Combridge, A.P. v White, R.H

[1985] FCA 152

3-

./ . ._ .

C A T C H W O R D S

Appeal - Contributory negligence - apportionment of liability -

principles governing interference with trial	judge's
discretion.

Law Reform (Miscellaneous provisions) Ordinance	1955 (ACT),
S. 15
Motor Trafflc Ordinance 1936 (ACT), s.124
Pennington v. Norris (1956) 96 CLR 10

British Fame (Owners) v. Macgregor (Owners) [l9431 AC 197

Ingram v. United Automobile Service Ltd [l9431 KB 612

Watt v . Bretag (1982) 41 ALR 597

E o son of Erulapan v. Gan So0 Swee [l9711 3 All ER 320

Slbley v. Kais (1967) 118 CLR 424

ANDREW PAUL COMBRIDGE

V.

RAYMOND HAROLD WHITE

A.C.T. NO. G.345 Of 1984

Coram: Gallop, Neaves and Spender

JJ.

Date: 22 March 1985

Canberra.

IN THE FEDERAL COURT OF AUSTRALIA )

1

AUSTRALIAN CAPITAL TERRITORY	)
) No. ACT G345 of 1984
DISTRICT REGISTRY	1
)
GENERAL DIVISION	1

ON APPEAL FROM THE SUPREME COURT	F
THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ANDREW PAUL COMBRIDGE

Appellant

AND : RAYMOND HAROLD WHITE

Respondent

O R D E R

JUDGES MAKING ORDER : Gallop, Neaves and Spender JJ.

DATE OF ORDER	: 22 March 1985.
WHERE MADE	: Canberra.

THE COURT ORDERS:

(1)	that the appeal be dismissed.
( 2 )	that the appellant pay the respondent's costs.

I ‘ I

IN TAE FEDERAL COURT OF AUSTRALIA	)
)
AUSTRALIAN CAPITAL TERRITORY	1
) NO. ACT G345 Of 1984
DISTRICT REGISTRY	) )
GENERAL DIVISION	)

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ANDREW PAUL COMBRIDGE

Appellant

AND : RAYMOND HAROLD WHITE

Respondent

Coram: Gallop, Neaves and Spender JJ.

EX TEMPORE REASONS FOR JUDGMENT

GALLOP J. 1985 22 March

This is an appeal against a judgment in favour of

an injured plaintiff granted in the Supreme Court of the Australian Capital Territory for the sum of $248,250. In

the trial of the action, which arose out of a motor vehicle

accident, liability was in issue. The trial judge found negligence against the defendant, the present appellant, and contributory negligence against the plaintiff, the present respondent. He apportioned the liability 60 per cent to the defendant and 40 per cent to the plaintiff. The

total damages were assessed by his Aonour and reduced in

accordance with the apportionment made	and judgment entered
accordingly.

On the hearing of this appeal, the appellant does

not challenge the finding of negligence against the

appellant or the quantum of damages ultimately awarded by

1 .

his Honour. The point of the appeal is the apportionment of

liability by the trial judge.

The principles to be applied are well known on the

hearing of an appeal such as this. I refer to Pennington

v. Norris (1956) 96 CLR 10 at pp.15-16 where the High Court

(Dixon CJ, Webb, Fullagar and Kitto JJ) said:

"Much latitude must be allowed to the original tribunal

in arriving at a judgment as to what is just and

equitable. It is to be expected, therefore, that cases

will be rare in which the apportionment made can be

successfully challenged."

The High Court cites British Fame (Owners) v. Macgregor

(Owners) [l9431 AC 197 and Ingram v. United Automobile

Service Ltd 119431 KB 612. We were referred to the more

recent authority of Watt v. Bretag (1982) 41 ALR 597 at

p.589, where, in dealing with the Wrongs Act 1936-1975 (SA)

the High Court (Gibbs CJ, Mason, Murphy and Brennan	JJ)
said:

"Section 27(a) of the Wrongs Act gives a very wide

discretion, and much latitude must be allowed to a

trial judge in deciding what is just and equitable

(Pennington v. Norris, at 15-16). It is only in

exceptional circumstances that it is right for an appellate court to interfere with a trial judge's

apportionment, as this court said in A.V. Jennings

Construction Pty Ltd v. Maumill ( 1 9 5 6 m ALJ 100 at

101: 'Accordingly, reconsideration of the question in

the exercise of an appellate jurisdiction is subject to

the limitations imposed by the principles which govern

all appeals against judgments given in the exercise of

discretions, principles which this court has stated

repeatedly in recent cases. Consequently, as Lord

Simon remarked in British Fame (Owners) v. Mac re or

(Owners) [l9431 197 at 198-9, 'the cases must +v-- e very

exceptional indeed in which an appellate court, while

accepting the findings of fact of the court below as to

the fixing of blame, none the l ss has sufficient

reason to alter the allocation	of blame made by the
trial judgel"

The High Court went on to say:

"The same approach has been adopted by the Privy

Council. "

and there cites Ramoo son of Erulapan v. Gan So0 Swee [l9711

3 ~ 1 1 ER 320 at 327, per Lord Cross.

3 .

The respondent, the plaintiff in the action, faced

and failed to give way at a give-way sign. The appellant

approached the intersection from the respondent's left.

Both parties were riding motor cycles. His Honour, the

trial judge, found both were travelling at about the same

speed, namely not less than 25, nor more than 40 kilometres

per hour. Traffic had banked up at the intersection in the

street upon which the appellant was travelling and the car

at the front of the line and to the respondent's left had

stopped. That street was wide enough to take two lanes of

vehicles, though not marked into lanes.

The appellant on his motor cycle rode on the near

side of the line of vehicles. Although negligence on the

part of the defendant is not contested on the hearing of

this appeal, it is approrpiate to refer to what the trial

judge said about the negligence of the present appellant.

He said at p.416 of the appeal book:

"It must have been obvious to a reasonable man that to

proceed with obscured or substantially limited vision

into the intersection at a speed of not less than 25

kilometres per hour and possibly as much as 40

kilometres per hour was fraught with danger if any

vehicle were approaching from the right. The very fact

that Mr Norman's vehicle was stopped at the

intersection leaving a gap between his vehicle and the vehicle ahead of him through which another vehicle approaching from the right might travel should have

given warning to the defendant	of the risk which he was
accepting."

And then a little later after citing the well known case of

Sibley v. - Kais (1967) 118 CLR 424, his Honour said:

"Approaching the intersection in the manner and at the

speed he did the defendant accepted the risk that

another vehicle might be approaching the intersection

from the right in circumstances where he ought to have

been keeping a proper look out for the approach of

vehicle from the right, a look out which would have

, 4.

enabled him to stop in time to avoid the collision. In

my opinion the defendant was negligent; he failed to

keep a proper look out; rode at an excessive speed;

entered the intersection without first ensuring that it

was safe to do s o ; failed to give any warning of his

approach; and passed a stationary line of traffic then

on his right when it was obvlous or ought to have been

obvious that the leading car in that line had stopped

to ensure that the intersection was not closed	to
traffic approaching from the right."

His Honour dealt with the contributory negligence

of the plaintiff in the action in the following terms.

After saying that he was satisfied that the plaintiff was guilty of contributory negligence, his Honour said:

"As he approached the intersection where the collision

took place, there was on his left a line of stopped

cars. In addition there was a line of stopped cars

well there were stationary cars in the western lane of

banked up to the north behind Mr Norman's vehicle. As situated a little distance to the north of the intersection. The plaintiff ought to have appreciated

that he would have been invisible, wholly or

substantially, to a person driving or riding in Russell

Drive east of the lines of stopped cars and outh

towards and approaching the intersection. Give-way

signs which he admitted he knew to be present

controlled his approach into the intersection and there

was therefore a statutory duty cast upon him under

s.124(1) of the Ordinance."

That was a reference to the Motor Traffic Ordinance 1936 of

the Australian Capital Territory.

His Honour said at p.419 of the appeal book:

"There are in my opinion two other factors to be taken

into account. The first is the stopped south bound

traffic which had left the intersection clear. In all

the circumstances it would have been reasonable enough

for the plaintiff to assume that all south bound

traffic had stopped and that therefore he was entitled

using due care for his own safety to proceed through

the intersection. The second is that he could not

assume that a driver o motor cyclist travelling south

in Russell Drive would not know of the existence of the

give-way signs or would proceed on the basis that he

ought to give way to a vehicle on his right."

His Honour then said:

"Balancing as best I can the competing duties I think

that the conduct of the defendant was somewhat more

5.

negligent than that of the plaintiff. To ride blithely

into the intersection without having given, as I am satisfied he did not, the slightest regard to the

possibility that a vehicle might be approaching from

his right meant that the defendant negligently put at

risk the plaintiff who, despite the give way sign

against him, was entitled to rely to some reasonable degree on the fact that the southbound traffic in

Russell Drive had stopped	to leave the intersection
clear."

His Honour then made his apportionment. Much has

been made on the hearing of the appeal by counsel for the

appellant as to the way in which some of those findings of

contributory negligence were expressed by his Honour and I

think that some difficulties do arise from the manner in

which the trial judge expressed those findings of fact, but

we are not convinced as would justify this court interfering

with his Honour's discretionary apportionment.

Accordingly I would dismiss the appeal. I order

that the appellant pay the respondent's costs.

NEAVES J.:	I agree.
SPENDER J.:	I also agree.