GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v WOLSKA-GROMEK SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and CLARKE JJA 11 February 1991, 26 February 1991 [1991] NSWCA 122 NEGLIGENCE — motor vehicle — motorist plaintiff attending to mechanical difficulties sustains injuries at side of road — injuries occasioned by fast moving passing motor vehicle which is unidentified or by a "woosh" which results in fall — Master finds negligence and rejects contributory negligence — held: (1) The finding of negligence was open to the Master upon his acceptance that the plaintiff's fall was occasioned by a passing unidentified motorist who came too close to the plaintiff. Abalos v Australian Postal Commission (1991) 65 ALJR 11 referred to; (2) Contributory negligence was not established as the plaintiff had acted normally and reasonably and without any lack of attention for her own safety. Thomopolos v Blackburne (1989) 10 MVR 7 distinguished. Kirby P, Samuels and Clarke JJA Two issues are raised in this appeal. The first is whether the decision at first instance by Master Malpass demonstrates an error in the holding of negligence on the part of the appellant. The second is whether an error is shown in the Master's rejection of the defence of contributory negligence. Woman injured near the side of a road Mrs Zofia Wolska-Gromek (the respondent) received injuries on 25 June 1985. She alleged that her injuries arose out of the negligence of a driver of an unidentified motor vehicle. The Government Insurance Office of New South Wales (the appellant) is in law responsible for any such negligence. The Master found that the necessary preconditions for recovery relating to due search and inquiry had been established. No challenge is raised in respect of that finding. The respondent's proceedings arose from an incident which occurred in Centenary Drive, Strathfield West at about 5.40 am on the day stated. The respondent gave evidence that, prior to injury, she had been travelling in a northerly direction in the third lane of the road, ie the lane closest to the centre of the carriageway. She noticed a high temperature reading on the water gauge of her vehicle. She had previously experienced a problem with a boiling radiator. Accordingly, she changed lanes immediately, driving her vehicle to the kerbside lane. She stopped her vehicle there. She gave evidence that it was about | metre inside the marked traffic lane dividing the kerbside lane from the other lanes in the north-bound carriageway. A vehicle proceeding safely within the adjacent marked lane would therefore be more than a metre from the respondent's person as it passed by her, standing near her vehicle. The precise way in which the respondent received injury was the subject of the first challenge in the appeal. Although the question must be determined by reference to what was said in evidence, it is convenient to approach that evidence by way of the histories given by the respondent to various persons, arranged chronologically. These histories do not prove what happened. They would, however, have been available to the appellant to test any discrepancies in the 2 UNREPORTED JUDGMENTS evidence had such discrepancies appeared. (Cf Ramsay v Watson (1961) 108 CLR 642; Paric v John Holland (Constructions) Pty Limited (1985) 62 ALR 85 at 87 (HC). In her statement to the Auburn District Hospital at 6 am on the morning of injury the following history was recorded: "This 24 year old girl (12-40 weeks pregnant factory worker) was knocked by a car at right thigh this morning when she was examining her car radiator by the roadside in front of the factory. Said she could not remember exactly what happened but felt she fell down and knocked her head against car bumper and lost consciousness for about (query) twenty minutes. Was found by a passerby who found her awake on the roadside and brought her to Casualty." The police report, taken at 2 pm on the following day recorded the following summary of the event: "Driver of vehicle 2 alighted to check under bonnet of vehicle. In doing so was struck by vehicle 1 travelling same direction. Driver of vehicle 2 conveyed to Liverpool by passer-by. Vehicle 2 decamped without exchanging particulars." Similar histories of being struck or knocked by the passing car were given by the respondent to her medical advisers. Thus she told her local practitioner, Dr Veronica Jakovac, with whom she could speak partly in her native Polish: "She has told me that on 25th June 1985 at about 5.40 am was going to work when her car stopped and she went out to check what could it be. The water was hot. She said that a car hit her and she had a fall. Another car picked her up as she was unconscious laying down and took her to Auburn Hospital." Dr D M Cunningham received a similar history: "She stated she was on her way to work and as she stepped out of her car she was struck by another car." The same history was reproduced by Dr C Mitrofanis, plastic surgeon: "The patient alleged that on 25th June 1985 when she was approximately three months pregnant she was hit by a car and her head hit the bumper bar of the car." The statement of claim issued on behalf of the respondent suggests that her statement to her legal advisers was in like terms. It asserted: "On or about the 25th June, 1985 the plaintiff's vehicle was parked on the near side lane on Centenary Drive... Strathfield West when she was struck by an unidentified motor vehicle whilst returning from the front of her vehicle and was thereby thrown to the ground and suffered injuries." When the respondent's senior counsel opened the case to the Master he described what had happened: "She alighted from her vehicle and closed the door. As she went towards the front of her car, she was struck by an unidentified vehicle, fell to the roadway and suffered quite a severe gash over the left eyebrow." In her evidence in chief the respondent adhered to this version of events: "Q: After you stopped the car, what did you do? A: I got out of the car, I slammed the door, I went towards the bonnet of the car but I didn't quite reach there. At that stage a car went by and I felt a thump and I fell." To this point, the evidence of the respondent, and her complaints to the hospital, police, medical practitioners and her legal advisers were all consistent. She had been struck or thumped by a passing car. As she was | metre inside her traffic lane, such a version of events would be consistent with the negligence of the unidentified vehicle for which the appellant is liable. It would suggest that \WGROQVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v WOLSKA-GROMER (Kirby P, Samuels and Clarke JJA) such vehicle had been driving too close to the near traffic lane and to the respondent, who would have been visible standing within her lane. Suggested confusion about the accident cause During cross-examination, however, the respondent is said to have retreated from this consistent version of events and to have provided a different story: "Q: As you were going towards the front of the vehicle do you remember some cars going past you before you met with your accident? A: There was a woosh and then I don't remember any more. Q: Do you remember being hit in some particular place in the body? A: It was more a woosh I don't remember being hit in any part of the body. Q: Was it just the sound of a car that you heard coming close to you.? A: I don't remember. I remember a woosh I don't know if there was a whistling sound. My whole attention was concentrated on what was happening in my bonnet as I had recently spent a lot of money replacing the whole part of that - the car I'm not sure what it is called. Q: That was the very next thing you remember after this woosh that you've described? A: I got up I felt dizzy and that is all. I felt something - I felt something wet and there was blood flowing, a lot of blood flowing." It appears from the transcript that the respondent gave the foregoing evidence through an interpreter. It appears that the interpreter had some difficulty in explaining the "woosh" referred to. Although the word is substantially onomatopoeic, the precise word used by the respondent in Polish is, of course, unknown. The difficulty of the interpreter is disclosed in the following passage: "Q: In describing the incident you told us that there was a woosh. Do I correctly understand you have no recollection of a car actually hitting you? A: That is correct. Q: The woosh is a sound you heard is it? A: No. INTERPRETER: Sorry, it is my fault there. A woosh is the sort of effect you get Say a train goes past and you get that backwind that is what I meant by woosh. MASTER: Q: Now when this woosh took place where were you in relation to your vehicle? A: At the time of the woosh? Q: The woosh sensation that you experienced, where was she in relation to the vehicle? [RESPONDENT] A: Where the doors are just at the join of the doors. Q: You hadn't reached the front or bonnet area of your vehicle? A: No. COUNSEL: Q: See Mrs Gromek when you felt- this woosh of the car it startled you didn't it? A: What do you mean startled? I was already on the ground, I don't remember what happened." The Master's finding and the appeal Master Malpass found negligence in the unidentified vehicle and dismissed the defence of contributory negligence. He did not differentiate whether the respondent had actually been struck or whether she had merely fallen over by the force of the "woosh". In either event, he concluded, negligence was established because the passing vehicle had come too close to her: "When she was near the join of the car door she said that there was a 'whoosh' and she fell. Initially she said that she felt a thump. However, later in evidence she said that she had no recollection of being hit on any part of the body or by 4 UNREPORTED JUDGMENTS a vehicle. She did recall that a car went by. She did not see the car as she was concentrating on the bonnet of her parked vehicle. When she got up she felt dizzy... Her injuries... would be consistent with some impact or near contact between the plaintiff and an unidentified vehicle (travelling in the other north-bound lane) leading to the plaintiff falling over in near proximity to her parked vehicle. On the evidence it is probable that these injuries were occasioned as a consequence of negligence on the part of the driver of that unidentified vehicle. Accordingly, I find that negligence has been established. The evidence does not support a finding of contributory negligence and, accordingly, I reject that defence." These findings were criticised by the appellant. It stressed that the respondent bore the onus of proof and this had not been discharged. It was not possible to prove what had happened from the histories given to medical practitioners (although these were available as admissions to test evidence later given in court) and the version of the "woosh" eventually given was as consistent with the absence of negligence as with its presence. The appellant also said that, by walking with her back to the traffic beside a busy carriageway and in close proximity to passing vehicles, the respondent had been careless so that the defence of contributory negligence had been made out. No challenge was brought against the damages of $53,607.60 which the Master entered in favour of the respondent. No error is shown In our view no error is shown which would warrant this Court's disturbing the conclusion of the Master. To some extent the Master's conclusion was dependent upon the impression which the respondent made upon him as a witness. Although not expressed in those terms in the Master's reasons, it is sufficient for such impression to be implicit in the finding under challenge to require restraint on the part of an appellate court in substituting its view of the probabilities for that arrived at by the court of trial, with the advantages conventionally ascribed to that court, derived from the impression gained from seeing the witnesses give evidence. See Abalos v Australian Postal Commission (1991) 65 ALJR 11, 16. The Master did not decide whether the respondent had been struck by the unidentified vehicle. The essential thrust of his conclusion was that the respondent sustained her injuries as a consequence of either an impact or the unidentified vehicle driving so close to her that it caused her to fall. He concluded that in either event negligence on the part of the driver had been established. It was submitted that it was not open to the Master to conclude that there was an impact. All that could be said, according to this argument, was that the unidentified vehicle was driven close to her and proof of this fact did not establish negligence. We do not agree. The finding that the respondent's injuries were caused as a result of an impact or near impact is not open to challenge. The evidence provides ample support for such a conclusion. The consequential finding that the driver of an unidentified vehicle was negligent was also open and should in our view have been made. The uncontradicted evidence was to the effect that the respondent parked her vehicle wholly in the kerbside lane with its offside about one metre from the line between that lane and the next one and was walking beside her vehicle towards its bonnet. Whether or not there was a collision the driver of the unidentified \GROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v WOLSKA-GROMEK (Kirby P, Samuels and Clarke JJA) vehicle drove the vehicle so close to her as to strike her or to unsettle her to such a lane extent that she fell heavily against her own vehicle and suffered injuries. In these circumstances it does not seem to matter whether there was an impact. On any view the driver drove the vehicle so close to her as to cause, in a real sense, her injuries In so driving the vehicle the driver was, in our view, negligent. So explained, no error is established in the finding of negligence by the Master such as would authorise this Court to disturb that finding. It must therefore stand. So far as contributory negligence is concerned, we see no merit in that ground of appeal either. Upon that defence, the appellant bore the onus of proof. It had to show that, in the circumstances, the respondent had acted without due attention to her own safety. Such attention is judged by the standards of reasonable care and tested by what a reasonably careful motorist would have done in the respondent's circumstances. Her radiator had previously given difficulty. The same problem had represented itself. She had pulled quickly and safely to the side of the road. She had alighted from her vehicle. She was proceeding in the direction of the bonnet to discover what was wrong. Necessarily, she then had her back to the traffic passing beside her. But that action on her part (provided she remained within her traffic lane of the carriageway) did not show any want of reasonable care. It was perfectly normal conduct of a motorist in such circumstances. Those circumstances were entirely different from those described in Thomopolos v Blackburne (1989) MVR 7 (CA) to which the appellant referred. That was a case where a pedestrian was found to have moved quickly through lanes in banked up traffic and was struck by a taxi which did not see him until he emerged immediately in front of the taxi. This was not such a case. Upon the evidence of the respondent, which it was open to the Master to accept, she remained within her traffic lane. Her fall was occasioned either when she was struck by an unidentified passing vehicle or when that vehicle came so close to her as to cause her to lose balance, topple over and suffer the injuries that took her immediately to hospital. It is clear that something happened to the respondent at the side of her vehicle which caused lacerations and the injuries described on her arrival at hospital. The precise mechanics of the fall may be obscure. But the involvement of a fast moving, passing and unidentified motor vehicle which came too close to her is not really in doubt. At least such a conclusion was available to the Master who saw the respondent give evidence and accepted that evidence. This Court cannot disturb the conclusions which followed. Both grounds of appeal must therefore be rejected. The order of the Court is, accordingly, that the appeal is dismissed with costs. Counsel for the Appellant: A P Quinlivan Counsel for the Respondent: A Leslie QC with H Mundy Solicitor for the Appellant: G Leeds Solicitor for the Respondent: E Fredericks and Co