Australia: Trial Judge's Finding of Contributory Negligence Upheld but Assessment of Damages Set Aside

Curwoods Case Note
Last Updated: 17 August 2010
Article by Nathan Morehead

Judgment date: 12 August 2010

Taheer v Australian Associated Motor Insurers Ltd (t/as AAMI) [2010] NSWCA 191

NSW Court of Appeal1

In Brief

  • The standard of care that applies for the purposes of contributory negligence is that which is prescribed by s 5R(2) of the Civil Liability Act 2002, namely, a reasonable person in the position of that person. This does not involve a determination of what that person knew, or ought to have known, at the time. It is also important to read the reasons offered by a trial judge as a whole, and in their context, to ascertain whether the correct standard of care was imposed.
  • When assessing each head of damage a trial judge must provide reasons as to why a claim is accepted or rejected by reference to the evidence. If a claim is not allowed in full, yet injury is found, a trial judge must go on to make a finding with respect to the consequences of injury and assess each head of damages accordingly.


On 17 September 2003, at approximately 6.15 pm, Ms Taheer was walking across Helena Street in Auburn when she was struck by a vehicle being driven by Mr Alameddine. She suffered injury, although there was significant dispute over the nature and extent thereof,and the consequential disabilities.

District Court of New South Wales - Robison DCJ

Ms Taheer brought proceedings against AAMI, the CTP insurer of the vehicle driven by Mr Alameedine, following his death. She claimed damages of $6,525,593 plus costs of fund management. Of that amount, $5,000,000 was for future domestic care. Breach of duty of care was admitted. The issues for determination were contributory negligence and the assessment of damages.

Contributory Negligence

Judge Robison considered the relative culpability of Mr Alameddine and Ms Taheer.

His Honour found the headlights on Mr Alameddine's vehicle were not illuminated, he did not keep a proper lookout, he had sufficient opportunity to see Ms Taheer, given the width of the roadway and the fact she had almost finished crossing it when she was struck, and he should have been aware of the potential for pedestrians to be around.

His Honour also felt it was incumbent on Ms Taheer to keep a proper lookout, noting that she was wearing a hijab and dark non-contrasting clothing, had achieved a high degree of academic performance and was attempting to cross the roadway approximately thirty minutes after sunset. His Honour accepted the proposition that, had she done so, Ms Taheer would have been able to avoid the collision. This was because Ms Taheer was in a position to observe Mr Alameddine's vehicle for some distance prior to the incident and she emerged from behind a van.

For these reasons, Judge Robison found Ms Taheer had been contributorily negligent to the extent of 30%.

Assessment of Damages

Ms Taheer alleged she had suffered a closed head injury with very severe traumatic brain injury and was left with a host of continuing disabilities. This included significant physical and cognitive defects and a severe chronic invalidism which necessitated permanent twentyfour hour care.

Judge Robison noted there had been a significant attack on Ms Taheer's credibility. She had stated that, prior to the accident, her health was "perfect", apart from an ongoing coughing problem, and that she informed all medical practitioners she had seen of the truth about her situation and symptoms. In contrast, the medical evidence revealed a background of anxiety and depression, vertigo, vomiting and a constellation of neurological and gastrointestinal problems. Video evidence also undermined her evidence, and that of lay witnesses, in relation to her level of functioning, most notably in a domestic context.

Whilst Robison DCJ found that Ms Taheer sustained a significant head injury, His Honour concluded she exaggerated her condition, there was no pathology to account for her claimed difficulties and she had not sustained injury to the extent which was advanced on her behalf. With those factors in mind, damages were assessed at $228,760.60. Of that amount, $28,760 was attributed to past out-of-pocket expenses, $150,000 to non-economic loss and a buffer of $50,000 to past and future loss of income and superannuation. Damages were then reduced by 30% to $160,132.42 to acknowledge the finding of contributory negligence.

No allowances were made for past and future domestic care, case and funds management, future handyman and gardening assistance, carer accommodation costs and holiday expenses or future treatment. Judge Robison stated he was "not satisfied that the evidence would justify an award for the amount which has been claimed" or "that the plaintiff has satisfied the onus of proof that an award of this nature should be made" for those heads of damage.

Court of Appeal

Ms Taheer appealed the finding of contributory negligence, the reduction of 30% (in the event there was contributory negligence) and the assessment of damages, which included an allegation of inadequacy of reasons.

Giles JA, with whom Beazley JA and Harrison J agreed, delivered the leading judgment. The findings of Judge Robison in relation to contributory negligence were upheld, however, the verdict and judgment in favour of Ms Taheer were set aside and a new trial, limited to the assessment of damages as a whole, was ordered.

Contributory Negligence

Justice Giles remarked from the outset that the reasons provided by Judge Robison, which occupied over one hundred pages, were "discursive and far from ideal, however, they were given ex tempore and should not be scrutinised over-critically".

After noting the provisions of s 5R of the Civil Liability Act 2002 Justice Giles made the following observations at paragraph 39 of his judgment:

"A reasonable person in the position of the appellant, taking care for his or her own safety, should keep a proper lookout for cars on the road before crossing, whatever the time of day and however that person is dressed. Dusk or darkness and wearing dark clothing can enhance the care required of the reasonable person, because he or she will be harder to see."

Justice Giles remarked that "the judge's touchstones were prudence and common sense, logic and common sense, and an acknowledgement of the real world". Whilst the language was not ideal, consideration of the reasons as a whole led Justice Giles to opine that the trial judge applied a standard of care of a reasonable person, not a subjective standard tailored to a person of Ms Taheer's educational qualifications and intellect, which was perhaps superior.

Assessment of Damages

There were twelve grounds of appeal which culminated in Ms Taheer seeking an order for a new trial as to damages. Ms Taheer asserted that Judge Robison erred in three primary respects. Firstly, failing to make findings of fact which disclosed how he arrived at the allowances he made under all heads of damage. Secondly, concentrating unduly on making findings adverse to her credibility and stating what in her case he disbelieved or rejected while failing to set out what facts he actually found as to the consequences of the accident. Thirdly, failing to give adequate reasons which discriminated between the extent to which her symptoms, disabilities, incapacity for work and various needs were caused by the accident rather than pre-existing medical problems.

These submissions were ultimately accepted by the Court, with Justice Giles making the following remarks at paragraphs 93 and 94 of his Judgment:

"The judge considered that the appellant had exaggerated her condition, and was not satisfied that she had suffered the extent of physical and cognitive disability claimed in her case as a result of the accident. This was a negative finding; it left open that the appellant had suffered a lesser extent of physical and cognitive disability as a result of the accident, or at least disability for a period following the accident. The judge did find that she had suffered a brain injury, also calling it a significant or a severe brain injury. He did not find whether or to what extent the brain injury had affected the appellant and would continue to affect her, albeit not to the extent she had claimed. There are occasional hints in the course of the Reasons prior to dealing with the heads of damage... he said that it was "difficult to find" evidence establishing loss of earning capacity directly attributable to the consequences of the accident - not that it could not be found. ...the express statement that the appellant "exaggerated her condition" indicated that there was some lesser condition, and the statement was immediately followed by repetition that the appellant "did sustain a significant head injury". What is lacking is any attention to finding what the consequences of the head injury were, as well as finding what the consequences were not.

Justice Giles went on to highlight the deficiencies and inconsistencies in the trial judge's reasons at paragraphs 96 to 98 of his judgment:

"He must have been satisfied that there was some consequences warranting the award of half the costs of past medical treatment after hospitalisation. He must have been satisfied that there was some considerable effect of the brain injury on the appellant, in order to award damages of $150,000 for non-economic loss: that is not consistent with reasonably prompt and complete recovery from the head injury. He appears to have included within the buffer of $50,000 a component for the future, as well as component for the past, indicating some continuing effect or at least the possibility of a continuing effect of the brain injury. The reasons do not enable an understanding of how the judge arrived at these amounts, particularly in the absence of any finding of what the consequences of the head injury were. It is difficult to reconcile the award of $150,000 with dissatisfaction that the threshold for voluntary care had not been met. In dealing with future costs of medical treatment the judge appears to have meant that no current disability at all was caused by the accident, but that is difficult to reconcile with the $150,000 or with a component for the future in the buffer. An apparent inconsistency lies in the acceptance that there might be a break down of marriage "given the plaintiff's extreme psychiatric state" - the judge had not been satisfied of a genuine psychiatric state. And the reason for declining an award of future costs of domestic care is particularly unsatisfactory, hinting that continuing effects of the accident but declining an award apparently because the claim to the full extent made by the appellant was not found acceptable. It cannot be seen how the judge came, on the evidence, to allowing the amounts he allowed, and rejecting the other claims."

Although sympathetic to the pressures exerted over District Court Judges and the obligation to provide reasons, Justice Giles remarked that, even on a benevolent approach appropriate to an ex tempore judgment, the reasons fell short. The Court did not have, and could not make, the necessary findings to assess damages, nor was it in a position to find that the damages awarded constituted proper compensation. A new trial on damages as a whole was ordered.


It is not uncommon for insurers to encounter claims in which a pedestrian has been struck by a motor vehicle when visibility is less than ideal. When assessing whether a reasonable person in the position of a claimant has taken care for his/her safety, consideration should be given to the time of day and clothing worn by the claimant as one, or both, of those factors may serve to enhance the care required of the pedestrian. The fact a pedestrian may be of above average intelligence and/or hold educational qualifications does not necessarily act to increase the standard of care beyond that which is attached to the reasonable person.

This decision also highlights the availability of an appeal in circumstances in which an award of damages is not accompanied by adequate reasons. A party may challenge an assessment of damages on the grounds that the trial judge failed to sufficiently explain how the evidence was applied to make various findings and/or the trial judge failed to properly explain how each head of damage was calculated.

1 Beazley JA; GilesJA; Harrison J

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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