Driver loses postie appeal

A woman who ran down an Australia Post delivery man when reversing from her yard has failed to have him found partly liable.

Maureen Townsend, of Green Point, on the NSW Central Coast, had appealed against a NSW District Court judge's finding she was solely responsible for the 5 August 2010 incident.

She also lost an appeal against Judge Elizabeth Olsson's ruling postman Phillip O'Donnell could no longer work due to his injuries.

Judge Olsson was told Townsend reversed her 4WD down her driveway and crashed into O'Donnell's motorbike at 15kmh to 25kmh when he was delivering mail to her address.

He was thrown from the bike onto the roadway and sustained several injuries, including to his right shoulder and spine.

He had five operations between June 2011 and February 2014 and doctors advised he could no longer work because of his on-going medical condition.

Townsend admitted she owed a duty of care, had breached that duty and was in part responsible for O'Donnell's injury.

But she argued O'Donnell's contributory negligence was 30% under theNSW Motor Accidents Compensation Act 1999 (MAC Act) and the Civil Liability Act 2002.  

Townsend told the court she did not see the bike until her vehicle hit it but argued O'Donnell should share responsibility for not keeping a proper lookout for vehicles exiting the driveway.

O'Donnell said his vision into the yard was blocked; he was trying to negotiate wheelie bins on the nature strip; and he saw the 4WD "out of the corner of his eye" just before the incident occurred.

Townsend appealed against the District Court finding there was no contributory negligence and argued Judge Olsson had wrongly used a report based on "probabilities" to conclude O'Donnell could not work again.

She argued Judge Olsson should have found:

• the 4WD was travelling at about 10kph when it hit the bike, not 15kph to 25kph; and
• O’Donnell was guilty of contributory negligence because he failed to keep a proper lookout to ensure it was safe to ride across the driveway.

She challenged Judge Olsson’s award of damages for future economic loss ($496,204 of the $1.48 million total), claiming the judge had failed to apply principles laid down by the High Court in Malec v JC Hutton Pty Ltd [1990] HCA 20.

She argued Judge Olsson should have assessed damages by determining the degree of probability O'Donnell could obtain future remunerative employment. Instead she found, on the balance of probabilities, he had no residual earning capacity.

On October 19, NSW Appeal Court Acting Justice Ronald Sackville, with whom Appeal Court President Justice Margaret Beazley and Justice Ruth McColl agreed, rejected the appeal.

Justice Sackville said Townsend's lawyers had raised evidence not cited during the trial. That included expert evidence O'Donnell could have taken action to avoid the 4WD had he been keeping a proper lookout.

Justice Sackville said that argument was "rather at odds with the thrust of [O'Donnell's] cross-examination at the trial" and Townsend's lawyers had not directed the court's attention to any evidence that would have enabled Judge Olsson to determine when O'Donnell should have first observed the 4WD.

He said during the appeal Townsend raised many issues about the position of the two vehicles, obstacles on the footpath, and O'Donnell's view of the reversing 4WD.

"It is possible [Townsend] could have profitably explored these issues at the trial, but this did not happen," Justice Sackville said.

"It is hardly a legitimate basis for criticism of a judge that he or she has not taken into account evidence neither party suggested was relevant to the factual issue in dispute."

He said he did not believe the 4WD was driving as slowly as 10kmh when the incident occurred and Judge Olsson had correctly considered the evidence to reach the same conclusion.

"[Judge Olsson's] finding [Townsend] reversed down the driveway at a speed between 15kmh and 25kmh was based on her acceptance of [O'Donnell's] evidence," Justice Sackville said.

"[She] noted [O'Donnell] had been cross-examined in close detail about the circumstances of the accident but was unshaken in his evidence. The transcript of his cross-examination shows [he] constantly maintained the [4WD] was travelling ‘at speed' immediately before impact and he adhered to his estimate the vehicle was moving at 15kph, significantly faster than his own speed of 10kph.

"[Judge Olsson's] finding as to the speed of the [4WD] was based in part on her assessment of [O'Donnell's] credibility. It was well open to [her] to find the [4WD] was travelling at 15kph to 25kph immediately before the collision."

Justice Sackville also rejected Townsend's arguments Judge Olsson failed to apply the principles in Malec v JC Hutton and had relied on probabilities to reach her conclusions about O'Donnell's future employment prospects.

The High Court ruled: "…questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9% – or very low – 0.1%. But unless the chance is so low as to be regarded as speculative – say less than 1% – or so high as to be practically certain – say over 99% – the courts will take that chance into account in assessing damages.

"Where proof is necessarily unobtainable, it would be unfair to treat as certain a prediction which has a 51% probability of occurring, but to ignore altogether a prediction which has a 49% probability of occurring. Thus the court assesses the degree of probability an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability." 

Justice Sackville said Townsend's argument Judge Olsson had disregarded the High Court when she found O'Donnell had no residual earning capacity was an "unfair reading" of the judgement. Judge Olsson had applied the MAC Act and found that, but for the injury, O'Donnell would have continued employment with Australia Post until retirement at age 67.

He said Judge Olsson made a "practical assessment" of O'Donnell's residual earning capacity, considering not only his impaired physical ability and limited employment-related skills, but labour market realities.

Justice Sackville said while a medical report relied on by Judge Olsson had used the term "on the balance of probabilities", it was in other areas unequivocal about O'Donnell's "extremely poor" employment prospects.

Maureen Townsend v Phillip O'Donnell [2016], NSWCA 288, 19/10/16