Goldsmith by her tutor the New South Wales Trustee and Guardian v Bisset (No 3) 2015 NSWSC 634
June 10, 2015
Date of Judgment: 29 May 2015
Before: Campbell J, Supreme Court of NSW
On 25 January 2004, Charmayne Goldsmith (‘the Plaintiff’) who was then 9 years of age, sustained head and brain injuries when she was struck by a motor vehicle driven by the Defendant. The Plaintiff had her pushbike with her when the accident occurred and was not wearing a bike helmet.
The Plaintiff alleged that she was stationary with a pushbike, waiting for the Defendant’s car to pass when the collision occurred. The Defendant claimed that the plaintiff rode her pushbike across the road and into the traffic lane in front of the Defendant’s car.
The Plaintiff was a developmentally delayed child with an intellectual disability at the lower end of the moderate range. Assessment of the Plaintiff’s adaptive behaviour placed her skills within the extremely low range (below 2nd percentile for her age) upon testing at age 6, and similar results were achieved on psychometric testing at age 7. The Plaintiff was said to be uncooperative and experienced difficulty understanding instructions or related poorly to adults when requested to undertake a particular activity or task.
The Plaintiff was examined by a paediatrician two weeks prior to the accident, who recorded that at age 9, the Plaintiff had a history of developmental delay and urinary and faecal incontinence.
The Plaintiff was attending a special school in the year prior to the accident and school reports indicated very poorly developed numeracy, literacy and conversational skills. However, the Plaintiff’s sister gave evidence that the Plaintiff knew cars could be dangerous and that she often rode her bike.
The issue of liability was agreed to be determined separately from the assessment of damages.
His Honour determined that the collision occurred when the Plaintiff was riding her bike out of the parking lane and into the traffic lane. It was found that the Plaintiff would have been visible to the Defendant (had he looked) for approximately 7.5 seconds during her ride along the footpath before she changed direction and started out across the road. His Honour was persuaded by expert evidence that there was time and opportunity for the defendant to have avoided the collision had he been keeping a proper lookout and had he reacted appropriately to the hazard the Plaintiff presented, and so found the Defendant had been negligent.
The more interesting issue in the case was contributory negligence, because of the Plaintiff’s developmental delay. Just how does one gauge what a reasonable child in the Plaintiff’s position should have done?
The Defendant alleged the Plaintiff’s damages should be reduced for contributory negligence in respect of her failure to stop and look before attempting to cross the road, and failing to wear a helmet.
The Defendant relied on section 138(2)(d) of the Motor Accidents Compensation Act 1999 (NSW) (‘the Act’), which mandates a finding of contributory negligence where the injured person was not wearing a protective helmet when required by law to do so.
We set out in full section 138(2) of the Act below:
(2) A finding of contributory negligence must be made in the following cases:
a. where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident, unless the plaintiff satisfies the court that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident,
(i) the injured person (not being a minor) or the deceased person was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and
(ii) the driver’s ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the injured person or the deceased person was aware, or ought to have been aware, of the impairment,
unless, in the circumstances of the case, the injured person or deceased person could not reasonably be expected to have declined to become a passenger in or on the motor vehicle,
c. where the injured person (not being a minor) or the deceased person was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and
d. where the injured person or the deceased person was, at the time of the motor accident, not wearing a protective helmet when required by law to do so. (emphasis added)
As can be seen from the section, the mandatory finding of contributory negligence expressly does not apply to children under 18 in relation to alcohol and seatbelts, but that same exclusion does not appear in relation to a failure to wear a helmet.
While the judge accepted that prima facie the section mandated a finding of contributory negligence, his Honour embarked on a survey of the history of the section and its predecessor under the Motor Accidents Act 1988. He concluded that he should read into section 138(2)(d) the same exclusion for minors as applied to alcohol and seatbelts. This may well be controversial.
The fact that his Honour determined the statute did not require him to make a finding of contributory negligence in the case was not the end of the enquiry, as the common law still applies.
When considering the relevant standard for determining the issue of contributory negligence, the parties accepted that it was whether the Plaintiff ‘failed to take the reasonable care for her own safety that is to be expected from a reasonable 9 year old having such a degree of intellectual handicap’.
His Honour found that a reasonable 9 year old with the Plaintiff’s degree of intellectual disability was likely to be the equivalent of a much younger child, akin to a 5 year old, in terms of road sense and safety. Although the Plaintiff’s sister gave evidence that she reminded the Plaintiff more than once to go back and retrieve a helmet when she emerged from her home without one, the Court accepted that the Plaintiff’s ‘cranky response’ and refusal to do so was consistent with the nature of her disability. His Honour was also not persuaded that the Plaintiff could have been left to her own devices in fitting the helmet, given the reported difficulties she experienced in dressing herself.
His Honour was not persuaded that the Defendant had proved that the Plaintiff was guilty of contributory negligence and declined to reduce the Plaintiff’s damages.
His Honour noted that if he were wrong about the construction of s138(2), he would otherwise accept that a reasonable 9 year old could be expected to exercise the ordinary care of stopping, looking and listening before crossing the road, at least most of the time, and could be expected to know to wear a helmet when riding a bike in a public street. However, His Honour noted that even a reasonable 9 year old, not suffering the Plaintiff’s intellectual disability, would not have the same appreciation of danger and possible consequences as an adult.
His Honour found that if his construction of s138(2) wrong, and had the Plaintiff not suffered any intellectual disability, contributory negligence would have been assessed at 25%.
- This case reinforces that in considering whether a plaintiff is guilty of contributory negligence, a his or her subjective features (e.g. developmental disability) will be taken into account when considering whether a reasonable person with those subjective features would have behaved in the same way.
- Such a handicap may be sufficient to enable the Court to find that the child has not departed from the relevant standard of care, such that no reduction of damages for contributory negligence is made.
Authored by Judith Waldock, Partner and Kim Wijesooriya, Lawyer, Sydney.
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