Cynthia Gaye Anne Shaw By her Next Friend Phillip John Lyster v Monley - [2000] WASCA 183

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: CYNTHIA GAYE ANNE SHAW By her Next Friend PHILLIP JOHN LYSTER -v- MONLEY [2000] WASCA 183

CORAM: PIDGEON J
WALLWORK J
TEMPLEMAN J

HEARD: 11 JULY 2000

DELIVERED : 11 JULY 2000

FILE NO/S: FUL 22 of 2000

BETWEEN: CYNTHIA GAYE ANNE SHAW By her Next Friend PHILLIP JOHN LYSTER
Appellant (Plaintiff)
AND
KYLIE MAREE MONLEY
Respondent (Defendant)

Catchwords:

Appeal and cross appeal from judgment of District Court - Whether driver of motor vehicle negligent - Whether contributory negligence by other party - Apportionment - Turns on own fact

Legislation:

Law Reform (Contributory Negligence and Tortfeasors) Contribution Act 1947

Result:

Appeal and cross-appeal dismissed

Representation:

Counsel:

Appellant (Plaintiff) : Mr B G Bradley
Respondent (Defendant) : Mr J G Staude

Solicitors:

Appellant (Plaintiff) : Chris Phillips
Respondent (Defendant) : John Staude

Case(s) referred to in judgment(s):

Pennington v Morris (1956) CLR 10

Case(s) also cited:

Chang v Fong (1993) 5 SASR 1
Chapel v Hart (1998) 72 ALJR
Evers v Bennett (1982) 31 SASR 228
GIO (NSW) v Aleksovski (1991) MVR 239
Henson v Warren (1987) 4 MVR 444
La Corte v Hemmingsen, unreported; FCt SCt of WA; Library No 980189; 15 April 1998
March v Stamare (1990-91) 171 CLR 506
Pritchard v Evans (1996) 23 MVR 149
Stewart v Carnell (1984) 2 MVR 148
Warren v Coombes (1978-79) 142 CLR 531

PIDGEON J: I agree with the reasons of Templeman J. I consider it was open to the trial Judge, his Honour Judge L A Jackson QC, to reach each of the conclusions which he did.
As to the apportionment of contributory negligence, I consider it was open to his Honour to reach the view that the appellant had failed to take reasonable care for her own safety. His finding on apportionment was that the degree by which the appellant had failed to take reasonable care for her own safety was far greater than the degree by which the respondent had departed from her duty of care whilst driving her car.
I consider it was open to his Honour to reach that view for the reasons he stated and for the reasons referred to by Templeman J. His Honour then weighed up a factor referred to in Pennington v Morris (1956) CLR 10 where it was said that the very fact that the pedestrian's conduct did not endanger the driver or anybody else is a material consideration. His Honour weighed that up and weighed the other factors referred to in Pennington v Morris and reached the view that the apportionment should be equal.
I too consider that it has not been shown that his Honour acted on any wrong principle and it was open to him to reach the conclusions he did, and for those reasons I too would dismiss both the appeal and the cross-appeal.
WALLWORK J: I also agree with the reasons for judgment of Templeman J and the additional comments of Pidgeon J. In my opinion the learned trial Judge fully appreciated the relevant facts and applied the correct law to those facts, and I also can see no error in any of his Honour's findings. I agree that both appeals should be dismissed.
TEMPLEMAN J: This is an appeal and cross-appeal from a judgment of the District Court in a motor vehicle accident which occurred at about 7 o'clock in the evening of 18 January 1991 on the Wanneroo Road, just north of the junction with Cape Street. The collision was between the appellant (plaintiff), who was a pedestrian, and a motor vehicle being driven by the respondent defendant.
As a result of the collision the appellant (plaintiff), to whom I will refer now as the appellant, suffered injury which resulted amongst other things in a complete loss of any memory relating to the collision. The appellant therefore gave no evidence, it being accepted on both sides that nothing she could have said would have been of any assistance.

The learned trial Judge found that the respondent was negligent and he found that the appellant was contributorily negligent. He apportioned the liability on a fifty‑fifty basis. The trial was conducted on the issue of liability only. The assessment of damages was a matter for another day.
From his Honour's judgment, both parties have appealed. The appellant contends that the basis of apportionment should have been much more favourable to her. On the cross-appeal, the respondent contends that she was not negligent at all, but that if she was negligent the apportionment should be much more favourable to her.
The facts of the case were relatively simple. The respondent had been driving northwards along Wanneroo Road. It was her evidence (which the learned trial Judge accepted) that she had stopped at the traffic lights at the Cape Street junction and had then moved away from rest when the lights turned to green, proceeding northwards along Wanneroo Road, for a distance of something like 100 metres, to the point at which the collision took place.
The only other witness who saw the events immediately before the collision was a Mr Amoroso. He did not see the collision. Just before the collision, Mr Amoroso was turning right across Wanneroo Road in his motor car. At that point, the road is divided by a substantial median strip, there being two lanes in each of the north and southbound carriageways.
Mr Amoroso had been travelling south along Wanneroo Road. He turned right into a shopping centre carpark. As he turned right he moved across the path of the defendant's oncoming vehicle, which was then some distance from him. There is no suggestion that Mr Amoroso's action was in any way improper or dangerous.
Mr Amoroso stopped his vehicle momentarily, according to the respondent's evidence which was accepted by the learned trial Judge, in the left‑hand lane of the north‑bound carriageway of Wanneroo Road.
Mr Amoroso gave evidence that he really had no recollection at all of the incident, which had happened some nine years before the trial took place.
The delay in the trial appears to have been because the writ was issued very close to the end of the limitation period and there was then a period of some two years while the matter came to trial. So when Mr Amoroso was in the witness box he had only a very vague recollection. In particular, he recalled sitting in the back of the police car making a statement shortly after the accident occurred.
That statement was admitted into evidence without objection. It is a written statement dated 18 January 1991, at 7.45 pm. That was some 45 minutes after the accident occurred, when it might have been expected that Mr Amoroso's recollection was as clear as it would ever be.
Despite that, his Honour did not accept all Mr Amoroso said. To the extent that Mr Amoroso's evidence conflicted with that of the respondent, the learned trial Judge preferred the respondent's evidence, based on his impression of her as a witness.
However, there is one piece of evidence in Mr Amoroso's statement which is, in my view, crucial. He said that at the time when he was moving away from the median strip - that is, as he commenced to cross the northbound carriageway of Wanneroo Road - he noticed a girl on his right‑hand side - I interpolate to say that that was the appellant. He said she was walking across the lanes. He went on to say that at the time he saw the appellant she was in the middle of the left‑hand lane and, "She looked like she was in a daze."
It was the respondent's evidence that she did not see the appellant at all. The first occasion on which she became aware of the presence of the appellant in the Wanneroo Road was when she heard a thud, clearly at the point of impact. She looked in her rear-vision mirror and saw the appellant lying on the road.
The evidence was that the respondent's vehicle sustained damage to the left‑hand front wheel arch. This gave rise to a finding by his Honour, which has not been challenged, that the appellant in effect walked across Wanneroo Road into the side of the respondent's vehicle.
The point of impact, according to the respondent, was some 3 metres to the south of the point at which Mr Amoroso's car had been stopped momentarily before entering the carpark off the left‑hand lane of the northbound carriageway.
The only other witness was a Mrs Nagy‑Jones who did not see the collision itself although she did see, as she put it, the body, that being the appellant, on the bonnet of the respondent's motor vehicle.
Having regard to the findings which his Honour made, that was a misobservation or a misrecollection by the witness because, as I have said, the evidence appears to have been that the appellant walked into the side of the respondent's vehicle and was thrown from that position. There was no evidence of any damage to the bonnet as such.
There is one other matter to which I should refer. There was some evidence that the appellant was influenced by alcohol or drugs at the time of the accident. His Honour referred to that evidence in his reasons but said he was unable to say what the extent was of such influence and that it might be that it did little more than to explain the appellant's actions. In the final analysis his Honour, I think, set aside the question of influence of alcohol or drugs. I will return to that in a moment.
His Honour, in his reasons, reviewed the evidence and said - and I refer to p 15 of the appeal book:
"The respondent was reasonably familiar with the area. She knew of the small shopping centre outside which the accident took place" -
and his Honour noted that the respondent had been aware that there could have been people in the vicinity. That was a matter which the respondent acknowledged in the course of her cross‑examination. His Honour went on in his reasons to say this - and I will refer to the defendant and the plaintiff as respondent and appellant respectively. I quote, making those adjustments:
"The [respondent] failed to see the [appellant] at all until impact. Should the [respondent] have seen the [appellant]? It seems to me that she had a number of opportunities to do so. Amoroso says that before he commenced to cross the centre lane he observed the [appellant] in the middle of the kerbside lane. The [respondent] said she observed Amoroso's car but there was no other car that she noticed. Had the white Commodore been obstructing the roadway then surely she would have noticed it."
Pausing there, the reference to the white Commodore was to another vehicle about which there was really no relevant evidence. Continuing, his Honour said:
"In the circumstances it seems to me that the [respondent] was in a position to have seen the [appellant] as she left the kerb and proceeded across the kerbside lane before Amoroso commenced to move. She failed to do so. That, in my opinion, is evidence of a failure by her to keep a proper lookout and is therefore evidence of negligence. The next thing that occurred is that Amoroso's car crossed the centre lane and stopped in the kerbside lane. At that time his car was undoubtedly between the [respondent] and the [appellant]. The [appellant] was described as 5"2" (1.57m) in height. It may well be that not much more than her head would have been visible above the roof of Amoroso's car. There were photos (exhibit 2) taken which indicate that the background for a person in the [respondent's] position was fairly busy consisting of shops on the west side of Wanneroo Road. It seems to me that if the [appellant] was behind Amoroso's car so that only her head was protruding above the roof then the failure by the [appellant] to observe her would be reasonable and accordingly her failure to see her at that point of time would not, in my opinion, be evidence of a failure to keep a proper lookout."
I pause there to say that there appears to be a misreference by his Honour to the plaintiff where he should have referred to the defendant, or respondent, as I have been calling her. His Honour continued:
"As the [appellant] continued to move towards the centre of the road she would have become more visible to the [respondent]. She would firstly have passed the rear of the passenger compartment of Amoroso's car so that perhaps from the waist up she would have been visible across the boot of his car. At some time the [appellant's] forward movement took her beyond the rear of Amoroso's car at which time she would have been fully visible to the [respondent]. Once again the [respondent] failed to observe her. In my opinion such a failure to keep a proper lookout and is evidence of negligence by the respondent."
Pausing again, it seems to me that the learned trial Judge was correct in considering the question of the appellant's visibility to the respondent on those two occasions, that is both before and after Mr Amoroso's vehicle crossed the northbound carriageway, bearing in mind Mr Amoroso's evidence that as he was moving away from the median strip, he noticed that the appellant was already walking across the road, appearing to be in a daze.
That being so, it seems to me that his Honour was quite correct in coming to the conclusion that the respondent should have seen the appellant as she commenced to cross the road before her view was in any way obstructed by Mr Amoroso's vehicle.
I consider also that his Honour was correct in concluding that as the respondent drove towards what became the point of impact and was therefore that much closer to the appellant, she had a further opportunity to see the appellant above the top or the boot of Mr Amoroso's car.
It appears from the photographs to which his Honour referred, to which we have been referred also, being exhibit 2 reproduced on p 61 of the papers, that that opportunity to which his Honour referred clearly existed. However on the respondent's own evidence she did not see the appellant and continued to accelerate away from the traffic lights towards the point of impact. Her speed was not excessive. His Honour found that she would not have been travelling at any more than 60 kilometres an hour at the point of impact and that is his finding, which has not been challenged.
Returning to his Honour's reasons, his Honour then went on to say, correctly in my view:
"The real issue is to determine not only whether there is evidence of negligence but whether the negligence resulted in the injury to the [appellant]. If, for example, there was a negligent failure to observe the [appellant] but at the time of such observation it would not have been possible to avoid the collision, then it may well be that the negligence is not causative of the damage.
Had the [respondent] observed the [appellant] before Amoroso commenced to turn then she clearly would have had ample opportunity to have applied her brakes and slowed down and if necessary stopped prior to passing Amoroso's car. Clearly the failure to observe and the continued driving in the presence of the [appellant] was negligence which has caused or contributed to the collision. When the [appellant] emerged from behind Amoroso's car the position might well have been different. By then it may well have been too late for the [respondent] to have braked to avoid colliding with the [appellant]. She would have only had a very short period of time to have taken any action at all. She would have had time to have tooted her horn to warn the [appellant] of the impending danger. Having failed to observe the [appellant] on this second occasion the [respondent] was negligent and that negligence caused or contributed to the collision in that it deprived the [respondent] of the opportunity of taking appropriate action to warn the [appellant] of the impending danger."
In my view, it has not been demonstrated that his Honour erred in reaching that conclusion. It must be borne in mind that this is not a case in which a pedestrian in the position of the appellant was standing stationary either by the side of the road or some way out into the road, apparently waiting for the oncoming vehicle to pass.
The only evidence, that is Mr Amoroso's evidence, about the movements of the appellant before the collision was that at the material time she was in the middle of the left‑hand lane, she was walking across the road and she looked as though she was in a daze. That observation which was made by Mr Amoroso could equally well have been made by the respondent had she been keeping a proper lookout.
It seems to me that a person in the position of the respondent seeing a pedestrian, apparently unaware of her approach, walking across the road, should have taken some action to avoid the collision which might otherwise occur. In this case the most reasonable action would, I think, have been applying the brakes. I therefore consider that his Honour was correct in concluding that the respondent's failure to observe the appellant at the material time was negligence which was causative of the collision.
That is of course in relation to the first opportunity which the respondent had to observe the appellant. There is, I think, greater scope for argument in relation to the second opportunity; that is, the point at which the appellant must have emerged from behind Mr Amoroso's car very shortly before the point of impact.
The question whether the sounding of the horn at that point would have achieved any result is, I think, more contentious but it seems to me, with respect, that his Honour's finding can be upheld in relation to the first opportunity and the failure to brake to avoid a collision. I therefore consider that his Honour was correct in concluding that the respondent was negligent and his finding should be upheld to that extent.
That then raises the question of contributory negligence. As to that his Honour went on in his judgment as follows:
"Should the [appellant] have observed the [respondent]? The answer to this question must clearly be yes. As the [appellant] was crossing the kerbside lane in Wanneroo Road, she had the same unobstructed view of the [respondent's] car proceeding north along Wanneroo Road that the [respondent] had of the [appellant]. When Amoroso's car crossed between her and the [respondent's] car, the vision of the [respondent's] car by the [appellant] would not, in my opinion, have been obstructed to any significant degree at all. Provided her head is above Amoroso's car, then she can see clearly what is coming beyond it. It is quite a different position from that of the [respondent] where most of the [appellant's] body is obscured by Amoroso's car. As both the [appellant] and the [respondent's] car moved closer to each other, the opportunity for the [appellant] to observe the [respondent's] car continues to be unimpeded. The fact that she walked into the side of the [respondent's] car, having had the opportunity of observing it from the time she left the western side of Wanneroo Road, indicates to me a total disregard for her own safety. This is not a case in which she has observed the [respondent's] car and made a value judgment that she has time to cross and made an error in such value judgment. She has apparently failed totally to look to see whether any northbound traffic was coming along the road. She has continued without looking until she has walked into the side of the car. If at any time she had given even the most cursory glance to the south, she could not have failed to observe the [respondent's] car. She could have avoided impact with it simply by stopping. Even in the instant before the collision occurred there was still time for her to have taken reasonable care for her own safety."
In the light of those findings, his Honour went on later in his judgment to deal with the question of contributory negligence in these terms:
"The next question is whether the [appellant] has failed to take reasonable care for her own safety and is therefore guilty of contributory negligence. In my opinion, she has. She has plainly failed to take any precautions at all prior to crossing the road. If she had looked at all, she could not have failed to observe the [respondent's] vehicle travelling along the roadway. By the slightest effort on her part she would have been able to avoid coming into contact with the [respondent's] car. Even leaving aside the question of any influence of alcohol or drugs, the [appellant] has totally failed to take any reasonable precautions for her own safety and thus is guilty of contributory negligence."

Pausing there, that is the passage in his Honour's judgment to which I referred earlier in which, it seems to me, his Honour discounted any effect of influence or drugs by which the appellant may have been affected.
His Honour went on to say that his final duty was to determine the extent of the contribution by the respondent and by the appellant to the accident and accordingly to the appellant's injuries. He continued in these terms:
"The duty on motorists driving cars to pedestrians is significantly higher than is the duty or responsibility of pedestrians to take reasonable care for their own safety. The reason for that is plain. Motorists driving without due care and attention can cause significant injury to a pedestrian. Pedestrians are vulnerable to injury when struck by motor vehicles; Batello v Thomas, Walker v McCall. A pedestrian has a responsibility to take reasonable care for his or her own safety but because a lack of care is not likely to cause any or any significant injury or damage to others, the duty is much less. Had Amoroso's car not obstructed the [respondent's] view of the [appellant], then I would have thought an apportionment of liability between them would have been substantially in favour of the [appellant]. In my view, Amoroso's car changes the position. Clearly it would have obstructed the [respondent's] view of the [appellant] for at least some time. On the other hand, Amoroso's car would not have obstructed the [appellant's] view of the [respondent] at all. Indeed it should have alerted her to the danger that a motorist in the [respondent's] position may not have been able to see her. The [appellant] was taking not the slightest care for her own safety as she moved across the roadway. Her lack of care and attention is substantial. The [respondent], on the other hand, is driving at an appropriate speed. Her negligence is in failing to observe the [appellant] immediately before and immediately after her view was obstructed by Amoroso's car. The degree by which the [appellant] has failed to take reasonable care for her own safety is far greater than the degree by which the [respondent] has departed from her duty of care whilst driving her car. On the other hand, the duty the [respondent] owed is greater than that of the [appellant]. Balancing these conflicting considerations leads me to the view that the apportionment of liability between the [appellant] and the [respondent] should be equal."
Against that proposition it is submitted by Mr Bradley, who appears for the appellant, that morally, as he put it, the appellant and the respondent were equally to blame in the sense that each should have seen the other but neither did. Mr Bradley then submits that starting from the position of moral equality of blameworthiness there should be a more substantial apportionment of liability attributed to the respondent because her duty of care was greater than that of the appellant.
However, it seems to me, with respect, that the submission ignores his Honour's finding that the appellant was far more blameworthy than the respondent because the appellant walked out into the path of an incoming vehicle and straight into the side of it, whereas the respondent's liability was, as his Honour found, somewhat attenuated by the fact that at least for a short period, as the respondent approached what became the point of impact, her view of the appellant was to a certain extent obstructed by Mr Amoroso's car, although in fact, of course, the respondent did not see the appellant in any event.
The question of apportionment is very much a matter of discretion pursuant to s 4 of the Law Reform (Contributory Negligence and Tortfeasors) Contribution Act 1947. The apportionment must be to the extent the Court thinks just. It is well-settled that an appellate court will be very slow to interfere with an apportionment made by a trial Judge.
The proposition is set out in a joint judgment of the High Court in Pennington v Morris (1956) CLR 10 at 15 to 16, referring to equivalent legislation in Tasmania, in respect of which their Honours said this:
"It is clear that the act intends to give a very wide discretion to the judge or jury entrusted with the original task of making an apportionment. 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."
After referring to authority, their Honours went on to say that giving full weight to those considerations in that case the Court was unable to avoid the conclusion that in apportioning the responsibility equally the trial Judge there must have overlooked certain features of the case because the amount by which he reduced the assessed damages could not really be supported.
In the present case, I am not persuaded that his Honour has overlooked any features of the case. His Honour, it seems to me, considered carefully all the evidence, such as it was, and made his assessment of that evidence, rejecting some and accepting some, as he was perfectly entitled to do.
He came to the conclusion that the appellant had gross disregard for her safety and that therefore, as I have said, she was more blameworthy from a moral perspective than the respondent. His Honour balanced that against the duty which the respondent owed to the appellant which, as he said, was the greater duty, the respondent being the driver of the motor vehicle.
I am not persuaded that his Honour was wrong in approaching the question of apportionment in the way that he did, and I am therefore not persuaded that the appellant should succeed in achieving a different and more favourable apportionment in her case.
For those reasons it seems to me that the appropriate order would be for both the appeal and the cross-appeal to be dismissed.