Chu v Russell - [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

Appeal allowed.

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

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

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.
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.
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 from the appellant's vehicle and the two bicycles.
The appellant was an inexperienced driver. He had just obtained his full driving licence. He was driving towards Campania. That is to say, he was not intending to turn right onto Fingerpost Road. Before the junction with that road, there is a long straight. There was no evidence at the trial as to the precise length of that straight, but it is clear that it extends for some hundreds of metres before the junction is reached. After the appellant drove onto that straight at its southern end, it must have been possible for him to have seen the two cyclists ahead of him for hundreds of metres before he reached them.
The road in question has one northbound lane and one southbound lane. At the scene of the collision, the northbound lane is 3.2 metres wide, and the southbound lane 3.5 metres wide. There is a T-junction with Fingerpost Road. At that junction there is a "turn-out lane" to the left or west side of the northbound lane so that northbound vehicles can pass on a sealed section of the roadway to the left of vehicles that have stopped or slowed before turning right onto Fingerpost Road. The turn-out lane begins about 110 metres before the middle of the junction, and tapers out to become wide enough to accommodate an ordinary vehicle. A broken white line marks the border between the northbound lane and the turn-out lane. Beyond the turn-out lane there is a narrow bitumen shoulder and then a gravel edge.
As he approached the junction with Fingerpost Road, the respondent was initially travelling on the left of the northbound lane. He looked behind him, saw the appellant's approaching vehicle, looked forward again, and rode out from the left side of the northbound lane at about 15Km/h into the path of the appellant's vehicle, crossing to the area of the centre line, without signalling, and without again looking behind him.
The appellant gave evidence at the trial that he was initially travelling at nearly 100Km/h; that he first saw the cyclists when they were about 50 metres in front of him; that he reduced his car's speed to about 90 to 93Km/h after seeing them; that he looked at his speedometer; and that the respondent suddenly turned right in front of him. He braked heavily and swerved to his right. His wheels locked up. His vehicle left skid marks on his right hand side of the road. A police officer with expertise in investigating accidents, Sgt Carrick, gave evidence that the point of impact was in the southbound lane. He produced a scale plan of the accident scene which shows that the skid marks commenced about 15 metres before impact.
The learned trial judge made findings to the effect that the appellant was negligent in driving too fast, and in failing to keep a proper lookout. She made the following specific findings:
·     At [56] she accepted that, for the appellant, the appearance of the respondent in front of him was sudden and unexpected. She commented that that was "consistent with a significant reduction in distance between driver and cyclist without observation in the interim".
·     At [73] she found that the appellant was driving at nearly 100Km/h before he saw the cyclists; that he slowed to approximately 90 to 93Km/h after seeing them; that he then sped up again; and that his speed was within a range of 95 to 100Km/h at the point of impact.
·     At [77] she found that the respondent was riding approximately on the broken line at the commencement of the turn-out lane before he diverged.
·     At [78] she found that the respondent diverged from the broken line at a shallow angle in order to gradually shift to the centre line.
·     At [79] she found that the account given by the appellant in his evidence – an account of the sudden appearance of the respondent in his path – was explicable on account of the appellant's speed and the limited nature of his observations of the respondent in the preceding moments before he was in his path.
·     At [80], she accepted evidence given by the respondent that he began to diverge close to the beginning of the broken line, and noted that that was consistent with certain evidence given by his companion, Mr Dunn. She made a finding that the respondent's angle of departure from the broken line was less than 20 degrees.
·     At [82] she concluded that the appellant had made only partial observations of the respondent's manoeuvre in riding away from the broken line towards the centre line. She concluded that if the appellant had been paying attention, he would have observed the respondent gradually diverging from the broken line.
·     At [109] she held that, if the appellant intended to pass the cyclists, "the prudent and safe response would have been to reduce his speed, which would have given him opportunity to avoid a collision if one of the cyclists diverged into his path".
·     At [111] she repeated that the appellant did not observe the respondent start to diverge from the edge of the northbound lane, and that he failed to heed the presence of the respondent.
·     At [111] she repeated that the respondent was gradually shifting on a shallow angle of less than 20 degrees, and that the appellant should have observed him as he commenced to do that.
·     At [119], she held that a reasonable prudent driver would not have been travelling at the speed of 95 to 100Km/h in close proximity to the respondent. She also held that if the respondent "had reduced his speed as he should have done in his approach to the cyclists, then … he would have covered less distance during the perception reaction time and his stopping distance would have been less".
·     At [119] she also held that, but for the appellant's negligence, "being his inattention and excessive speed having regard to the circumstances, the collision would not have occurred".
The grounds of appeal are set out in full in the judgment of Estcourt J. The appellant's principal contentions are as follows:
·     He contends that the learned trial judge made an error of fact in finding that the respondent's divergence from the left side of the northbound lane into the path of the appellant's vehicle was at a shallow angle of less than 20 degrees: Ground 6.
·     He contends that her Honour made errors in relation to her findings as to him having failed to keep a proper lookout: Grounds 1, 3, 4, 7, 8, 9 and 10.
·     He contends that her Honour made errors in relation to her findings as to him having travelled at an excessive speed: Grounds 2, 3, 5 and 12.
·     He contends that the reduction of 30% for contributory negligence was manifestly inadequate: Ground 14.

Challenges to primary findings of fact

It is appropriate to consider the appellant's contentions as to errors in relation to the primary findings of fact first, before issues as to the scope of the appellant's duty of care, breaches of that duty, causation, and apportionment can be properly addressed.
The learned trial judge had the advantage of seeing and hearing the witnesses. In the words of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 at [23], she had "advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity … to reflect upon that evidence and to draw conclusions from it, viewed as a whole". She had the advantage of having inspected the scene of the collision, whereas this Court did not inspect it.
The respondent gave evidence to the effect that he did not swerve into the northbound lane from the broken white line, but that he diverged from it at a very slight angle, intending to occupy the northbound lane until he made his turn. Mr Dunn gave evidence that the respondent was 30 to 40 feet ahead of him, and was gradually shifting out towards the middle of the road. However the appellant gave evidence that was inconsistent with that of the respondent and Mr Dunn. He said that the respondent made a sudden turn in front of him. Only one of the appellant's four passengers gave evidence. That passenger was Mr Yang Liu. He was sitting in the middle of the back seat. He did not describe the manoeuvre by which the respondent came into the path of the appellant's vehicle. A statutory declaration by another passenger was tendered, but it did not include any description of that manoeuvre either.
The learned trial judge did not doubt the honesty of any of the witnesses who gave evidence as to the respondent's manoeuvre. However the evidence of the two cyclists as to that manoeuvre was inconsistent with the evidence of the appellant and, to some degree, that of Mr Liu, who, in her Honour's words, "seemed to share the defendant's [the appellant's] perception that the events unfolded very suddenly". Her Honour accepted the evidence of the two cyclists as to this point. In doing so, she took into account the following:
· The damage to the bicycle was to its rear, not its side.
· She considered that the appellant's account of the sudden appearance of the respondent was "explicable on account of his speed and the limited nature of his observations of the plaintiff [the respondent] in the preceding moments before he was in his path": at [79].
· She considered that a sharp divergence from the broken line was not consistent with the respondent's intention to cross into Fingerpost Road, which was more than 30 metres beyond the point of impact.
In relation to this issue, counsel for the appellant relied heavily on some of the evidence given by Sgt Carrick. The sergeant undertook some calculations based on the respondent's estimate that he had been travelling at about 15Km/h. He calculated that at that speed, if the respondent had diverged from the broken line at an angle of 15 degrees, it would have taken him 4.33 seconds to reach the point of impact. At an angle of 20 degrees, Sgt Carrick calculated that it would have taken him 3.36 seconds to reach the point of impact. When a motorist reduces speed to prevent a collision, there is an interval between the time when the motorist perceives a hazard, and the time when the motorist applies the brakes. Sergeant Carrick gave evidence that such reaction times depend on a number of circumstances, one being whether the hazard was anticipated or not. He gave evidence that when an event is anticipated, a motorist's reaction time will normally vary between 0.25 seconds and 0.7 seconds.
In his proof of evidence, which was tendered as an exhibit, Sgt Carrick said that the evidence in relation to the collision was "consistent with the driver of the motor vehicle having to react to a sudden unexpected situation". Counsel for the appellant relied heavily on that characterisation of the situation as sudden and unexpected. In fact part of Ground 9 asserts that the learned trial judge "failed to give any or sufficient weight to the undisputed opinions of Sgt Carrick to the effect that the appellant had to react to a sudden, unexpected situation". However it is clear from Sgt Carrick's cross-examination that he meant only that, from the point of view of the appellant, he was suddenly confronted with an unexpected situation. He gave opinion evidence that, for any ordinary prudent driver, the situation would not be a sudden unexpected situation. His evidence about a sudden unexpected situation thus provides no support for the appellant's contention that the respondent suddenly swerved into the path of the appellant's vehicle, rather than gradually diverging from the left of the northbound lane towards the centre of the road.
The learned trial judge's findings as to the nature of the respondent's manoeuvre and as to the appellant failing to keep a proper lookout were inter-related. Her Honour's reasons for concluding that the appellant was not paying adequate attention to the respondent appear in pars[81] and [82] of her Honour's reasons, which read as follows:
"81 The defendant's evidence is revealing about his lack of attention. His observations of the plaintiff at certain times lacked content. He swerved to the right when he was sure the front cyclist was going to turn, and he had a sense before that but without any content to his observation. I note his evidence that after he touched the brake, he looked down at his speedometer which may explain the gap in his observations. He observed the plaintiff on the broken line turn and look behind him and he noted that this was for two or three seconds, but then his next observation with any content is when the plaintiff was in front of him. He lacks recollection of the time in between, which suggests inattention.
82 Having regard to my findings referred to above, that the plaintiff rode away from the broken line for some distance in a gradual path to the centreline, the defendant only made partial observations of that manoeuvre. He only observed or was attentive to the plaintiff slowing down and crossing the broken line, as he perceived it, and then in front of him. On his account, as soon as he saw the plaintiff slowing and crossing, it was apparent that the cyclist was not taking a steady forward course. If he had been paying attention, he would have observed the plaintiff gradually diverging from the broken line."
Counsel for the appellant submitted that there were a number of passages in his client's evidence that indicated that he had been keeping a proper lookout, and that the learned trial judge erred by not giving them weight. The appellant certainly gave evidence to the effect that he saw the respondent come out from the broken line, and that he saw the respondent turn and look at him. He also said that the respondent turned right, "and then next thing is he's in front of me".
There was no reason for the respondent suddenly to turn hard into the path of the appellant's vehicle. That would have been even more dangerous than the manoeuvre that he and Mr Dunn described. Their evidence as to the respondent's manoeuvre was inconsistent with that of the appellant. The learned trial judge, who had the advantage of seeing the witnesses, considered them all to be honest. In those circumstances, the most plausible explanation by far for the inconsistency between the appellant's evidence and that of the two cyclists was that the appellant was not keeping a proper lookout. His sudden application of his brakes, so hard that all four wheels locked up and the vehicle skidded, is strong evidence that he was not paying proper attention. Having regard to all of these matters, including the advantages that the learned trial judge had, I am not persuaded that she erred in her findings as to the respondent's manoeuvre and the appellant's inattention. On the contrary, I am satisfied that her findings as to those issues were correct.

The appellant's speed

The learned trial judge's finding that the appellant was travelling at between 95 and 100Km/h has not been challenged by any of the grounds of appeal. However, the appellant contends that her Honour erred in concluding that he was travelling at an excessive speed, and that a breach of duty by travelling at an excessive speed was a contributing cause of the collision.
Sections 11 and 12 of the Civil Liability Act 2002 contain provisions as to breaches of duty. Those sections read as follows:
"11 General principles
(1) A person does not breach a duty to take reasonable care unless —
(a) there was a foreseeable risk of harm (that is, a risk of harm of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken precautions to avoid the risk.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things):
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the potential net benefit of the activity that exposes others to the risk of harm.
(3) For the purpose of subsection (2)(c), the court is to consider the burden of taking precautions to avoid similar risks of harm for which the person may be responsible.
12 Other principles
In a proceeding relating to liability for breach of duty —
(a) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
(b) the subsequent taking of action that (had the action been taken earlier) would have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute evidence of liability in connection with the risk."
The learned trial judge's reasons for concluding that the appellant had breached his duty to the respondent by travelling at an excessive speed appear in pars[107] to [110] of her reasons. Those paragraphs read as follows:
"107    In assessing the defendant's speed and level of attention, the following circumstances need to be considered. The defendant was approaching two cyclists who may not undertake manoeuvres in unison. One of the cyclists had turned to look at him, but the other had not. There was the prospect that one or both cyclists may be turning right at the junction. The view of Fingerpost Road was partially obscured by trees, and if the defendant needed to move into the incorrect lane due to the movement of the one of the cyclists, there was the prospect of a vehicle coming out onto Colebrook Road and travelling south on the other side of the road. The circumstances included the fact that either cyclist may have shifted to his right for some other reason, such as a mechanical difficulty with his bicycle or an obstacle in his path. There was a confluence of factors ahead being the T-junction, the prospect of vehicles entering Colebrook Road, or the cyclists leaving it or otherwise altering their course. If a cyclist or the cyclists did intend to turn right, the possibility they may do so by taking the turn wide and crossing from the edge of the lane to the centreline some distance before the intersection would not be abnormal or completely unexpected.
108    It is clear that there are inherent dangers when a cyclist and motorist share the road in close proximity. Motorists need to drive with those dangers in mind. The circumstances are all important. What is clear is that for the defendant, the situation ahead, even before the plaintiff began to shift across, required caution and his close attention.
109    Was the defendant entitled to assume that the plaintiff would continue on his course and not diverge from the left without checking the road behind him was clear? I consider that even if that was a reasonable expectation, there were still reasons why it was necessary for the defendant to reduce his speed. That he sped up on his immediate approach to the cyclists, to a speed of at least 95km/h, was not a prudent and safe response. If the defendant intended to pass the cyclists, the prudent and safe response would have been to reduce his speed, which would have given him opportunity to avoid a collision if one of the cyclists diverged into his path. A collision at 95km/h with a cyclist or another car travelling in the opposite direction would give rise to risk of very serious injury.
110    Having seen the junction and the section of road on the view, I am struck by how unsafe the defendant's speed was vis-à-vis a cyclist. His speed amounted to a clear breach of duty to other road users, including the cyclists."

Counsel for the appellant argued to the effect that her Honour's approach involved the imposition of a duty that would have required the appellant to slow down to whatever speed would have avoided the accident, even an absurdly low speed, even though she was unable to make any determination as to what that speed would be.
Sgt Carrick gave evidence that the stopping distance for a vehicle travelling at 100Km/h on the road in question would have been about 54 metres from the point at which the brakes were applied. To avoid a collision, the appellant did not need to stop. At most, he might have needed to reduce his speed to that of the respondent's bicycle. If he had been alert to a possible need to brake hard, his reaction time would probably have been no longer than 0.7 seconds. I base that on Sgt Carrick's evidence. A vehicle travelling at 100Km/h will travel about 19.4 metres in 0.7 seconds. It follows that the stopping distance for a vehicle travelling at 100Km/h, allowing for reaction time, was approximately as follows:
19.4 + 52 = 81.4 metres.
Sgt Carrick calculated the distance that the appellant would have travelled in 2.5 seconds at various speeds. If the respondent had been diverging at an angle of 20 degrees, taking 3.36 seconds to travel 14 metres to the point of impact at 15Km/h, then that figure of 2.5 seconds represents an allowance of 0.86 seconds for reaction time. In 2.5 seconds, the appellant would have travelled the following distances at the following speeds, assuming no reduction in speed:
·     65.95 metres at 95Km/h.
·     52.07 metres at 75Km/h.
·     34.7 metres at 50Km/h.
·     17.35 metres at 25Km/h.
If the angle of divergence had been 15 degrees, it would have taken the respondent 4.33 seconds instead of 3.36 seconds to reach the point of impact, and the appellant would have had a greater opportunity to brake so as to avoid a collision.
It can be seen from these figures that if the appellant had seen the cyclists more than 100 metres ahead of him, and had slowed down in case a hazardous situation developed, perhaps to about 75Km/h, he would have had an excellent chance of braking sufficiently to avoid a collision upon seeing the respondent commence to pedal across his path. That is to say, the appellant could have avoided the collision without slowing to an absurdly low speed.
In her reasons at [90], the learned trial judge said:
"It is not possible to nominate a speed which might have been reasonable in the circumstances, as there was more at play than just speed."
Counsel for the appellant accepted that that conclusion was correct but argued that it was "therefore not possible to say on the balance of probabilities that the injuries suffered by the respondent would have been avoided had a different speed been adopted by the appellant". I reject that submission. There are a number of variables that would affect any calculation of an appropriate speed, including the distance between the motor vehicle and the bicycle at the commencement of braking, the angle of deviation of the respondent from the side of the northbound lane, the position of Mr Dunn when the motor vehicle overtook him, and the width of the turn-out lane at that point. Precise calculations are not possible without knowing, or being able to calculate, the stopping distances for a vehicle travelling at various speeds. It would be artificial to assume that the appropriate course was to brake, and then maintain a constant speed, rather than braking gradually until the appellant had passed the respondent, and then accelerating. And it would be artificial to attempt to calculate an appropriate reduced speed, given that drivers do not use arithmetical calculations concerning braking distances and the like when deciding to what extent they should slow down, but have regard to a variety of factors, of which the speed shown by the speedometer is only one. The inability to calculate or estimate a safe passing speed certainly does not preclude a finding that travelling at 95 or 100Km/h amounted to a breach of duty.
Counsel for the appellant argued that the learned trial judge adopted impermissible reasoning to the effect that, because it was possible for the appellant to avoid a collision under any circumstances, then he had a duty to do that, however low the absolutely safe speed would have been. I reject that submission too. It is true that, in the absence of a specific perceivable danger, a driver does not have a duty to slow down to a speed at which he or she could stop in any conceivable circumstances and thus avoid an accident: Mobbs v Kain (2009) 54 MVR 179; Knight v Maclean [2002] NSWCA 314 at [66]; Rayner v Cochrane [2011] TASSC 45 at [13]. However there were a number of circumstances that made it necessary for the appellant to reduce his speed substantially as he approached the cyclists, and to be alert to the possibility that he might suddenly have to brake hard to avoid a collision. Many of those circumstances were referred to by her Honour at pars[107] to [110] of her reasons, which I have quoted above.
It is also worth mentioning that, for all the appellant knew, the cyclists might have been too young to have the degree of consciousness of road safety that comes with experience as a driver. From behind, the appellant would not have been able to tell whether they were adults or schoolboys.
There was a foreseeable risk of harm to one or both of the cyclists. The risk was not insignificant, as the respondent's injuries illustrate. The probability that the harm would occur if care were not taken was not high. However the likely seriousness of the harm was enormous, and the burden of taking precautions to avoid the risk of harm was minimal. If the appellant had paid attention and braked in time to avoid a collision, the only adverse consequence would have been a delay that could be measured in seconds, rather than minutes.
Drivers on country roads often have to reduce their speeds drastically as a result of everyday situations. Sometimes they have to stop and give way at one-lane bridges. Sometimes they have to stop, or slow to a walking pace, when stock are on or near the road. Sometimes they have to reduce speed significantly because of people riding horses on the road. Situations like these do not cause significant delays. It is therefore not unreasonable to expect motorists occasionally to have to travel very slowly when there is a small risk that enormous harm might result if an ordinary cruising speed is maintained.
The appellant had a duty, once he saw the cyclists, to reduce his speed in case a dangerous situation developed, with a view to possibly taking action to avoid a collision. To hold that such a duty existed is very different from holding that there was a duty to travel at a speed so slow that an accident could be avoided in any conceivable circumstances. The learned trial judge did not adopt impermissible reasoning in this respect.
Ordinary reasonable drivers slow down when they are approaching cyclists on country roads, and take care when passing them. Having regard to all the circumstances relevant to this case, I consider that the learned trial judge properly assessed the degree of care that the appellant had a duty to take.

Causation

Section 13(1) of the Civil Liability Act provides as follows:
"13 General principles
(1) Prerequisites for a decision that a breach of duty caused particular harm are as follows:
(a) the breach of duty was a necessary element of the occurrence of the harm ('factual causation');
(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused ('scope of liability')."
As the learned trial judge observed, this provision applies a "but for" test in relation to causation: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 429 at [42]-[45]; Strong v Woolworths Limited (2012) 246 CLR 182 at [18].
Counsel for the appellant made submissions to the effect that his client's speed played no part in the causation of the collision because the respondent pedalled into the path of his client's vehicle at such an angle, and so suddenly, that a collision was inevitable. His submissions as to that point were based in part upon the proposition that the learned trial judge erred in concluding that the respondent diverged from the left side of the northbound lane at a slight angle of less than 20 degrees, a proposition that I have rejected. The figures that I have quoted above relating to reaction times, speeds, distances and so forth, none of which are controversial, show that the appellant would have been able to avoid a collision if he had slowed to a reasonable extent when approaching the cyclists, and had kept a proper lookout. I agree with her Honour's conclusion that, but for the appellant's failure to keep a proper lookout and his speed, the collision would not have occurred.

Contributory negligence – apportionment of liability

As I have said, the learned trial judge decided that the respondent's damages should be reduced by 30% because of contributory negligence on his part, and the appellant contends that that percentage is manifestly inadequate. The appellant's submissions in relation to this issue were based very largely on the proposition that the respondent did not diverge from the left side of the northbound lane at a shallow angle of no more than 20 degrees, but turned sharply into the appellant's path. I have rejected that proposition.
The respondent did not cross-appeal, but his counsel submitted that the figure of 30% was manifestly excessive, and argued that a figure of 20% should be substituted. This Court may have the power to correct an error that is not the subject of a ground of appeal or cross-appeal: Supreme Court Civil Procedure Act 1932, ss 47(1) and 49; Rendell v Paul (1979) 22 SASR 459 at 463; Potts v Frost (2012) 22 Tas R 103 at [132]-[136]. It is not necessary, for the purposes of this case, to decide whether there is such a power.
When findings of negligence and contributory negligence are made, s 4(1) of the Wrongs Act 1954 provides for the damages to "be reduced to such extent up to 100% as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage". Section 23 of the Civil Liability Act provides as follows:
"23 Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent for the purpose of apportioning liability under section 4 of the Wrongs Act 1954.
(2) For the purpose of apportioning liability under section 4 of the Wrongs Act 1954 —
(a) the standard of care required of the person who suffered harm is that required of a reasonable person in the position of that person; and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."
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%."
Counsel for the respondent submitted that s 45(1)(b) applied because the learned trial judge had not mentioned his client's failure to signal, and thus had failed to consider a material fact. That submission was misconceived. The failure to signal was mentioned by her Honour in par[134] of her reasons, which I have just quoted.
However I have come to the conclusion that her Honour made an error within the scope of s 45(1)(c) by reaching a conclusion to the effect that the respondent's departure from the standard of care required of a reasonable cyclist was not as substantial as the appellant's departure from the standard of care required of a reasonable motorist. The reaching of such a conclusion is clear from her Honour's comment in par[134] that the respondent's "contribution should not be substantial", and from her determination to the effect that a 70:30 apportionment was just and equitable.
In my view the respondent's conduct involved a gross departure from the standard of care required of a reasonable cyclist. Any reasonable cyclist in his situation would have done what his companion did, pedalling along the left hand edge of the sealed roadway until the approaching car had passed by. But the respondent, having turned and seen the appellant's vehicle approaching, rode gradually into its path without ever again looking behind him. He quite unnecessarily created a dangerous situation when none had existed. That cannot be said of the appellant.
In order to make a comparison between the departures of the parties from their respective duties of care, one must of course take into account the extent of the appellant's negligence. And in deciding what apportionment of responsibility is just and equitable, I think it appropriate to take into account the inequalities of size, weight, speed and manoeuvrability between the appellant's car and the respondent's bicycle, and the consequent vulnerability of the respondent.
In Cocks v Sheppard (1979) 25 ALR 325, the High Court was concerned with a collision between a motorcycle and a semi-trailer. One of two motorcyclists was turning right into a service station when the driver of the semi-trailer decided to overtake the motorcycles. At 332 Gibbs J, with whose reasons Barwick CJ, Stephen and Aickin JJ agreed, in deciding that the conduct of the semi-trailer driver was more culpable than that of the injured motorcyclist, said:
"He in fact knew that the cyclist [sic] were ahead of him on the roadway; he was driving a large and heavy, yet fast-moving, vehicle capable of causing great damage if involved in a collision but he failed to keep the careful look-out that was required of him in the circumstances."
That case was referred to by Murphy J in a dissenting judgment in Watt v Bretag (1982) 41 ALR 597 at 602 where his Honour said:
"The speed and size and weight of the vehicles in contributing to the severity of the damage should be taken into account, not merely those factors which contributed to the collision … For example, where the collision is between a semi-trailer or other juggernaut vehicle and a pedal bicycle, even if the driver and the plaintiff rider each made an equal contribution to causing the collision, it would generally be just and equitable to reduce the plaintiff's damages not by half, but by much less."
That case concerned a head-on collision between two cars. There is nothing in the judgments to suggest that there was any significant difference between the size and weight of the two vehicles, though one was travelling faster than the other.
In Neumann v The Ship "Pelsaert" [1999] WASC 166, Wheeler J was concerned with a collision between two vessels. The "Pelsaert" ran down and over a vessel which was at anchor, some 23 nautical miles from the coast. The "Pelsaert" was a fibreglass vessel, 23.95 metres long, and weighing about 105 tonnes. The other vessel was a marine ply vessel, 9.87 metres long. At [52], her Honour said:
"… it appears to me that the negligence of the plaintiff was greater than that displayed by the crew of the 'Pelsaert'. However, having regard to the relatively helpless position of the vessel at anchor, as opposed to the 'Pelsaert', in avoiding any possible collision, it appears to me that the negligence of the 'Pelsaert' crew played a greater role in causation of the collision than did that of Mr Neumann."

As these authorities illustrate, it can often be appropriate, when deciding what apportionment of damages is just and equitable, to take into account any substantial inequality of size, weight, speed or manoeuvrability between vehicles or vessels involved in a collision, and any consequent vulnerability.
In all the circumstances I consider that the extent of the respondent's departure from the standard of care of a reasonable cyclist was no less than the extent of the appellant's departure from the standard of care of a reasonable motorist. I therefore consider that it was not reasonably open to the learned trial judge to conclude that the extent of the respondent's departure from the applicable standard of care was not as substantial as the extent of the departure by the appellant from the standard of care applicable to him. That conclusion involved a finding of mixed law and fact that was erroneous and therefore within the scope of s 45(1)(c). The determination that the respondent's damages were to be reduced by 30% must therefore be set aside.
I think it is reasonable to conclude that, whilst the respondent alone created a dangerous situation when none had existed, that factor is more or less cancelled out by the inequality between the car and the bicycle in relation to size, weight, speed and manoeuvrability, and by the respondent's consequent vulnerability as a cyclist. Having regard to all the relevant circumstances, I would substitute a determination that the respondent's damages be reduced by 50% as a result of his contributory negligence.
File No 850/2015

HONG FEI CHU v DANIEL JOHNSTON RUSSELL

REASONS FOR JUDGMENT FULL COURT

PORTER J
12 February 2016

I agree with Blow CJ.
File No 850/2015

HONG FEI CHU v DANIEL JOHNSTON RUSSELL

REASONS FOR JUDGMENT FULL COURT

ESTCOURT J
12 February 2016

This is an appeal against a decision of Wood J in Russell v Chu [2015] TASSC 25, in which her Honour found that the appellant, Hong Fei Chu was liable for the negligent injury of the respondent, Daniel Johnston Russell, and that the respondent contributed to his injury to the extent of 30% as a result of his own negligence.
On 16 December 2008, the respondent was riding a bicycle north on Colebrook Road intending to turn right at the junction of that road with Fingerpost Road. At the same time the appellant was driving a motor vehicle in the same direction and, as he rounded a bend in Colebrook Road, he saw the respondent in front of him on a straight section of the roadway before the junction. The respondent moved towards the centre of the north-bound lane in preparation for the commencement of his right hand turn. The appellant's motor vehicle collided with the respondent's bicycle and as a result of the collision, the respondent suffered personal injuries.
The learned trial judge found that the appellant was in breach of his duty to the respondent and that such breach was causative of the respondent's injuries. Her Honour found that the appellant's breach of duty was as a result of the speed at which he drove his vehicle and his inattention to the respondent's presence and movement on the roadway. She found that the respondent's own negligence was causative of his injuries on the basis that he moved towards the centre of the lane without looking behind him immediately before doing so and without signalling his intention to do so.
The appellant has appealed against both the finding of his liability to the respondent for damages and against the adequacy of the finding of contributory negligence against the respondent.
The notice of appeal is pleaded as follows:
"1The learned trial judge erred in concluding that the appellant breached his duty of care in failing to keep a proper lookout.
2The learned trial judge erred in concluding that the appellant breached his duty of care in proceeding at the speed that he did after he saw the respondent ahead of him.
3The learned trial judge erred in law in finding a breach of duty by the appellant in the circumstances of this case.
4The learned trial judge erred in finding that the appellant's failure to keep a proper lookout was a necessary element of the occurrence of the respondent's harm.
5The learned trial judge erred in finding that the appellant's speed was a necessary element of the occurrence of the respondent's harm.
6The learned trial judge erred in fact in finding that the respondent's divergence from the left hand side of the road into the path of the appellant's vehicle was at a shallow angle (at [78]) of less than 20 degrees (at [80]).
7The learned trial judge erred in finding (at [56]) that the reason why from the point of view of the appellant the appearance of the respondent in front of him was sudden and unexpected was that the appellant made no or only limited (at [79] and [111]) observation of the respondent's movement from the edge of the road, when the appellant gave no evidence to that effect and his evidence was that he saw the respondent diverge from the edge of the road into his path.
8The learned trial judge erred in finding (at [111]) that the appellant did not observe the respondent start to diverge from the edge of the road and that he failed to heed the respondent's presence.
9The learned trial judge failed to give any or sufficient weight to the undisputed opinions of Sgt Carrick to the effect that the appellant had to react to a sudden, unexpected situation and that the appellant's actions were consistent with the respondent moving into the path of the appellant's vehicle a short distance in front of him.
10The learned trial judge erred in attributing lack of detail in some of the appellant's evidence concerning observations of the respondent to inattention at the time of the accident (at [81]) rather than simply lack of recollection or imperfect articulation of the appellant's evidence.
11The learned trial judge erred in failing or declining to attach any or sufficient significance and weight to substantial and significant inconsistencies in the evidence of the respondent and Mr Dunn.
12The learned trial judge erred in failing to adequately consider and deal with the expert and other evidence concerning the limited time and distance available to the appellant prior to impact once the respondent began to move into the path of the appellant's vehicle.
13The learned trial judge erred both when addressing the question of the appellant's liability and the respondent's responsibility for the collision in failing to adequately consider and deal with the evidence (including expert evidence) and findings that:
(a) The respondent knew the appellant's vehicle was approaching him.
(b)The appellant knew the respondent had looked behind him and correctly assumed the respondent had seen the appellant's vehicle approaching him.
(c)The respondent agreed he could have waited and executed his turn nearer to the junction, by which time the appellant's vehicle would have passed him.
(d)Knowing the appellant's vehicle was approaching him at a speed he estimated (inaccurately) to be about 70 kph, the respondent failed to look behind him again before moving into the path of the appellant's vehicle.
(e)Knowing the appellant's vehicle was approaching him at a speed he estimated (inaccurately) to be about 70 kph, the respondent failed to give any indication of his intention to move into the path of the appellant's vehicle before making that move.
(f)In all the circumstances there was no justification for the respondent taking the risk that he did in moving into the path of the appellant's vehicle.
(g)By doing so, possessed of the knowledge that he had of the approach and course of the car, and even if the assumption he made as to its speed had been correct, the respondent placed himself on a collision course with the appellant's car with only about a second to spare.
(h)Had the respondent not moved into the path of the appellant's vehicle there would have been no collision.
(i)Had the respondent made the observations he could and should have made, identified by the trial Judge at [130], the likelihood is that instead of moving into the path of the appellant's vehicle he would have waited until the vehicle had passed.
14 In view of the evidence and the findings:
(a)That the respondent deliberately undertook a manoeuvre that was fraught with risk both to the respondent and other road users including the appellant and his passengers; and
(b)A manoeuvre that was wholly unnecessary for him to make at the time that he did; and
(c)That if he had not done so there would likely have been no collision,
the conclusion that the damages recoverable by the respondent should be reduced to the extent of only 30% is manifestly inadequate having regard to the respondent's share in the responsibility for his damage."
The appellant's notice of appeal as to the finding of liability against him contains 12 grounds. A number of those grounds fail, to a greater or lesser extent, to identify either where or how the asserted errors are to be found in the judgment under appeal, and fail to specify whether any such errors involve a mistake of fact or law or both, or arise in some other way.
As was pointed out by Porter J in Calvert v Badenach [2015] TASFC 8 at [46], although this is an appeal by way of rehearing, the appellant nonetheless needs to show an error on the part of the trial judge.
In Allesch v Maunz (2000) 203 CLR 172 at 180 Gaudron, McHugh, Gummow and Hayne JJ said at [23]:
"23 For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error…". (Footnotes omitted.)
In Bahonko v Sterjov [2008] FCAFC 30 at [3], Gyles, Stone and Buchanan JJ said at [3]:
"Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (as trustee for the Baker Family Trust) (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appealable error."
This unsatisfactory state of affairs was fortunately remedied by the provision of the written submissions of Mr Jackson SC on behalf of the appellant, many of which however could not reasonably have been divined from scrutiny of the notice of appeal.
Whilst awaiting the parties' written submissions and pondering the more Delphic aspects of the notice of appeal, I did in fact "recanvass every aspect" of the material at first instance. As a result of having done so I reached the view, purely on the basis of what I regard as uncontroversial, uncontested or incontestable facts and findings, that the appellant did not breach his duty of care to the respondent, and that if he did, any possible breach was not causative of the respondent's injuries. As will be seen, I regard the respondent's own negligence as the sole cause of his injuries.
To explain my conclusion it is unnecessary to attempt to summarise the learned trial judge's recounting and analysis of the evidence or her reasons for finding that the appellant breached his duty of care and caused the respondent's injuries. Her Honour examined the evidence in great detail and her observations on the evidence and her reasoning were at length. Any summary would not do her Honour's assessment justice, and my approach to the ultimate issue of causation is not reliant on an evaluation of her approach. The decision at first instance is of course public and is available to be read and considered by anyone wishing to do so.
The respondent was riding his bicycle at about 15km/h along the broken white line of a turn-out lane running along beside him to his left. That turn-out lane continued along Colebrook Road past the junction with Fingerpost Road. He saw ahead of him and on his right the road sign to his destination of Orford, at which point he intended to make a right hand turn into Fingerpost Road. At that point in time the respondent looked back and he saw his cycling companion, Mr Robert Dunn, about 40 to 50 feet behind him and saw the appellant's vehicle behind him at a distance he variously stated was "400 feet" and "100 metres" away. He assumed that the speed of the appellant's vehicle was about 70km/h. He knew that he was cycling in a 100km/h zone for motor vehicles. The respondent then turned back to look ahead and began to diverge to his right, from the broken white line into the north-bound lane proper, in order to make a right hand turn into Fingerpost Road. He did not signal his intention to do so. He began this manoeuvre a lengthy distance ahead of the junction and a short distance in front of the appellant. Having looked back the one time, as just described, the respondent did not look back again before he began diverging to the right. At the time he commenced to diverge he did not know how far behind him the appellant's vehicle was. He did not see the appellant's vehicle again before he was struck by it.
The appellant was driving at no more than 100km/h. He saw the respondent look back at his vehicle for a time. When he first saw the cyclists he touched the brake, reducing the speed of his vehicle. When he did so he looked at his speedometer. As he approached the cyclists he moved slightly to the right and returned his foot to the accelerator. He had just obtained his full driver licence so he was not very good at estimating distances. He sensed that the respondent was going to move off the broken white line to turn, so he swerved to his right. The next thing he knew was that he had run into the respondent whose body landed on his windscreen. He had braked heavily prior to impact. At impact the rear of the respondent's bicycle was aligned squarely or diagonally to the front of the appellant's vehicle but not at right angles to it. The damage to the appellant's vehicle was to the front bumper bar on the passenger side. There was significant damage to the rear forks and wheel of the respondent's bicycle.
The north-bound lane of Colebrook Road is 3.2m wide, and the south-bound lane is 3.5m wide. There were distinct parallel skid marks which commenced approximately 16m before the point of impact. Precision is not possible in identifying the point of impact but it was approximately 1.2m east of the centre line dividing the north and south-bound lanes of the road. The approximate point of impact is consistent with the appellant moving to his right to avoid the respondent, as the respondent moved in the same direction in pursuit of his intended right hand turn into Fingerpost Road.
In my view, no other lay and expert evidence adds in any meaningful way to the facts available for consideration on the questions of breach of duty and causation. In any event, in my opinion it is not necessary in order to answer those questions to know the exact speed of the appellant's vehicle or the exact distance which separated the appellant and the respondent when the appellant first observed the respondent, and it is not necessary to know the exact angle of the divergence of the respondent's bicycle as he deviated from the broken white line of the turn-out lane onto the travel surface of the north-bound lane of Colebrook Road, or the exact point where that deviation commenced. In particular, there are, in my view, too many imponderables in the speed, time, angle and distance, perception and reaction time calculations carried out by the expert accident investigator, Sergeant Carrick, to be confident that any result derived mathematically is reliable, much less dispositive of the questions of breach of duty and causation.
The appellant was not exceeding the speed limit and, in my assessment, no evidence establishes that he breached his duty of care to the respondent by not slowing down to any particular, undetermined and indeterminate speed prior to the respondent moving into his path. The evidence as to inattention is that the appellant looked at his speedometer after initially observing the cyclists and applying the brakes on his vehicle, and that after sensing that the respondent was going to move off the broken line, and the appellant swerving quickly to his right, he made no further observation of the respondent, and the next thing the appellant knew was that he had run into the respondent. That evidence is equally consistent however, with the respondent moving, without warning, into the path of the appellant's vehicle as it is with any breach of duty on the part of the appellant by failing to keep a proper lookout.
It should be remembered that the Civil Liability Act 2002, s 12(a), provides that the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done.
In any event, assuming for the moment that there was a risk of harm that the appellant knew, or ought reasonably to have known, and that in the circumstances a reasonable person in the position of the appellant would have taken precautions to avoid that risk, there remains the question of causation.
The question of factual causation under the provisions of the Civil Liability Act, s 13, in other than an exceptional case, is to be determined by the "but for" test of causation, that is to say, "but for the negligent act or omission, would the harm have occurred?": Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [45], confirmed and applied in Strong v Woolworths Ltd (2012) 246 CLR 182 at [18].
I am confidently of the opinion that this case is not an exceptional case and that it cannot be said that it is more probable than not that, "but for" the appellant travelling at or just below the speed limit, and/or that "but for" the appellant looking at his speedometer, and/or otherwise failing to observe the respondent immediately prior to impact, the collision between the motor vehicle and the bicycle would not have occurred. No evidence establishes, to my mind, any causal connection between the speed of the appellant's vehicle (or his failure to slow down by some indeterminate amount), and the fact of the collision occurring, or between any insufficiency in the lookout kept by him and the fact of the collision. The appellant was of course aware that the respondent had looked back at him for some time and he was entitled to assume that the respondent had observed him and was aware of the presence and proximity of the appellant's vehicle on the road.
On the other hand however, it is quite clear to my mind that in moving into the path of the appellant's vehicle, and in making that manoeuvre without signalling his intention to do so, and doing so knowing that the appellant's vehicle was behind him in a 100km/h speed zone, but without ascertaining the proximity of the appellant's vehicle to him at that time, the respondent was in breach of his duty to take reasonable care for himself and for other road users as assessed by reference to the general principles set out in the Civil Liability Act, s 11.

I am left in no doubt on the evidence that "but for" those breaches of duty on the respondent's part it is more probable than not the collision would never have occurred. Had the respondent looked back again immediately before or closer to commencing to deviate from the broken white line along which he was riding, he would have realised that his earlier assessment of the speed of the appellant's vehicle as 70km/h was grossly mistaken and, of necessity, he would have seen that the appellant was too close to him to allow him to safely take that change in course. He was a lengthy distance from the junction with Fingerpost Road and could have delayed the commencement of his turn with ease and without inconvenience. Had he done so, the collision would, undoubtedly, never have occurred. In my view, it cannot be gainsaid that "but for" the respondent unnecessarily and egregiously moving into the path of the appellant's vehicle he would not have been injured. The same cannot be said of any act or omission of the appellant.
Additionally, I observe that given that the appellant's vehicle struck the respondent's bicycle in the manner which the observed damage would indicate, the respondent was obviously in such close proximity to the appellant's vehicle that deviating from the broken line when he did (at whatever angle) and without warning, rendered a collision virtually inevitable on the open road where the speed limit was, as the respondent knew, 100km/h. I also note that had the respondent signalled his intention to make a right hand turn he might have removed any ambiguity from his manoeuvre, giving the appellant the option, even under the conditions of the open road, of moving to his left to go past the bicycle instead of moving, as he did, to his right in order to avoid the respondent, as the respondent moved in the same direction in pursuit of his unheralded right hand turn. It might be though that the appellant may have been inhibited in moving to the left rather than the right because of the presence on the roadway of the respondent's cycling companion riding behind the respondent. It is clear however that in the events that did occur, as opposed to the counter – factual, the appellant had passed that cyclist safely.
My conclusion as to liability is, regrettably, diametrically opposed to that of the learned trial judge. It follows that my view is that her Honour erred in concluding that the appellant's "conduct as a whole, his speed of 95-100km/h and his inattention was clearly causative of the collision". Sadly, in this tragic case, nothing in the submissions of Mr Read SC made on behalf of the respondent persuades me otherwise. In particular, and making due allowance for the advantage the learned trial judge enjoyed in visiting the scene, I feel that I am neither assisted in my task of evaluating the evidence, nor diminished in carrying out that task, by virtue of her Honour's "impression in the Fox v Percy sense" as Mr Read put it, that having seen the junction and the section of road, she was struck by "how unsafe the defendant's speed was vis-a-vis a cyclist". In my respectful opinion, that comment simply begs the question of the underlying reason for that observation, a question that is comprehensively addressed, in my view, by the evidence taken in the courtroom.
Accordingly, in my view, grounds 1 to 6 inclusive and ground 13 of the notice of appeal succeed and I would uphold the appellant's appeal against the learned trial judge's finding of liability against the appellant. I do not need to address grounds 7 to 12 of the notice. It remains to deal with ground 14 in the event that I am wrong in my conclusion as to causation.
Given the firm view I have reached as to the absence of any breach of duty on the part of the appellant, and the reasons I have given why any conceivable breach could be causally connected with the collision, it is somewhat artificial to express a view about contributory negligence. However, assuming that the learned trial judge is found not to have erred in her conclusions as to breach and causation, or that this Court finds some causative breach of duty on the part of the appellant, I would nonetheless regard an assessment of 30% contributory negligence against the respondent as manifestly inadequate.
Having regard to the respondent's failure to look behind him before he commenced his turning manoeuvre, and his consequent failure to observe again the proximity and speed of the appellant, and having regard to his commencement of the proposed right hand turn into Fingerpost Road without signalling his intention to do so, I would apportion liability as to 60% against the respondent.