Burns v Pearce
[2010] WASCA 214
•29 OCTOBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BURNS -v- PEARCE [2010] WASCA 214
CORAM: BUSS JA
NEWNES JA
MURPHY JA
HEARD: 16 AUGUST 2010
DELIVERED : 29 OCTOBER 2010
FILE NO/S: CACV 124 of 2009
BETWEEN: ROBERT ANDREW BURNS
Appellant
AND
KRISTY MARIE PEARCE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KEEN DCJ
Citation :BURNS -v- PEARCE [2009] WADC 150
File No :CIV 2128 of 2005
Catchwords:
Negligence - Motor vehicle accident - Appellant's vehicle travelling 400 m behind respondent's vehicle on country highway - Respondent's vehicle collided with cow on road - Appellant's vehicle then collided with prostrate cow - Whether respondent negligent in colliding with cow - Whether respondent's collision with cow could have been avoided in any event by the exercise of reasonable care - Causation - Whether chain of causation severed or interrupted
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr M A Tedeschi
Respondent: Ms B A Mangan
Solicitors:
Appellant: Havilah Legal
Respondent: Tottle Partners
Case(s) referred to in judgment(s):
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Bennett v Minister for Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hirst v Nominal Defendant [2005] QCA 65; [2005] 2 Qd R 133
Illawarra Area Health Service v Dell [2005] NSWCA 381
Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44
Leishman v Thomas (1958) 75 WN (NSW) 173
Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413
March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617
Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870
State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Sydney County Council v Dell'Oro [1974] HCA 47; (1974) 132 CLR 97
Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
BUSS JA: On 7 August 2003, at about 5.50 am, the respondent was driving her Hyundai Excel motor vehicle in a northerly direction on Railway Parade (also known as Muchea South Road), Muchea.
At that time, the appellant was driving his Holden Rodeo motor vehicle on the same road and in the same direction as the respondent's vehicle. He was travelling at about the same speed as the respondent and was about 400 m behind her.
The relevant part of Railway Parade is straight and level. The road comprises a single carriageway in each direction. It is divided in the centre by a broken white line. On each left hand side of the road there is a solid white line at or close to the edge.
At about 5.50 am on the day in question, the respondent's vehicle collided with a cow on the left hand (or western) carriageway in her direction of travel. After and as a result of this collision, the respondent swerved to the right hand (or eastern) carriageway. According to the appellant, an unidentified motor vehicle travelling in a southerly direction on Railway Parade moved into the western carriageway to avoid the respondent's vehicle and then returned to its correct side on the eastern carriageway. After the unidentified vehicle had returned to its correct side on the eastern carriageway, the appellant's vehicle collided with the cow, which was then lying on the left hand (or western) carriageway in his direction of travel. As a result of this collision, the appellant lost control of his vehicle. It left the road and struck a light pole, and he was injured.
The appellant, as plaintiff, commenced proceedings in the District Court against the respondent, as defendant. He alleged that his accident was caused by the respondent's negligence. He claimed damages in respect of the injuries he had suffered. The proceedings were tried before Keen DCJ. He dismissed the appellant's claim and entered judgment for the respondent. His Honour made a provisional assessment of damages.
The appellant appeals to this court against the trial judge's decision on liability.
Particulars of the respondent's alleged negligence
The appellant's statement of claim set out particulars of the respondent's alleged negligence, as follows:
5.1Failed to remain in control of [the respondent's] vehicle;
5.2Failed to pay due care and attention whilst driving the motor vehicle;
5.3Travelling at a speed that was in all the prevailing circumstances excessive;
5.4Failed to adequately or at all keep any or any proper lookout;
5.5Failed to adequately or at all take appropriate evasive measures to avoid the cow and/or minimise the force of impact between [the respondent's] vehicle and the cow;
5.6Immediately after [the respondent's] accident failed to warn oncoming traffic of the cow's presence on Muchea South Road in circumstances where [the respondent] knew or ought to have known that other vehicles may collide with the cow.
Particulars of the appellant's alleged negligence
The respondent pleaded in her defence that the appellant's accident was caused or contributed to by his negligence. These particulars were provided:
6.1[The appellant] was familiar with the section of Muchea South Road where the accidents occurred.
6.2At all material times [the appellant] knew or ought to have known that from time to time stock strayed onto the road or could stray onto the road.
6.3[The appellant] saw [the respondent's] motor vehicle travelling to the eastern side of Muchea South Road.
6.4Prior to [the appellant's] accident [the appellant] did not stop or slow down sufficiently to ascertain the cause of [the respondent's] motor vehicle travelling to the eastern side of Muchea South Road.
6.5Prior to [the appellant's] accident [the appellant] continued to drive towards the scene of [the respondent's] accident without stopping or slowing down sufficiently to be prepared to avoid a hazard on the road (or to assist [the respondent]).
6.6Prior to [the appellant's] accident [the appellant] did not stop or slow down to take account of the possibility that there was an obstacle on the road, such as the cow.
6.7Prior to [the appellant's] accident [the appellant] did not stop or slow down or take any other action to take account of and precautions for the possibility that any other vehicle travelling on the road would take unpredictable evasive or other action to avoid [the respondent's] motor vehicle and/or the cow.
6.8Prior to [the appellant's] accident [the appellant] was driving at an excessive speed.
6.9If an unidentified driver was involved as alleged (and denied) then [the appellant] failed to give way to the driver of the unidentified motor vehicle.
6.10[The appellant] failed to keep a proper look out.
6.11[The appellant] failed to stop, slow down, swerve or in any other adequate way whatsoever control or manage his vehicle so as to avoid or prevent [the appellant's] accident.
The trial judge's findings of fact
The appellant and the respondent gave evidence. Also, counsel for the appellant adduced expert evidence from Dr Stephen Chew and Mr William Apgar, each of whom is an engineer. After reviewing the evidence, the trial judge made findings of fact in relation to liability, relevantly, as follows.
At the material time, the appellant and the respondent were proceeding in a northerly direction on Railway Parade, with the respondent in front of the appellant. It was dark.
The relevant part of the road is straight and level, and visibility is unimpeded. The speed limit is 110 km per hour. The road passes farms on its western side and cattle graze in the paddocks which abut that side. Both the appellant and the respondent were familiar with the road. There was no evidence as to the road's width or condition.
Both the appellant and the respondent were travelling at about 110 km per hour. The appellant was about 400 m behind the respondent.
The respondent's vehicle hit a cow and, some moments later, the appellant's vehicle hit the cow. Just before the respondent hit the cow, she applied her brakes. The appellant saw the brake lights. The respondent's vehicle moved to the right hand side of the road immediately after the collision.
The respondent's vehicle and the cow were in very close proximity when she first saw it. His Honour made this finding despite the respondent's assertions that she had her headlights on (but not being able to say whether they were on high or low beam), she was watching the road at all times, and she did not take her eyes from the road.
The cow was black or very dark in colour. When the respondent first saw the cow, it was facing across the road to the eastern side (that is, to the respondent's right). It was about a quarter onto the left hand or western carriageway.
When the respondent's vehicle struck the cow, the impact was to the passenger's side of the front windscreen and to the left hand side of the vehicle. The respondent did not swerve before hitting the cow.
There was no evidence about what the cow was doing or where it was before the respondent saw it.
The respondent admitted that if the cow was on the road, and if her lights had shone 50 m ahead, she should have seen it. His Honour said that this admission must, however, be seen in context. He explained:
There is no real challenge to the evidence of Mr Apgar that on low beam the headlight intensity would be at its highest at 43 metres from the front of the car but that, in his experiment, [the appellant] dressed in dark clothing, could not readily be seen until he was about 30 metres from the front of the car.
Further [the respondent's] concession as to what she may have been able to see ahead of her is qualified by the position of the cow - that is, if it was on the road and if her lights did shine 50 metres. As I have noted, there was no evidence as to whether the cow was on the road and at that distance.
Accordingly, my finding can only go so far as that if [the respondent] was on low beam and if the cow was already on the road [the respondent] should have seen it at about 30 metres at the most [73] ‑ [75].
His Honour found that it was more probable than not that, at the material time, the respondent's lights were on low beam.
Hitting the cow had the effect of pushing the respondent's vehicle to the right hand or eastern side of the road. The respondent did not 'actively swerve', but the effect of the collision was that she swerved to the right. Nevertheless, she was able to bring her vehicle to a 'reasonably controlled halt' in a lay‑by on the eastern side of the road. There was no evidence as to the distance the respondent travelled from the point of the collision to the place in the lay‑by where she stopped.
Immediately after the respondent stopped her vehicle, she sat in the vehicle for a 'few moments'. It was a matter of a 'few seconds'. She was 'in shock'. The respondent then alighted and saw the appellant's vehicle approach and strike the cow. He then swerved before hitting the light pole.
The appellant was about 400 m behind the respondent and travelling at about 110 km per hour until he saw the brake lights of the respondent's vehicle and her vehicle swerve to the right.
The appellant removed his foot from the accelerator upon seeing the respondent's brake lights and her swerving to the right. He then looked at his speedometer which recorded about 103 km per hour.
His Honour accepted the appellant's evidence that he saw an unidentified motor vehicle travelling towards him on his (the appellant's) side (that is, the western side) of the road, it having deviated around the respondent's vehicle. On seeing this deviation, the appellant took the precautionary step of reducing his speed by shifting gear from fifth to fourth. This had the effect of reducing his speed to 'something under 100 km per hour'. However, the appellant took no other steps (for example, by way of braking) to reduce his speed.
When the unidentified motor vehicle returned to its correct (or eastern) side of the road, it no longer posed a threat to the appellant. This must have occurred at some point before the unidentified vehicle reached the cow. It was not possible for his Honour to make any definitive finding as to how far the appellant was from the cow when the unidentified vehicle ceased to pose a threat. His Honour rejected the appellant's evidence as to the proximity of his vehicle to the unidentified vehicle. He found that the appellant was a 'good deal further from the cow' when the unidentified vehicle regained its position on the southbound carriageway than his evidence would suggest. His Honour elaborated:
I come to this view from my findings that [the appellant] was about (but at least) 400 metres behind [the respondent] when she struck the cow; it would necessarily be a very short period of time between her so doing and stopping in the lay-by; for part of that time she was in the southbound lane causing the other vehicle to go into the north bound lane; this vehicle must have, necessarily, also within that very short period of time and before reaching the cow, regained the southbound lane; [the respondent] remaining in her car for a couple of seconds and then getting out and seeing [the appellant's] car approaching and having the accident. At this point this other vehicle had probably already passed [the respondent] as her car was in the lay-by and there was no reason for it (the other vehicle) to swerve by reason of [the respondent's] car being in the southbound lane.
I am also fortified in this finding by reason that if the other vehicle and [the appellant's] vehicle were in close proximity one would have expected [the appellant] to have braked particularly as he had seen both [the respondent's] vehicle 'swerve' to the right and the other vehicle 'swerve' to its right to avoid [the respondent's] vehicle. In [the appellant's] closing submissions counsel described [the appellant's] attention as 'squarely on avoiding a head-on collision'. If that were the case then one would expect the braking to which I have referred.
Having made that finding I do not accept that this motor vehicle caused [the appellant] to be incommoded so that it had any part to play in the crash that followed [91] ‑ [93].
His Honour found that, having seen the respondent's vehicle brake and move to the right, and having seen the unidentified vehicle, the appellant did no more than to retard his speed as his Honour had described. See [23] ‑ [24] above. The appellant then proceeded on the road until colliding with the cow. This collision was 'at speed'. His Honour said it was impossible to say what that speed was, but on the appellant's own evidence, he had not braked (or, at best, was in 'the motion of braking'), he had seen the cow in the middle of the road, and he had tried to stop but was too close to it.
The trial judge's conclusions as to negligence
The trial judge found that there was no evidence to justify a conclusion that the respondent was not keeping a proper lookout or was otherwise negligent as alleged in particulars 5.1, 5.2, 5.3, 5.4 or 5.5. It followed, according to his Honour, that the respondent was not negligent in hitting the cow.
His Honour said:
[The appellant's] argument is one, which when analysed, promotes the proposition that on a country road such as this governed by a 110 kilometre speed limit one should not in the dark be driving at that speed and if required to dim one's lights one should reduce one's speed. I can readily accept that one would reduce speed in adverse conditions such as fog or heavy rain but where the conditions are fine the position may well be otherwise. However, save where one may be dazzled by oncoming lights, to require a driver to slow down to the extent as promoted by [the appellant] whenever it is necessary to dim headlights would require not only a counsel of perfection in a driver but also what may be seen as an unrealistic management of a motor vehicle on the highway [110].
Next, the trial judge addressed the issue of whether the respondent, having collided with the cow, was negligent in failing to warn oncoming traffic as alleged in particular 5.6. The appellant had argued that upon the respondent having steered into the lay‑by, she failed immediately to activate her hazard lights. His Honour rejected the allegation of negligence in particular 5.6. His reasoning was as follows:
Given that what [the appellant] is alleging is negligence by omission there is no evidence from [the appellant] as to what he would have done had he seen any hazard warning lights. However, one may infer that had they been deployed by [the respondent] they would have added to the warnings that had already been seen by [the appellant]; [the respondent's] brake lights, [the respondent] swerving to the right, the other vehicle swerving onto [the appellant's] side of the road and its headlights coming towards him. As to what point such additional warning from the hazard warning lights would have occurred in relation to [the appellant's] position on the road is impossible to say given that the earliest one would expect them to be so used was once [the respondent] had come to a halt.
However, it was not unreasonable for [the respondent] to alight from her vehicle almost immediately she came to a halt believing as she did that the windscreen was making a cracking noise and she was concerned it might come into the car. It was then that she saw [the appellant's] car approaching and collide with the cow.
Irrespective of any duty which [the respondent] may have had to try to warn other road users of an obstruction on the road, I am of the view that [the respondent] acted reasonably, in the agony of the moment, in getting out of her car and was not in breach of any such duty [115] ‑ [117].
Finally, the trial judge dealt with the question of causation on the assumption that his finding that the respondent had not been negligent in hitting the cow was wrong.
The appellant had argued that the respondent's collision with the cow 'set in process a chain of events' that resulted in the appellant's accident and that 'her negligence materially increased the risk of injury' to the appellant.
His Honour found that the respondent's action in hitting the cow resulted in the cow lying on the road (presumably, dead or injured), and this increased the risk of injury to other road users such as the appellant in that the cow became an 'immobile obstruction'. Nevertheless, his Honour was satisfied that the collision between the respondent's vehicle and the cow did not materially contribute to the appellant's accident and injuries. He reasoned in this manner:
[The appellant] was 400 metres from [the respondent] when she hit the cow. Even with the heightened risk to [the appellant] with the cow being prostrate on the road, what caused [the appellant] to collide with the cow was [the appellant's] own negligence. I am not satisfied that the grounds in pars 6.2 and 6.7 of the defence have been made out but I am satisfied as to grounds 6.1, 6.3, 6.4, 6.5, 6.6, 6.8, 6.10 and 6.11.
As to ground 6.9 I have found that the unidentified vehicle was in the vicinity but on my findings there was no cause for [the appellant] to give way to it as alleged.
I find that the cow in its prostrate position on the road was materially no less visible to an approaching driver ([the appellant]) as it was when standing (for [the respondent]), a proposition acknowledged by counsel for [the appellant] at trial.
[The appellant] had ample time from seeing [the respondent's] brake lights and the swerving actions of [the respondent's] motor vehicle and the unidentified vehicle to take some further precautionary action on the basis that he should have been warned that something was amiss in front of him. His mere slowing down as he describes it was clearly insufficient. There is no doubt that [the respondent's] description of how [the appellant's] motor vehicle hit the cow and what it did thereafter, which I accept, leads to the inference that [the appellant's] motor vehicle was still travelling at some considerable speed when it hit the cow.
The evidence of Dr Chew and Mr Apgar to the extent that it contains calculations applies equally to [the appellant]. The real distinction between [the appellant] and [the respondent] is that [the appellant] was put on notice that there was something untoward ahead of him and should have taken avoiding action by slowing down so as to be able to stop in time or to swerve.
In my view the actions of [the appellant] have broken the chain of causation. The causal factor was [the appellant's] failure to act on what he had seen occurring in front of him in the ample time that he had; that is, to slow down or stop or having slowed down avoid colliding with the cow by swerving [128] ‑ [133].
The duty of care owed by the driver of a motor vehicle to other road users and the standard of care
At common law, the driver of a motor vehicle is under a duty to take reasonable care to avoid injury or damage to other road users or motor vehicles. This duty requires the driver, relevantly, to exercise reasonable care to avoid a foreseeable risk of injury or damage to other road users or vehicles.
A risk of injury or damage will be reasonably foreseeable if it is not far-fetched or fanciful. The risk may be reasonably foreseeable even though it is unlikely to occur or is remote. See Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 48 (Mason J); Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617, 641 ‑ 643. The test of reasonable foreseeability, as stated in Shirt, must be applied without hindsight. The test is, however, undemanding. See Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 [54] (Callinan J); Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [213] (Callinan & Heydon JJ).
It is unnecessary that a defendant should have foreseen the precise risk of injury or damage, or how it occurred. It is sufficient if the risk is within a class of risks that the defendant should, in a general way, have foreseen. See Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [87] (McHugh J).
In State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486, there was discussion as to whether the correctness of Shirt (in particular, the well-known statement of principle by Mason J) should be reconsidered. The Court decided that the circumstances of the case before them did not require reconsideration of Mason J's statement of principle.
The standard of care (that is, the measure of the discharge of the duty of care) applicable to the driver of a motor vehicle is what, if anything, a reasonable person in the driver's position would have done by way of response to the foreseeable risk that another road user or motor vehicle may suffer injury or damage as a result of a particular act, omission or circumstance.
The determination of what, if anything, a reasonable person in the driver's position would have done involves an assessment of what would have been reasonable and practicable for the driver to have done. This enquiry is not to be undertaken in hindsight. See Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 [93] (Hayne J); Vairy [126] ‑ [129] (Hayne J); Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 [50] (Hayne J). It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury or damage. See Fahy [57]. As Gummow and Hayne JJ explained in Fahy [58]:
It is only if the examination of breach focuses upon 'what a reasonable man would do by way of response to the risk' (Shirt (1980) 146 CLR 40 at 47) (emphasis added) that it is sensible to consider 'the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have' (Shirt (1980) 146 CLR 40 at 47 ‑ 48). (original emphasis)
Reasonableness may require no response to a foreseeable risk. See Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 [36] (Gleeson CJ, McHugh, Kirby, Hayne & Heydon JJ); Mulligan [3] (Gleeson CJ & Kirby J); Fahy [7] (Gleeson CJ). The occurrence of a foreseeable risk does not establish unreasonableness. See Illawarra Area Health Service v Dell [2005] NSWCA 381 [85].
In Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413, Gummow, Kirby and Hayne JJ said in relation to the standard of care applicable to the driver of a motor vehicle:
[T]he reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events [12].
In any case, whether a particular act or omission is a breach of the defendant's duty of care is always a question of fact and never a question of law. See Sydney County Council v Dell'Oro [1974] HCA 47; (1974) 132 CLR 97, 119 (Jacobs J).
The expression 'agony of the moment' was discussed by Street CJ in Leishman v Thomas (1958) 75 WN (NSW) 173, as follows:
This so‑called principle of acting in the 'agony of the moment' is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved. It is a circumstance, and one possibly of great importance, that the defendant charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called 'agony of the moment', he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise (175).
Negligence by the driver of a motor vehicle: relevant principles of causation
A defendant will be liable in negligence only if the injury which the plaintiff has suffered was caused by the defendant's negligent act or omission.
In Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232, McHugh J noted that if the evidence suggests that a defendant's negligent act or omission would have made no difference to the plaintiff's course of action, the defendant will not have caused the damage which the plaintiff has suffered [32].
It is not necessary that the defendant's negligent act or omission be the sole cause of the plaintiff's injury. Causation will be established if the relevant act or omission contributed materially to the damage suffered. See March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 514 (Mason CJ); Chappel [27] (McHugh J).
Causation is, in essence, a question of fact. It is not susceptible of reduction to any one philosophical or scientific formula, such as the 'but for' test. Rather, it is to be resolved as a matter of common sense and experience. See Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268, 277 ‑ 278 (Dixon CJ, Fullagar & Kitto JJ); March (515) (Mason CJ), (522 ‑ 523) (Deane J), (524) (Toohey J); Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 6 (Deane, Dawson, Toohey & Gaudron JJ). The 'but for' test, applied as a negative criterion of causation, has an important role to play. It is not, however, a comprehensive and exclusive test of causation. See March (515) (Mason CJ); Bennett v Minister for Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 ‑ 413 (Mason CJ, Deane & Toohey JJ); Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870 [32] (Gummow, Hayne & Heydon JJ). Questions of causation may be answered differently according to the purpose for which the questions are asked. See Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 [15] (Giles JA).
In Medlin, the High Court examined whether there was a causal connection between the negligence of a defendant/motor vehicle driver and injuries suffered by the plaintiff. Deane, Dawson, Toohey and Gaudron JJ said in relation to intervening acts or decisions interrupting or breaking a chain of causation:
For the purposes of the law of negligence, the question whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience (see Fitzgerald v Penn (1954) 91 CLR 268, at pp 277 ‑ 278; March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506, at pp 515, 522 ‑ 523; Bennett v Minister of Community Welfare (1992) 176 CLR 408, at pp 412 ‑ 413, 418 ‑ 419, 428). And that remains so in a case such as the present where the question of the existence of the requisite causal connection is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage. In such a case, the 'but for' test, while retaining an important role as a negative criterion which will commonly (but not always) exclude causation if not satisfied, is inadequate as a comprehensive positive test (see, eg, March v Stramare (E & MH) Pty Ltd (1991) 171 CLR, at pp 515 ‑ 519, 522 ‑ 524). If, in such a case, it can be seen that the necessary causal connection would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of commonsense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision …
Nor can the question of causation of damage in a negligence action be automatically answered by classification of operative causes as 'pre‑eminent' or 'subsidiary'. Regardless of such classification, two or more distinct causes, without any one of which the particular damage would not have been sustained, can each satisfy the law of negligence's commonsense test of causation (see, eg, March v Stramore (E & MH) PtyLtd (1991) 171 CLR 506). This can be most obviously so in a case where a 'subsidiary' cause operates both directly as a cause of the particular damage and indirectly as a contributing component of a 'pre-eminent' cause (6 ‑ 7).
In Hirst v Nominal Defendant [2005] QCA 65; [2005] 2 Qd R 133, the appellant, an on‑duty police officer, suffered personal injuries when he lost control of the police car which he was driving and it collided with another vehicle. The accident occurred as a result of a high‑speed chase of an unidentified 'blue car'. The appellant brought an action to recover damages from the nominal defendant on the basis that the blue car could not be identified. The trial judge found against the nominal defendant on the basis that the accident had been caused by the negligence of the driver of the blue car, but apportioned liability to the extent of one‑third against the appellant. The Court of Appeal of Queensland dismissed appeals by the appellant and the nominal defendant. Keane JA (Jerrard JA & Douglas J agreeing) considered the High Court's decision in Medlin, and then made the following observations concerning the circumstances in which a plaintiff's conduct may sever the causal nexus so as to relieve a negligent defendant from liability for the plaintiff's loss:
The reasoning in Medlin confirms the propositions that voluntary or deliberate or unusual conduct on the part of a plaintiff does not necessarily sever the causal nexus so as to relieve a negligent defendant from liability for loss suffered by a plaintiff; and that it is necessary to have regard to the extent to which the plaintiff's voluntary conduct has been constrained by the defendant's misconduct, and then to ask whether as between plaintiff and defendant it was reasonable of the plaintiff to make the choice which was the immediate cause of the loss. These propositions bear directly upon the issue of the Nominal Defendant's liability to Mr Hirst. In my respectful opinion, they are destructive of the Nominal Defendant's argument that the negligence of the driver of the blue car was not a cause of the accident and Mr Hirst's injuries. Further, while they recognise that there may be a point at which it is possible to say that it is not reasonable as between the plaintiff and defendant that the defendant is responsible for the voluntary conduct of the plaintiff, eg because the choice made by the plaintiff may be so unexpected a response to the defendant's conduct that the defendant should not bear any of the consequences of that decision, (Cf McKew v Holland & Hannen & Cubitts (Scotland) Ltd (1970) SC(HL) 20 and Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; and see March v E & MH Stramare Pty Ltd (1991) 171 CLR 506), it cannot be said that this point was reached in this case. That is because the driver of the blue car created, and then failed to resolve as he could and should easily have done, a dangerous situation which made it likely that Mr Hirst would continue the pursuit up to, and beyond, the point when it became imprudent or unreasonable for Mr Hirst to continue the pursuit. The driver of the blue car could have resolved the situation of danger by slowing down or pulling over even after Mr Hirst's persistence in the pursuit added to the dangerous situation.
In summary on this issue, the Nominal Defendant's argument comes to this, that although the driver of the blue car owed a duty of care to Mr Hirst for breach of which he or she would have been liable had an accident occurred in the course of the pursuit up to the point at which Mr Hirst's speed reached 175 kph, that driver was able to avoid all liability by continuing to try to escape in a situation of even more elevated danger. It would be an odd result if the law were to hold the driver of the blue car liable up to that point, but regard him or her as freed of liability by persisting in unlawful conduct which was likely to lead to an even more dangerous situation. I do not consider that the law supports such a result [29] ‑ [30].
Ground 1 of the appeal
Ground 1 of the appeal alleges that the trial judge erred in finding that the respondent's headlights were on low beam; alternatively, in failing to give adequate reasons for making that finding.
The respondent gave evidence that she preferred to drive with her headlights on high beam, but the road in question was long and straight and it was necessary to dim the lights if a vehicle was approaching from the opposite direction (ts 204). His Honour appears to have accepted this evidence [76]. The respondent said that she did not recall seeing the unidentified vehicle, but she accepted the possibility that it might have been there (ts 199). His Honour was satisfied that the unidentified vehicle was in the vicinity at the time of the accident [87].
The trial judge found:
Was [the respondent] on high or low beam? Here the evidence was that [the respondent] preferred to drive on high beam but the road is long and straight and it is necessary to dim the lights if someone is coming in the opposite direction. In view of the finding that I make later I find it more probable than not that she was at the time on low beam [76].
The relevant finding which his Honour made later, based on the appellant's evidence, was that at the material time there was an unidentified vehicle in the vicinity [87].
The trial judge was entitled to accept the respondent's evidence to the effect that although she preferred to drive with her lights on high beam, she dimmed the lights if a vehicle approached from the opposite direction. He was also entitled to accept the appellant's evidence that there was an unidentified vehicle in the vicinity at the time of the accident.
In my opinion, it was reasonably open to his Honour, on the evidence he accepted (and was entitled to accept), to find that at the material time the respondent's headlights were on low beam, she having dimmed them when the unidentified vehicle approached.
The reasons of a trial judge need not be lengthy or elaborate. See Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443; Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [28].
In the present case, the trial judge's reasoning process appears to have been that the respondent preferred to drive with her headlights on high beam, the respondent switched her headlights to low beam if a vehicle was approaching from the opposite direction, an unidentified vehicle was approaching from the opposite direction and, therefore, on the basis of his acceptance of the respondent's evidence as to her usual practice with the headlights and his acceptance of the appellant's evidence as to the existence of the unidentified vehicle, he was satisfied on the balance of probabilities that at the material time the respondent's headlights had been dimmed and were on low beam. In my opinion, his Honour's reasons for concluding that the respondent's headlights were on low beam were, in the circumstances, adequate.
Ground 1 fails.
Ground 2 of the appeal
Ground 2 of the appeal alleges that the trial judge erred in finding that if the respondent's headlights were on low beam, and if the cow was already on the road, the respondent should have seen the cow 'at about 30 metres at most' [75].
The challenged finding appears in the following passage in his Honour's reasons:
[The respondent] has frankly admitted that if the cow was on the road and if her lights did shine 50 metres ahead, she should have seen the cow. That admission, however, must be seen in context. There is no real challenge to the evidence of Mr Apgar that on low beam the headlight intensity would be at its highest at 43 metres from the front of the car but that, in his experiment, [the appellant] dressed in dark clothing, could not readily be seen until he was about 30 metres from the front of the car.
Further [the respondent's] concession as to what she may have been able to see ahead of her is qualified by the position of the cow ‑ that is, if it was on the road and if her lights did shine 50 metres. As I have noted, there was no evidence as to whether the cow was on the road and at that distance.
Accordingly, my finding can only go so far as that if [the respondent] was on low beam and if the cow was already on the road [the respondent] should have seen it at about 30 metres at the most [73] ‑ [75].
The so‑called admission had little, if any, evidentiary value. The cross‑examiner's question included hypothetical assumptions of fact. Those assumptions constrained the answer.
The trial judge found that the cow was black or very dark in colour [69].
Mr Apgar carried out experiments before the trial with a Hyundai Excel motor vehicle, being the type of vehicle driven by the respondent.
In a report dated 10 July 2009, which was received in evidence, Mr Apgar said (GAB 74 ‑ 75):
The height of the centre of the beam of the headlights was measured at 610mm. All readings of the headlight intensity were measured from this height. Measurements were made with a light meter with a zeroing (self calibration) feature. Measurements were made in lux units.
The car was set up in a parking lot which contained a long white line that was centred on the car. The area was surrounded by trees which blocked ambient light which was so low that it gave a zero lux reading. Measurements were then made relative to this line and at 1, 2, 3 and 4 metres to the left of this line. Constant light intensity positions were determined for 10, 5, and 3 lux light readings.
The head lights were set so that the low beam was directed to the left with the area of maximum intensity to the left of a typical roadway. The high beam was more centred with the area of maximum intensity centred on a typical roadway.
The results of the measurements are contained in the attached diagram and in the following table.
Table 1 Headlight Intensity measured from front of car
Headlight Condition
Location on Road
Light Level,
Lux
Distance, Metres
Low beam
Left edge of lane
10
43
Low beam
Left edge of lane
5
59
Low beam
Left edge of lane
3
71
High beam
Centre of lane
10
81
High beam
Centre of lane
5
110
High beam
Centre of lane
3
134
Mr Apgar then recounted an experiment he had carried out with the appellant and the Hyundai Excel motor vehicle:
[The appellant] then walked along a line two metres to the left of the centre line of the car and I observed his position from the car. He was wearing dark clothing which made him difficult to see. He could be seen at a distance of 70 metres from the front of the car with the headlights on high beam. The headlights were then put on low beam and he could not be readily seen until he was about 30 metres from the front of the car (GAB 75).
Dr Chew gave evidence that 3 lux is dimmer than 5 lux, and 5 lux is dimmer than 10 lux (ts 123).
In his report dated 31 July 2008, which was received in evidence, Dr Chew referred to the published work of Geoffrey Grime, Handbook of Road Safety Research (1987). Dr Chew said:
Grime refers to data which are consistent with the seeing distance at which grey objects placed on the kerb side of a 6.2 metre wide road are visible to well directed passing [that is, low beam] lights being 50 to 60 metres, and which are consistent with the seeing distance at which a grey object is visible to well illuminated driving [that is, high beam] lights being 95 metres or more (for headlight illuminating density 20,000 candelas or more) (GAB 44). (emphasis added)
I note that these observations relate to grey objects and not black or very dark objects, being the colour of the cow as found by his Honour. Also, I note that there was no evidence as to the width of the road where the collisions occurred.
Later in his report, Dr Chew expressed the opinion that 'the reaction time in a situation where an obstacle is detected on the road with the headlights of a vehicle would be in the range of 1 to 2 seconds' (GAB 45).
Dr Chew said, more specifically and relevantly, that if a motor vehicle travels at 110 km per hour at night with its headlights on low beam, and if the seeing distance of the low beam is 50 to 60 m, the time available to the driver of the vehicle to react on seeing a hazard in front of the vehicle is 1.6 to 2.0 seconds (GAB 54).
Dr Chew also said that the stopping distance for a Hyundai Excel motor vehicle travelling at 110 km per hour, and on the basis of a 2.0 second reaction time and a 0.7 braking co‑efficient, is 129.1 m (GAB 48). The stopping distance comprises a reaction distance of 61.1 m and a braking distance of 68.0 m.
Dr Chew concluded in relation to the present case that if the respondent's headlights were on low beam, the seeing distance of those lights was 50 to 60 m and she was travelling at 110 km per hour, then the respondent's collision with the cow could not have been avoided by braking only.
Dr Chew did not give any evidence as to the distance a vehicle would travel at a particular speed while its driver was swerving around a particular object (ts 119; appeal ts 29 ‑ 30).
Dr Chew's report explained the nature and extent of the illumination provided by lights on low beam and compared these characteristics with those of lights on high beam. He said:
The driving [high beam] lights of a car [sic] headlights concentrate almost all their light into narrow beams, and it is designed to illuminate the road at considerable distance in front of the vehicle. In contrast the passing [low beam] lights of a car [sic] headlights are wider, and they are designed to illuminate the road in front of the car so that the driver can see it including the kerb of the road without causing glare to the driver of an on‑coming motor vehicle (GAB 44).
The trial judge's finding that, if the respondent's headlights were on low beam and if the cow was already on the road, then the respondent should have seen the cow 'at about 30 metres at most' was based upon his acceptance of Mr Apgar's evidence in relation to the experiment he carried out before the trial with the appellant dressed in dark clothing and a Hyundai Excel vehicle with its headlights on low beam.
Mr Apgar was, as I have mentioned, called by the appellant's counsel. He was not cross‑examined. His Honour was entitled to:
(a)accept Mr Apgar's evidence in relation to the experiment he had carried out; and
(b)base the finding in question on that evidence.
Dr Chew did not deal in his evidence with an object that was black or very dark in colour. He relied, relevantly, on research carried out by Grime in relation to grey objects. As I have mentioned, the trial judge found that the cow was black or very dark in colour and that at the material time it was dark. The appellant does not challenge either of these findings. Also, the research of Grime was based on 'headlight illuminating density 20,000 candelas or more' (GAB 44). There was no evidence as to the significance of '20,000 candelas' or how this correlated with light readings of 3, 5 or 10 lux. In these circumstances, his Honour's acceptance of the views of Mr Apgar in preference to those of Dr Chew was not against the weight of the evidence.
In my opinion, it was reasonably open to the trial judge to find that, if the respondent's headlights were on low beam and if the cow was already on the road, the respondent should have seen the cow 'at about 30 metres at the most'.
In any event, even if his Honour's finding was in error and he should have found, based on Dr Chew's evidence, that if the respondent's headlights were on low beam and if the cow was already on the road, then the respondent should have seen the cow at a distance of 50 to 60 m, that finding would not have affected the ultimate conclusion that the appellant's claim should be dismissed. In particular, even if the respondent should have seen the cow at a distance of 50 to 60 m, the collision would still have been unavoidable. At the material time, the speed of the respondent's vehicle was 110 km per hour. His Honour found that the respondent was not negligent in driving at this speed. At 110 km per hour, the respondent was travelling a distance of 30.6 m per second. It is reasonable, on the basis of Dr Chew's evidence, to allow a reaction time of 2.0 seconds. The respondent's vehicle would therefore have travelled about 61.2 m during this period of 2.0 seconds. The time available was insufficient for a reasonable driver, exercising reasonable care to avoid a foreseeable risk of injury or damage to other road users or vehicles, to prevent the collision by stopping or swerving. In these circumstances, the collision with the cow could not, by the exercise of reasonable care and on the balance of probabilities, have been avoided.
Before this court, counsel for the appellant argued that whether the respondent had been negligent or not should be determined on the basis of a reaction time of 1.0 second (appeal ts 18 ‑ 19, 28 ‑ 29). In my opinion, it would be unreasonable to determine that the respondent was negligent on the basis of a reaction time which is less than the upper limit of 2.0 seconds specified by the appellant's expert.
Ground 2 fails.
Ground 3 of the appeal
Ground 3 of the appeal alleges that the trial judge erred in finding that the unidentified vehicle had no part to play whatsoever in the appellant's accident; alternatively, in failing to give adequate reasons for making that finding.
The trial judge rejected the appellant's evidence as to the proximity of the unidentified vehicle and its part in what then occurred [90]. His Honour found that the appellant was 'a good deal further' from the cow when the unidentified vehicle regained its position in the southbound lane than his evidence would suggest [90].
His Honour's reasons for making the impugned finding were these:
(a)The appellant was about (but at least) 400 metres behind the respondent, when the respondent struck the cow [91].
(b)It would have been a very short period of time between the respondent striking the cow and stopping in the lay‑by [91].
(c)For part of that very short period of time, the respondent was in the southbound lane causing the unidentified vehicle to deviate to the northbound lane [91].
(d)The unidentified vehicle must have also, within that very short period of time and before reaching the cow, regained the southbound lane [91].
(e)The unidentified vehicle returned to its correct side of the road prior to the appellant needing to swerve to avoid, and prior to the appellant reaching, the cow in the northbound lane [89].
(f)It was not possible to make any definitive finding as to how far the appellant was from the cow and when the unidentified vehicle ceased to pose a threat to the appellant [90].
(g)The respondent remained in her vehicle for a couple of seconds before alighting and seeing the appellant's vehicle approaching and having the accident [91].
(h)At this point, the unidentified vehicle had probably already passed the respondent as her vehicle was in the lay-by, and there was no reason for the unidentified vehicle to swerve by reason of the respondent's vehicle being in the southbound lane [91].
The trial judge said that he was 'fortified' in making these findings by reason that if the unidentified vehicle and the appellant's vehicle were in close proximity, he would have expected the appellant to have braked, especially as the appellant had seen the respondent's vehicle 'swerve' to its right, and also the unidentified vehicle 'swerve' to its right to avoid the respondent's vehicle. His Honour added that if the appellant's attention was 'squarely on avoiding a head‑on collision', as submitted by his trial counsel in closing submissions, he would have expected the appellant to have applied his brakes [92].
It is necessary to distinguish between the reasoning of a trial judge which is based on a credibility determination on the one hand, and the reasoning of a trial judge which is based on inferences drawn from facts that were undisputed or found by the trial judge on the other. See Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [88]. As Kirby J observed in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458:
Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences'.
However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it' [21] ‑ [22]. (footnotes omitted)
Normally, therefore, a trial judge's credibility-based conclusions will not be reversed on appeal unless it is demonstrated that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony. In other words, usually it must be established that the trial judge's decision was erroneous, notwithstanding that it appears to be, or is stated to be, based on credibility findings.
Although an appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561), it must necessarily observe the 'natural limitations' that exist where the appellate court proceeds wholly or substantially on the record. See Dearman (561); Fox v Percy [23]. In Dearman, Isaacs J said:
The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal (561).
In Fox v Percy, Gleeson CJ, Gummow & Kirby JJ said in relation to the 'natural limitations' of an appellate court proceeding wholly or substantially on the record:
These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [23]. (footnotes omitted)
In my opinion, it was reasonably open to the trial judge to reject the appellant's evidence as to the proximity of the unidentified vehicle and its part in what then occurred. Similarly, it was reasonably open to his Honour to find, by the process of reasoning set out at [81] ‑ [83] above, that the appellant was 'a good deal further' from the cow when the unidentified vehicle regained its position in the southbound lane than his evidence would suggest. I am not persuaded that his Honour erred in finding that the unidentified vehicle had no part to play whatsoever in the appellant's accident.
The trial judge's rejection of the appellant's evidence as to the proximity of the unidentified vehicle and its part in what then occurred, and his Honour's finding that the appellant was 'a good deal further' from the cow when the unidentified vehicle regained its position in the southbound lane than his evidence would suggest, must be read in the context of the process of reasoning set out at [81] ‑ [83] above. When this is done, it is readily apparent that his Honour's reasons for finding that the unidentified vehicle had no part to play whatsoever in the appellant's accident, were adequate.
Ground 3 fails.
Ground 4 of the appeal
Ground 4 of the appeal alleges that the trial judge erred in concluding that the respondent was not negligent in colliding with the cow.
When the respondent first saw the cow, it was facing across the road to the eastern side (that is, to the respondent's right). It was about a quarter onto the left hand or western carriageway. The respondent did not recall seeing the cow moving (ts 197 ‑ 198). When the respondent's vehicle struck the cow, the impact was to the passenger's side of the front windscreen and to the left hand side of the vehicle. The respondent did not swerve before hitting the cow.
The trial judge's reasons for concluding that the respondent was not negligent in colliding with the cow are set out at [107] ‑ [111] of his reasons. His Honour found, relevantly:
(a)The respondent was keeping a lookout [107], [52].
(b)There was no evidence as to what the cow was doing or where it was prior to the respondent seeing it [72]. There was no evidence as to when the cow came to be on the road [107].
(c)The cow was in the first quarter of the respondent's lane (at the time of the collision) [107].
(d)Given a particular set of circumstances, a cow might very well make a sudden movement [109].
(e)To require a driver to slow down to the extent as promoted by the appellant would require not only a counsel of perfection in a driver, but also what may be seen as an unrealistic management of a motor vehicle on the highway [110].
As I have mentioned, his Honour found, on the basis of Mr Apgar's evidence, that the respondent should have seen the cow 'at about 30 metres at most'.
There was no evidence that the cow was on the road (in particular, in the western carriageway) when the respondent was 30 m (or, indeed, 50 to 60 m) from it.
Some photographs were tendered at the trial which show, in the relevant vicinity, a verge between the western edge of the road and a fence at the boundary of an adjoining farming property. There was no evidence as to the distance from the western edge to the fence. A rough estimate, based on the photographs (including the apparent width of the road), is about 10 m.
The respondent said in evidence that the cow was about 5 m or 10 m from her vehicle when she first saw it [43]. His Honour did not make a specific finding as to whether this estimate was accurate or not, but he did state that the respondent's vehicle and the cow were in 'very close proximity' when she first saw it [68]. His Honour was unable to determine where the cow was located prior to the respondent first seeing it [72].
In my opinion, the trial judge did not err in failing to determine where the cow was located prior to the respondent first seeing it. On a fair evaluation of the evidence, the most that could be concluded is that the cow was likely to have been very close to the point of collision when the respondent was about 30 m from it. She would have travelled the 30 m in about 1.0 second.
If the respondent's estimate (that the cow was about 5 m or 10 m from her vehicle when she first saw it) was accurate, and if the cow was wholly or partly in the western carriageway when the respondent was about 30 m from it, then it would appear to follow, based on his Honour's acceptance and application of Mr Apgar's evidence, that the respondent was not keeping a proper look out. In other words, she should have seen the cow at a distance of about 30 m, and not merely about 5 m or 10 m. A failure by the respondent to keep a proper lookout would, in the circumstances, constitute a failure to exercise reasonable care to avoid injury or damage to other road users or motor vehicles.
In any event, even if his Honour was in error in finding that the respondent was keeping a proper lookout, that negligence did not, in the circumstances, cause or materially contribute to the occurrence of the appellant's accident in that, as I have mentioned, the respondent's collision with the cow could not, by the exercise of reasonable care and on the balance of probabilities, have been avoided. See [77] ‑ [78] above.
Before this court, counsel for the appellant accepted that it was necessary for the appellant to establish in the appeal not only that the respondent was negligent but also that she could, by the exercise of reasonable care and on the balance of probabilities, have avoided colliding with the cow (appeal ts 18).
Finally, in this context, I am not persuaded that the trial judge was in error in finding that the respondent was not negligent in travelling at a speed of 110 km per hour, being the applicable speed limit. His Honour's reasoning and conclusion on this issue at [110] of his reasons was, in my opinion, correct.
Ground 5 of the appeal
Ground 5 of the appeal alleges that the trial judge erred in not concluding that the respondent was negligent in failing to put on her hazard lights immediately after coming to a stop in the lay‑by lane.
When the respondent came to a stop in the lay‑by lane, after her vehicle collided with the cow, she was 'in shock'. She may have sat in her car for a matter of seconds (ts 195). Then she got out of her car. A couple of seconds later, she noticed the appellant's vehicle (ts 194). Then she saw his vehicle collide with the cow (ts 195).
The rationale for the trial judge's refusal to conclude that the respondent was negligent, in failing to put on her hazard lights immediately after coming to a stop in the lay‑by lane, is set out at [115] ‑ [117] of his reasons. After noting that the appellant was alleging negligence by omission, his Honour said in relation to negligence and causation:
(a)There was no evidence from the appellant as to what he would have done had he seen any hazard warning lights [115].
(b)It may be inferred that if hazard warning lights had been deployed by the respondent, they would have added to the warnings that had already been seen by the appellant, namely:
(i)the respondent's brake lights;
(ii)the respondent swerving to the right; and
(iii)the unidentified vehicle swerving onto the appellant's side of the road and its headlights coming towards him [115].
(c)The earliest such additional warning from the hazard warning lights would have occurred was when the respondent came to a halt [115].
(d)It was not unreasonable for the respondent to alight from her vehicle almost immediately, as she believed the windscreen was making a cracking noise [116].
(e)The respondent acted reasonably, 'in the agony of the moment', in getting out of her car, and she was not in breach of any duty to put on her hazard warning lights [117].
There was no evidence as to the distance from the point at which the respondent collided with the cow to the point at which she stopped in the lay‑by lane. It appears likely that about two seconds elapsed between the respondent alighting from her vehicle and the appellant colliding with the cow.
I am not persuaded that his Honour's conclusion that the respondent did not breach her duty of care by failing to activate her hazard warning lights immediately upon her vehicle stopping in the lay‑by lane (which, as I have mentioned, abutted the eastern carriageway) was vitiated by any material error of law or fact. On my assessment of the facts, a reasonable person in the respondent's position (including in her physical location in the lay‑by lane) would not have responded to the foreseeable risk that another road user or motor vehicle travelling behind her (that is, in a northerly direction on the western carriageway) may suffer injury or damage as a result of her having collided with the cow, by activating her hazard warning lights immediately.
In any event, even if the discharge of the respondent's duty of care required her to activate the hazard warning lights immediately upon her vehicle stopping in the lay‑by lane, the activation of those lights would have occurred only about five seconds before the appellant collided with the cow (the trial judge having found, as I have mentioned, that when the respondent collided with the cow the appellant was only about 13 seconds behind her). I am satisfied, on the findings of fact made by the trial judge (in particular, his findings as to the other warnings that had already been seen by the appellant) and on the balance of probabilities, that the immediate activation by the respondent of her hazard warning lights would not have made any material difference to the appellant's course of action.
Ground 5 fails.
Grounds 6 and 7 of the appeal
Ground 6 of the appeal alleges that the trial judge erred in concluding that the respondent's collision with the cow did not materially contribute to the chain of events which resulted in the appellant's injuries and in concluding that the sole cause of the collision was the appellant's own negligence. Ground 7 of the appeal alleges that his Honour erred in concluding that the appellant had ample time from seeing the respondent's brake lights and the unidentified vehicle to take some further precautionary action, and that his mere slowing down was clearly insufficient and that his failure to slow down further to an indeterminate speed or completely stop amounted to a breaking of the causal chain.
The trial judge was satisfied that the collision between the respondent's vehicle and the cow did not materially contribute to the appellant's accident, that the appellant's actions and omissions had broken the chain of causation and that the appellant's accident was caused by his own failure to act. His Honour's reasons for these conclusions were as follows:
(a)The appellant was about 400 metres behind the respondent and he was travelling at 110km per hour [79]. The appellant was 400 metres from the respondent when her (the respondent's) vehicle hit the cow [128]. The appellant was approximately 13 seconds behind the respondent's position [80].
(b)The cow in its prostrate position on the road was materially no less visible to an approaching driver (the appellant) than it was when standing (for the respondent) [130].
(c)The appellant observed the brake lights on the respondent's vehicle [79]. The appellant saw the respondent's vehicle swerve to the right [79]. The appellant had no idea what was happening (ts 75).
(d)The appellant took his foot off the accelerator so that he was travelling at about 103 km per hour [81]. The appellant saw the unidentified vehicle swing out in a wide arc in order to pass the respondent's vehicle (ts 75). The appellant then saw the unidentified vehicle coming towards him on his side of the road [88]. The unidentified vehicle was heading towards a head on collision with the appellant (ts 76). The appellant dropped down from fifth to fourth gear, which had the effect of bringing his speed down to something under 100 km per hour. The appellant took no other steps by way of braking to retard the speed of his car [88]. The unidentified vehicle was returning to its correct lane when the appellant 'took attention off [it]' (ts 76). The appellant then proceeded along the road until he collided at speed with the cow [94], (ts 75 ‑ 77, 95 ‑ 96). The appellant should have been warned by the respondent's brake lights, the swerving of the respondent's vehicle and the behaviour of the unidentified vehicle that something was amiss in front of him [131].
(e)The warning from the respondent's brake lights, the swerving of the respondent's vehicle and the behaviour of the unidentified vehicle that something was amiss in front of him, gave the appellant ample time to take some further precautionary action [131], [133].
(f)Even with the heightened risk to the appellant occasioned by the cow being prostrate on the road, what caused the appellant to collide with the cow was the appellant's own negligence [128].
(g)The evidence of Dr Chew and Mr Apgar, to the extent that it contains calculations, applies equally to the appellant [132].
(h)The real distinction between the appellant and the respondent is that the appellant was put on notice that there was something untoward ahead of him, and should have taken avoiding action by slowing down so as to be able to stop in time or to swerve [132].
It is unnecessary, strictly, to deal with grounds 6 and 7 in that, for the reasons I have given, the appellant has failed to establish that the respondent's collision with the cow could have been avoided by the exercise of reasonable care. I will, however, for the sake of completeness, make some brief observations about these grounds.
If the trial judge should have held that the respondent was negligent and, contrary to my opinion, that her collision with the cow could have been avoided by the exercise of reasonable care, his Honour's reasoning to the effect that:
(a)the respondent's collision did not materially contribute to the chain of events which resulted in the appellant's injuries (ground 6); and
(b)the appellant's conduct after the respondent's collision 'amounted to a breaking of the causal chain' (ground 7),
could not be sustained.
Before this court, counsel for the appellant put his case in relation to grounds 6 and 7 on the basis that both the appellant and the respondent had been negligent in colliding with the cow and that there should have been an apportionment of liability between them (appeal ts 37 ‑ 39).
In my opinion, if the respondent breached her duty of care by colliding with the cow and if the collision could have been avoided by the exercise of reasonable care then, on the other findings of fact made by the trial judge and on the evidence that was not seriously in contest, it would not have been reasonable, as between the appellant and the respondent, to conclude that the chain of causation was interrupted or broken. The appellant's conduct in the management of his vehicle after the respondent's collision was not so unexpected or unreasonable a response to her collision and the consequences it produced (including, in particular, the reaction of the driver of the unidentified vehicle) that the respondent should be relieved from any liability for any proportion of the appellant's loss.
Although grounds 6 and 7 have been made out, they do not affect the outcome of the appeal.
Conclusion
I would dismiss the appeal.
NEWNES JA: I agree with Buss JA.
MURPHY JA: I agree with Buss JA.
2
33
1