Nominal Defendant v Dowedeit

Judgment

1. MEAGHER JA: I agree with the reasons and proposed orders of Gleeson JA.
2. GLEESON JA: On 27 February 2012, the respondent, Ronald Dowedeit, was found lying seriously injured on the footpath near his apartment on Denison Road, Dulwich Hill. He had fractures to one cervical vertebra, nine ribs (six on his right side), five bones in his pelvis, his right radius and his fifth lumbar vertebra. He later underwent a thoracotomy and spent two months in hospital recovering from his injuries. The respondent alleged that he was struck by an unidentified vehicle when he stepped onto the road and was thrown onto the footpath. He commenced proceedings in the District Court against the Nominal Defendant seeking damages for his injuries on the ground that the driver of the unidentified vehicle was negligent, and, in the alternative, on the basis that his injuries were the result of a "blameless motor accident" within Division 1 of Part 1.2 of the Motor Accidents Compensation Act 1999 (NSW) (MACA).
3. A "blameless motor accident" is defined in s 7A of the MACA to mean: A motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.
4. The respondent was successful in the District Court and obtained a judgment for $174,550: Dowedeit v Nominal Defendant [2015] NSWDC 182. The primary judge (Taylor SC DCJ) concluded that, on the balance of probabilities, the cause of the respondent's injuries was that he was hit by a motor vehicle. His Honour considered and rejected two other theories, namely that the respondent fell from a balcony awning, or that he was assaulted. His Honour found that the incident was a "blameless motor accident" and that the damages for which the Nominal Defendant was liable should be reduced by 50 per cent for the respondent's contributory negligence. His Honour assessed the respondent's damages (before any reduction) at $349,100.
5. The Nominal Defendant has appealed, challenging the findings on liability and, in the alternative, contends that the assessment of the respondent's contributory negligence was manifestly inadequate and should be assessed at 80 per cent.
6. By a notice of contention, the respondent seeks to uphold his Honour's findings on liability on the grounds that two expert medical opinions (of Dr Couch and Dr Raftos) support a finding that his injuries were, on the balance of probabilities, caused by a motor accident and that there was no contradictory evidence, nor did the appellant challenge the medical experts on this issue.
7. The respondent has also cross-appealed, challenging the finding that he was guilty of contributory negligence. Alternatively, it is contended that the assessment of the respondent's contributory negligence as 50 per cent was excessive.

Circumstances of the incident

1. The respondent was aged 46 at the time of the incident and had lived at a first floor apartment on Denison Road, Dulwich Hill for about two years. Denison Road runs in a north-westerly to south-easterly direction. However in what follows I will treat that direction as being from north to south. At its southern end Denison Road joins New Canterbury Road. The apartment building is located approximately 40 metres north of that intersection. The respondent's apartment was on the eastern side of Denison Road. It has a front balcony which is bounded by a curved concrete wall a little over 1.1 metres high. As the primary judge described at [6], beyond that wall lies a garden bed bounded by another curved concrete wall. The distance between those two walls, being the distance of the garden bed, is about 60 centimetres. There were hedging plants growing in the garden bed in February 2012 to a height of 30 to 40 centimetres. Beyond the balcony and 1.1 metres below the top of the walls of the garden bed there is a broad ledge or "awning". That awning is triangular in shape with the base of that triangle formed by the convex curve of the exterior concrete wall of the apartment building. That awning was about 3.4 metres above the footpath.
2. The respondent gave evidence, which his Honour accepted, that he had never climbed onto the walls forming the garden bed or down onto that ledge/awning.
3. The width of the footpath outside the apartment block was 2.4 metres measured from the face of the kerb to the property line. At the southern end of the apartment block is a pathway for pedestrians to exit to the Denison Road footpath. At the northern end of the property is a vehicular driveway entrance. At the time of the incident a white Holden station wagon was parked parallel to the kerb with its near side rear wheel at the point where the concrete driveway commences. The footpath in that area consisted of reddish pavers.
4. On 27 February 2012, the respondent returned home after finishing work at about 5 - 5.30 pm. He relaxed on his balcony, enjoying the sunset and a couple of glasses of wine.
5. The primary judge summarised the respondent's account of the incident as follows (at [8]): 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".
6. After referring to the absence of any evidence from lay witnesses, his Honour observed [at [9]) that: 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 2.6 m in horizontal distance from the edge of the broad ledge.
7. Mr Reuben Mubiru and his wife, Sharon Ono, told police that they observed a man lying face-down on the footpath near the driveway as they were entering in their vehicle, having picked up their children from a school activity at 8 pm. Mr Mubiru approached the man and saw that he was moving his hand as though he was waving. He asked the man what had happened to which the man had replied, "I have no idea".
8. Mr David Moore, the owner of the white Holden station wagon told police that he remembered speaking with a man who was lying on the footpath next to his vehicle. Due to the darkness at the time, he did not see any blood and assumed the man was intoxicated. Mr Moore said he spoke with the man and the man had declined assistance.
9. The primary judge noted (at [10]) that police photographs taken shortly after the respondent was taken away in an ambulance indicated significant blood stains on the footpath about 50 centimetres from the gutter, as well as blood in the gutter and on the rear tyre and rear panel of the adjacent white station wagon.
10. CCTV footage from cameras installed on the front of the apartment block where the respondent lived showed that vehicle was present prior to the incident. The footage did not show the incident. Significantly, however, a photographic still from the CCTV taken (between 8 pm and 8.15 pm) shortly before the incident, showed no less than seven garbage bins located at the pedestrian pathway exit of the respondent's apartment block at its southern end. This was consistent with the respondent's recollection of bypassing the bins that were on the footpath when he left his apartment just before the incident.

Ambulance Report

1. Ambulance paramedics arrived at the scene at about 8.30 pm. The ambulance report recorded that the respondent was found: … lying L lateral in between a parked car and footpath (gutter). Witnesses on scene phoned ambulance, state finding patient where he is. Unwitnessed event.
2. The ambulance report also recorded the respondent as having a Glasgow Coma Score of 15/15 on two occasions, but also that he was "amnesic to events".
3. Mr McKay, one of the attending paramedics, gave evidence as to the position of the respondent when he arrived at the scene. He described the respondent as "lying basically on, on the lip of kerb … with his feet towards the driveway and his head pointing away from the driveway, basically parallel to the kerb … on the edge of the kerb". He marked a photograph taken at the scene with two circles to represent the position of the respondent's feet. That photograph shows the white station wagon and the two circles at the point of the kerb where the driveway commences next to the rear wheel of the vehicle. That photograph also shows bloodstains in the corner of the paved footpath formed by the kerb and the edge of the driveway. Mr McKay did not agree with the cross-examiner's proposition that the respondent was lying in the location of those blood stains. His evidence was that the respondent was not lying where that blood was but was lying "on the kerb".

Hospital notes

1. The respondent was taken by ambulance to Royal Prince Alfred (RPA) Hospital where he arrived at approximately 9.27 pm on 27 February 2012. The hospital notes taken at 2am the following morning record: … Pedestrian vs Car - amnesic to event, last recollection was leaving home to go to corner shop. - multiple injuries.
2. The hospital notes also record that the respondent's injuries included a 1 cm puncture on the side of his right wrist. It seems that this injury was the source of the blood found on the footpath, although no tests were carried out to establish that it was the respondent's blood on the footpath.

The police

1. The police spoke to the respondent at RPA Hospital at 2.35 am on 28 February 2012. Notes taken by the police include the following: 3-4 glasses of wine in the evening. Going to shops on Dulwich Hill Road … When VIC goes to the shops he always turns left onto the footpath to walk towards NCR [New Canterbury Road]. Had never walked right and cannot remember walking onto the road as there was rubbish bins blocking the road. And cars blocking the road. VIC did not see a vehicle coming towards him. VIC cannot remember being hit by a vehicle yet remembered waking up on footpath.
2. The case narrative in the COPS entry made at 5.10 am on 28 February 2012 described the following incident as having occurred between 8.15 pm and 8.30 pm on 27 February 2012: At the above time and date, the pedestrian exited his unit block. The unit block is located approximately 40 metres north of New Canterbury Road Dulwich Hill. As the pedestrian walked out of the unit block garbage bins were on the footpath. The pedestrian walked around the garbage bins and walked onto Denison Road Dulwich Hill. As the pedestrian walked onto the road an unknown vehicle collided with the pedestrian. After the impact the pedestrian fell to the ground. The unknown vehicle left the scene. Ambulance officers attended and found the pedestrian on the footpath outside the pedestrians address. The pedestrian was then conveyed to RPA hospital. At 2.30am on 28 February 2012, Police attended RPA and spoke to the Pedestrian. …
3. The police spoke with the respondent at RPA Hospital for the second time on 28 February 2012 at about 9.30 am, as he was being prepared for surgery. The COPS entry recorded that the respondent was conscious, seemed alert and claimed that he could not remember the events that resulted in his injuries. The COPS recorded the respondent's recollection as follows: I was drinking wine in my flat, I was alone. I went outside for some air the patient was unable to state whether he had gone 'outside' on the balcony, or into the street. I woke up on the street and I couldn't move. The Ambulance brought me here.
4. Later that day, the police attended the respondent's home. They found the balcony door unlocked and slightly ajar. They noted a wine glass on the balcony and a man's hat visible on a ledge directly below where the wine glass was located.
5. The following day, 29 February 2012, the police spoke with the respondent. The respondent confirmed that he had been on the balcony prior to the incident and that the hat seized by police belonged to him. The COPS entry recorded: [d]espite maintaining that he could not remember the circumstances surrounding his injuries, the patient was adamant that he had been hit by an unidentified vehicle, and that he could not have fallen from the balcony.
6. On 2 March 2012, the respondent again told the police that he was still unable to recall how he received his injuries. The COPS entry noted that the respondent appeared to be suffering from amnesia regarding the incident.

The pleaded case and the respondent's evidence

1. The respondent's amended statement of claim (filed on the first day of the trial) alleged that he exited his residence and walked onto the footpath of Denison Road at approximately 8.15 pm on 27 February 2012. As he was walking in a southerly direction along Denison Road, he stepped onto the roadway to walk around garbage bins located on the footpath and at that time an unidentified vehicle driving south along Denison Road collided with him. (As will become apparent the allegation that the respondent walked in a southerly direction was inconsistent with his having been struck by a vehicle and ending up on the footpath which would have required that, having exited the building, he turned right and commenced to walk in a northerly direction). As already mentioned, the respondent alleged that the driver of the motor vehicle was negligent, or alternatively, that the collision was a "blameless motor accident" pursuant to Ch 1, Pt 1.2 of the MACA.
2. The Nominal Defendant denied that the respondent was hit by any motor vehicle. In the alternative, the Nominal Defendant asserted that if the respondent was struck by a vehicle, the driver was not negligent and further, that the respondent was contributorily negligent by failing, among other things, to take proper care when walking on a roadway, failing to maintain a proper (or any) lookout, and failing to check adequately or at all for vehicles before walking on a roadway.
3. The respondent gave evidence that when he walked out the southern pedestrian exit to the footpath, his path was partially blocked by some bins and he sought to bypass them. He said having done so he was then on the street and all he remembered was "this powerful surge going backward". He described it as "going backwards. Slow motion".
4. The respondent was closely cross-examined as to whether he turned left and walked in a southerly direction towards New Canterbury Road or right and in the direction of the driveway entrance to the apartment building. The respondent said that the bins were on the left-hand side of the footpath and in front of it as well, that the bins were blocking his way on the left-hand side and that he turned right along the footpath. It was put to the respondent that if he had turned right he must have walked past the white car (the Holden station wagon) on his left and then onto the road. The respondent agreed that was "possible". The respondent confirmed that he had no recollection of where he was found. The respondent adhered to his evidence in chief that he recollected bypassing the bins. When pressed as to whether the bins were blocking his way to the left the respondent replied "vaguely, I remember it yes". When pressed further, the respondent agreed that it "could be right" that the bins were not blocking his passage way to the left.
5. The respondent disagreed with the cross-examiner's proposition that his memory of the events was "extremely vague". He said: I remember being on the balcony; I remember going out; going onto the street, and that was it. OK.
6. The respondent said that he was not aware of any hats on the awning. He denied seeing his hat on the awning and climbing over the balcony and onto the awning to recover it. He said that he had his mobile phone and wallet when he left the apartment, but probably not his keys. He explained that he did not require his keys to get back into his apartment as he had a code to access the building. He said that he left the front door of his apartment "ajar" so that he could get back in.
7. Two further matters should be mentioned concerning the way in which the case was argued at trial. It was suggested that the evidence gave rise to three possibilities as to how the respondent sustained his injuries. They were that he was hit by a car, that he fell off the ledge onto the footpath or that he was the victim of an assault. The primary judge described the suggestion as to this last possibility as made only "faintly". In relation to the possibility contended for by the Nominal Defendant, that the respondent fell from the balcony, it was accepted that if the primary judge found (as his Honour did find) that the respondent was walking outside his apartment, then the possibility that he fell from an awning could be excluded. On appeal the Nominal Defendant does not challenge the primary judge's rejection of the third possibility that the respondent was the subject of an assault.

The expert evidence

1. Both parties tendered expert evidence at trial from forensic engineers. The respondent relied upon reports from Mr Fred Schnerring, a consulting engineer with expertise in crash investigations, and Dr Shane Richardson, a qualified mechanical engineer with expertise in crash reconstruction, incident analysis and vehicle structuring engineering. The Nominal Defendant relied upon a report of Dr Andrew Short, a consulting engineer with expertise in biomedical engineering and forensic biomechanics.
2. Dr Richardson and Dr Short supplemented their written reports with oral evidence at the hearing.

Mr Schnerring

1. Mr Schnerring concluded that the more likely cause of the respondent's injuries was a motor accident, rather than a fall off the ledge. He noted that the blood spots on the footpath shown in the police photographs centred on a point about 2.4 metres out from the edge of the ledge and the ledge was about 3.5 metres above the footpath level. Assuming that the respondent was standing upright at the time, Mr Schnerring considered that he would have needed to have jogged off the ledge to land at the position of the blood spots.
2. Alternatively, if the respondent had inadvertently fallen off the ledge, it was Mr Schnerring's opinion that he would have landed on the footpath close to the property line, however, there were no other blood spots nor a trail of blood across the footpath to indicate that the respondent had moved closer to the kerb and gutter after landing on the footpath near the edge of the ledge.
3. In a supplementary report dated 5 June 2014, responding to the report of Dr Short referred to below, Mr Schnerring expressed the opinion that if the respondent had been struck by a moving vehicle closer to the parked Holden station wagon (shown in Dr Short's Figures 6 and 9) it was possible that he could have come to rest near its left rear wheel. Mr Schnerring noted that the type of impact assumed by Dr Short was not stated. He continued: This firm's experience with a wide range of pedestrian accidents is that pedestrians can be "clipped" and rotated by an impact with a vehicle and may not initially be knocked off their feet. They can be unbalanced and stumble before falling over. Therefore, based on my viewing of Figure 9 in particular, I consider that an impact of a car cannot be excluded as a possible scenario.
4. He also said that the "blood spots on the side of the car are not inconsistent with such a stumble".

Dr Richardson

1. Dr Richardson considered two theories, one that the respondent was struck by an unknown motor vehicle, the other that he fell from his balcony. Dr Richardson assumed that the respondent's rest position was on the footpath near the parked Holden station wagon. Dr Richardson expressed the following opinion: 1. It is possible: a. that if [the respondent] was standing on the roadway and struck by a passing vehicle that he would have been thrown laterally 2.4m to 5.8m. b. for a pedestrian struck at speeds of 20km/h to 80km/h to be projected laterally 2.4m to 5.8m. … 3. On the balance of probabilities the author would estimate [the respondent's] impact speed at 40km/h. 4. [The respondent] most likely was impacted by a vehicle and thrown onto the footpath. 5. If [the respondent] was projected from the Awning or Balcony he did not fall, but was pushed or jogged or ran off the Awning or Balcony. 6. The combination of [the respondent's] horizontal projection speed and lack of head injuries (when head injuries are explicitly identified within Dr Short's report) demonstrate that [the respondent] was not projected (and or fell) from either the Awning or Balcony. 7. If [the respondent] had fallen from the Awning or Balcony and sustained right side impact injuries he would have sustained right side head injuries and would have landed on the footpath or in the garden almost directly under the Awning or Balcony. 8. [The respondent] did not fall from his Awning or Balcony. …

Dr Short

1. In his first report, Dr Short compared the injuries suffered by the respondent to those of a car crash and a fall, and conducted a computer simulation of a collision with a car and a fall and compared the results. In reconstructing the components of a collision, Dr Short observed that it was possible to achieve a lateral component, that is, a movement towards the kerb, when the pedestrian is hit on the front corner of a car, either at low speed or at high speed. Dr Short carried out simulations at a range of speeds - 20, 30, 40 and 52 km/h - covering the minimum and maximum speed which would reflect the severity of the injuries to the respondent.
2. Dr Short assumed that the respondent's rest position was in the gutter next to the Holden station wagon. In his supplementary report, Dr Short expanded upon this assumption: he assumed the respondent's rest position to be in the gutter next to the pavement with the head towards the front of the white Holden station wagon and the legs towards the back of the car and "possibly wrapped around the back wheel". In his oral evidence, Dr Short described this assumed rest position as the "goal location" of the computer simulations to be carried out for a collision.
3. Dr Short did not identify what assumption he made as to the distance from the kerb of the car which was assumed to have struck the respondent. However reference to his Figure 6 indicates that distance was more than the width of a parked car from the kerb.
4. The simulation results obtained by Dr Short included a 40 km/h collision. Figure 9 showed the rest position of Dummy A on the pavement to the back of the Holden station wagon, and Dummy B ended up in a collision with the back of the Holden. Dr Short observed that "it is conceivable that with different input parameters the dummy could end up on the pavement, but not in the gutter. The car shields that position like an umbrella in the rain of dummies". However, Dr Short did not identify the nature or extent of the difference in input parameters that would be required for the dummy to land on the pavement (as distinct from "in the gutter"), whether or not following deflection by the parked station wagon.
5. Dr Short continued: Dummy A's position on the pavement is interesting. It indicates that for an impact close to the back of the Holden that Dummy A would end up on the pavement next to the back of the Holden. However, Dummy A is even less likely to end up in the gutter as the angle of the line between the point of impact with the car and the ultimate rest position widens out. And the shadow of the car is more extensive.
6. Dr Short also included in his report Figure 11 captioned "The introduction of a parked car can block the path at 40 km/h" and observed: The introduction of a parked car in the figure above blocks all the other dummies with short projections and deflects the dummy that hit the back of the Holden in figure 9 such that it is a slower approach and the angle of projection is towards the middle of the back of the Holden and not the side. This depends on where the parked car is introduced.
7. In a supplementary report, Dr Short explained the significance of his assumption of a second parked car as follows: When a second parked car was introduced and the simulation was run again, the dummy contacted the second parked car and collided with the back of the Holden wagon. This discounted the hypothesis that a dummy can be hit by a car and end up in the gutter on the near side of a parked car.
8. The assumption by Dr Short of a second parked car in Figure 11, behind the Holden station wagon, was not established or explained in the evidence. It does not seem to have been based on any assumption the subject of Dr Short's instructions. Counsel for the Nominal Defendant accepted in this Court that there was no evidence that there was a parked car behind the Holden station wagon.
9. In his oral evidence, Dr Short was asked about the respondent's rest position as given by Mr McKay, the paramedic. He said that he had not conducted simulations directed to this rest position, which he described as a "new assumption". He said that he thought that rest position was impossible because it was in the shadow of the "parked car", that is, the Holden station wagon, and "you can't get far enough back to get an angle that would project [the respondent] to that position because there was a parked car there".
10. As to a fall from the awning, Dr Short noted that there are a lot of different ways to fall. Unlike Mr Schnerring, who used a particle model where a person is represented by a particle, to simulate a fall from the awning, Dr Short used dummy simulations and assumed a forward speed of 0.1 m/s over the edge of the awning. Dr Short accepted that a particle model for the fall is valid in some circumstances, such as a pin-drop fall, but added that Mr Schnerring did not consider other types of falls, relevantly where the legs induce a swing action, not a pin-drop.
11. Two computer simulations were conducted by Dr Short for the fall. The first (Figures 12 - 17) assumed a fall from the awning. The dummy's legs provided a lever, causing the body to rotate forward, as if in a "pencil dive", and collide (head first) with the side of the Holden station wagon and then the pavement. The second simulation (Figures 18 - 19) assumed a fall from the balcony where the dummy clears the awning. In the first simulation the dummy collided with the Holden station wagon, however, its rest position was on the pavement, not in the gutter. Dr Short added "but the gutter is accessible to the dummy in a fall like this".
12. Dr Short expressed the following conclusions: (1) … (2) Computer simulations undertaken indicated that: (a) to suffer injuries like the respondent required a high speed impact, but none of the computer simulations of vehicle collisions resulted in a rest position behind the parked car in the gutter; (b) this is supported by the police report which states that there was a wine glass on the balcony and directly below that was a hat and directly below that was blood on the pavement; (c) the author adds that the gutter is directly in front of the blood stains; (d) a fall from a height of more than two metres is known to cause severe injuries, such as those suffered by [the respondent]; (3) a fall from the height of the balcony is: (a) kinematically consistent with the rest position of the respondent in the gutter; (4) based on my analysis, with the limitations acknowledged, my opinion is that a fall is more likely than a hit from a vehicle.
13. In his supplementary report, Dr Short analysed other computer simulations of falls, including the respondent walking backwards in the dark and taking a step over the edge of the awning; stooping over to collect his hat and mis-stepping over the edge; and kneeling and falling over the edge. These may be ignored as the Nominal Defendant did not rely on them in this Court. Counsel acknowledged that the Nominal Defendant only relied upon the first simulation results for a fall from the awning depicted in section 5.11 of Dr Short's first report.

The primary judge's findings on liability

1. The primary judge considered the three possible causes of the respondent's injuries, namely: (a) being hit by a car; (b) falling from the balcony; or (c) assault.
2. With respect to the first two of them, His Honour concluded that the expert engineering opinions were of "limited value" as they were based on a large number of unproven assumptions as to variables. In relation to the first possibility those assumptions included the speed, position and direction of the vehicle. In relation to the fall from the awning they included the falling position and forward speed of the body: at [17]. In view of these unproven assumptions and of the errors made in the reports, and what he described as the "unconvincing nature of both experts' oral evidence", the primary judge considered that the Court was in as good a position as the experts, by reference to the police and medical evidence as well as the evidence of the respondent, to determine the likely cause of injury: at [18].
3. As to (c), his Honour rejected the faint suggestion made by the Nominal Defendant in closing submissions that the respondent had been assaulted; noting that this possibility had not been put to the respondent in cross-examination, was not the subject of expert evidence and had only been briefly mentioned in the Nominal Defendant's closing submissions.
4. As to (b), his Honour rejected the possibility that the respondent had fallen from the balcony. He noted that this theory rested upon a note in the police records that the respondent's hat was found on the broad ledge, speculation that he had climbed over the balcony wall and garden bed and down to the ledge to retrieve it and, that in doing so, he had accidentally fallen off the ledge. It also involved a rejection of the respondent's evidence that he had never climbed the balcony wall or down onto the ledge below; that he was unaware of any hat of his being on the ledge; and his denial that he had fallen off the balcony or had been on the awning.
5. In rejecting this possible cause, his Honour found the respondent to be a "persuasive" witness who did not appear to exaggerate his knowledge of the events and accepted that he remembered being out in the street and felt "a powerful surge going backwards". His Honour concluded (at [36]-[37]): 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. 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.
6. As to (a), his Honour found that the medical evidence was consistent with a motor accident as a possible cause, but otherwise of "limited value": at [20]. That included the evidence of Dr Raftos which was that the respondent's injuries were consistent with impact with a bus or other vehicle with a relatively flat leading edge, and not so consistent with his having fallen from a height.
7. With respect to the respondent's rest position on the footpath in proximity to the white station wagon, it is appropriate to set out his Honour's reasons (at [22] - [27]) in full: 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. 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. 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. 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. 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. 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.
8. Turning to the expert evidence which his Honour had earlier noted was of limited assistance, he observed (at [28]): 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.
9. His Honour then considered other aspects of the evidence (at [29] -[30]): [m]uch 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. 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 before concluding (at [43]) that the respondent was hit by a motor vehicle: ….. 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.
10. His Honour was not satisfied that there was any evidence of negligence by the driver of the motor vehicle: at [44]. It was common ground that, in that circumstance, the incident was a "blameless motor accident": at [45]. Further, his Honour referred to s 7C of the MACA which provides that an averment or allegation by a plaintiff that a motor accident was blameless is evidence of that fact in the absence of any evidence to the contrary, and held that both of those conditions were satisfied in this case: at [46].

Issues on appeal

1. The amended notice of appeal raised 15 grounds, several of which are connected. The main issue is the cause of the respondent's injuries, namely whether the respondent fell from the balcony awning or was hit by a motor vehicle.
2. The Nominal Defendant challenged his Honour's finding that the respondent was hit by a motor vehicle on three bases.
3. The first is that the primary judge's finding as to the respondent's position "immediately after the incident" (being that his torso was in the area of the bloodstains) was inconsistent with his having being struck by a vehicle, and with the evidence of Mr McKay that the respondent was lying right next to the kerb. Grounds 7, 8 and 9 are directed to this contention. In relation to these grounds, the appellant challenges his Honour's findings as to (a) the likely position of the respondent on the footpath and (b) whether the respondent recalled being hit by a car.
4. The second basis involves a challenge to his Honour's conclusion that the expert evidence, specifically Dr Short's opinion, did not support a finding that the respondent was struck by a vehicle. Grounds 4, 5, 6 and 10 are directed to this contention.
5. The third is that the 'case' pleaded by the respondent asserted that he was walking in a direction from his residence (turning left and heading south), which was different to that shown by the evidence (turning right and heading north). Grounds 1, 2 and 3 are directed to this contention.
6. The next group of issues is that raised by the finding of contributory negligence and his Honour's decision on apportionment which is challenged by both parties (appeal ground 13 and cross-appeal grounds 1 and 2).
7. The final issue concerns the Nominal Defendant's complaint that the primary judge provided inadequate reasons for his rejection of the expert evidence (ground 6), for his principal finding that the respondent was likely struck by a vehicle (ground 12) and for his finding on the issue of contributory negligence (ground 14).

i. The respondent's rest position

1. The respondent's position immediately following the happening of the incident in which he was injured was significant to the question of the possible cause of his injuries because, as the primary judge observed at [23], according to Mr Short's evidence the closer he was "to the gutter, the more the white station wagon operated as a 'shield' towards the road, and the more unlikely that [he] could have been propelled from the road to that position by the impact of a motor vehicle".
2. The principal evidence directed to this issue was the evidence of Mr McKay, Mr and Mrs Mubiru's report to the police, and the location of the blood stains on the paved footpath. His Honour concluded that the respondent's immediate 'rest' position placed his torso in the area of the blood stains on the footpath with his body lying parallel to the road way, his head towards the south and his feet towards the rear of the white station wagon. This finding put the respondent's body back from the edge of the kerb and, perhaps, slightly further to the rear of the vehicle than the position identified by Mr McKay. The position as described in his evidence was arguably different from that recorded as reported by Mr Mubiru to the police which was that the respondent was "laying face down on the footpath near the drive way" and "moving his hand as though he was waving".
3. The primary judge ultimately regarded the position of the significant bloodstains on the footpath as the "most reliable aid to determining" the respondent's position immediately after the incident. In doing so he accepted Mr McKay's evidence as to the direction in which the respondent was lying but not as to where he was positioned when the blood staining on the footpath occurred. When assessing Mr McKay's evidence against that of Mr Mubiru, the primary judge considered it possible that having been seen facedown by Mr Mubiru the respondent may have rolled three quarters of a turn so as to be lying on his left side and closer to the gutter where Mr McKay says he was found (at [27]).
4. His Honour was justified in taking the view (as he did) that precise accuracy of recollection could not be expected from Mr McKay, taking into account the passage of time since the incident (three and a half years). There was a proper foundation for that view given that Mr McKay could not recall other important matters, including specific features of the parked car, where the respondent was lying relative to the parked car's wheels, and could not recognise the accident scene when shown a photograph of it.
5. It was not suggested at trial or on appeal that the source of the significant bloodstain on the footpath beside the rear of the white station wagon was other than the respondent. It serves as physical evidence of the likely position of some part of the respondent which at that time was bleeding. In support of the competing case theory of a fall from the balcony, the Nominal Defendant pointed to evidence of blood stains on the nearside of the station wagon and drew attention to the possibility that blood can be spread by paramedics lifting or moving a patient suggesting that he may have been closer to the kerb and that car. It is submitted that his Honour did not address this evidence which "seems likely to be inconsistent with being thrown from the road".
6. These submissions direct attention to the broader question as to the movement of the respondent's body from the point of impact to the position where it first came to be in on the footpath. The primary judge did not make any express finding as to those movements, assuming he was hit by a car.. However, at [25], his Honour found that the blood on the white station wagon was the respondent's blood. In this context, his Honour rejected Dr Short's opinion that the respondent would travel in a straight line after any impact and correctly noted, among other reasons, that "the impact of limbs (or any impact) against the white station wagon was not the subject of deflection tests": at [28]. His Honour's reasons are consistent with the possibility of the respondent being cast against the white station wagon immediately post-impact (prior to hitting the ground).
7. The police photographs show blood stains on the white station wagon on the passenger side rear tyre and on the side panel, and include a horizontal streak of blood. There are also blood drops on the ground immediately adjacent to the tyre. These are consistent with the respondent being hit by a vehicle travelling south along Denison Road and his body rotating after impact so that he fell (or staggered) against the side of the white station wagon before falling to the pavement.
8. The evidence of the forensic engineers is not inconsistent with the respondent having been hit by an unidentified vehicle and then leaving blood on the white station wagon due to the movement of his body resulting from that impact. Dr Richardson said in cross-examination "I want to emphasise…When the impact occurs, if there is an impact, what happens is that the body is flexible. It will move, it will bend, it will change its orientation." Similarly, in re-examination, Dr Short explained that if the person's body struck an object after the initial collision impact, its doing so would result in a rotation and a deflection. Dr Raftos considered that the respondent's injuries to the right side of his body between the neck and hip could well have been caused by the initial impact with a bus or other vehicle with a relatively flat leading edge or that he was struck a glancing blow by a passing vehicle and subsequently thrown to the ground sustaining the injuries described.
9. The Nominal Defendant also submitted that the primary judge's suggestion that it was possible the respondent may have rolled on his side was contrary to the evidence of Dr Raftos. In my view that is not so. The evidence of Dr Raftos included that the respondent's injuries were such that it was unlikely that he would be able "to stand, walk or crawl". Dr Raftos excluded the possibility of the respondent "moving" in the context of responding to the question "is it … likely or unlikely that our client would have been able to move (would have been mobile)", and on the basis that walking, crawling or standing would have too been painful due to an injured pelvis. That the respondent retained some upper body mobility is consistent with Mr Mubiru's account of the appellant "moving his hand as though he was waving" (Blue 727M - N). Neither the evidence of Dr Raftos nor any other evidence excludes the possibility that the respondent may have rolled on his side as the primary judge found was possible.
10. The Nominal Defendant also complained that the account given by Mr and Mrs Mubiru of the respondent's rest position was untested evidence obtained by police who were also not called to give evidence. But this overlooked that the police report was in fact tendered at trial by the Nominal Defendant in its 'liability tender bundle'; the respondent objecting to two paragraphs in the police report not presently relevant. There was no challenge on appeal to the admissibility of that evidence. Of course, the weight to be given to it needs to take into account the absence of cross-examination. Against this, it has the advantage of being a contemporaneous account given by independent witnesses to the police.
11. It has not been demonstrated that his Honour erred in weighing Mr McKay's evidence with the contemporaneous account provided to the police by Mr and Mrs Mubiru and the objective evidence as to the blood on the footpath adjacent to the rear of the parked station wagon. The finding that the respondent's rest position "immediately after the incident" was in the area of the bloodstains on the footpath (at [26]) was well open to his Honour.

ii. The respondent's belief that he was hit by a car

1. The Nominal Defendant also challenged his Honour's finding (at [36]) that the respondent believed that he was hit by a car. This finding was made in the course of his dealing with and rejecting the Nominal Defendant's case that the respondent had fallen from the balcony. Specifically it was dealing with a submission that the respondent's evidence that he believed he had been hit by a car was dishonest and given to support his claim for compensation (at [35]).
2. The Nominal Defendant submitted that this finding was contrary to the evidence of the respondent that he had little or no recollection of the incident and his Honour ought to have so found. The point emphasised by the Nominal Defendant was that there is no evidence that the respondent made mention of going onto the road or being hit by a motor car either to the author of the ambulance report (who was not Mr McKay), or at Royal Prince Alfred Hospital, or to the police who spoke to the respondent a number of times on the day of the accident and on the days following. Against this, both the ambulance report and the hospital notes recorded that the respondent was amnesic to events.
3. In his written submissions, the respondent sought to address this factual challenge by submitting that his Honour had made no express finding to the effect that the respondent recalled being on the road, and that if such a finding is to be implied it is not apparent that it formed the basis for his Honour's conclusion that the respondent was likely struck by a vehicle.
4. This response to the Nominal Defendant's submission may be unduly defensive. When addressing the findings as to the respondent's belief a distinction is to be drawn between his belief immediately following the incident and his belief at the time of the trial. In relation to the former the primary judge found at [20] that he may have expressed a belief as to a motor vehicle accident. At the same time his Honour described that evidence as being "of limited value". As is noted above the finding at [36] that the respondent believed he had been hit by a motor vehicle was made in response to the suggestion that he was giving dishonest evidence. At the time of the trial there was evidence to support the reasonableness of such a belief, and accordingly the primary judge's conclusion. It is the same evidence that led to his rejection of the Nominal Defendant's case as to the cause of the injuries. That evidence included that the respondent had not in the past climbed over the balcony wall and on to the awning below; that a fall from the awning did not explain the absence of any face, head or brain injuries; and was less likely to result in the numerous serious injuries suffered by the respondent.
5. There are other matters which support the primary judge's acceptance of the respondent's evidence as to his belief at the time of the trial. The hospital notes taken at 2 am on the morning following the incident record that the respondent's last recollection was of leaving home to go to the corner shop. When speaking to the police at the hospital later that morning, the respondent said that he did not see a vehicle coming towards him which was consistent with the respondent being on the road, rather than falling from the ledge/awning. Further, the respondent's evidence that he remembered bypassing the bins on the pathway and then being on the street is supported by the CCTV image of bins lined across the pavement near the pedestrian exit. Finally, the respondent's rest position is consistent with his evidence of walking out on the road to avoid the bins, that is, having turned right and walked in a northerly direction and past the white station wagon before proceeding onto the roadway.
6. As is apparent, acceptance of the respondent's "belief" that he was hit by a car, being a belief held following the incident and at the time of trial, was not determinative of the factual issue as to the cause of his injuries, and his Honour did not reason in that way. He accepted, as was not controversial, that except in very limited respects, the respondent had no recollection of the relevant events. To the extent that the primary judge relied on the respondent's evidence as to what he had or had not done in the past, and as to what he recalled it is not established that those findings are inconsistent with any incontrovertible fact or uncontested testimony. Nor are they glaringly improbable or contrary to compelling inferences: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29].
7. The primary judge did not err in resolving the factual matters concerning the respondent's position on the footpath and as to his belief that he was hit by a car.
8. Grounds 7, 8, and 9 have not been made out.

b) Approach to expert evidence

1. The Nominal Defendant next challenged the correctness of the approach taken by the primary judge to the expert evidence, and specifically to Dr Short's opinion that the respondent's injuries were more likely suffered in consequence of a fall from the awning than being struck by a vehicle.
2. It is appropriate to set out in full the relevant part of his Honour's reasons dealing with the expert evidence: [17] 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. [18] 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. Later, when considering whether impact with a motor vehicle could have caused the respondent to end up in a rest position on the footpath near the white Holden station wagon, his Honour made the observations at [28] (extracted in [63] above) in relation to Dr Short's opinion.
4. Those observations by his Honour were well-supported by the cross-examination of Dr Short. Reference has already been made to the simulation results obtained by Dr Short as depicted in Figure 9 of his report (see [46] above). In cross-examination, Dr Short conceded that the dummy's trajectory and rest position (whether on the pavement or in the gutter) depended upon the angle and speed of the car and the angle and speed of the pedestrian.
5. His Honour was entitled to be sceptical of Dr Short's opinion that it was more likely that the respondent fell from the balcony. First, the nature of the injuries suffered by the respondent - the absence of head injuries and the location of fractures primarily to the right side of his body between the neck and hip - were consistent with impact with a vehicle and did not suggest that he had fallen from a height.
6. Secondly, the location of the bloodstains near the kerb and more than two metres in horizontal distance from the outer most point of the awning was inconsistent with the likely point of impact of a fall from the balcony, which would have been closer to the edge of that awning.
7. Thirdly, Dr Short's simulations of a collision were constrained by his "goal location" assumption that the respondent's rest position was "in the gutter", and not on the footpath where the bloodstains were located and which, his Honour found, was the respondent's position "immediately after the incident".
8. Fourthly and related to the last point, Dr Short did not consider the reasonableness of the impact parameters which would result in the respondents' rest position being in the location of the bloodstains on the footpath.
9. Fifthly, Dr Short's opinion was partly based on an incorrect assumption of another parked car behind the white station wagon, which was not established in the evidence.
10. Finally and importantly, Dr Short accepted in his oral evidence that there was a "clear line of sight" to the position of the blood stains on the footpath in the police photograph and it was therefore possible that impact with a motor vehicle could have caused the respondent to have come to rest in the position as found by his Honour.
11. No error has been demonstrated in his Honour's approach to the expert evidence. Grounds 4, 5, 6 and 10 have not been made out.

c) The respondent's pleaded 'case'

1. The Nominal Defendant also points out that the respondent's pleaded case was that he had walked in a direction from his residence (turning to the left and walking south) which was different to that shown by the evidence (turning to the right and walking north). So much may be accepted but does not demonstrate error in his Honour's finding that the respondent was hit by a car, or his implicit finding that the respondent walked right and north upon leaving his apartment.
2. Other than pointing to the inconsistency between the pleading and the respondent's oral evidence, the Nominal Defendant does not identify any reason why the respondent's version of events as far as he could recall them should be rejected. That version of events was first given and recorded in hospital notes and those of the police. There was objective evidence in the form of the CCTV images corroborating the respondent's evidence that bins were lined across the pavement near the pedestrian exit from the apartment building which seemed to block the footpath. Although the respondent gave evidence that he had intended to turn left and south, he was not shaken on his evidence that he recollected bypassing the bins and this was consistent with him having turned right and walking onto the road at some point past the white station wagon. Further, the respondent's evidence that he bypassed the bins and went right was consistent with the location of the respondent's rest position which was right (and north).
3. The Nominal Defendant has not established that his Honour erred in finding that the respondent was hit by a car and determining liability accordingly. Grounds 1, 2, and 3 have not been made out.
4. In light of the above conclusions, the related appeal grounds directed to the adequacy of his Honour's reasons do not arise.

Notice of contention

1. The respondent sought to uphold his Honour's liability findings by contending that the primary judge failed adequately to address the expert evidence of Drs Crouch and Raftos. It was asserted that this medical evidence suggested on the balance of probabilities that the respondent was hit by a motor vehicle (ground 1) and that the primary judge had also failed to consider the absence of contradictory evidence or any cross-examination of Drs Crouch and Raftos by the Nominal Defendant (ground 2).
2. These grounds received little attention in the parties' written submissions and were not raised in oral argument.
3. In writing, the respondent pointed to the medical evidence being unchallenged and argued that it strengthened the finding that the respondent was injured in a motor vehicle accident. Reference was made to Dr Raftos' opinion that "the most probable explanation for [the respondent's] injuries is that he was struck by a vehicle…", along with Dr Crouch's report dated 7 June 2013 stating the respondent's injuries are entirely consistent with a motor vehicle accident.
4. Against this, the appellant submitted that the only history given by the respondent when being examined by Dr Crouch was a hit and run accident and no other scenario was put to Dr Crouch. In respect of Dr Raftos' opinion, it was said that his rejection of the possibility of falling was surprising and that there were significant chances of a head injury whether the respondent fell or was hit by a car.
5. In light of the conclusions on the liability appeal, it is unnecessary to address the respondent's notice of contention. One matter, however, should be mentioned. Contrary to the premise of ground 1 of the notice of contention, his Honour did consider the medical evidence of Dr Raftos and Dr Crouch. As indicated, his Honour found the medical evidence was consistent with a motor accident as a possible cause, but otherwise was of "limited value" (at [20]). The brevity of his Honour's reasons regarding this evidence reflected the weight it was accorded. Given the qualified terms of the opinions expressed by Drs Crouch and Raftos, there was no error in his Honour's approach to that evidence.

Contributory negligence

1. The issues raised by the finding of contributory negligence fall into two categories. First, whether the respondent was contributorily negligent in failing to take precautions against the risk of harm he suffered (cross-appeal, ground 1). Secondly, whether the assessment of a reduction of 50% to the respondent's damages for his contribution to them was manifestly inadequate, as the appellant contended (appeal ground 13) or excessive, as the respondent contended (cross-appeal, ground 2).
2. Section 138(1) of the MACA applied to the motor accident in which the respondent was injured: s 3B(2)(a), Civil Liability Act 2002 (NSW) (Civil Liability Act). It provides that the "common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident", except as provided by the section. The reference to the enacted law relevantly includes s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (1965 Miscellaneous Provisions Act) and ss 5R and 5S of the Civil Liability Act, which also apply by reason of s 3B(2)(a) of that Act.
3. As explained in Davis v Swift [2014] NSWCA 458 at [23]-[26] (Meagher JA, Leeming JA agreeing), ss 138(2) and (3) of the MACA vary the enacted law, relevantly in two respects by requiring findings of contributory negligence to be made in particular cases - s 138(2) - which is not presently relevant, and by describing in more general terms the matters with which regard may be had when apportioning responsibility - s 138(3) - which is in different terms to s 9(1) of the 1965 Miscellaneous Provisions Act. Relevantly, whereas s 9(1) requires the court when it is assessing what is "just and equitable" to have regard to "the claimant's share in the responsibility for the damage", s 138(3) provides: The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.
4. Section 5R of the Civil Liability Act provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against a risk of harm which materialised and resulted in injury. Accordingly, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk: Gordon v Truong (2014) 66 MVR 241; [2014] NSWCA 97 at [15] (Basten JA).
5. Section 5S provides that when apportioning responsibility a court may determine a reduction of 100% in the claimant's damages by reason of contributory negligence.

The primary judge's reasons

1. The primary judge made the following findings:

• the respondent conceded that it was getting dark and that it was prudent to look to his right to ensure there were no vehicles coming in that direction: at [50];
• the street was very quiet: at [54];
• sometimes the respondent did not look when walking out onto the street but assumed that there were no cars coming: at [50];
• that if the respondent had looked to his right he would have seen any car coming (from that direction): at [50];
• the accident likely resulted from the respondent's failure to see a car because he failed to look: at [51];
• that at the time of the accident it was still light: at [51]; and
• the respondent was not intoxicated, having a blood alcohol content of 0.0245g per 100ml of blood.

1. His Honour accepted that the proper approach to apportionment in the case of a blameless accident was that articulated by this Court in Axiak v Ingram (2012) 82 NSWLR 36; [2012] NSWCA 311 (Axiak v Ingram) at [85]. There, the Court emphasised that the concept of contributory negligence in a blameless accident has to be applied in a different manner to the usual comparative analysis of responsibility undertaken in personal injury cases. This is done by 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.
2. His Honour concluded that the impact was more likely due to the respondent's failure to look out for cars as he proceeded onto the roadway: at [51]. He observed the level of departure from the standard of care required of someone in the respondent's position was lessened to some degree by the relative quietness of the street and assessed it at 50%: at [56].

The competing arguments of the parties

1. The Nominal Defendant submitted that the deviation from the standard of care required of the respondent as a pedestrian in the interests of his own safety was high because the respondent obviously was not looking before he walked onto the road. A reduction of the respondent's damages by 80% was suggested.
2. The respondent emphasised his Honour's observation (at [49]) that little was known of the behaviour of the vehicle or the respondent, and submitted that it was an exercise in speculation to make any finding of contributory negligence against the respondent. The respondent further submitted that there were numerous possibilities as to how the accident might have happened, including a vehicle swerving and hitting the respondent standing not far from the kerb while he was watching and waiting for the vehicle to pass safely.
3. Alternatively, the respondent submitted that the assessment of the respondent's contributory negligence at 50% was excessive in view of factors such as the quiet nature of the street coupled with the unknown quality of the respondent's failure to keep a lookout. The respondent argued that a lesser figure in the range of 15 - 20% was appropriate.

Determination

1. Neither party suggested that his Honour did not apply the correct approach to the issue of contributory negligence in a blameless motor accident. As mentioned, his Honour expressly referred to the approach stated by this Court in Axiak v Ingram. There, Tobias AJA (Beazley JA and Sackville AJA agreeing) explained why the "balancing exercise" described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] 59 ALJR 492; [1985] HCA 34 (Podrebersek) had no application in the case of a blameless accident. This is because Part 1.2 of the MACA proceeds upon the assumption that the defendant driver is not at fault. It is for this reason that "comparisons of culpability and of relative importance of the acts of the parties in causing the [plaintiff's] injury is inappropriate": Axiak v Ingram at [83]. Tobias AJA explained at [85]: It follows that the concept of "contributory negligence" in s 7F of the Act has to be applied in a different manner to the usual comparative analysis of responsibility undertaken in personal injuries cases. This can be done consistently with the objectives of the legislation by 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. The reduction of damages under Division 1 of Part 1.2 by reason of contributory negligence will therefore be determined by assessing the extent to which the plaintiff departed from that standard.
2. Accordingly, the fact that a plaintiff guilty of contributory negligence in a "blameless motor accident" case must always be the sole cause of his or her injuries does not of itself warrant a finding of 100% contributory negligence: Axiak v Ingram at [86].
3. In Davis v Swift (2014] 69 MVR 375; [2014] NSWCA 458 (Davis v Swift), Meagher JA (Leeming JA agreeing) observed that the approach stated in Axiak v Ingram may require further consideration in a case where there has been some event which results in the driver losing control of the vehicle or having to take evasive action that causes an accident or incident. No occasion arises here to consider that possibility in view of the absence of evidence of the behaviour of the vehicle or its driver. Nor was it submitted that Axiak v Ingram was wrongly decided, or that a different approach should be adopted when apportioning responsibility for damage in the present case.
4. Axiak v Ingram involved a 14 year-old school girl returning home in a school bus accompanied by her sister (aged 12), who sustained serious injuries when she alighted from the bus and darted behind the back of the bus between its rear and the front of a following vehicle which had come to a halt and was hit by an oncoming vehicle rounding a curve in the road which on seeing the bus had slowed from 80 km/h to 40 km/h. The oncoming driver's view of the two girls was when they first emerged from behind the bus. The older sister ran straight into the front of the oncoming vehicle. Although the driver attempted to brake, he could not get his foot onto the brake before the young girl collided with the extreme right of the bonnet of his vehicle. She sustained significant injuries. This Court reduced her damages due to her contributory negligence by 50%. Tobias AJA, who wrote the leading judgment, accepted that the girl behaved as a 14 year-old girl might well do, notwithstanding that in doing so she departed from the standard of care for her own safety which the law imposed upon her: at [89].
5. Davis v Swift involved an appellant pedestrian who was injured when a motor vehicle driven by the respondent ran over her right foot. The appellant had stepped off the kerb in front of the respondent's parked vehicle and walked to the middle of the road. At that point, traffic travelling in the other (northbound) direction made it unsafe for her to proceed further. The appellant ran or stepped backwards very quickly, without looking, into the southbound traffic lane and into the path of the respondent's vehicle as it was leaving the kerb. The trial judge found the accident was a "blameless accident", and contributory negligence should be assessed at 100%. On appeal, the finding of blameless accident was upheld and the assessment of contributory negligence was reduced from 100% to 80%.
6. This Court held that in describing the appellant's conduct as the "sole cause of the accident", the trial judge had erred by taking into account an impermissible consideration (at [50]). The accident was the result of both of the appellant's conduct in walking backwards and into the path of the respondent's vehicle, and the respondent's conduct in driving her vehicle slowly from the kerb. The trial judge's description of the appellant's conduct as the "sole cause of the accident" was directed to identifying culpable conduct which caused the accident and her injuries. It was an error in approach to take that matter into account.
7. As mentioned, in the present case, the behaviour of the vehicle coming round the corner on Denison Road is unknown. Given that the respondent was aware that it was prudent to look to his right to ensure that there were no vehicles coming in that direction, and his concession that he sometimes did not look when walking out onto the road, instead assuming that there were no cars coming, it should be accepted that the respondent had actual knowledge of the risk of harm and the respondent's conduct failed to conform with the standard of care expected of a person in his position. Such a person acting reasonably would not have walked onto the road without first having looked to make sure that it was safe to do. As his Honour observed, although the respondent described the street as very quiet, he knew it was getting dark and visibility was diminishing. Also, albeit somewhat inconsistently with it being a quiet street, the respondent knew that the corner of Denison Street to the north was "a very sharp bend on that road and cars are just racing around that corner": at [55].
8. The appellant's failure to look out for cars as he proceeded onto the roadway involved a significant departure from the standard of care expected. There was no error in his Honour's finding of contributory negligence.
9. Relevant to an assessment of the degree of that departure by the respondent is the nature of the road and its traffic - here a quiet suburban street - and whether the failure to keep a proper lookout was a momentary failure to look (or to re-look) as opposed to a complete failure to look at all, such as running or darting across the road without checking at all. It was not suggested that the respondent ran or darted across the road without checking at all. Given that the respondent did not see the vehicle that hit him, it would seem that his negligence involved, at most, a momentary failure to look (or re-look). In view of the relatively quiet nature of the street, the respondent's conduct did not make it inevitable that the vehicle would hit the respondent. Like in Davis v Swift, while the evidence did not establish that the accident could have been avoided if the driver of the vehicle had been keeping a proper lookout, in the same circumstances, a different driver may have seen the respondent on the roadway and avoided the collision. Nor is it the case that the respondent consciously placed himself in a position of danger, or attempted to cross the road when his judgment was affected by alcohol or drugs.
10. It is well-established that the apportionment decision of the trial judge is "not lightly reviewed": Podrebersek, 494. This is on the basis that reasonable minds may differ as to where within a particular range the appropriate result is to be found: Podrebersek, 493-494. See also the observations of Tobias AJA in Axiak v Ingram at [90].
11. However, whilst the principle of restraint is important, as Basten JA explained in Nominal Defendant v Green (2013) 64 MVR 354; [2013] NSWCA 219 at [48], its operation may vary depending on the circumstances as to whether, for example, the decision involves a jury case or determination by a judge with particular expertise in the area. The nature of the challenge by the party seeking appellate intervention is also important. The essential question is whether a finding is outside an appropriate range, in which event this Court would usually intervene under s 75A of the Supreme Court Act 1970 (NSW).
12. Given the lack of information as to the precise circumstances of the accident, other than the findings that the respondent failed to look and that Denison Road was a relatively quiet street, I am not persuaded that his Honour's assessment of the level of contributory negligence at 50% is outside the appropriate range of an assessment.

Conclusion and orders

1. Both the appeal and cross-appeal have failed. As to costs, two possibilities arise. One is to make separate costs orders with respect to the appeal and cross-appeal on the basis that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.
2. Alternatively, a single costs order could be made in favour of the respondent making allowance for the fact the respondent was unsuccessful in challenging the finding of contributory negligence, and recognising that both parties were unsuccessful in challenging his Honour's assessment of the level of contributory negligence at 50%.
3. The latter course is preferable in circumstances where the majority of the written submissions and oral argument were devoted to the question of liability, with only relatively brief written and oral submissions on the issue of contributory negligence. In my view, the appropriate order would be that the Nominal Defendant pay 90% of the respondent's costs in this Court.
4. I propose the following orders:
5. Appeal dismissed.
6. Cross-appeal dismissed.
7. Appellant pay 90% of the respondent's costs in this Court.
8. SIMPSON JA: The relevant facts are fully stated in the judgment of Gleeson JA, which I have had the advantage of reading in draft. They need not be repeated.
9. Essentially, the factual issue in the trial was whether the plaintiff/respondent ("the plaintiff") had established that his injuries were caused by his being struck by a motor vehicle (which could not be identified).
10. The trial proceeded in the manner that it did because the Nominal Defendant made an important concession. The concession was that, if the plaintiff established that his injuries were caused as he alleged - that is, by his being struck by a motor vehicle - then they resulted from a "blameless motor accident" within the meaning of s 7A of the Motor Accidents Compensation Act 1999 (NSW) ("the MAC Act"), and he was entitled to the benefit of the provisions of Pt 1.2 of that Act. Accordingly, once the trial judge rejected the alternative hypotheses of a fall from the balcony ledge or an assault, and found as a fact that the injuries resulted from a motor accident, Pt 1.2 applied.
11. On appeal, the Nominal Defendant did not attempt to retreat from the concession made at trial. This Court should, therefore, like the trial judge, act on that concession. There is no occasion to explore the complexities of the "blameless motor accident" provisions. They have been outlined by Meagher JA in Whitfield v Melenewycz [2016] NSWCA 235.
12. The concession is probably explained by s 7C of the MAC Act. The relevant provisions are: "7A Definition of "blameless motor accident" In this Division: blameless motor accident means a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person. 7B Liability for damages in case of blameless motor accident (1) The death of or injury to a person that results from a blameless motor accident involving a motor vehicle that has motor accident insurance cover for the accident is, for the purposes of and in connection with any claim for damages in respect of the death or injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle. … 7C Presumption that motor accident is blameless In proceedings on a claim for damages in respect of the death of or injury to a person resulting from a motor accident, an averment by the plaintiff that the motor accident was a blameless motor accident is evidence of that fact in the absence of evidence to the contrary." By s 3B(2)(c), a motor vehicle has motor accident insurance cover (for the purposes of s 7B(1)) where there is, or would be, a right of action against the Nominal Defendant if the motor accident had been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle.
13. Section 7A does not depend upon a finding that a motor accident was not proven to have been caused by the fault of the owner or driver of the motor vehicle involved; it calls for a finding that the motor accident was (in fact) not so caused. Since the circumstances in which the plaintiff was injured could not be determined with any degree of precision, such a finding could not be made.
14. However, by s 7C, an averment by a plaintiff that the motor accident was a blameless motor accident is evidence of that fact in the absence of evidence to the contrary. The Nominal Defendant put its energies into contending that the cause of the plaintiff's injuries was not a motor accident, but a fall from the ledge adjacent to the balcony. Accordingly, it had no evidence to the contrary of the proposition that, if there were a motor accident, it was a blameless motor accident within the meaning of s 7A.
15. The critical question at trial was therefore whether the plaintiff established that he had been struck by a motor vehicle. He could do so only by evidence providing a foundation for an inference to that effect.
16. There were circumstances pointing to that conclusion. That the plaintiff was found in an injured condition on the side of the road was a strong starting point, although that was not inconsistent with the preferred factual basis of the Nominal Defendant, that he had fallen from the balcony ledge. The plaintiff denied having climbed over the balcony wall and onto the ledge; the trial judge accepted his denial, and there is no reason for this Court to take a different view of the plaintiff's reliability.
17. The Nominal Defendant sought to bolster its position by the expert evidence. As the primary judge observed, one difficulty is that the expert evidence was largely hypothetical, as the foundational facts for the experts' opinions were themselves hypotheses. The evidence is fully canvassed in the judgment of Gleeson JA.

The grounds of appeal

1. Although the Nominal Defendant pleaded 13 grounds of appeal directed to the fundamental conclusion that the plaintiff had been struck by a motor vehicle, in both written and oral submissions these were reduced to three broad categories. By Grounds 1-3 as argued the Nominal Defendant sought to place considerable store on what was said to be a discrepancy between the plaintiff's pleaded case and the evidence that he gave. Even if such a discrepancy could be established, I am not persuaded that it ought to be seen as fatal to the plaintiff's case. However, I am not persuaded that there was such a discrepancy.
2. The relevant paragraphs of the Amended Statement of Claim are: "3 On or about 27 February 2012 at approximately 8.15pm the plaintiff exited his residence and walked onto the footpath of Dennison [sic] Road, Dulwich Hill in the State of New South Wales. 4 The Plaintiff was walking in a southerly direction along Denison Road, Dulwich Hill and stepped onto the roadway to walk around garbage bins which were located on the footpath. 5 At the time the unidentified vehicle was driving south along Denison Road, Dulwich Hill and collided with the plaintiff."
3. The plaintiff's oral evidence in chief was: "Q. And you were very seriously injured. Do you remember what caused you to be injured? A. Well you want me - I - my recollection of this all is like I went out, I found myself in the street. Something pulled me back which is like slow motion and just pulled me back and pulled me back and then I crashed and I was landing - in the gutter I reckon … … Q. What do you remember about going out? A. Just going out and I remember like bypassing the bins, there were bins on - on the pathway. So I bypassed that and then I was in the street and then, you know, all I remember was this - this powerful surge going backwards."
4. In cross-examination, his evidence was: "Q. No, what you said this morning was, was it not, that you went into the street and you remember something pulling you back and back? … A. But before that was - I went into the road, I was in the road and something happened and it's pulled me back and it was just like what I said was, it was like - like slow motion. It was a long slow motion and then I came crashing down …"
5. Among a bundle of documentation tendered in evidence by the Nominal Defendant (about which no oral evidence was given other than in cross-examination of the plaintiff) is a notebook that apparently records a conversation with the plaintiff at 2.35am on 28 February (that is, early in the morning following the incident) at The Royal Prince Alfred Hospital. The notebook records: "3-4 glasses of wine in the evening. Was Going to Shops on Dulwich Hill Rd. Can't remember time - *? When VIC [victim] goes to the shops he always turns left onto the footpath to walk towards NCR [New Canterbury Road]. Has never walked right and cannot remember walking onto the road as there were rubbish bins blocking the road. And cars blocking the road …"
6. The Nominal Defendant sought to read into paragraphs 3 and 4 of the Amended Statement of Claim an assertion that, on exiting the apartment building, the plaintiff immediately turned left and walked in a southerly direction towards New Canterbury Road. The point the Nominal Defendant sought to make was that, contrary to his pleading, in order to avoid the rubbish bins (which photographic evidence shows were to the south of his exit point) the plaintiff must have turned right and to the north.
7. Although it is true that paragraph 4 of the Amended Statement of Claim falls short of the standards of clarity and precision that one could hope for in pleadings, it ought not, in my opinion, be interpreted as contended for by the Nominal Defendant. The pleading is perfectly consistent with a conclusion that, on initially exiting the apartment building, the plaintiff briefly walked to the right, in order to avoid the bins that were blocking the footpath to the south, and walked behind the white Commodore that was parked adjacent to the kerb, and onto Denison Road, at which point he walked in a southerly direction. In other words, the pleading is consistent with the circumstances so far as they are known: that, although the plaintiff was intending ultimately to walk to the south, he was compelled, by those circumstances, first to walk to the right, and then onto the road. The pleading does not assert (and ought not be construed as asserting) that he turned left (or south) immediately on exiting the building. It asserts that at the time he was struck, he was walking in a southerly direction.
8. The discrepancy on which the Nominal Defendant based its first three grounds of appeal has not been substantiated.
9. With respect to the remaining grounds of appeal I agree with the reasons and conclusions of Gleeson JA. I also agree with his Honour's conclusions with respect to the cross-appeal brought by the plaintiff as to contributory negligence.
10. I agree with the orders proposed by Gleeson JA.

Amendments 02 December 2016 - Representation field, Counsel, typographical error. 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: 02 December 2016