Chu v Russell

Case [2016] TASFC 1

[2016] TASFC 1

COURT:        SUPREME COURT OF TASMANIA (FULL COURT)

CITATION:                  Chu v Russell [2016] TASFC 1

PARTIES:  CHU, Hong Fei
  v
  RUSSELL, Daniel Johnston

FILE NO:  850/2015
JUDGMENT

APPEALED FROM:  Russell v Chu [2015] TASSC 25

DELIVERED ON:  12 February 2016
DELIVERED AT:  Hobart
HEARING DATE:  7 October 2015
JUDGMENT OF:  Blow CJ, Porter and Estcourt JJ

CATCHWORDS:

Torts – Negligence – Contributory negligence – Particular cases – Road accident cases – Collision between car and bicycle – Cyclist diverged from left edge of lane into path of vehicle behind him – Motorist inattentive and travelling too fast.

Cocks v Sheppard (1979) 25 ALR 325; Watt v Bretag (1982) 41 ALR 597; Neumann v The Ship "Pelsaert" [1999] WASC 166, referred to.
Aust Dig Torts [65]

REPRESENTATION:

Counsel:
             Appellant:  P L Jackson SC and A Denehey
             Respondent:  K E Read SC and R Phillips
Solicitors:
             Appellant:  Murdoch Clarke
             Respondent:  Phillips Taglieri

Judgment Number:  [2016] TASFC 1
Number of paragraphs:  83

Serial No 1/2016

File No 850/2015

HONG FEI CHU v DANIEL JOHNSTON RUSSELL

REASONS FOR JUDGMENT  FULL COURT

BLOW CJ
PORTER J
ESTCOURT J (Dissenting)
12 February 2016

Orders of the Court

  1. Appeal allowed.

  1. Determination that the respondent's damages be reduced by 30% set aside.

  1. Substituted determination that the respondent's damages be reduced by 50%.

Serial No 1/2016
File No 850/2015

HONG FEI CHU v DANIEL JOHNSTON RUSSELL

REASONS FOR JUDGMENT  FULL COURT

BLOW CJ
12 February 2016

  1. This appeal concerns a collision between a motor vehicle and a bicycle on a country road.  On 16 December 2008 the respondent, Daniel Russell, was riding a bicycle north on Colebrook Road between Richmond and Campania.  He was approaching the junction with Fingerpost Road, where he intended to turn right. The appellant, Hong Fei Chu, drove up behind him and collided with his bicycle, with the result that he was seriously injured. He brought an action for damages. Wood J conducted a trial of the issues relating to liability.  Her Honour held that the appellant was liable for damages for negligence, that there had been contributory negligence on the part of the respondent, and that his damages should be reduced by 30% because of that contributory negligence: Russell v Chu [2015] TASSC 25. The appellant contends that he should not have been held liable for damages and, alternatively, that the reduction of 30% for contributory negligence was manifestly inadequate.

  2. I have had the advantage of reading the judgment of Estcourt J in draft form.  I regret that I disagree with his Honour's conclusions.

  3. The respondent was accompanied by a second cyclist, Mr Dunn, who was riding behind him.  They were both proposing to turn right onto Fingerpost Road.  The weather was fine.  They were on a sealed road.  The road was dry.  Visibility was good.  The collision occurred between 10am and 11am.  The speed limit was 100Km/h.  It seems that there was no other traffic in the vicinity apart…

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AGLC
Chu v Russell [2016] TASFC 1
Case
[2016] TASFC 1
Decision Date

CaseChat Overview and Summary

The case of *Chu v Russell* involved an appeal to the Full Court of the Supreme Court of Tasmania concerning a collision between a motor vehicle and a bicycle. The respondent, the cyclist, had diverged from the left edge of his lane into the path of the appellant's vehicle, which was travelling behind him. The trial judge had found both parties to be at fault, attributing 30% of the contributory negligence to the cyclist.

The primary legal issue before the Full Court was whether the trial judge's discretionary decision to reduce the respondent's damages by 30% for contributory negligence was reviewable on appeal. This involved considering the application of section 45(1) of the *Supreme Court Civil Procedure Act*, which sets strict limitations on appeals from discretionary judgments. The court also had to determine if the trial judge had erred in her assessment of the respective degrees of fault of the cyclist and the motorist.

The Full Court reasoned that a trial judge's apportionment of damages for contributory negligence is a discretionary decision that is not lightly reviewed. However, such a decision can be reversed or varied if the judge has proceeded on a wrong principle, used irrelevant or insufficient materials, misapprehended facts, or made an erroneous finding of fact or law. The court examined the trial judge's reasons, which highlighted the motorist's excessive speed and inattention in close proximity to vulnerable cyclists as a substantial departure from the required standard of care. Conversely, the cyclist's failure to look before diverging and crossing the lane without signalling was also identified as a significant departure. Despite acknowledging the cyclist's fault, the Full Court concluded that the trial judge's 30% apportionment did not adequately reflect the gravity of the motorist's conduct.

Consequently, the Full Court allowed the appeal, setting aside the determination that the respondent's damages be reduced by 30%. A substituted determination was made, reducing the respondent's damages by 50%, reflecting a higher degree of contributory negligence attributed to the cyclist than initially found by the trial judge.

Orders

Orders of the court

1. Appeal allowed.

2. Determination that the respondent's damages be reduced by 30% set aside.

3. Substituted determination that the respondent's damages be reduced by 50%.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

A trial judge's decision as to the extent of the reduction for contributory negligence is a discretionary decision to which s 45(1) of the Supreme Court Civil Procedure Act applies: McKinlay v Reading [1977] Tas SR at 15; Les Walkden Enterprises Pty Ltd v Menzie [2001] TASSC 140 at [45]; Direen v Coad [2005] TASSC 122; Tamarack Pty Ltd v Beswick [2010] TASFC 5 at [46]; Potts v Frost (above) at [32]. Section 45(1) limits the circumstances in which appeals from discretionary decisions can succeed. It reads as follows:"45 Appeals from judgments given in exercise of discretionary jurisdiction (1) A Full Court, on the hearing of any appeal from any judgment, order, or other determination (whether final or otherwise) of a judge, shall not reverse or vary any adjudication of the judge which is, or purports to be, only the exercise of a discretion which the judge was entitled by law to exercise, unless it appears to the Full Court that — (a) the judge has, in fact, declined or failed to exercise the discretion;(b) the judge has proceeded on a wrong principle or otherwise contrary to law, or on irrelevant or insufficient materials, or has misapprehended the facts or has failed to consider any material fact;(c) the adjudication is founded wholly or in part on an erroneous finding of fact or an erroneous determination in point of law; or(d) by reason of further evidence received by the Full Court in exercise of the powers conferred by section 48, or some special circumstance, the adjudication should be reversed or varied." Section 45(1) does not confer a general discretion to reverse or vary a discretionary decision on the basis of the Full Court's view as to what is reasonable or just, nor to do so whenever the Full Court thinks it would have been better to have given more weight or less weight to a particular factor. In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493-494, the High Court said in relation to the apportionment of damages in cases involving contributory negligence:"A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds' … Such a finding, if made by a judge, is not lightly reviewed." The learned trial judge's reasons for adopting the figure of 30% appear in pars[132] to [135] of her reasons, which read as follows:"132 Windeyer J stated in Teubner v Humble (1961) 108 CLR 491 at 504: 'The degree of care that must be exercised in any operation varies with the risk involved … When both are at fault the question is how far in the circumstances did the motorist depart from the standard of care of a reasonable man driving a motor car, and the pedestrian from the standard of care of a reasonable pedestrian.' 133 In comparing the extent to which the plaintiff and defendant departed from the standard of care of a reasonable cyclist and motorist, I note the following considerations. The circumstances cried out for the defendant to take care in the vicinity of the cyclists. They were vulnerable and their vulnerability was obvious. To travel at a speed of more than 95km/h in close proximity to them was fraught with danger. To do so, inattentive to the plaintiff cyclist and his movements, represents a substantial departure from the standard of care required. The combination of speed in the vicinity of a vulnerable road user, combined with inattention, is an obvious departure from the standard of care required. The danger, if it eventuated, would be likely to result in fatal or serious injury to the cyclist and also, would place passengers in the motor vehicle at risk of such injury.134 The failure of the cyclist to look before diverging in order to cross the lane when there was a vehicle approaching, and without signalling his intention to do so, was a significant departure from the standard of care required of him. His gradual deviation at a slight angle, as I have found, for some distance, when he was conspicuous and easily seen, suggests that his contribution should not be substantial. I accept that his conduct not only put himself at risk but others too. There was a risk that in taking evasive action, the driver and passengers could be injured or killed. There was also such a prospect in the event of a collision.135 Making a comparison of the departures from the respective duties of care, I conclude it is just and equitable between the parties that the plaintiff be held liable for his own injuries to the extent of 30%."

Ratio Decidendi

Legal Principle Established

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