Fergusson v Latham

[2008] HCATrans 83

[2008] HCATrans 083

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S425 of 2006

B e t w e e n -

OLIVIA FLOYD FERGUSSON BHNF LARA FLOYD

Applicant

and

KIM LATHAM

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 FEBRUARY 2008, AT 10.37 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR R.I. GOODRIDGE, for the applicant.  (instructed by Firths)

MR R.V. LETHERBARROW, SC:   May it please the Court, in this matter I appear with my learned friend, MR C.J. ALLAN, for the respondent.  (instructed by Sparke Helmore)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, in this case we do put to the fore the interests of justice in the particular case, but there are the following matters of general importance that flow from the way in which my client’s case was dismissed in the Court of Appeal.  Your Honours will recall from the papers that my client, then not aged quite two years old, suffered brain damage as a result of being struck by the motor car driven by the defendant on a pedestrian crossing, following her mother, burdened with a pram in one hand and a tricycle in the other, across that pedestrian crossing at what turned out to be a most unfortunate interval, physical interval.

The high significance for the particular case is that the trial in the District Court was fixed for what was called liability alone, not as is so often the case as an artless term distinguishing in a negligence case between what may or may not be breach of duty plus causation or breach of duty without causation and quantification of damages on the one hand, but in this case highly significant and practical because of the motor accidents compensation scheme which attracted very serious out‑of‑pocket rights, out‑of‑pocket expense rights, for somebody in whose favour liability had been determined.

What is of more than particular poignancy in the case and extends to general importance, certainly for the administration of such cases in New South Wales, is that the Court of Appeal did not find that there had been no breach of duty, and depending upon what liability means in the cause of action in negligence as regulated by the accretion of statutes in motor accident vehicle cases ‑ ‑ ‑

GLEESON CJ:   I presume there was common ground that there was some damage.

MR WALKER:   Unquestionably, the child was injured.

GLEESON CJ:   If there was no damage how can there be liability and negligence?

MR WALKER:   Yes, there is no question about that, and that was uncontroversial, child injured, injured as a result of a motor car striking her.  The next question, should there be an order for the quantification of damages?  No, said the Court of Appeal, not for the reasons primarily relied upon by the defendant, but for slightly different reasons.  The defendant had understandably put forward a multiple answer.  Not negligent, no breach of duty, and in any event no causation.  No causation not because the motor vehicle did not strike the child causing the injuries, but no causation because comparing the position with no breach with the position with breach of the duty of care, no difference in outcome could be found, hence no causation ‑ ‑ ‑

GUMMOW J:   Well, we have to look at paragraph 61, do we not?

MR WALKER:   We do.

GUMMOW J:   Page 45.

MR WALKER:   That is the culmination of the matter because when Justice Hoeben said, this does not end the matter, the “this” in question, unconclusive his Honour said, was the outcome in paragraph 60, namely, breach of duty negligence.  His Honour, with great respect, is, of course, correct, that does not end the matter of liability because there must not only be loss, it must be a loss which in law was caused by the breach of duty.

Of course, we accept that, for the purposes of that inquiry, one can in many cases compare what would have happened had there not been a negligence with what did happen with the negligence, but if there be no difference then there is nothing which in the eyes of the law is a loss which requires compensation, that is, the injury would have occurred without the negligence.

Now, the fallacy in paragraph 61 can be seen by the way in which his Honour, agreed in by the other members of the Bench, uses the word “impact” to carry the whole of the following false line of reasoning.  In essence, it having been held by the reasoning that your Honours will have seen between pages 29 and 40, namely, the new finding of fact in the Court of Appeal for a shorter distance than the trial judge had found at the point where the little child would have been visible, that is when braking might have started, and the recalculation of speeds and distances, including the back entrances from the position of the damage to the car caused by impact with the child, producing the outcome that one saw at page 40 in paragraph 44, with which your Honours are familiar, namely, that there was, according to that finding of fact well within the appellate duty of the Court of Appeal, the conclusion that there would have been an impact.

Thus, the fallacy proceeded as follows.  The plaintiff’s case was that the negligence in failing to commence braking upon reaching the position where the child should have been seen, that that negligence caused the impact which produced the loss which required compensation by the damages to be assessed.  Now, that major premise is, of course, correct.  That was the plaintiff’s case.

The next premise of the reasoning in the Court of Appeal went as follows.  Without negligence there would have been some impact because although the car would have slowed to a speed less than the speed at which it did hit the child, it would not have come to a complete halt before hitting the child, and the facts of this case do not involve detailed exploration of other possibilities which would, of course, deter the Court from granting special leave such as the now merely historical other allegation that the driver should have swerved across the median strip.

So accepting the findings in the Court of Appeal, one has that slide from the impact on the case of the plaintiff with negligence causing the loss which required the damages to be quantified, to the Court of Appeal finding that there would have been impact.  Now, they cannot say and they do not find that there would have been the same impact.

GLEESON CJ:   Where do they find impact?

MR WALKER:   They find impact at page 40, paragraph 45.  It is quite clear that there would have been impact in any ‑ ‑ ‑

GUMMOW J:   Sorry, which paragraph, Mr Walker, we are getting muddled?

MR WALKER:   I am sorry, your Honour.  Between pages 29 and 40, the reasoning is made, with which we do not quarrel, concerning recalculation of the distance at which the driver should have seen so as to be able then to apply the brakes.  At page 38, paragraph 37 one has, instead of the 50, at least 50 metres, a reduction to about 35 to 40, and that probably ‑ ‑ ‑

GLEESON CJ:   I thought you were saying, and this is what I cannot find, that the Court of Appeal either – well, did not deal with the possibility that there would have been a lesser impact or a less damaging impact.

MR WALKER:   No, they have not dealt with that, they have ‑ ‑ ‑

GLEESON CJ:   I thought you then said they found there would have been or might have been some impact.

MR WALKER:   No, they found there would have been impact because there could not have been complete halt.

GLEESON CJ:   Right, now, where do they find this, I just want to lay my eyes on that?

MR WALKER:   On page 40 you have the culmination of the recalculation of distances, paragraphs 44 and 45.  At page 45 in paragraph 61 there is the finding:

there was insufficient time for her to react and brake so as to avoid impact.

So without negligence there would have been impact in any event.  Now, that comes from the components of finding ‑ ‑ ‑

GLEESON CJ:   I just have not followed that.  They are there dealing with the fact – the finding of negligence that they made was that the driver allowed the mother’s behaviour or the mother’s appearance to distract her attention.

MR WALKER:   Yes, that is the combination of 59 and 60.

GLEESON CJ:   But then they said that was not causative of any damage ‑ ‑ ‑

MR WALKER:   Because if she had been complying with what is called ‑ ‑ ‑

GLEESON CJ:   Because even if she had been looking straight ahead she would not have been able to avoid impact.

MR WALKER:   ‑ ‑ ‑ her primary obligation of looking to her front and if she therefore had kept a proper lookout, with the reaction time for braking, with the delay before the commencement of braking slowed the car, and the distance left to be covered between her at that point and the child, there would still have been impact.  That is what the language of ‑ ‑ ‑

GLEESON CJ:   That is your complaint, that they failed to address the possibility that the impact would have been a less damaging impact?

MR WALKER:   Quite so.

GLEESON CJ:   Is your further complaint that they failed to do that because of the procedure that was adopted?

MR WALKER:   It may be an explanation, but in our submission a more plausible explanation is that this had been a case understandably fought, bearing in mind the emphasis given by the other side to Derrick v Cheung, reproduced we say in a dubious fashion in the reasoning of the Court of Appeal, to there being no breach of duty.

Now, I will come back to Derrick v Cheung in a moment, but the more plausible explanation is that this was a case fought primarily by the defendant as no breach of duty; duty, yes, of course, but in the circumstances no breach of duty, just as in Derrick v Cheung in a radically different factual situation there had been a finding of no negligence.  No negligence because in Derrick v Cheung there is no pedestrian crossing, there is nothing to alert to the possibility of somebody with whom there might be a collision on a public road, and the unattended 21‑month old darts out from between simply two parked vehicles into a stream of traffic moving at an unexceptionable speed.

This case, of course, was not that, this was a case of an alerted driver because of a pedestrian crossing, an alerted driver because of the mother looking backwards, and the small child obscured in part for some time by the signs erected on the footpath for the pedestrian crossing.  Now, that explains why there was not an exploration of what should happen if the defendant’s primary argument was rejected when it was appellant in the Court of Appeal.  Its primary argument was no negligence.  If rejected, what was the position in a proceeding where the order of the District Court had been verdict for the plaintiff, damages to be assessed?

Now, there was no factual exploration in the District Court, therefore the Court of Appeal had no capacity to make any findings about differential injury, that is, loss requiring…..according to the speed at which the car impacted the body.  There were simply no findings about that.  In that absence the Court of Appeal committed, in our submission, a fallacy which has acted devastatingly to the rights of my client by depriving her of what should follow from the finding of negligence, namely, such damage as accrued because of the negligence should be compensated.

In other words, on the assessment of damages there would need to be an exploration as to what, if any, decrement in her condition is due to the impact at the speed which actually occurred compared to the speed which would, on the findings of the Court of Appeal, have been the nature of the impact without negligence.

GLEESON CJ:   Well, now, is this the essence of your argument, or your argument so far, that the reasoning in paragraph 61 on page 45 simply does not address the possibility that if there had been no carelessness of the kind attributed to the driver there might have been a lesser impact?

MR WALKER:   Quite so.  There would have been a lesser impact as a matter of physics.  The Court must be finding that by the – all the reasoning between pages 29 and 40 is about the speed, and the conclusion of negligence is about the fact that there should have been braking when there had been no braking.  The factual finding is there was no braking; there was simply the foot off the accelerator.

GLEESON CJ:   Which ground of appeal covers that point?

MR WALKER:   Your Honour, in truth, there are far too many grounds of appeal.

GLEESON CJ:   Absolutely, yes.

MR WALKER:   Ground 1 and 2 ‑ ‑ ‑

GLEESON CJ:   As you well know, Mr Walker, coming along with a large number of grounds of appeal is like coming along with a sign saying, “This is a weak case”.

MR WALKER:   Yes, your Honour, without equivocation.  Grounds 1 and 2, which themselves have overlap, are the only ones that are in question.  This is not a defence, but it is a deflection of the message of the sign the Chief Justice has referred to.  There is more repetition than variety in these draft grounds of appeal.

GLEESON CJ:   So if special leave were granted and it was limited to grounds 1 and 2 that would cover your argument?

MR WALKER:   Yes.  The real sting is in ground 2, of course.  We have been deprived of that which should have followed from the finding of negligence where the causation of impact and the fact that impact caused injury is beyond doubt.

GLEESON CJ:   Ground 2, when I first read it, I thought was a complaint about procedural fairness, but as I understand it now it really is a complaint about the reasoning of the Court of Appeal.

MR WALKER:   The consequence of the way in which they decided the case, which was against as it were the primary position of both the parties before them, should not have been to go to a conclusion which was such as to have required a factual contest between the parties which had never been had.  Factual contest between the parties was, was the speed at which without negligence the child was going to be hit in any event, was that an injury which was materially – would have been materially less than, requiring less compensation than, the injury which in fact occurred?  That is the special leave point.

GUMMOW J:   Well, the special leave point, as you frame it, is all about causation, is it not?

MR WALKER:   Yes, the whole case is about causation.

GUMMOW J:   That is right.  Well, it is not reflected in even grounds 1 and 2.

MR WALKER:   Your Honour, I really should not take on the role of defending the wording, but at line 40 in page 51, the closest I can get is to say that the expression, “this breach of duty of care of the Respondent meant that the Respondent” et cetera, is a reference to the causal chain dealt with by their Honours in pages 29 to 40, which analysed the point at which there should have been the commencement of braking.  Yes, it is all about causation.  If special leave were to be granted, then what I might call the gist of ground 2 is that to which it ought to be limited and that ought to be amended so as to make the point explicitly in terms of the causation of the loss for which the damages ought to be assessed.

GLEESON CJ:   Would the amendment to ground 2 that would achieve that result be as follows, delete the words “the Appellant was denied a hearing on damages” and substitute for them “yet there was no consideration or inadequate consideration of the issue of causation”?

MR WALKER:   Yes.  I stress in terms of the appropriate nature of the case for a grant of special leave on that point, which is generally important concerning the nature of loss for which damages are sought in a negligence action, that there can be no doubt on the facts of this case that the very reasoning by which the finding of negligence was made, notwithstanding the very favourable alteration of the facts, in favour of the defendant.  The very nature of that finding of negligence means the impact must have been without negligence at a lower speed.  Now, that leads, of course, to questions of kinetics, biomechanics and neurology, no doubt in terms of whether any compensable loss can be shown.  That was what the District Court intended to be left.

GLEESON CJ:   The essence of the complaint is that Justice Hoeben, having said the only negligence that was involved here was allowing herself to be distracted by what the mother was doing, and that was not causative of any loss, did not consider the possibility that absent that negligence there would have been some but lesser damage.

MR WALKER:   That is right.  That is what none of the facts below permitted the Court of Appeal to assume.  If it please the Court.

GLEESON CJ:   Yes, thank you.  Yes, Mr Letherbarrow.

MR LETHERBARROW:   Your Honour, there is a fundamental misconception in my learned friend’s submission to your Honours.  What Justice Hoeben in fact did was act upon the only expert evidence in the case, and that expert evidence said that the time available for the mother to react in the time that it took the child across from the sign to the point of impact was between 1.5 and 1.8 seconds, and on the engineering evidence the reaction time was effectively the same as that period of time that it would have taken the child across to the point of impact.

In other words, what Justice Hoeben was saying was that the mother would have hardly have even got her foot on the brake in the time that was available, and his Honour makes that clear in paragraph 61 when he says:

This does not end the matter.  Even if the claimant had been keeping a proper lookout to her front and had observed the opponent as soon as she emerged from behind the western chevron sign, at 40kph there was insufficient time for her to react and brake so as to avoid impact.

In fact, the impact would have been identical because there would have been no reduction in speed whatsoever in those 1.8 seconds.

GLEESON CJ:   Well, now, whether you are right or wrong, the argument that is made against you is that he did not say “and brake so as to avoid or lessen impact”.  Is that as you understand the argument?

MR LETHERBARROW:   That is as I understand the argument.  Your Honour, there are a number of other problems with the argument as well, and that is that it was not run at trial or in the Court of Appeal and it could have been by the applicant because it was clearly flagged by the respondent’s expert evidence in which the engineer clearly stated that the collision would still have occurred albeit at a lesser speed unless the respondent commenced braking on an emergency basis 25 metres before the crossing.  That is, this is not a situation, as the respondent says in its reply at AB 72, where “this proposition was introduced, without notice, by the New South Wales Court of Appeal in their Judgment”.  Also, causation was a specific ground of appeal by the respondent in the Court of Appeal.

In this case, not only was the argument flagged by our expert evidence to the applicant, the applicant chose to present no evidence whatsoever at trial or at any stage of an engineering nature or of a medical nature.  In fact, they have presented no expert evidence even on the primary question of negligence.  They had the opportunity at trial to present engineering evidence saying, well, the accident may have taken place at a lower speed, and then medical evidence saying at that lower speed the injuries would have been less.  They did not present any such evidence.

The only evidence before the trial judge, and, of course, before the Court of Appeal, is the expert engineer’s report saying the accident would not only have taken place – in other words, the impact would not only have taken place – the same impact would have taken place.  Not a lower one, not a lesser one, but the same impact, at the same speed, because in the 1.8 seconds in which the Court of Appeal said there was some negligence, in that 1.8 seconds the driver would have possibly got her foot on the brake by reaction times and the impact would have arrived at the same speed.  There is no evidence upon which my friend can say there was available a finding that the injuries would have been less.

We say, your Honour, by this inaction on behalf of the respondent, if the Court were to allow this point to be successful now, we would be deprived of – and we have been deprived of presenting engineering and medical evidence to the contrary – in other words, saying, well ‑ ‑ ‑

GLEESON CJ:   Presenting to whom?

MR LETHERBARROW:   Presenting to the trial judge.  If your Honours allowed this argument to succeed now it would go on with only – with not only no expert evidence on the point, if it was argued earlier at trial we would have been entitled to get expert evidence saying, well, the impact even at 10 or 15 or 20 kilometres an hour would have caused the same injury.  But the basic fundamental flaw in my learned friend’s argument is that the ‑ ‑ ‑

GLEESON CJ:   I do not think Mr Walker would be inviting the High Court if it granted special leave to make its own finding on the issue of causation.

MR LETHERBARROW:   No, it would require, your Honours, effectively for the matter to be sent back for a retrial.

GLEESON CJ:   Yes.

MR LETHERBARROW:   In circumstances where we say this argument has been flagged from – it was available to the applicant at trial and was not taken up, and in reality all the Court of Appeal said was that the only negligence in this case is in the failure to see the child cross the one and a half, the 1.8 metres, from the sign to the impact point, and that took 1.8 seconds, and the only expert evidence was that that was the reaction time.  In other words, exactly the same impact would have taken place.

In other words, this is not an appropriate vehicle because in the right case when there is some possibility that a slower or less – an impact may have occurred at a lesser speed, and there is some evidence saying that that would have made a difference, that would be an interesting point, but in this case there is no such evidence, and the only evidence is that the same impact would have taken place.

GLEESON CJ:   Was it argued in the Court of Appeal that even if there had been negligence, or assuming that there had been negligence in the driver allowing her attention to be distracted by the mother and, therefore, in that respect not looking in front of her, there might have been a lesser impact ‑ ‑ ‑

MR LETHERBARROW:   No, your Honour, it has never been raised until the submissions before this Court.  In argument in the Court of Appeal I think it was Justice McClellan raised the possibility of what would have happened if braking had occurred earlier might the child have actually crossed in front of the vehicle, and the Court of Appeal correctly dismissed that argument as being much too speculative, and again on the basis that there was no evidence.  But it has never been argued until this appeal that a lesser impact would have caused a lesser injury, and it was something which was flagged by our expert evidence right before the trial judge, that the impact would have taken place unless emergency braking had taken effect at 25 metres out, otherwise the impact at a lesser speed would have taken place.

GLEESON CJ:   Well, at any stage, either at trial or in the Court of Appeal, did the plaintiff seek to make out as at least an alternative case that if there had been no negligence – I am sorry, that her injuries although they would – although she would have suffered some injuries her injuries would have been less if there had been no negligence?

MR LETHERBARROW:   No, your Honour, never at any stage has it been raised before this Court.

GUMMOW J:   This is paragraph 32, is it not, of your submissions at page 70?

MR LETHERBARROW:   Yes, your Honour, it is.

GUMMOW J:   Is that dealt with in the applicant’s reply?

MR LETHERBARROW:   Well, I am not sure, your Honour.

GUMMOW J:   It does not appear to be.  They say in reply to paragraphs 3, 14 and 15.

MR LETHERBARROW:   The case ran at trial and in the Court of Appeal on the basis of whether there was negligence not in the 1.8 seconds but at an earlier stage, and the Court of Appeal found that there was not at an earlier stage, and this suggestion of a lesser injury or lesser speed was available at all times and it has never been argued before.

GLEESON CJ:   The finding of negligence that was made by the trial judge was excessive speed, is that right?

MR LETHERBARROW:   No, your Honour, it was common ground that the speed of the approaching vehicle was 40 kilometres per hour in a 50 kilometre per hour zone, and that that was – there was no suggestion or finding of speed by the trial judge or the Court of Appeal.

GLEESON CJ:   I did not mean exceeding the speed limit, but the primary judge did not base his finding of negligence on this looking at the mother, did he?

MR LETHERBARROW:   Well, your Honour, he said that the looking at the mother took place on his reading of other evidence at a point where the respondent was some 50 metres back from the crossing.

GLEESON CJ:   Yes, but a point of disagreement between the Court of Appeal and the primary judge was how far away your client was when she began to be aware of what was going on.

MR LETHERBARROW:   Yes, your Honour.

GLEESON CJ:   The Court of Appeal overruled the primary judge on that, and there does not seem to be any challenge to that.  But then the Court of Appeal said there was, however, inattention because the driver allowed herself to be distracted by what the mother was doing and therefore was not keeping a proper lookout.

MR LETHERBARROW:   But at a point where the respondent was very close to the crossing, and causatively at the time of the inattention the available time to react was not sufficient to apply the brakes.

GLEESON CJ:   I understand that, but I just want to be clear on this.  Either at trial or in the Court of Appeal was there in play an argument that on the issue of causation the court could find that absent negligence there

would still have been some impact but not necessarily such a severe impact?

MR LETHERBARROW:   No, your Honour, that has never been raised at any stage.  Unless your Honours have anything further of me ‑ ‑ ‑

GLEESON CJ:   Yes, thank you.  Mr Walker.

MR WALKER:   Your Honours, the answer to the Chief Justice’s earlier question to my friend is found at the foot of page 17, the trial judge does find, as you would expect in a collision case, that there are aspects of speed involved in the negligence, otherwise ‑ ‑ ‑

GUMMOW J:  

This called for a cautious and prudent approach ‑ ‑ ‑

MR WALKER:   Yes, and also at the foot of page 17.  So at lines 33 to 35, to which Justice Gummow has just drawn attention, and between lines 45 to 52.  Otherwise, with respect, my learned friend has accurately described the way in which the issues were fought.

GUMMOW J:   Well, what do you say about paragraph 32 on page 70?

MR WALKER:   The short answer is that the Court of Appeal made a finding of negligence for which neither party had contended, as was its power.  When, however, a court does that the ramifications which spring readily and logically from it must necessarily accompany it.  In our submission, it is an incomplete performance of the appellate function to substitute a finding of fact and a conclusion as to legal relation, that is, negligence, for which neither party had contended without tracing through and completing what the consequences ‑ ‑ ‑

GUMMOW J:   This seems to be a retrial point.

MR WALKER:   It is.  There is no question that this Court could not determine the matter framed in the District Court between these parties ‑ ‑ ‑

GUMMOW J:   Retrial being necessary because of the twist in the Court of Appeal reasoning.

MR WALKER:   Yes.  Now, I stress, of course there is no complaint in relation to matters of primary fact and the particulars of negligence which therefore attach to those facts.  There is no complaint about the Court of Appeal having exercised its function by making findings of fact different from those which were contended for by the parties producing an outcome which neither party preferred.  However, in our submission, it follows that that function in the administration of justice affecting a party such as my client, that that needs to be followed through with the consequences that necessarily apply to impact at lower speed. 

GLEESON CJ:   Well, the proper order for remitter, if you were to succeed - if were given leave to appeal and succeeded then the appeal would be remitted to the Court of Appeal, would it not?

MR WALKER:   Yes, that is what this Court should do.  On the other hand, it may be that in the Court of Appeal it would readily be determined that rather than entertain, for example, fresh evidence it should be remitted to the District Court, but that would be a matter for the Court of Appeal and well within its power to consider.

GLEESON CJ:   You are really saying that the Court of Appeal having taken one step should have taken a second step to complete the picture.

MR WALKER:   Has to in order to do justice in a negligence case where the gist of the action is the suffering of loss and where the loss depends upon the nature of the negligence in order to ask, what is the legal responsibility of the defendant.

GLEESON CJ:   Now, your opponent says, and he may turn out to be right, we do not know unfortunately because we do not have any of the evidence in the case before us, but he says that if there were an appeal to the High Court in this matter he would be able to demonstrate to the High Court that there was nothing in evidence before the Court of Appeal that either required or justified the Court of Appeal in taking that further step.

MR WALKER:   Your Honour, that would require, to turn a phrase for once in favour of plaintiffs in such cases, that would require massive speculation of a kind which is not justified on the basis of the record, which you can imagine without seeing given the issues referred to by the learned trial judge.  The trial judge was not seized of the question of differential injury by impact at a lesser speed, neither was the Court of Appeal, but the Court of Appeal introduced that possibility inexorably and ineluctably once it found that there would have been impact at lesser speed even without negligence.  It is for those reasons, in our submission, that my learned friend’s blandishments to that effect ought not deter the Court from granting special leave so that justice can be done in this case.

GUMMOW J:   But if you did get special leave you would have to reformulate grounds 1 and 2.

MR WALKER:   Unquestionably, it would produce one ground.

GUMMOW J:   You would have to reformulate the relief at page 53.

MR WALKER:   Yes.

GLEESON CJ:   Well, I think you have limited yourself to ground 2, have you not, Mr Walker, if reformulated?

MR WALKER:   Yes, it is a ground 2 case, and there might not be many of those words left.

GLEESON CJ:   Order sought No 2 could be just, “The matter be remitted to the Court of Appeal”.

MR WALKER:   Yes, your Honour.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.16 AM:

GLEESON CJ:   In this matter there will be a grant of special leave to appeal limited to the following ground:  “The Court of Appeal erred in that it made a finding that the respondent driver was not keeping a proper lookout and this breach of duty of care meant that the respondent did not brake or slow her vehicle, yet there was no consideration or inadequate consideration of the issue of causation”.

The second of the orders sought in the notice of appeal will be an order that the matter be remitted to the Court of Appeal rather than an order that the matter be remitted to the District Court, as appears in the present draft notice of appeal.

We are going to adjourn for a short time to reconstitute.

AT 11.17 AM THE MATTER WAS CONCLUDED