Hat fails to tilt appeal judges

The NSW Appeal Court has rejected a Nominal Defendant claim a Sydney man's injuries were caused by him falling from his apartment building rather than being hit by a vehicle.

The Nominal Defendant had tried to convince the court Ronald Dowedeit's hat, which police had found on the awning of his first-floor Dulwich Hill apartment block, proved he had climbed onto a ledge to retrieve it and fallen to the street below.

The Nominal Defendant had appealed against NSW District Court Judge Phillip Taylor's finding a vehicle had caused Dowedeit's injuries and Dowedeit cross-appealed against his contributory negligence ruling.

Judge Taylor had reduced the payout from $349,100 to $174,550 because Dowedeit failed to keep a proper lookout.

Dowedeit was found seriously injured outside his building on 27 February 2012. He had fractures to two vertebra, nine ribs, five bones in his pelvis and his right arm. He later had a surgical incision into the chest wall and spent two months in hospital recovering.

The court heard Dowedeit had returned home from work, relaxed on his balcony, enjoying the sunset, and drank a couple of glasses of wine. He then left to walk to nearby shops, skirting around a row of wheelie bins on the footpath.

Dowedeit was not intoxicated, having a blood alcohol content of 0.0245gm/100ml of blood. He remembered little of the incident, except being "pushed back" when he reached the road.

He admitted he rarely looked for on-coming vehicles because the street was quiet.

Dowedeit sued the Nominal Defendant for the unknown driver's negligence under the NSW Motor Accidents Compensation Act 1999.

Two expert witnesses said his injuries and the way he was lying on the footpath were consistent with being struck by a car travelling at 40kmh.

Dr Shane Richardson, a qualified mechanical engineer with expertise in crash reconstruction, incident analysis and vehicle structuring engineering, gave evidence that if Dowedeit was "projected from the awning or balcony he did not fall, but was pushed or jogged or ran off".

A lack of head injuries supported the argument he had not fallen or been pushed.

Dr Richardson said had Dowedeit fallen from the balcony he would have landed on the footpath or in the garden almost directly under the awning or balcony and would have sustained right-side head injuries.

The Nominal Defendant said police had found Dowedeit's hat on the awning below the balcony and argued it was reasonable to conclude he had fallen while trying to retrieve it.

Its expert witness, Dr Andrew Short, a consulting engineer with expertise in biomedical engineering and forensic biomechanics, said no computer simulations of vehicle collisions resulted in a rest position behind a parked car in the gutter.

"This is supported by the police report which states there was a wine glass on the balcony and, directly below that, a hat and, directly below that, was blood on the pavement," Dr Short's report said.

A fall from the height of the balcony was "kinematically consistent with [Dowedeit's] rest position in the gutter. Based on my analysis, with the limitations acknowledged, my opinion is a fall is more likely than a hit from a vehicle".

On 1 December 2016, Justice Fabian Gleeson, with whom Justices Anthony Meagher and Carolyn Simpson agreed, dismissed both appeals. Justice Gleeson said Judge Taylor was open to accept Dowedeit's sworn evidence he had never climbed onto the awning and remembered walking up his drive to the footpath before the incident.

He said Judge Taylor had rejected the possibility Dowedeit had fallen from the balcony. "This theory rested on a note in the police records that [Dowedeit's] hat was found on the broad ledge, speculation he had climbed over the balcony wall and garden bed and down to the ledge to retrieve it and, in doing so, had accidentally fallen off the ledge."

Dowedeit gave evidence he had never climbed the balcony wall or down onto the ledge below; he was unaware of his hat being on the ledge; and he denied falling off the balcony or being on the awning.

Judge Taylor said Dowedeit was a "persuasive" witness who did not appear to exaggerate his knowledge of the events and accepted he remembered being in the street and feeling "a powerful surge going backwards".

"I accept Mr Dowedeit believed he was hit by a car, and I accept his evidence he did not climb over the balcony walls onto the broad ledge, or fall from there. Falling from the ledge did not explain the absence of any face, head or brain injuries, and seemed to me less likely to result in the numerous serious injuries [he] suffered. It also seemed less likely to have resulted in Mr Dowedeit lying parallel to the road [more than] 2m in horizontal distance away from the ledge," Judge Taylor said.

Justice Gleeson said Judge Taylor was also correct in finding Dowedeit had contributed to his own injuries. "[Dowedeit's] failure to look out for cars involved a significant departure from the standard of care expected," he said.

Dowedeit was aware it was getting dark and it was prudent to look to his right to ensure no vehicles were coming in that direction, despite the street being very quiet.

"The accident likely resulted from [Dowedeit's] failure to see a car because he failed to look."

Because there were no witnesses, the 50% contributory negligence assessment was appropriate.

Nominal Defendant v Dowedeit [2016], NSWCA 332, 01/12/2016