Bates v Gillham

[2016] NSWCA 129

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bates v Gillham [2016] NSWCA 129

Hearing dates:

23 May 2016

Decision date:

30 May 2016

Before:

Beazley P at [1];
Basten JA at [2];
Simpson JA at [41]

Decision:

(1)   Allow the appeal and set aside the judgment and orders made in the District Court.

 

(2)   In place thereof, give judgment for the defendant and order that the plaintiff pay the costs of the trial.

 

(3)   Order that the respondent pay the appellant’s costs of the appeal.

(4) Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

Catchwords:

NEGLIGENCE – scope of duty of care – breach of duty – plaintiff’s vehicle collided with vehicle stationary in centre lane waiting to turn right – turn across painted lines not unlawful – whether reasonable person in the position of the driver would not have attempted the turn – need to consider line of sight for following vehicles and road and traffic conditions – no issue of principle

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E

Category:

Principal judgment

Parties:

Barbara Joan Bates (Appellant)
Thane Bruce Gillham (Respondent)

Representation:

Counsel:
Mr D Wilson SC/Mr R Perla (Appellant)
Mr R Sheldon SC/Mr J Reimer (Respondent)

  Solicitors:
Moray & Agnew Lawyers (Appellant)
Brydens Lawyers (Respondent)

File Number(s):

CA 2015/311321

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

25 September 2015

Before:

Maiden DCJ

File Number(s):

2012/186754

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Basten JA. I agree with his Honour's reasons and proposed orders.

2. BASTEN JA: On 27 August 2010 the appellant, Barbara Joan Bates, was seeking to turn into a fruit and vegetable barn on the Great Western Highway, between Faulconbridge and Linden. As she was travelling in a westerly direction, and the fruit barn was on the northern side of the highway, she came to a halt opposite the entry and was waiting for a gap in the eastbound traffic before turning into the fruit barn. The respondent, Thane Bruce Gillham, driving in the lane behind the appellant collided with the rear of her vehicle. Although Mr Gillham was travelling at a significant speed at the time of the collision, the only significant injury suffered by either party was a fracture to Mr Gillham’s right ankle. Mr Gillham (hereafter, the claimant) brought proceedings in the District Court against the appellant, alleging negligence. The proceedings were defended. The trial took place from 17 to 19 February 2015.

3. On 17 July 2015 Maiden DCJ gave judgment for the claimant, but assessed his contributory negligence at 50%. Damages were assessed at some $580,000 and judgment was entered for half that sum.

4. There was no challenge to the assessment of damages, nor, directly, to the finding of contributory negligence: rather, the appellant contended that the trial judge was in error in finding a breach of duty on her part. Although a significant focus of the evidence at trial was on how the claimant failed to observe the appellant’s vehicle in time to avoid the collision, the sole issue in this Court concerned the conduct of the appellant.

Background facts

5. A number of aspects of the physical condition of the highway were uncontroversial. First, the highway involved two lanes in either direction, with three unbroken painted lines separating them. The trial judge accepted that, despite the unbroken painted lines, the right turn being undertaken by the appellant was lawful and not in breach of any traffic rule or regulation.

6. Approaching the position at which the accident occurred from Faulconbridge (that is, heading west) traffic came up a significant incline, with a broad right hand curve. The highway then levelled out, so that a car in the centre lane heading west would have had a line of sight permitting a driver to see the brake lights and rear indicator light of the appellant’s vehicle 130 metres before the point at which she had stopped.

7. Some 80 metres before the entry to the fruit barn there was an exit into the eastbound lanes of the highway. The appellant initially slowed down, thinking that the exit was an available point of entry, realised it was an exit only and continued on to the entrance.

8. A possible alternative manoeuvre would have been to use a U-turn bay, to which access could be had via a slip lane on the left hand side of the highway travelling west. There was a sign on the verge on the left of the west bound lanes, just before the start of the slip lane. There were no precise calculations as to where the U-turn bay sign was located, but it appears to have been a short distance (perhaps about 20m) past the exit from the fruit barn (on the opposite side of the highway) and (according to a diagram prepared by a traffic engineer) the slip lane commenced some 40 metres beyond the exit from the fruit barn. There was no evidence as to the distance from which the U-turn bay sign could have been read by a driver travelling west. A person seeking to enter the eastbound carriageway from the U-turn bay would have been required to cross four lanes of traffic, presumably from a standing start, with no slip lane providing entry to the eastbound lanes.

9. The speed limit on that part of the highway was 80kph. However, the calculations undertaken by the experts were based on the claimant’s statement that he was travelling at 70kph on the highway opposite the fruit barn. At that speed (20m/sec) given an agreed perception response time of some 2.5 seconds, plus the distance required to stop, the experts agreed that the claimant required up to 77 metres to stop his vehicle.

10. The appellant gave unchallenged evidence that the traffic was “light” travelling in a westerly direction. [1]

    1.    Tcpt, p 147(18).

Reasoning of trial judge

11. The trial judge dealt with the breach of duty on the part of the appellant in a number of passages which were interspersed with discussion of the conduct of the claimant. The judge identified the issue in the following terms: [2]

“The question arises that although she did not break any traffic rule or regulation, would a prudent driver in the situation on a national highway carrying presumably all manner of vehicles from light to heavy in what must be described as a busy road although she said the traffic was light on the day and it was fine and from her own actions she contemplated the risk of vehicles impacting to her rear. That is, that on a highway where she was travelling slowly because she was unsure where she would turn, that other vehicles, would have to move from lane 2 where she was to lane 1.”

2.    Judgment, pp 7-8.

12. The judge answered the question thus posed as follows:

“To stop on such a road in any circumstance other than emergency would appear always to have a risk involved because of persons following having limited or restricted sight because of other vehicle or because of the requirement for them to consider other vehicles on the road. In my mind, the initiating act of negligence in this matter is the defendant’s failure to move over to the left at an earlier point and to effectively make a decisive manoeuvre either at the point where the impact occurred or at the U-turn bay. … However, the primary cause of this accident in my mind is the defendant’s actions in stopping effectively twice in circumstances where she was conscious of the risk to her and others by her movements.”

13. Having reached a conclusion that the appellant was negligent and that the claimant was also negligent and having apportioned blame on a 50/50 basis, the judge then said: [3]

“The Court is obliged to consider those sections of the Civil Liability Act 5B, C, D and E. This is a case where the evidentiary onus fell upon the plaintiff and I accept that the onus evidentiarily falls on the plaintiff, but in this case there is little or no difference in what both the witnesses said.”

3.    Judgment, pp 8-9.

14. The judge then dealt with the claimant’s injuries and the assessment of his loss. The reasons continued: [4]

“There is one matter that I have omitted in that regard, s 5B, C, and D of the Civil Liability Act. For reasons that I have set out, the defendant, by her use of the brake and stopping in lane 2, as I have set out – it was clear in her mind, and I find in the situation of the National Highway a risk that arose and that because of her actions under 5D that this was causative of the collision between the plaintiff’s and the defendant’s vehicle. I also need to refer to s 5C. In respect of 5C, which is proceedings relating to liability for negligence, the fact that risk of harm could have been avoided by doing something a different way does not itself give rise to or affect liability for the way in which the thing was done.

[Counsel for the defendant] in his submissions says that this matter relates to the U-turn bay, which, as I have already indicated, was not pleaded. However, in my mind the failure of the defendant to see the signage that was there – and had she looked to the left, as she was required to do, for appropriate signage, negates this particular submission. Accordingly, I do not find that there was any support for the defendant by applying s 5C(b).”

Whether breach of duty established

4.    Judgment, p 16.

(a)   challenge to findings of fact

15. The findings of fact which were necessary to determine the question of breach of duty were important and formed a focus of the appellant’s case on appeal. The liability of the appellant turned upon whether she breached her duty of care to other road users in seeking to make a right hand turn into the fruit barn, which required her to stop on the highway until there was a gap in the eastbound traffic. If that conduct involved a breach of duty, there is little doubt that it was a cause of the accident in the sense that the accident would not have occurred but for that conduct. Accordingly, the references to s 5D and 5E of the Civil Liability Act 2002 (NSW) were of no moment. Nevertheless, the burden of proof should not have been dismissed as insignificant. Section 5E, requiring that “the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation” is a principle not restricted to facts relevant to causation; the same principle applies with respect to all facts relevant to a finding of negligence. Nor is it correct to say that the burden imposed by law on the plaintiff was merely evidentiary; it was a legal burden of proving relevant facts, not merely adducing evidence of them.

16. First, there was an issue as to whether, when the appellant was stopped in the centre lane, waiting to turn, she had her brake lights on. Speaking of the claimant’s evidence, the judge said: [5]

“He could not remember whether the brake lights were on. However, what is clear is that the right-hand indicator was on and I find so. I am unable to find whether or not the brake lights were on or off at the time of impact.”

5.    Judgment, p 6.

17. The defendant’s evidence as to what she did when she came to a stop was as follows: [6]

“Q. When you came to the stop you had the indicator on for about 130 metres as you came to a stop, what else did you do when you came to the stop in respect of the operation of the vehicle? That is, the mechanical operational parts?

A. I put the car into first gear and I had my left foot on the clutch ready to move.

Q. You hadn’t engaged a brake at all?

A. And I had my foot on the brake, sorry, you said in addition, yeah, so I had my foot on the brake and the foot on the clutch.”

6.    Tcpt, p 148(35)-(45).

18. That evidence was not challenged in cross-examination and was inherently plausible. Nor had the claimant given evidence to the contrary: his evidence was that he “jumped on the brakes” immediately he saw the appellant’s stationary vehicle. [7] In cross-examination he agreed that it was stationary but when asked whether he could recall seeing the brake lights of the car he said, “I can’t, can’t be accurate with that.” [8]

    7.    Tcpt, p 16(40)-(45).

    8.    Tcpt, p 63(45).

19. It would have been relevant to any breach of duty on the part of the appellant to determine whether, when stationary in the centre lane, she had her brake lights on. If she did not, she would have failed to give one indication of her intentions to following traffic, which could have supported a finding of breach of duty. Given her evidence that she did, the case should have been assessed on that basis. The failure to make that finding, given that the claimant bore the onus of proving the contrary, was to adopt an erroneous approach.

20. A second relevant factor was the use of the right hand indicator. The finding set out above was that the right hand indicator was on when she was stationary, awaiting an opportunity to turn. However, the point at which her right hand indicator was first activated was itself an important matter relevant to breach of duty. Noting that the appellant had been unsure as to the precise point of entry to the fruit barn, the judge stated: [9]

“This led to her stopping at what is the eastern exit of the fruit barn and at that time she had applied her indicators and as she travelled to what is the appropriate entrance, that is, on the western side of the fruit barn … she touched her brake lights to indicate to other vehicles her presence on the roadway and she continued to have her right-hand indicator.”

9.    Judgment, p 3.

21. The appellant took issue with these findings as inconsistent with her own unchallenged evidence, which, following a question as to her speed, was to the following effect: [10]

“And so the best I can to remember is close to 80 [kph], but under. I, I put my right hand blinker on approximately 50 metres before what I – the first entry, what I thought was the first entry at that time to the fruit market, and I also slowed to 70 by that point, and continued to proceed, dropping in speed to when I got to the first entry; visually I could then see that it was more of an exit, and a car was travelling – moving east along that, and I decided that it was an unsafe to stop there, because it did look more like an exit, so I proceeded very slowly the next approximate 80 metres to the – what I now know is the entrance to the fruit market. … My indicator … was on from when I first put it on 50 metres before the first entrance, so I – 80 and 50, 130 metres I would’ve had it on for. I was also very aware of the traffic coming up behind me.”

10.    Tcpt, pp 143(40)-144(8).

22. Again, the evidence was unchallenged in cross-examination and it was not implausible that she had put on her indicator 50 metres before reaching the first entrance and not when she reached that entrance. Further, it should have been an inherent part of the assessment of breach of duty to take account of the early warning she had given with her indicator as to her intention to turn right. That was not done by reference to the full extent of her evidence.

23. The appellant also took issue on the appeal with the judge’s finding that she stopped opposite the eastern exit from the fruit barn; her evidence was that she did not. It is difficult to understand how it would have affected the assessment of liability if she had stopped at that point, but the trial judge identified the “primary cause” of the accident as her actions “in stopping effectively twice in circumstances … where she was conscious of the risk”. Assuming that such a finding was indicative of negligence, it was not a factual finding which was open on the evidence, given that the plaintiff bore the burden of proof and there was no evidence to support the finding; the only relevant evidence (the appellant’s) being to the contrary.

24. The appellant further took issue with the description of her braking given by the trial judge, namely that “she touched her brake lights to indicate to other vehicles her presence on the roadway”. That was not her evidence, which was to the following effect: [11]

“Q. Is it the case that you first applied your foot brake about 130 metres back from the where the accident occurred?

A. Yes, to bring my speed down.

Q. Yes, and over that distance, as well, your right hand indicator was activated, is that correct?

A. Yes. The whole time.”

11.    Tcpt, p 149(13)-(20).

25. The traffic conditions were also important to the reasonableness of the appellant’s decision to attempt a right hand turn across the highway. The trial judge made an assessment on the basis of aerial photographs which showed traffic on the road, saying “there can be no doubt that this is a very busy road”. [12] In posing the question set out above, he noted that the highway carried “all manner of vehicles from light to heavy in what must be described as a busy road”, a statement which he then qualified, noting “although she said the traffic was light on the day and it was fine”.

    12.    Judgment, pp 6-7.

26. The appellant’s complaint about this language was overly critical in suggesting that the trial judge had made a finding, contrary to her evidence, that the traffic was, in effect, heavy. That was not so, and indeed the fact that one could characterise the highway as a busy road gave a legitimate context to the appellant’s own evidence that the traffic was “light”. However, the judge should have taken into account the fact that the traffic was light (it being just after midday) in considering whether or not the exercise undertaken by the appellant was reasonable in all the circumstances. That was not done.

27. Both in written and oral submissions on the appeal, counsel for the appellant made a number of complaints about the findings made by the trial judge in respect of the conduct of the claimant and the judge’s failure to make other findings. None of these bear on the question whether the appellant was in breach of her duty of care and they need not be addressed. It is sufficient to focus on the reasons of the trial judge for finding breach of duty.

(b)   reasoning of trial judge

28. There appear to have been three steps taken by the trial judge in the passage set out at [12] above. The first was to identify a risk involved to following vehicles “having limited or restricted sight because of other vehicle[s] or because of the requirement for them to consider other vehicles on the road.” Although the expression is somewhat cryptic, the point being made was that once the appellant slowed down and eventually stopped in the centre lane, vehicles coming behind would either have to slow down and possibly stop or merge into the left hand lane. That there was such a risk may readily be accepted; the question was whether the risk was sufficient to warrant the conclusion, in accordance with s 5B(1)(c) that, in all the circumstances, a reasonable person in the appellant’s position would have adopted the precaution of not attempting the manoeuvre.

29. The second element in the reasoning appears to have been that such a person would have taken one of two steps. One was to “make a decisive manoeuvre”, although precisely what was meant by that is unclear. The other was to use the left hand lane and the slip lane into the U-turn bay, which would have allowed her to cross the highway without blocking the centre lane. It is clear from that passage, and the later passage referring to her failure to see the signage indicating the U-turn bay, that there was, implicitly, a finding that a reasonable person in the position of the appellant would have used the U-turn bay to cross the highway.

30. There are a number of difficulties with this reasoning. First, it is by no means clear from the photographs and plans in evidence as to when the U-turn bay sign first became visible. What is clear, however, is that the sign was after the fruit barn came into sight and the appellant was not looking to her left, because she was focused on the means of access to the fruit barn on her right.

28. Secondly, there was no evidence as to the safety in seeking to cross the highway from the U-turn bay. Absent that evidence, it was largely speculative as to whether that course would have been considered safer by the reasonable driver in the appellant’s position. That possibility needed to be assessed against the known facts, namely that the appellant’s car stopped with brake lights on and right hand indicator operating, and a line of sight of 130 metres behind her where the traffic was light. The claimant bore the burden of proving that using the U-turn bay was, in the circumstances, a precaution which a reasonable person would have taken.

29. Thirdly, although the trial judge noted (correctly) that the plaintiff had not relied in his pleadings upon the failure to use the U-turn bay, he did not consider the significance of that omission to the way the case was run. Thus, the full extent of the cross-examination of the appellant in that regard was as follows: [13]

    13.    Tcpt, p 151(19).

“Q. You are an observant driver?

A. Yes.

Q. You knew that there was a U-turn bay close to where you were waiting to make the right turn into the fruit market?

A. No.

Q. You didn’t observe the presence of the U-turn bay, is that what you say?

A. Yes.

Q. Do you know that it was sign posted?

A. I know now that it was sign posted.

Q. Are you saying to his Honour that you didn’t see it on that occasion?

A. No, because I was then more aware of the traffic coming towards me, the oncoming traffic.

Q. You were confident that you were legally entitled to turn across the three unbroken lines on the roadway, weren’t you?

A. Yes.”

33. Prior to that exchange, the appellant had given the following evidence: [14]

    14.    Tcpt, pp 150(50)-151(18).

“Q. The position is that you were stopped on the highway in relation to which there was an 80 kilometre speed zone, weren’t you?

A. Yes.

Q. You must have known in yourself that that presented a risk that there would be cars who would be at risk of running into [you] from behind?

A. Not in those circumstances.

Q. What was there about those circumstances that meant that there was no such risk?

A. The traffic was light.

Q. That was the only factor was it?

A. And I had given ample indication.

Q. But you know from your own experience and your own common sense that there are people who aren’t as observant as you are driving about on the roads, that’s right isn’t it?

A. Yes.”

34. Although reasonableness is ultimately a matter for the court to judge, there was nothing inherently unreasonable about the course the appellant took. To the extent that there was an alternative course available to her, the cross-examiner established that she was ignorant of it at the time and provided no factual basis for concluding that a reasonable person in her position would have known of the alternative. Further, the assessment of the choice she made as being unreasonable was not explored in cross-examination.

35. The judge appears to have found that her failure to notice the U-turn bay sign was itself negligent, stating “had she looked to the left, as she was required to do…”. [15] But that was no part of the pleaded case, nor of the case run by the claimant on the evidence. It was a finding made at the heel of the hunt, in passing, in dismissing counsel for the appellant’s reliance on the terms of s 5C(b) of the Civil Liability Act, which provides, “the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done”. The finding was unwarranted.

    15.    Judgment, p 17; see [14] above.

36. The negative proposition in s 5C(b) was by no means determinative of the case presented at trial; nevertheless, it was apt to reinforce the need for the claimant to establish affirmatively any circumstances relevant to the unreasonableness of the appellant’s conduct. The claimant did not establish the relevant circumstances in a manner which justified the conclusion that the appellant had done otherwise than act reasonably, being conscious of the potential risks attending her conduct.

Conclusions

37. On the facts found by the trial judge, other than those which were improperly made as noted above, there was no proper basis to conclude that the appellant failed to exercise reasonable care for the safety of others in seeking to make a right hand turn into the fruit barn. The circumstances in which that course were taken included that (a) it was a legally available manoeuvre; (b) the traffic was light and visibility was good; (c) given the speed limit and that traffic approaching from behind had just come up a hill, there was ample opportunity for cars to see the appellant’s vehicle and take appropriate action to avoid it; (d) she had indicated in ample time her intention to turn right and had applied her foot brake; and (e) she was not aware of a possible alternative course of action, a fact which was not itself shown to be unreasonable.

38. The appeal should be upheld and the orders based on the finding of negligence set aside. There should be a judgment for the defendant in the District Court. The minute of orders made “by consent” by the District Court; contained much material which was quite inappropriate. For example, they purported to authorise the defendant’s insurer to do certain things; they also recorded undertakings by the plaintiff to do the same things. The fact that the parties consent does not free the court of the obligation to peruse the proposed minute of orders and decline to make orders other than those properly within the scope of the case decided by the court. As the orders are to be set aside nothing turns on this aspect of the court’s record, but insurers should be aware that obtaining such “orders” is inappropriate.

39. In the ordinary course the unsuccessful plaintiff must pay the costs of the trial and, as respondent to the appeal, the appellant’s costs of the appeal. Counsel for the appellant sought an opportunity to make submissions as to costs, depending on the outcome of the appeal. Given the limited possibilities and the need to avoid unnecessary costs, the usual order should be made. If some variation is appropriate, no doubt it can be agreed. If not, a variation can be sought by motion filed within 14 days, in accordance with the rules. The respondent should have a certificate under the Suitors’ Fund Act 1951 (NSW).

40. The Court should make the following orders:

1. Allow the appeal and set aside the judgment and orders made in the District Court.

2. In place thereof, give judgment for the defendant and order that the plaintiff pay the costs of the trial.

3. Order that the respondent pay the appellant’s costs of the appeal.

4. Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

41. SIMPSON JA: I agree with Basten JA.

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Endnotes

Decision last updated: 30 May 2016