DOWSING v GOODWIN [1997] NSWCA 95

DOWSING v GOODWIN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, HANDLEY and POWELL JJA

28 October 1997, 10 November 1997

[1997] NSWCA 95

Motor Vehicle Accident — diabetic driver suffered hypoglycaemic attack — discussion of principles.

Motor vehicle accident — diabetic driver suffered hypoglycaemic attack — finding of negligence sustained because driver aware of possibility of such attack and failed to test or take adequate carbohydrate "boost" before commencing to drive.

Discussion of principles relating to sudden incapacitating illness overcoming driver of motor vehicle.

Trial judge's assessment of non-economic loss varied. Minor adjustments of allowance for economic loss.

Mason P Two appeals were heard together. At issue in each was a finding of liability against the appellant/defendant at trial. The appellant also challenges the assessment of damages in favour of the respondent in the first appeal, Mrs Goodwin.

The respondents were standing to the rear of a parked vehicle in Victoria Avenue Chatswood on 18 July 1990 when the appellant drove into them causing injury. The accident was caused by "a bout of hypoglycaemic unawareness". Hypoglycaemia is a condition where there is a deficiency of sugar in a person's blood. This can occur at one point of time during the day, even if there was a "normal" level at an earlier time that day. It is a well-known complication of insulin dependent diabetes.

Because of this condition the appellant became confused and lost control of her vehicle.

The appellant, who was 33 at the time of the accident, has been an insulin dependent diabetic since the age of two. She is a teacher and had been travelling from her school at Parramatta to her home at East Lindfield at the time the accident occurred. Victoria Avenue Chatswood is not on her normal route and it would appear that the diversion was itself a product of the hypoglycaemic incident. The appellant, who was accepted as a completely honest witness by the trial judge, said that she had no memory of the accident itself, her last recollection being when she turned off Ryde Road into Lady Game Drive.