In personal injury claims, the final compensation payout may be reduced if the injured person also contributed in some way to causing the accident. A recent case that looked at an accident involving a taxi and a pedestrian illustrates how significantly ‘contributory negligence’ can reduce the final compensation amount – a 40 per cent reduction, in this instance.

Hit by a taxi on the way to work

The pedestrian, Mr Dharamdas, was crossing Potter Street in Waterloo on his way to work when he was hit by a taxi and suffered serious injuries to his right shoulder, right wrist, lower back, knees and left thumb. Mr Dharamdas brought a personal injury compensation claim against the taxi driver, Mr Boateng, in the District Court.

Court finds taxi driver at fault …

The primary judge, Sorby DCJ, found that the taxi driver had a clear view of the road as he turned into Potter Street and should have seen Mr Dharamdas if he was keeping a proper lookout. His Honour took the view that Mr Boateng would have known the road was busy at that time and that a pedestrian crossing was nearby. As a result, Mr Boateng was found to be negligent for failing to take the appropriate amount of care. Therefore, he was found to be at fault for the accident and the injuries suffered by Mr Dharamdas.

… but so was the pedestrian

However, Sorby DCJ found that Mr Dharamdas was not entirely blameless for accident and the injuries he suffered. His Honour observed that the pedestrian had crossed when it wasn’t safe to do so, chose not to use the nearby pedestrian crossing and failed to keep a proper lookout when crossing the road. This amounted to contributory negligence on behalf of Mr Dharamdas.

Contributory negligence reduces the final payout amount

In assessing the damages for the personal injury compensation claim, His Honour reduced the final amount by 40 per cent due to the contributory negligence of Mr Dharamdas. Sorby DCJ accepted that the injuries suffered by Mr Dharamdas were caused by the accident and awarded a final compensation amount of $692,595.72. The amount had been originally assessed at around $1.15m.

A question of credibility

His Honour noted that Mr Dharamdas had not been forthcoming with information about his prior medical history. In particular, he had failed to mention to the medical and legal experts that he had a prior injury to his right shoulder. The failure to disclose this information reflected poorly on his credit. In the appeal case that followed, this was a key issue.

Adverse credit finding and the assessment of damages

On appeal, Mr Boateng challenged the finding that he was negligent, but the Court of Appeal found that the primary judge was correct in his findings for the most part.

Gleeson JA delivered the main judgment (with Leeming JA and Davies J agreeing) and said that there was no error in the primary judge’s finding of the taxi driver’s negligence and the pedestrian’s contributory negligence.

However, the Court of Appeal found that there was an error in the assessment of damages. It was not clear from the primary judge’s reasons how the adverse credit finding was taken into account in the final assessment of damages for the compensation claim amount.

The Court of Appeal also found that Sorby DCJ had erred by failing to address evidence of Mr Boateng’s reduced life expectancy in his judgment.

The matter was sent back to the District Court for a new trial on the issue of damages only.

Boateng v Dharamdas [2016] NSWCA 183