Cabala v Government Insurance Office of New South Wales

[1990] HCATrans 310

_ih	.i,, AUSTRALIA &
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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S73 of 1990

B e t w e e n -

ROMA CABALA

Applicant

and

GOVERNMENT INSURANCE OFFICE

OF NEW SOUTH WALES

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

GAUDRON J

Cabala 1 7/12/90

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 DECEMBER 1990, AT 12.55 PM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC:  May it please Your Honours, I appear

with my learned friend, MS A.J. KATZMANN, for the applicant in this matter. (instructed by Bolzan &

Princi)

MR J.P. GUIHOT:  I appear for the respondent, may it please

the Court. (instructed by G.M. Meadows)

BRENNAN J: This mirrors all the aspects of a motor car

case, Mr Toomey.

MR TOOMEY:  Your Honour is extremely astute. Can I hand up

to Your Honours an outline of facts and argument

and reproduction of some pages from the appeal book

which were exhibits which were not reproduced in

the application book?

BRENNAN J:  What is the special leave point?

MR TOOMEY: Well, Your Honour, we say that the special leave

point is this, that Their Honours, in respect of a

large class of the New South Wales public, that is

to say, pedestrians, have stated a test as to

negligence which is absurdly rigorous. What they

have said, in effect, is that if I see a pedestrian

walking across the road into my path and showing no

attention to me, I am not bound to do anything

whatsoever about that pedestrian, such as warning,

slowing or swerving, until it becomes inevitable

that a collision is to occur, then I must apply my

brakes, because those were the facts in this case

and, indeed, Mr Justice Mahoney said, in terms,

that the driver was required to do no more than he

dig.

Your Honours, with great respect, it is an

outstanding departure from, for instance,

Wyong Shire Council v Shirt, and it is said - - -

BRENNAN J: But here is a driver whose view is obscured of

the pedestrian crossing - - -

MR TOOMEY:  No, with respect, it is not, Your Honour. It

may be obscured for a short period of time but the pedestrian has crossed from the right-hand side of the road, across two lanes, clearly in his vision,

and an application of mathematics makes it apparent

she must have been in his vision the whole time,

and then showing no attention to the traffic

whatsoeverf hunched over on a cold night, walking

across against a red light, continues on that path
in front of a vehicle which is waiting to make a

right-hand turn and he hits her as she comes out

from - - -

BRENNAN J: Well, is the proposition that he should have

seen her before she came - - -

Cabala 2 7/12/90

MR TOOMEY:	Yes, certainly, Your Honour.
GAUDRON J:	And is there a finding that she was visible

before?

MR TOOMEY:  Your Honour, the Court of Appeal proceeded on

that basis, that she was available to view and that

had he been keeping a proper look out he should

have seen her.

GAUDRON J: That basis does not seem to be indicated.

Indeed, the contrary seems to be indicated, in the

statement by Mr Justice Mahoney at page 17.

MR TOOMEY:	Where is that, Your Honour?
GAUDRON J:	When he says:

In the present case, the plaintiff's

argument on this aspect involved that the

driver should have driven at such a speed and

manner that, if the plaintiff had indeed

"walked out from in front of" the parked car
"into" the car of the defendant driver, he

would have been able to avoid her.

MR TOOMEY: Well, no, Your Honour, with respect, that is a

justifiable constriction by His Honour of the

argument as appears from other parts of his

judgment to which I will take you. What our

argument was that, seeing her walk from the

opposite pavement in the manner in which he had, it

should have been in his contemplation that she

might continue to walk out from in front of the car
so as to place herself in his path and what the

Court of Appeal held, and it is apparent if

Your Honours look at page 14, line 7.

Mr Justice Mahoney said this:

It was then put, or inferred, that if the

driver did not see the plaintiff when he

should have, he could not, for the purpose of

assessing what reasonably he should have done,

be in a better position than if he had seen

her. In general terms, and in the context of this case, it is proper to approach the issue of negligence on that basis.

And then if Your Honours turn to page 19, line - -

BRENNAN J:	You do not quarrel with that.
MR TOOMEY:	No, Your Honour.

BRENNAN J: Well then, how are you going to dress this up as

a question of principle?

Cabala 7/12/90

MR TOOMEY: Well, Your Honour, with respect, the question of

principle, we say, plainly appears because, if

Your Honours go to page 19, having considered it on

that basis, Mr Justice Mahoney said this:

I do not think, that, in the particular

circumstances of this case, even if the driver had seen the plaintiff leave the footpath, the possibility of her walking in front of him as

she did required him to do otherwise than he

did.

Now, Your Honour, he gave no warning.	He did
nothing.	He continued to drive at a steady

40 kilometres an hour until she stepped out in
front of his car at a time when it was impossible

for him to avoid the accident and that must mean

that it was not foreseeable by the driver that this

might happen and, in our respectful submission,

that is contrary to principle as expounded in,

among other cases, Wyong Shire Council v Shirt.

DAWSON J: That is what he finds - no, I see the submission

at the bottom of pages 15 and 16.

MR TOOMEY:	Yes, Your Honour.
DAWSON J:	The submission was that it was to be expected

that if she had commenced to cross, the driver

would anticipated that she would not cross in front

of his oncoming vehicle but pause in the centre of

the road.

MR TOOMEY:  Yes, that is so, Your Honour.

DAWSON J: But he did not make any finding in relation to

it.

MR TOOMEY:  No. But, you see, Your Honours, the evidence

was that she was seen by another driver - - -

BRENNAN J:  Coming in the opposite direction?

MR TOOMEY:  Yes, Your Honour, but that she was walking,

paying no attention to traffic. In other words -

may I just give Your Honours some mathematics? I

know it smacks of fact and I know how Your Honours

hate facts but, with great respect, it is - - -

BRENNAN J: Well, you are also familiar, no doubt, with the

views that have been expressed in many courts about

the dangers of mathematics in motor car cases?

MR TOOMEY:  Indeed, Your Honours, and yet I also remember

that in Jones v Dunkel, Mr Justice Kitto, by an

application of mathematical principles determined

Cabala 4 7/12/90

that, in his view, the plaintiff ought to have

succeeded.

BRENNAN J: Perhaps you could do that at 2 o'clock,

Mr Toomey, but I hope in terms which are

suitably - - -

MR TOOMEY:  I will be very short, Your Honour.

AT 1.03 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.06 PM:

MR TOOMEY:  I think I was about to take Your Honours to the

mathematics.

BRENNAN J: Yes.

MR TOOMEY:  Your Honours, could you kindly look at the

diagram which was part of exhibit A before the

learned trial judge? Your Honours will see it is,

in fact - the north point is at the right of the

page. Mrs Cabala was walking from east to west,

that is from where the handwritten "P" appears

across Shaftesbury Road to the point where the

letter "L" appears. The distance between the point

where she stepped off the kerb, and the beginning of the fourth lane is approximately eight metres.

The point of collision may be taken to be into that

lane so that the distance that Mrs Cabala had

travelled from the kerb, on foot, was approximately

nine metres. The evidence of Mr Owen, who was an

independent witness who was accepted by His Honour,

as appears at page 3 of the application book, was

that:

she was walking at a standard walking pace -

not particularly fast or slow.

To cover nine metres at a walking pace - three

miles an hour used to be regarded as a standard

walking pace - that is 4.8 kilometres an hour. It

would take her a tick under seven seconds to walk

nine metres. In that time, travelling as the

driver of the insured vehicle was at 40 kilometres

an hour, he covered about 75 metres. If

Your Honours would then look at the photographs

which have been included. The first two

photographs, Your Honours, are in Shaftesbury Road,

looking south. In other words, Mrs Cabala was

crossing from the vicinity of the traffic light in

the left foreground of the photograph to the

Cabala 7/12/90

position where the man is standing on the other

side of the road, in the first photograph, and in

photograph 2, to the kerb beside the dark car.	The
stationary vehicle was in the position where the
taxi cab is in photogragh 2.	So Mrs Cabala had

traversed the open distance from the traffic light
to the stationary car, then in front of it, into

the path of the vehicle which struck her.

If the driver of the vehicle did not see her,

he failed to see her at a well-lit intersection,

and that was the evidence, when it was open to his

view to see her and it was his duty to see her,

because obviously she was a pedestrian impinging

upon his area of operations on the road. The

Court of Appeal dealt with the matter on the basis

that even had he seen her walking across that road,

paying no attention to traffic, hunched up, going

straight ahead against a red light, he was not

bound to recognize a possibility that she might

continue to disobey the law and place herself in

front of his car and that is what we complain

about.	We say that, in principle, it puts
pedestrians in a special sort of category.	You see

a pedestrian who is disobeying the law and showing

no attention at all to the traffic. It is 9.30 pm

on a cold winters night and you are simply entitled to go ahead; you do not warn her, although she has

shown no sign of being aware of your presence, and,

says the Court of Appeal, nor were you required to

and the reason you were not required to was

because, in the words of Mr Justice Mahoney, "Even

if the driver had seen the plaintiff leave the
footpath, the possibility of her walking in front

of him as she did required him to do otherwise than

he did." I am sorry, it is stated in the negative,

"I do not think, in the circumstances of the case",

so that he had no duty, except to brake when he was

in a position where the accident was inevitable,

although it was in his power, by warning, to draw

to her attention that her failure to take care for herself was about to have disastrous consequences.

Now, in our respectful submission, that places

pedestrians in New South Wales, in the category

described by Chief Justice Latham in Henward's
case -Your Honours will remember Henward's case,

the man who was injured when he put his head out the window of a tram in Adelaide, because he was

suddenly taken sick, and it was argued on behalf of

the Municipal Tramways Corporation, successfully before the South Australian courts, that because

there was a regulation forbidding you from putting

your head out the window, then there was no duty

and no breach of duty in having the staunchions

close to the side of the tram, one of those

staunchions having hit the plaintiff and severely

Cabala 6 7/12/90

injured him. And Chief Justice Latham said,

"Because a person is acting in disobedience of the

law does not make him capit lupinum, using the

words which were applied to the outlaw, and Your

Honours, in our respectful submission, the reason that special leave ought to be granted in this case

is because if the New South Wales Court of Appeal

are right, then a pedestrian on the New South Wales

roads is capit lupinum. You are not required to

foresee a possibility that the person acting in

this manner may continue to act in such a manner

and endanger themselves. You are not required to

warn them; you are required to do nothing except

take useless action when the accident is

inevitable.

It is our further submission, Your Honours,

that,in any event, even if Your Honours were not of

the view that it was a matter of such principle as

to be of general importance, that it is a

miscarriage of justice and that, in those

circumstances, Your Honours will always grant leave

because that strikes at the heart of the

administration of justice.	May it please
Your Honours.

BRENNAN J:	We need not trouble you, Mr Guihot.
MR GUIHOT:	May it please the Court.
BRENNAN J:	The case raises no question of principle, but a

question of fact only. It is not a case which

warrants the grant of special leave. Accordingly

special leave will be refused.

MR TOOMEY:	If Your Honours please.
MR GUIHOT:	I seek costs, may it please the Court.
BRENNAN J:	What have you got to say?
MR TOOMEY:	I have nothing to say.
BRENNAN J: It will be refused with costs.

AT 2.15 PM THE MATTER WAS ADJOURNED SINE DIE

Cabala 7 7/12/90