Chisholm v Mowlem

[1997] HCATrans 215

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S2 of 1997

B e t w e e n -

SCOTT WILLIAM CHISHOLM by his Tutor JUDITH CHISHOLM

Applicant

and

JOSEPH MOWLEM

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 AUGUST 1997, AT 10.11 AM

Copyright in the High Court of Australia

MR B.M.J. TOOMEY, QC:  May it please your Honours, I appear with my learned friend, MR R.V. LETHERBARROW, for the applicant.  (instructed by Adelsteins)

MR M.J. NEIL, QC:  If it please the Court, I appear with my learned friend, MR G.R. PETTY for the respondent.  (instructed by Booth Mather Blackmore)

GAUDRON J:  Yes, Mr Toomey.

MR TOOMEY:   Your Honours, this is an action for damages for personal injury on behalf of a young man at trial, three and a half at the date of the incident, where he had come out between parked cars in a dormitory suburb west of Sydney, Cambridge Park, on a Sunday morning.  The defendant, Mr Mowlem, conceded in cross‑examination that he knew at the time there were likely to be families with young children around, a concession which was not surprising since there was opposite - I am sorry, the little boy came out from in front of some shops and on the opposite side of the street was a park where junior football was being played.  So it was a classic setting where one might expect that there would be families with young children present which Mr Mowlem conceded on a couple of occasions.

The case was fought on the excessive speed of the respondent’s vehicle, on his failure to keep a proper lookout and his failure to take action to avoid the boy.  There arose, in the course of the defendant’s evidence, a concession by Mr Mowlem, the defendant, and by one of the two passengers in his car who were the only eyewitnesses of the incident, that the car in which they were travelling had been two feet from the cars parked on the side of the road, in other words, the near side of the car which struck the boy was only two feet from the offside of the cars parked on the southern side of the road which ran east and west.  The road was 36 feet wide as his Honour found and, as his Honour also found, that left a distance of some metre plus between the offside of the car which struck the boy and the centre line.

There was, as appears on page 3 of the application book, in the words of the respondent, no traffic.  That appears at line 25.  We have a situation where he is on a road 36 feet wide; he recognises the likelihood of the presence of children.  If I could just take your Honours very briefly to that; page 4 of the application book at the top of the page:

Q.  Were you aware at the time that Cambridge Park was a busy family area?
A.  Yes, I’d lived there for a while.

Q.  I suppose you knew that particularly on a week-end and particularly when there was sport on at the park that there would be likely to be families around?
A.  Yes.....

Q.  And you would know that where there were families around there would be likely to be young children?
A.  Yes, I do realise that.

To page 7, at the top of the page again, he said, on the second line:

I was - as you say, I was coming into a built up area where I knew there was families and people and I was looking at the road.

Q.  Where you knew that it was dangerous to travel at more than thirty five kilometres an hour?
A.  Yep, that’s right.

And on a number of bases his Honour found that, in fact, he was travelling at 45 to 50 kilometres an hour.

GAUDRON J:   And that it was not excessive?

MR TOOMEY:   That is so.

GAUDRON J:   So that finding that it was not excessive negates any putative admission of danger by the - - -

MR TOOMEY:   It may, your Honour, but there is this to be said, although I realise it is not a lot of help to me here, that his Honour made no reference to that admission by the defendant in his judgment.  He simply said, “I find it was not excessive” without referring to the fact that the person who knew because he was driving there in those circumstances had said, in effect, that it would be excessive.  That being said, that is so, your Honour, his Honour found it was not excessive.

His Honour found that the boy had stopped, was stationary when he was struck by the vehicle and that he was two feet out from the side of the parked cars.  He also found, and this really may be the crux of the case, that the action of the driver in those circumstances, knowing of the likely presence of children with no vehicles coming in the other way, was negligent, that he should have moved further out from the parked cars because he should have foreseen the possibility that, in such an area on such an occasion, someone may come out from between cars and he should have put himself in a position where it was easier ‑ ‑ ‑

GUMMOW J:   The real question, Mr Toomey, is did the Court of Appeal go wrong?  What the Court of Appeal said, there was procedural unfairness.

MR TOOMEY:   Yes, they did, your Honour.

GUMMOW J:   Therefore that it should go to a new trial.

McHUGH J:   Indeed, on that aspect of the case you might be regarded as very lucky.  It might be in your interest not to get special leave because if it came up here we might apply Moustakis and enter a verdict for the defendant.

MR TOOMEY:   Except, your Honour, that in Moustakis the point was never taken down below.  Here, it was taken.  It may have been taken late but it was taken.

McHUGH J:   I do not think there is a difference.  You might have been very lucky.

MR TOOMEY:   Well, with respect, your Honour, I hope I can persuade your Honour that that is not so because in Maloney the point is made that the important matter is whether it is before the court, not matters of formality such as pleading and amendment but whether the matter is raised before the court.  There is no doubt it was raised before the court although it was raised late.

McHUGH J:   The trial judge himself made a finding of negligence by the narrowest of margins and it might be said that what he has required of the defendant bordered almost on perfection.  No excessive speed; keeping a proper lookout; he should have shifted one metre further to the centre of the road.

MR TOOMEY:   Your Honour, it was, with respect, in accordance with a line of cases in New South Wales which collect the case of Mitchell in which President Kirby, as he then was, collected and referred to a number of New South Wales cases where that precaution has been referred to as being something that a prudent driver should always do when the possibility of children on the sidewalk is known.

McHUGH J:   But this seems to crystallise questions of fact into questions of law, like the rule that was supposed to exist at one time that you always had to drive one car length behind the vehicle in front of you.

MR TOOMEY:   It is not doing that, with great respect, your Honour.  What it is saying, we would submit, is that in every circumstance we know that there are children, to drive so close to the side of cars when you do not have to, if there were traffic coming in the other direction from a narrow road, that might be a different matter but here you have a road 36 feet wide, no traffic coming and you recognise the possibility that children ‑ ‑ ‑

GAUDRON J:   That really though is not the question.  I mean, the question is and the reason for the rule which we can refer to for the moment is the rule in Moustakis is that the defendant might have called other evidence, might have conducted his case differently, might have engaged in a line of cross‑examination quite different from that that was taken.

MR TOOMEY:   Your Honour, with great respect, I concede that as a general possibility but the fact is that when the matter was raised the defendant made no application for adjournment or no application for further evidence.

GAUDRON J:   But objection was taken to the matter being raised.

MR TOOMEY:   Yes, indeed, it was but, your Honour, in these circumstances.  The matter was raised in address.  Mr Neil objected to it because it was not pleaded.  He did not say - and this is conceded in his own submissions - “If your Honour is going to consider it we want an adjournment, we want to call further evidence”.  He argued it, in effect; objected to it and argued it and, furthermore, we would say, that if you look at the circumstances, what further evidence could have been called.  The facts were established beyond controversy.  The width of the road, the knowledge of the defendant, the position of the car were all established.

McHUGH J:   If you had pleaded it as a particular, it may have lead to other lines of inquiry.  I mean, it is all right to say there was no oncoming traffic but there may have been vehicles behind, there may have been vehicles about to pull out on the other side of the road.  There are all sorts of possibilities that may have been there that could have been investigated.  You just made a new case after the evidence had closed.

MR TOOMEY:   I must say, your Honour, that, in our defence, the reason we made it was because the only eyewitnesses were the defendant’s witnesses and we did not know the position of the car on the road.  That came out in the defendant’s case and that is the reason it was made.  I appreciate that that does not alter the legal position, but I say, in our defence, that is why it happened that way.  But we would also say that this is a Warren v Coombes case where the facts are established and it is equally open to an appellate court to rule on those facts as it was for a court at first instance unless your Honours are persuaded that a different case could have been made by the defendant.  The case that we are propounding relies upon the defendant’s evidence.  It is difficult to see what the defendant could say.  He cannot say he was not two feet from the car because he has already sworn that was the case.  He cannot say that he did not know there were children about because he has already sworn that.  So, we would say that it was a case where it ought to have been dealt with on the basis of the facts as proved.

Can I point out one other matter.  The Court of Appeal said that the matter is to go back for a new trial on that point only, that is, the proximity of the car to the side of the parked cars.  That would make a new trial so limited very difficult indeed because there is a finding as to speed; there is a finding as to how far the car went before it stopped which was 112 feet, I think; there are findings as to how far the vehicle was from the centre line of ‑ ‑ ‑

McHUGH J:   But you will not be bound by those findings upon a new trial.  They are not heads of negligence but there could be no issue estoppels because the verdict has been set aside.  So, there is nothing to stop you leading evidence about it all.  You just cannot rely on it as a head of negligence.

MR TOOMEY:   I see what your Honour says and I am comforted.  I will take out the transcript, your Honour.

McHUGH J:   That has to be right, has it not?  There was no judicial determination.  It has been set aside.  A verdict for the defendant has been set aside.

MR TOOMEY:   But all that has been set aside, your Honour - I am sorry, there was a verdict for the plaintiff on one point.  What has been set aside is that finding for the plaintiff but the Court of Appeal have ordered that the matter go back for trial on the one head of negligence and that will be extremely difficult.

McHUGH J:   Our decision in Rogers where I dissented may be used against you.  It might be alleged that it is an abuse of process for you to litigate the question of speed and lookout, having regard to the findings of

the trial judge but I have some difficulty at the moment seeing that there is any issue estoppel once - - -

GAUDRON J:   And the direction or the basis on which it was sent back for retrial was whether, in all the circumstances, there was negligence in driving too close to the parked vehicles.

MR TOOMEY:   Yes, I see, what your Honour says.  Thank you, your Honour.

McHUGH J:   It is worth coming up here just to get a bit of judicial advice.

MR TOOMEY:   I just wonder if your Honours would help me on evidence.  Those are our submissions, your Honours.

GAUDRON J:   Thank you, Mr Toomey.

The proposed appeal does not enjoy sufficient prospect of success to justify the grant of special leave.  Accordingly, special leave is refused.

MR NEIL:   I ask for costs, your Honour.

GAUDRON J:   Do you say anything about that, Mr Toomey?

MR TOOMEY:   Nothing to say.

GAUDRON J:   Refused with costs.

AT 10.26 AM THE MATTER WAS CONCLUDED