K & S FREIGHTERS PTY LTD v NELMEER HOTELIERS PTY LTD [2001] NSWCA 151

Reported Decision : (2001) 33 MVR 467

New South Wales Court of Appeal

CITATION : K & S FREIGHTERS PTY LTD v NELMEER HOTELIERS PTY LTD [2001] NSWCA 151 FILE NUMBER(S) : CA 40179/00 HEARING DATE(S) : 8 May 2001 JUDGMENT DATE : 8 May 2001

PARTIES : K & S FREIGHTERS PTY LTD v NELMEER HOTELIERS PTY LTD JUDGMENT OF : Mason P at 1; Handley JA at 27; Stein JA at 28

LOWER COURT JURISDICTION : District Court LOWER COURT DC 8960/98 FILE NUMBER(S) : LOWER COURT BELL DCJ JUDICIAL OFFICER :

COUNSEL : Appellant: M Cashion SC/ M W Hadley Respondent: C A Needham SC/ I G B Roberts SOLICITORS : Appellant: Shaw McDonald Respondent: Minter Ellison CATCHWORDS : Negligence - motor vehicle accident - property damage - driver suffers heart attack - failure to stop before crashes into hotel. (ND) DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40179/00 MASON P HANDLEY JA STEIN JA

Tuesday 8 May 2001 K & S FREIGHTERS PTY LIMITED v NELMEER HOTELIERS PTY LTD

JUDGMENT

1 MASON P: This appeal challenges a verdict in the District Court in which the respondent recovered judgment for $232,742 for damage done to its hotel. The damage was caused when an eight tonne International truck being driven by the appellant's employee left the road and crashed into the side of the hotel, causing considerable property damage. 2 The driver, Mr Fitzhenry, was aged fifty-three at the time of the accident, which was in August 1996. Unfortunately, he died before trial. The only evidence from his lips as it were about the circumstances of the accident came from a signed statement he gave to the police and a medical history he gave to Emeritus Professor Hickie on 31 May 1999. Dr Hickie was a cardiologist consultant physician retained by the respondent's solicitors. 3 To the police, Mr Fitzhenry said: I was driving down Parramatta Road and I felt pain in my chest and arms. I took an Anginine tablet and afterwards felt a bit dizzy and sweaty. I wanted to get off Parramatta Road and turned left at the Rosehill Hotel. I don't remember anything after that. 4 The history as recorded in Dr Hickie's report is in the following terms: On 19 August 1996 while driving his truck he experienced retrosternal chest pain as he approached traffic lights. He placed an Anginine under his tongue and felt faint and found he was sweating. He attempted to pull in to a side street but blacked out and recovered consciousness in his truck when he had run into a hotel building. 5 Dr Hickie concluded in light of other medical evidence that Mr Fitzhenry had had a myocardial infarct. 6 The traffic lights being approached that are referred to in the history recorded by Dr Hickie appear to be the lights at the intersection of Good Street and the Great Western Highway, Granville although it is possible it was a set of lights to the west of that point. As I say, the probability on all the evidence seems to be that it was the Good Street intersection. 7 Two blocks further to the east along the Great Western Highway, which was the direction the truck was travelling, is an intersection going off to the left of Alfred Street and the highway. The respondent's hotel is on the corner. Mr Fitzhenry turned the truck left into Alfred Street, obviously seeking a place of refuge, proceeded about forty metres down from the highway before leaving the road and crashing into the side wall of the hotel abutting onto Alfred Street. 8 The trial was before a most experienced judge, Bell ADCJ. His Honour concluded that there was negligence by the driver which he summarised in the following terms: I am of the view that as submitted by Mr Roberts the appropriate course was for the driver to stop his vehicle when he found that he was suffering the symptoms that I have described and not continued to Alfred Street. 9 This conclusion of negligence is challenged and that challenge is the sole issue that has been debated in this appeal. 10 The principal thrust of the appellant's submissions is that the medical advice previously received by the driver and his own prior medical history and the experience which it gave did not establish, the onus of course being on the respondent, that there was negligence in the driver's reaction to the symptoms he experienced on the road that morning. 11 The accident occurred at about 8.45am. I think the Court can take judicial notice of the fact that the Great Western Highway at Granville is a much frequented road. However, the P4 police report records that on the day in question the traffic density was light. We really have no other material to go on, nor did the trial judge have any other material to go on as to what conditions were like at the time. 12 The distance between the intersection of Good Street and the intersection of Alfred Street has not been measured. All the judge had to go on were two versions of the street directory and the photographs that give some indication of the distance. It certainly would appear to be a couple of hundred metres. 13 Emeritus Professor Hickie's report provides the principal source of the information about the driver's relevant medical history. He summarised that by stating that: Mr Fitzhenry has coronary atherosclerosis with ischaemic cardiomyopathy, two previous myocardial infarcts, previous coronary artery bypass graft surgery and generalised vascular disease involving the coronary arteries, the vessels in his lower limbs and the carotid arteries. He is on appropriate but significant medical therapy at this time, has occasional angina and intermittent claudication.