accident work although he finds it harder than previously. He is required regularly to wear a lead coat at work to protect against radiation, which weighs 7.5 to 10kg and which he finds difficult since he has returned to normal duties. He does not try to pick things up off the floor and is constantly careful with himself. His neck mobility has decreased and he experiences neck pain. He is uncertain as to whether his recent shortness of breath is as a consequence of the scarring of his lungs. His says his pelvis seems out of alignment, and he takes painkillers, usually paracetamol, almost on a daily basis. He also takes Lyrica for nerve pain, and has numbness in his right leg.
3. Mr Dowedeit would like to reduce his hours because of the hardness of the work and other pain and tiredness his feels particularly by the end of the week. He has headaches and gets anxious. He thinks a reduction of hours may be possible if he obtains permanent residency in 2017. He did not apply for permanent residency in 2013, he says, because he was then on crutches and believed he would not for that reason have passed the examination.
4. Mr Dowedeit now self-manages his condition by swimming, engaging in resistance training at the gym, and using a TENS machine, a type of electronic nerve stimulator which he uses on painful areas of his body. Since 2013 he has been able to do not only his pre-injury work duties but also his home duties. He looks after himself although he gets sore.
5. The parties have agreed on past and future out of pocket expenses of $2,000 and $15,000 respectively, and have also agreed on the past economic loss including superannuation of $27,750.
6. In respect of non-economic loss, Mr Dowedeit submits an appropriate sum is $280,000 whereas the Defendant submits the sum should be $170,000. The reason for this difference seems to be the differing views on the level of Mr Dowedeit's ongoing disabilities. It is clear that Mr Dowedeit does have ongoing issues arising from his injuries, and no longer jogs though he remains able to go to the gym, swim, do his household tasks and complete all his work duties as a full time employee. In these circumstances, I propose to award the sum of $200,000 in respect of this head of damage.
7. In respect of future care and assistance, nothing is allowed by the Defendant but Mr Dowedeit claims $70,784 being $40 per week for two hours for the rest of his life. As he does not currently require this assistance, any amount awarded must only be a portion of this figure. I think there is a real prospect that Mr Dowedeit may need assistance later in life when his aging and injuries combine to make some household domestic work too difficult. But there is little evidence to indicate when that might be. I propose to award a sum of $10,000.
8. That leaves the question of future economic loss including superannuation, claimed by Mr Dowedeit at $277,500, whereas the Defendant asserts a small amount of $20,000.
9. Mr Dowedeit was able to return to work within a year, and he continues to work on his strength and fitness in the gym and in the pool to ensure he is able to work. However, I think there is some likelihood that he may, at some time in the future, obtain permanent residency and at some time thereafter reduce his hours because of challenges arising from his injuries.
10. In my view, a cushion of $100,000 is an appropriate sum being between one to two years' net pay, or 20% of his pay for seven years. From this sum should be deducted 15% for vicissitudes, leaving a net amount of $85,000. Lost superannuation on this sum at 11% is $9,350.
11. Accordingly, the damages of Mr Dowedeit is as follows: Head of damage Amount awarded ($) Non-economic loss 200,000 Past out of pocket expenses 2,000 Future out of pocket expenses 15,000 Past economic loss 25,000 Future economic loss 85,000 Future care and assistance 10,000 Future superannuation 9,350 Past superannuation 2,750 Total 349,100

This amount must be reduced by 50% for contributory negligence, leaving an amount of $174,550.

Costs

1. Costs should follow the event, although I will postpone entry of the costs order for two weeks in case there are submissions on costs that have not yet been made.

Orders

1. Accordingly, the orders of the Court are: 1. Judgment in favour of the plaintiff in the sum of $174,550. 2. Defendant to pay the plaintiff's costs. 3. Stay order (2) for two weeks and until further order of the Court if further submissions on costs are received within that time.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2015