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. Until October 1989 the appellant always had some warning of an impending hypoglycaemic attack. However, in October 1989 she changed from using porcine insulin to human insulin. Her endocrinologist, Dr Steele, had warned her that she would have to monitor herself more carefully and that she would have different warning signs or no warning signs of an attack of hypoglycaemia coming on. Experience before and after October 1989 demonstrated the correctness of this advice. The appellant stated that "before I changed onto human insulin I was getting very clear signals. When I changed to human insulin I had got no symptoms that I can recognise." 2 UNREPORTED JUDGMENTS Prior to 1989 there had been hypoglycaemic attacks, but not of the same frequency as after the change in insulin. They had gone from a frequency of "once a year, if that" to a frequency of eight attacks having occurred in the period between October 1989 and July 1990. Unlike the prior period, these attacks came without warning. Usually the attacks occurred early in the morning between 5 am and 6 am and were the product of nocturnal fasting. However there had been incidents when this had occurred at other times in the day. The appellant acknowledged that "it could come on at any time". Prior to 1989, when warning of an attack was usually (but not invariably) the situation, the appellant used to take a "high carbohydrate or straight glucose". She kept glucose with her at all times, including whilst she was driving the car. From October 1989 to the time of the accident she was more dependent upon self monitoring. It was her practice to carry out tests to determine her blood sugar levels "at least twice or three times a day". She carried out these tests when she arose in the morning, at lunch time if she was at home (but not if she was at school), and in the afternoon between 4.30 and Spm. On occasions she carried out the tests on retiring to bed. The procedure involves pricking a finger to get a drop of blood, and placing that drop on a test strip which is inserted into a small machine that produces a reading. It was the appellant's practice to keep a diary in which she recorded most but not all of the results. On the morning of 18 July 1990 the appellant had tested her blood sugar level on rising and had obtained a figure of 6.9. This was a satisfactory reading given that between 4 and 8 was regarded as the "normal range". She had breakfast of apple juice and toast and went to work at the school at Parramatta. At lunch, which took place at 11.50am, she had a sandwich consisting of two pieces of bread, some fruit and coffee. Some time after lunch she may have had another piece of fruit. She left school at 3.30pm. She had no recollection of anything after turning into Lady Game Drive (some kilometres away from the place of the accident). There was "no inkling or idea" that a hypoglycaemic fit was imminent. The evidence of Dr Sulway (a specialist in endocrinology called by the respondents), which was obviously accepted by the trial judge, noted the appellant's evidence that the weeks before the accident had revealed that she had occasional low blood sugar levels. Dr Sulway explained that this indicated that she, like any other diabetic in a similar situation, could run out of the "boost" which a carbohydrate intake would have given her. He accepted that there may well have been no prior warning. To him, "the critical issue here in this situation, is a patient awareness beforehand of such a risk" (emphasis in original). He explained that the way in which that problem ought reasonably to be addressed was either by maintaining an adequate carbohydrate intake or at least taking a blood test to determine whether an erratic blood sugar level had reached a dangerously low position. Dr Sulway pointed out that the appellant's diary showed on occasions an alarmingly low level of sugar in her blood on returning home. He was of the view that the appellant should not have been driving without having tested her blood glucose before setting off home from Parramatta, or alternatively taking the precaution of eating some carbohydrate prior to driving from work. He said that "taking a blood sugar at 4.30pm in the afternoon and also taking snacks mid-afternoon reported only three out of seven days a week is not adequate diabetic self managementfor patients on insulin especially those reporting difficulty with sensing the warning symptoms of low blood sugars". (The appellant had told him that she only took mid-afternoon snacks of carbohydrate two or three times a week, usually when she got home.) URJ DOWSING v GOODWIN (Mason P) 3 The appellant admitted that she had not carried out a blood sugar test at school in the weeks before the accident or on the day of the accident. This occurred, notwithstanding her knowledge that her own tests revealed that she had low blood sugar levels on a number of occasions in the weeks before the accident. She conceded that from one test in the morning to one in the afternoon there could be great variation, and that it was important to do regular tests. As to the ingestion of carbohydrate, she initially said in her evidence that she had eaten some fruit at about 1.50pm on the day of the accident. However, in cross-examination she frankly stated that she could not remember if she had done this on that day, although it had been her routine to do so. (Dr Sulway, who had interviewed her was firm that she had told him that she had not taken anything after lunch that day.) In the light of this evidence the trial judge held that on the probabilities the appellant had failed to respond adequately to the risk of having an attack whilst driving her car. Specifically, he held that: "she cannot remember whether she had her normal 1.50pm snack but be that as it may short of testing herself for her blood sugar level at school I think that she should have ensured that she consumed enough carbohydrate to put herself in the position where it could have been said she could have been reasonably sure that she would have [been] protected throughout the journey home. I think that the defendant in the circumstances was negligent and that there should be a verdict for the plaintiffs in both cases." In my view this conclusion was correct, and amply supported by the evidence. I will address some specific arguments advanced in the appeal after referring to some general principles. Negligence law in Australia remains wedded to the fault principle and the requirement that the plaintiff bears the onus of proof. A plea of inevitable accident is simply a denial of negligence.1| A sudden and unheralded incapacitating event, such as a bee sting or a stroke, may preclude a finding of negligence where the driver had insufficient time to avert the ensuing accident.? Since the duty is to take reasonable care, it follows that (in Lord Blackburn's words) "when a man is suddenly and without warning thrown into a critical position, due allowance should be made for this, but not too much." "Not too much" because the reasonable driver is aware of the potential risk of the activity and may be expected to drive "defensively" in the sense of making some allowance for dangerous situations not flowing directly from his or her own neglect.3 Thus, even when the driver is subject to a sudden and unavoidable onset of pain or other disabling factor, he or she will be expected to exercise reasonable care by slowing down or pulling over to the side of the road if such a reaction to the emergency is possible.4 A driver cannot take refuge in the fact that he or she was unconscious at the moment of impact if that dangerous situation was the product of lack of reasonable care.5 Even if the state of unconsciousness comes upon the driver unawares, there may still be liability if the driver should not have allowed himself or herself to be behind the wheel at the time. For some 1. Jockel v Jockel [1963] SR (NSW) 230 at 233. 2. Billy Higgs & Sons Ltd v Baddeley [1950] NZLR 605; Robinson v Glover [1952] NZLR 659; Waugh v James Allen Ltd [1964] 2 Lloyd's Rep 1. Stoeckel v Harpas (1971)1 SASR 172n. Roberts v Ramsbottom [1980]1 WLR 823 at 832; Leahy v Beaumont (1981) 27 SASR 290. . Cf Jimenez v The Queen (1992)173 CLR wae 4 UNREPORTED JUDGMENTS conditions "if (a driver) knew or had reasonable cause to believe that he was subject to blackouts, it would have been an act of negligence to have driven a motor car at all.© For other conditions reasonable care would consist of taking reasonable precautions before getting behind the wheel on a particular occasion. The case was fought below on this latter basis. These principles have been applied to cases involving diabetic hypoglycaemia." In my view the evidence adduced from the appellant and from Dr Sulway amply supported the trial judge's finding of negligence. The appellant knew that her blood sugar levels were erratic and that there had been occasions within the weeks preceding the accident when she tested alarmingly low levels upon arrival at home from school. And she knew that hypoglycaemic attacks could strike without warning. The fact that no such attack had previously occurred whilst she was driving was simply a matter of good fortune. I would reject the argument that the appellant was entitled to place reliance upon the fact that her doctor had certified her fit for an annual licence in February 1990. Such certification did not relieve the appellant of her personal duty to monitor her condition regularly and to take the precaution of frequent carbohydrate "boosts" where a lower than "normal" level was imminent or had been reached. The appellant herself frankly acknowledged this responsibility. The trial judge suggested that possible embarrassment about undertaking tests at school may have been the reason for these not to have occurred, despite the appellant's practice of taking such tests in the middle of the day when at home. With respect I disagree. The appellant herself spoke of it being "very inconvenient" to do blood sugar level tests at work. She was not challenged on this, but I find it hard to accept in the light of the nature of the test involved. But inconvenient or not, the risk of serious injury or death occurring as the result of a hypoglycaemic attack while at the wheel of a car when compared with the level of inconvenience involved indicates strongly to me that reasonable conduct involved erring on the side of caution and taking the test before setting off home after a day's teaching.' QUANTUM (MRS GOODWIN) Non-eonomic loss The trial judge's assessment of non-economic loss at 60 per cent of a most extreme case for the purposes of s79 of the Motor Accidents Act is challenged on the ground that it does not properly reflect the proportionality required by the Act. Acknowledging the need for appellate caution in such matters,° I am of the view that this ground of appeal succeeds. The learned judge did not set out his findings specifically referable to this assessment, although these are to be gleaned from elsewhere in the judgment. There would not appear to be any significant dispute about the primary facts. The 6. Jones v Dennison [1970] RTR 174 at 176 per Davies LJ. 7. See, eg Turner's Transport Ltd v Anderson (1962) 37 DLR (2d) 399. See also Porter v Price 355 P 2d 66 (1960); Hagg v Bohnet (1962) 33 DLR (2d) 378; Boomer v Penn [1966] OR 119. Care is required in dealing with one aspect of North American cases, which treat inevitable accident as a defence proof of which rests upon the defendant. That is not the law in Australia. See generally 93 ALR 3d 326 ("Automobile Accident - Driver's Blackout''). See also Whatmore v Jenkins [1962] 2 QB 572. 8. Cf Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8. 9. Southgate v Waterford (1990) 21 NSWLR 427. URJ DOWSING v GOODWIN (Mason P) 5 respondent Mrs Goodwin was aged 41 at the date of accident. The injuries that were of significance were a comminuted fracture of the right tibia and fibula, degloving of the right calf, and injury to the left knee. Surgery was required. She was in hospital for six weeks. The fractures healed. However, the degloving resulted in permanent and serious disfigurement of the lower right leg. The dislocation of the left knee also resulted in considerable disability, and it was found that there was a 50 per cent chance of needing a total knee replacement. Arthroscopy of the left knee revealed an excellent graft and normal menisci. The respondent remains fully ambulant. Some activities are restricted but Mrs Goodwin remains able to play tennis. Her continuing injuries involve aching in the left knee which forces her to sit down after walking around for an hour; scarring, particularly of the right leg and bowing of that leg, and the possibility of future arthritic changes in the left knee. There is no doubt that Mrs Goodwin suffered serious and permanent injury productive of pain and discomfort that is likely to increase with time. She is a relatively young woman. Nevertheless the extent of injuries summarised above does not justify a proportionate award in the range allowed by the trial judge. I would reassess at 35 per cent. ECONOMIC LOSS The appellant also challenges the award of damages for economic loss. The trial judge's award for diminished earning capacity proceeded on the basis that the appellant was a trained social worker who was totally incapacitated from 18 July 1990 (the date of the accident) to 26 August 1991. He awarded $345 per week for this period. For the balance of the respondent's working life, the judge allowed $120 per week as the assessed weekly loss, subject to the conventional 15 per cent discount for vicissitudes. As to the former period, the appellant challenges the award on the basis that it makes no reduction to allow for the possibility that the respondent would not have obtained full employment even if uninjured. I would uphold this ground. Mrs Goodwin was a qualified social worker who had left full time employment in the late 1970s in order to look after an expanding family of eventually four children. She returned to paid employment in 1989, working part time between 20 and 30 hours per week for about 8 months at St Anthony's Home for Single Mothers. In December 1989 she left to care for her sick and aged parents. At the time of the accident (July 1990) she was not in paid employment, although she was then seeking it, intending to work "indefinitely, I suppose" (AB46). The trial judge appears to have misunderstood her evidence, because he found that she had obtained employment, whereas the contrary was the fact. In fact her application for a position with the New South Wales Society for Crippled Children was rejected the day after the accident. The judge also proceeded on the basis that but for her injuries she would have remained in that employment throughout the following 13 months. Accepting that the appellant had been seeking permanent employment, some allowance needs to be made for the possibility that she would have been unsuccessful, or that she might have chosen to work less than full time given her family situation. At the time she had been out of this work for 8 months. I would reduce the $19,633 allowed by the judge to $12,000. The award for the balance of past economic loss and for future economic loss proceeded, as I have indicated, on the basis of a 15 per cent allowance for vicissitudes being deducted from an assessed loss of $120 per week representing a loss of a little more than a third of her income-earning capacity. The appellant 6 UNREPORTED JUDGMENTS accepts that prolonged periods of standing or walking in the occupation of a social worker would increase the discomfort in Mrs Goodwin's left knee. However, it is contended that she would be able to obtain alternative employment as a social worker in a position not requiring excessive walking, or in some other vocation. I find this unpersuasive, given the respondent's skills and experience and the clear findings of continuing disabilities. The trial judge did not err in failing to accept such an argument. Secondly, the appellant argues that the trial judge was generous in assuming full time employment extending until over the age of 60 (subject to the conventional discount). The appellant points to the fact that Mrs Goodwin had made no effort to find such employment since leaving a position with Dr Lele in May 1993 for reasons which included boredom (she was a receptionist) and the desire to spend more time with her family and attending to domestic matters. However, the difficulty with this argument is that it fails to grapple successfully with the fact that the trial judge only allowed $120 per week as the average loss for this period. In my view, it would be wrong to infer that the judge was thereby assuming full employment over the whole period. An average allowance of $120 per week was a rough and ready way of calculating loss over the whole period taking account of the possibility that full time employment would not necessarily be sought or obtained. I am not persuaded of error in this matter. KNEE REPLACEMENT The learned judge allowed $7,500 for the cost of the possibility of a total knee replacement. In doing so he accepted evidence that the cost of such a procedure could be as high as $15,000. This figure was then discounted by half because the need for the operation was only a possibility, set at its highest as a 50 per cent chance. None of this is challenged by the appellant. However, the appellant complains that no allowance was made for the 30 year deferment of that cost in the light of the finding that, if the need arose, it would arise after 30 years. In my view this ground of appeal is made good. The Court was informed, without demur, that the discounted figure was $1,700. This sum should be substituted. QUANTUM (MR GOODWIN) In written submissions the appellant challenged the award of $7500 as a "buffer" for future loss of income-earning capacity. The trial judge had found that this respondent suffered chondromalacia patellae in both knees. Dr Cross, who had made this diagnosis, had noted the possibility of osteoarthritis. Another treating doctor (Dr Coolican) whose evidence was obviously accepted by the judge expressed the opinion that Mr Goodwin was likely to be troubled with pain in the knee if he chose a manual job such as labouring, courier work, acting as a foreman and the like. The appellant challenged this award for future economic loss on the basis that Mr Goodwin was a university student at the time of the hearing and someone who expressed an intention to pursue a professional or academic career. Mr Goodwin was in his third year of a course of Bachelor of Indonesian Studies at the Australian National University. He expressed a desire to proceed into the areas of government or business upon completing his degree, adding "I'm not sure yet". In the current economic climate virtually no one can be sure of employment in his or her chosen field of endeavour. I am unpersuaded that the trial judge erred in awarding a small cushion for future economic loss. URJ DOWSING v GOODWIN (Powell JA) 7 DISPOSITION OF APPEALS In the first appeal (against Mrs Goodwin) the parties will need to calculate the appropriate sum under s73 of the Motor Accidents Act to give effect to these reasons. On the matter of costs I would order the Mrs Goodwin to pay one-half of the appellant's costs, since the appeal was only partially successful. She should have a certificate under the Suitors' Fund Act. In the second appeal (against Mr Goodwin) the appeal should be dismissed with costs. The formal Orders therefore proposed are: A. In Appeal No 40423 of 1995: 1. Appeal allowed in part. 2. Direct the parties to deliver to the Registrar within 7 days Short Minutes of Orders to give effect to these reasons. B. In Appeal No 40424 of 1995: 1. Appeal dismissed. 2.Appellant to pay respondent's costs. Handley JA I agree with Mason P. Powell JA I agree with Mason P. A. In Appeal No 40423 of 1995: 1. Appeal allowed in part. 2. Direct the parties to deliver to the Registrar within 7 days Short Minutes of Orders to give effect to the Court's reasons. B. In Appeal No 40424 of 1995: 1. Appeal dismissed. 2. Appellant to pay respondent's costs. Counsel for the appellant: J D Hislop QC Solicitors for the appellant: Curwood & Partners Counsel for the respondent: R J Colquhoun Solicitor for the respondent: Fox & Staniland