Other Matters of Particular Relevance to NSWTG Clients.

This article continues our series on motor accident compensation in NSW. You can read about the motor accident compensation Medical Assessment Services in part 6 found here.

A particular difficulty in preparing civil cases for protected persons under management is that, quite often, they are incapable of giving evidence or, at the very least, are likely to be at a considerable disadvantage under cross-examination.

This is the same situation that is encountered when pleading a claim against the abuser of an elder person. Usually the case is framed in negligence, as little other relief is likely in Equity, due to the difficulties associated with proving fraud, undue influence or unconscionable behaviour, on the part of the abuser. This may be because the elder person is confused, or unable to provide any real instructions as to the manner and behaviour of the abuser.

I had a case a few years ago which involved a trip and fall on a footpath. The plaintiff s wife was being accompanied by her husband on their usual evening stroll. The wife tripped on a raised edge of the pavement. Her husband gave evidence about the circumstances of her fall which were thought to be uncontroversial. The husband was a meek and mild chap who we thought would make a good witness. Unbeknown to me and our barrister, the husband was a Vietnam war veteran who suffered Post Traumatic Stress Disorder. If put under pressure, he would go to pieces. That’s just what happened when he was subjected to cross examination by each of the barristers acting for the three defendants. We lost the case because the husband’s evidence was not convincing.

I learned from that experience that you should always enquire into the background of your star witness as part of the case preparation. Also, the most vigorous cross examination should be conducted by your own Counsel in Chambers, well before the hearing, so that the witness knows what’s coming and you can gauge their strengths and weaknesses. It is accepted that you should never engage in the coaching of a witness but there is sometimes a fine line.

In relation to motor accident claims, evidence about the circumstances of the accident usually is not so critical. Liability generally is admitted by the insurer when the circumstances clearly point to fault on the part of the insured driver. Where contributary negligence is alleged, the evidence of other witnesses and police records usually are sufficient to establish the degree of contributary negligence, if any. It is the same situation in respect of a Plaintiff who has no memory of the accident, as is often found in cases of traumatic brain injury.

There are cases involving children and protected persons, mainly suffering from some form of mental retardation, who suddenly dart across the road into traffic, often suffering catastrophic injuries. It has been recognised that such Plaintiffs do not have the same mental capacity as an ordinary adult and should not be held to adult standards when it comes to taking care for one’s safety. This recognition is reflected in the provisions of part 1.2 of the Motor Accidents Compensation Act 1999 (MAC Act) relating to No-fault claims, otherwise known as blameless motor accidents and in part 5 of the Motor Accidents Injuries Act 2017 (MAIA) relating to No-fault motor accidents.

The first thing to note about blameless motor accidents and no-fault motor accidents is that the onus of proof is reversed. See 7C of the MAC Act and s5.3 of the MAIA. That is, an allegation by the Plaintiff that the motor accident was a blameless or no-fault motor accident is evidence of that fact in the absence of evidence to the contrary. It is then for the insurer to prove fault.

The first and leading blameless accident decision from the Court of Appeal is Axiak v Ingram [2012] NSWCA 311. In that case, a 14-year-old child got off a school bus at Ebenezer and ran across the road towards her own home. A car has pulled up behind the bus and the plaintiff safely crossed in front of that car. However, a car coming in the opposite direction was found to have had no time or opportunity for the driver to avoid a collision with the child running across the road.

The plaintiff lost at first instance but succeeded in the Court of Appeal in demonstrating a blameless accident. The contributory negligence of the 14-year-old child in running out across the road was assessed at 50%.

In reaching that assessment the court made reference to the Second Reading Speech from the relevant Minister introducing the 2006 blameless accident amendments. It was noted that the amendments were designed to cater for the unsatisfactory situation “where children are penalised for behaving as children do”.

The second case to proceed to the Court of Appeal with a contributory negligence assessment of a blameless accident was Davis v Swift [2014] NSWCA 548. In that case, the plaintiff was crossing Vincent Street in Cessnock. There were four lanes, with the kerbside lanes occupied by parked cars. The plaintiff crossed to the middle of the road with no traffic coming from her right. Having reached the middle of the road and with concern about the amount of traffic coming from her left, the plaintiff stepped backwards into the traffic lane she had just crossed (to give oncoming traffic slightly more room).

Unfortunately, a driver had just pulled out from the kerb and ended up clipping the plaintiff who had effectively stepped back into the path of that vehicle. The plaintiff s right foot was caught under the front driver’s side wheel of the vehicle. The trial judge found 100% contributory negligence on the basis the accident was caused entirely by the plaintiff’s failure to take proper care for her own safety.

The majority in the Court of Appeal reduced this to 80%, although Justice Adamson maintained that 100% was the appropriate figure.

It is the plaintiff’s effective mental age that is likely to be the critical issue in determining the nature and extent of the contributory negligence. If the plaintiff had the same intellectual capacity as a 14-year-old, then there would likely be the 50% discount that was applied in Axiak. If the plaintiff had an intellectual capacity below that of an 8-year-old, then there would arguably be no contributory negligence at all.

When approaching settlement of a blameless accident claim involving a child, I usually apply a sliding scale, based on age – add ten percentage points for each year of age above 14 and take off ten percentage points for each year of age below 14. This is a rough reckoner that is entirely judicially untested, but I believe it fairly encapsulates the intent of the Court of Appeal in Axiak in not holding children to the same level of responsibility as is applied to adults.

I had a case for NSW Trustee and Guardian (NSWTG) recently in which an adult person under management with mental disability suddenly ran across the road and was struck by a motor vehicle. Miraculously, he did not suffer catastrophic injuries. Nevertheless, the case was settled for in excess of $100,000.00, notwithstanding that there was no component for nonĀ­economic loss. This shows that there can be considerable award of damages even where there is no entitlement to non-economic loss. A good rule of thumb for cases under the MAIA is that a claim for damages should be filed in all cases where the Claimant has suffered more than a minor injury, regardless of the extent of permanent impairment, and is not wholly or mostly at fault.

Read more about Motor Accident Compensation in NSW in part 8 of the series, “Lifetime Care and Support Scheme“.