Gorman v Scofield
[2008] WASCA 78
•7 APRIL 2008
GORMAN -v- SCOFIELD [2008] WASCA 78
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 78 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:83/2006 | 22 NOVEMBER 2007 | |
| Coram: | STEYTLER P BUSS JA NEWNES AJA | 7/04/08 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Apportionment of liability re-determined Respondent's damages reduced by 65% for contributory negligence Cross-appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BONNIE-LEE GORMAN DAVID MICHAEL SCOFIELD |
Catchwords: | Tort Appeal Motor vehicle accident Whether apportionment for contributory negligence was manifestly inadequate in light of trial judge's findings of fact Principles of judicial discretion in apportionment of liability Primary cause of accident was respondent's excessive speed Equal apportionment of liability by trial judge not reasonably open |
Legislation: | Nil |
Case References: | British Fame (Owners) v MacGregor (Owners) [1943] AC 197 House v The King (1936) 55 CLR 499 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GORMAN -v- SCOFIELD [2008] WASCA 78 CORAM : STEYTLER P
- BUSS JA
NEWNES AJA
- Appellant
AND
DAVID MICHAEL SCOFIELD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SLEIGHT DCJ
Citation : SCOFIELD -v- GORMAN [2006] WADC 93
File No : CIV 2812 of 2002
Catchwords:
Tort - Appeal - Motor vehicle accident - Whether apportionment for contributory negligence was manifestly inadequate in light of trial judge's findings of fact - Principles of judicial discretion in apportionment of liability -
(Page 2)
Primary cause of accident was respondent's excessive speed - Equal apportionment of liability by trial judge not reasonably open
Legislation:
Nil
Result:
Appeal allowed
Apportionment of liability re-determined
Respondent's damages reduced by 65% for contributory negligence
Cross-appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr J G Staude
Respondent : Mr K J Bradford
Solicitors:
Appellant : Williams Handcock
Respondent : Bradford & Co
Case(s) referred to in judgment(s):
British Fame (Owners) v MacGregor (Owners) [1943] AC 197
House v The King (1936) 55 CLR 499
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65
(Page 3)
1 STEYTLER P: I agree with Buss JA.
2 BUSS JA: On Saturday, 4 March 2000, at about 10.30 am, a motorcycle driven by the respondent collided with a motor vehicle driven by the appellant on Canning Highway, near 422 Canning Highway, Como. The respondent suffered serious injuries.
3 Before the accident, on the morning in question, the appellant had visited a friend who lived at 422 Canning Highway. The friend's residence is located to the east of Canning Highway and includes a driveway for motor vehicles. The appellant had parked her motor vehicle in the driveway.
4 Canning Highway is a four-lane thoroughfare with two lanes for travel in each direction. In the middle of the highway there is a median strip, marked with painted white lines. The appellant intended, upon leaving her friend's residence, to turn right onto Canning Highway, and then travel in a northerly direction towards the Causeway.
5 When the appellant left her friend's residence, she drove her motor vehicle in a forward direction from the driveway and across the two southbound lanes, but stopped or almost stopped her vehicle when it was straddling the centre or inner southbound lane and the median strip. Almost immediately after the appellant's vehicle stopped or almost stopped, it was struck on the right rear side by the respondent's motorcycle, which had been travelling at a speed of about 90 - 100 kilometres an hour. The collision caused the motorcycle to break into pieces, and the respondent and his pillion passenger were thrown about 80 - 100 metres along the highway.
6 In 2002, the respondent commenced proceedings against the appellant in the District Court. He claimed damages in respect of the injuries he suffered in the accident. After a trial before Sleight DCJ, his Honour found, relevantly, that each of the appellant and the respondent had been negligent and that the negligence of each of them was a material or contributing cause of the damage. His Honour apportioned liability equally between the appellant and the respondent. Damages were assessed in the aggregate amount of $685,916.90 and, after reducing that amount by 50% for contributory negligence, judgment was entered for the respondent in the amount of $342,958.45.
7 The appellant appeals, and the respondent cross-appeals, to this court against the learned judge's findings on liability.
(Page 4)
The witnesses at the trial
8 The relevant witnesses at the trial were these:
(a) The respondent.
(b) The appellant.
(c) Ms Tonya Turner, who was driving a motor vehicle in a southerly direction in the left lane of Canning Highway at the time of the accident.
(d) The respondent's pillion passenger, Mr James Farr.
(e) Ms June Perron, who was driving a motor vehicle in a southerly direction in the centre lane at the time of the accident.
(f) Mr Rex Raymond, who was visiting his mother at 428 Canning Highway, Como, at the time of the accident.
(g) Mr Mark Murphy, who was driving a motor vehicle in a southerly direction in the left lane at the time of the accident.
(h) Mr Martin Simms, who gave expert evidence as a motor vehicle accident investigator.
A written statement dated 13 December 2005 of Constable Christine Game, who attended the scene of the accident, was, by consent, read into evidence.
The learned judge's findings of fact
9 The learned judge, in his reasons, comprehensively reviewed the evidence. His Honour then made the following findings of fact:
(a) There is a rise in the road on Canning Highway immediately south of the driveway of 422 Canning Highway. This rise limits the visibility of a driver of a motor vehicle who is exiting in a forward direction from the driveway of 422 Canning Highway. In particular, the rise limits the driver's visibility of vehicles approaching from a southerly direction (that is, to the left of the driver who is exiting in a forward direction from the driveway). This creates a significant hazard.
(b) A driver of a motor vehicle who is exiting in a forward direction from the driveway of 422 Canning Highway has good visibility, for a long distance, of vehicles approaching from a northerly direction.
(Page 5)
- (c) A driver of a motor vehicle exiting in a forward direction from the driveway of 422 Canning Highway is likely to have his or her attention more focused on vehicles travelling in a northerly, rather than a southerly, direction.
(d) Ms Turner's motor vehicle entered Canning Highway from Saunders Street, which is 81 metres from the driveway of 422 Canning Highway.
(e) The respondent's motorcycle was more than 100 metres to the north of Saunders Street when Ms Turner entered Canning Highway.
(f) The respondent's motorcycle passed, at a very high speed, the motor vehicles driven by Ms Perron and Mr Murphy. After the respondent passed their vehicles, he had a clear roadway ahead of him in both lanes until Ms Turner's vehicle entered Canning Highway ahead of him.
(g) The evidence of Ms Perron, Mr Murphy and the respondent that there was another vehicle travelling in the right-hand lane near Ms Turner's vehicle was rejected. His Honour preferred Ms Turner's evidence that she did not observe any such vehicle.
(h) Shortly after Ms Turner's vehicle entered Canning Highway, the appellant eased her vehicle onto Canning Highway. When the appellant's vehicle eased onto Canning Highway, Ms Turner's vehicle was about 40 - 50 metres away.
(i) The appellant looked to her right (in a northerly direction) before easing her vehicle onto Canning Highway. When she looked, she did not see the respondent's motorcycle. At that time, his motorcycle was some considerable distance away. The appellant did, however, observe Ms Turner's vehicle, which was closer to her. The appellant concluded, from the distance between her vehicle and Ms Turner's vehicle, and from the apparent speed of Ms Turner's vehicle, that it was safe for her to travel across the southbound lanes of Canning Highway and enter the northbound lanes.
(j) After the appellant drove her motor vehicle onto Canning Highway, she saw the respondent's motorcycle in the distance, but believed that, as a result of the distance, she need not be concerned by its approach.
(k) Ms Turner gave the most reliable account of what occurred. She was an independent witness who was ideally located to observe
- the appellant's motor vehicle. On the basis of her evidence, his Honour concluded that the appellant pulled out onto the southbound lanes and then slowed down, and 'almost stopped', on the median strip. At that time, the rear of her vehicle substantially blocked the centre or inner southbound lane. This was confirmed by Mr Murphy's evidence.
- (l) Also, on the basis of Ms Turner's evidence, his Honour was satisfied that after the appellant's vehicle 'stopped' near the median strip, Ms Turner heard a loud noise behind her and then observed the respondent's motorcycle in her rear side mirror. The motorcycle then passed Ms Turner's vehicle at high speed and collided with the appellant's vehicle.
(m) Immediately before the collision, the respondent's motorcycle was travelling 'well in excess of the speed limit of 60 kilometres per hour, and probably in the vicinity of 90 to 100 kilometres per hour' [114]. His Honour gave substantial reasons for this conclusion.
(n) The respondent braked heavily but was unable to slow down and avoid the collision because of the excessive speed at which his motorcycle was travelling. The respondent was not able to veer to the right to avoid the collision because he would then be on the wrong side of the highway and travelling in the path of oncoming vehicles which might come over the rise to the south of the scene of the accident. Further, the respondent was not able to veer to the left to avoid the collision because there was only a small gap between Ms Turner's vehicle and the appellant's vehicle. Although his Honour was unable to find whether the respondent might have been able to manoeuvre his motorcycle through the gap if he had been travelling slower, his Honour was satisfied that he was not able to do so at the speed he was travelling.
The learned judge's conclusions relating to negligence
10 The learned judge concluded that the appellant had been negligent:
I am satisfied that the [appellant] was negligent in pulling out onto Canning Highway, slowing down and stopping her vehicle with the rear portion of her vehicle obstructing the greater part of the centre lane for southbound traffic in Canning Highway [115].
11 The learned judge also concluded that the respondent had been negligent:
(Page 7)
- I am also satisfied that the [respondent] was negligent in travelling at an excessive speed, probably somewhere in the vicinity of 90 to 100 kilometres per hour [116].
The learned judge's conclusions relating to causation
12 The learned judge found that the appellant's negligence partly caused the accident because her vehicle was placed in a position which blocked the centre lane for southbound traffic [118].
13 The learned judge also found that the respondent's negligence partly caused the accident. His Honour's reasons were these:
(a) when the [appellant] looked before driving her vehicle out onto Canning Highway, she was less likely to see and take into account the [respondent's] motorcycle as at that point the [respondent's] motorcycle would have been a considerable distance away from the point of impact;
(b) if the [respondent] had been travelling at the speed limit, given the fact that he observed the [appellant's] vehicle in the driveway about to enter Canning Highway when he was 200 metres from the point of impact, he had sufficient time to slow down and stop before the collision, or at least reduce the impact of the collision to a minor one [119].
The learned judge's conclusion relating to the apportionment of liability
14 The learned judge concluded that it would be just if the amount of the respondent's claim was reduced by 50%. His Honour's reasoning was as follows:
In my opinion some allowance needs to be taken into account for the fact that the speed of the motorcycle meant that the [respondent] was thrown through the air a very long distance, and then tumbled along the roadway, a combined distance of just over 80 metres. Mr Desmond Williams, orthopaedic surgeon, gave evidence that the [respondent] had suffered a fracture of the right lower leg which was compound, a fracture of the right knee cap and fractures of the metacarpal bone area in the right hand.
He stated in his evidence that the fracture of the right leg which was the most serious injury, most likely occurred when the [respondent] hit the ground and that a lot of damage to that fracture would have occurred as he tumbled down the roadway. Accordingly, I conclude that the [respondent] suffered a greater injury than he would have otherwise have suffered if the collision had occurred with the [respondent] travelling at or near the speed limit. However, it is not a matter of calculating a separate reduction for contributory negligence for exacerbation of injuries due to lack of precaution on the part of the [respondent]. It is sufficient if I make an
(Page 8)
- overall assessment of contributory negligence as a matter of discretion and judgment, weighing up the different considerations including the extent to which speed contributed to the occurrence of the accident and also the extent to which speed may have exacerbated the extent of injuries suffered by the [respondent]: Richards v Mills (supra) [123] - [124].
Appellant's ground of appeal
15 The appellant's ground of appeal, with supporting particulars, reads:
The learned trial judge erred in fact and law in reducing the respondent's (plaintiff's) assessed damages by 50% for contributory negligence and should have apportioned liability substantially in favour of the appellant (defendant).
PARTICULARS
1. The reduction of 50% for contributory negligence was a manifestly inadequate estimation of the respondent's (plaintiff's) contribution to his injuries in all the circumstances.
2. By failing to give due consideration and weight to the egregious manner of the respondent's (plaintiff's) driving the learned trial judge erred in the exercise of his discretion.
The merits of the appeal
16 The appellant does not challenge any of the learned judge's findings of fact. Rather, she contends that, on the facts as found, his Honour's apportionment of liability was erroneous in that it was a manifestly inadequate assessment of the extent of the respondent's contributory negligence and, further, in arriving at a 50% reduction for contributory negligence his Honour failed to give proper consideration, and accord adequate weight, to the egregious manner of the respondent's driving.
17 The principles of law which regulate the circumstances in which an appellate court may review the exercise of a judicial discretion apply, in the context of s 4 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), to an appeal from a trial judge's decision on apportionment of liability.
18 The task of this court, in examining the appellant's ground of appeal, is to determine whether the learned judge made an error in exercising his discretion, error being understood, in this context, as it was explained in House v The King (1936) 55 CLR 499:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or
(Page 9)
- irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred (505).
19 The learned judge's conclusion that the respondent was guilty of contributory negligence involved findings that he had failed to take reasonable care for his own safety in that his behaviour constituted a 'departure from the standard of care of the reasonable man': Pennington v Norris (1956) 96 CLR 10 , 16.
20 An assessment of the culpability of a plaintiff and a defendant, for the purposes of apportionment, requires a consideration of the relative importance of the conduct of each party in causing the damage. The whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination. See Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65, 68.
21 A finding on a question of apportionment, as between a defendant who has been found to be negligent and a plaintiff who has been found guilty of contributory negligence, 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': British Fame (Owners) v MacGregor (Owners) [1943] AC 197 , 201. It is well-established that such a finding, if made by a Judge, is not lightly reviewed. See Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, 494.
22 In the present case, the appellant's attack on the learned judge's apportionment of liability does not assert the existence of a specific, identified error. Rather, the appellant asserts the existence of an implicit or inferred error. The essence of discretionary judgment involves the attribution of weight to one or more factors in a combination of factors. There is no single correct apportionment. His Honour's exercise of discretionary judgment should not be set aside unless the 50% reduction in the amount of the respondent's damages was outside the range reasonably open to his Honour and, in the circumstances, it should be
(Page 10)
- concluded that there was a failure properly to exercise the discretion conferred on him.
23 The principal findings of the learned judge in relation to the quality or character of the respondent's driving, were these:
(a) The respondent was travelling at an excessive speed; namely 90 - 100 kilometres an hour in a 60 kilometre an hour zone ([116]).
(b) The respondent was driving on a busy highway, at about 10.30 am on a Saturday morning, in a suburb of Perth.
(c) The respondent, having seen the appellant's vehicle in the driveway and about to enter Canning Highway, when he was 200 metres from the point of impact, would have had time to slow down and stop before the collision, or at least reduce the impact of the collision to a minor one, if he had been travelling at the speed limit [119].
(d) The appellant, when she drove onto the highway, 'was less likely to see and take into account' the respondent's motorcycle because, at that point, the motorcycle was a considerable distance from the point of the collision [119].
(e) The respondent suffered greater injuries, as a result of the speed at which he was travelling, than he may otherwise have suffered [124].
(f) The respondent was travelling with a pillion passenger [8].
24 The crucial feature of the appellant's negligence was her failure to take reasonable care to avoid obstructing the centre lane for southbound traffic on Canning Highway. The risk was that another vehicle, especially a vehicle travelling in excess of the speed limit, might not be able to avoid the appellant's vehicle, safely or at all, by stopping or swerving, if she were to remain stationary for any time in the centre lane. The evidence established that there was not, in fact, another vehicle approaching the appellant from her left-hand side as she endeavoured to execute the manoeuvre across the highway. She stopped in the centre lane, as a matter of caution, to double-check to her left because of the rise in the road immediately to the south of the driveway. The appellant failed to anticipate that another vehicle might be travelling at speed behind Ms Turner's vehicle. She drove across a busy highway in circumstances where her vision to the left was restricted, and, if another vehicle had
(Page 11)
- appeared over the rise to her left, she would, in any event, have had to stop and obstruct the centre southbound lane.
25 The crucial feature of the respondent's negligence was that at all material times he drove at a significantly excessive speed on a busy highway. The respondent, having seen the appellant's vehicle in the driveway and about to enter Canning Highway, when he was 200 metres from the point of impact, did not reduce his speed until he braked heavily immediately before the collision. He should have been travelling at the speed limit. Also, when the respondent first saw the appellant's vehicle, he should have immediately reduced his speed and kept a proper lookout in relation to the vehicles being driven by the appellant and Ms Turner. He neither reduced his speed nor kept a proper lookout. In the circumstances which eventuated, the respondent was unable to stop or take evasive action because of his excessive speed.
26 In my opinion, the manner of the respondent's driving is properly to be characterised as reckless. By contrast, the appellant was negligent, but not reckless. The respondent drove with conspicuous and blatant disregard for his own safety and the safety of his pillion passenger and other road users. The appellant's negligence in obstructing the centre southbound lane was a particular hazard, in the circumstances, only to a speeding and reckless driver (such as the respondent).
27 In the circumstances, the only reasonable conclusion open on the evidence was that the respondent was more culpable than the appellant, and his negligent conduct was more significant than her conduct in causing the damage which occurred as a result of the collision. In my respectful opinion, an apportionment of liability equally between the appellant and the respondent was outside the range of a sound exercise of discretionary judgment. The appellant has made out her ground of appeal. I would set aside his Honour's apportionment and substitute an apportionment of 35% liability as against the appellant and 65% liability as against the respondent. In other words, the respondent's damages should be reduced by 65% for contributory negligence.
Respondent's grounds of cross-appeal
28 The respondent's amended grounds of cross-appeal, without supporting particulars, were these:
1. The Learned Trial Judge erred in fact and in law by inferring that the Respondent travelled at a speed of 90 - 100 km per hour immediately prior to the impact.
(Page 12)
- …
2. Having correctly found that it was not possible to find that if the Respondent had been travelling slower he would have avoided the collision, the Learned Trial Judge erroneously concluded in fact and law that the Respondent's speed contributed to the collision.
…
3. The Learned Trial Judge erred in fact and law in failing to find that the Appellant's negligence was the sole cause of the collision.
…
4. The Learned Trial Judge erred in principle by adopting a two-stage approach to causation in the exercise of his discretion in apportioning equal blame, holding that not only did the negligent act of the Respondent (speed) contribute to the occurrence of the accident, but in addition thereto, the extent to which the negligent act (speed) exacerbated the extent of the injuries suffered by the Respondent. In doing so, the Learned Trial Judge added to what would have been apportioned otherwise, an element for exacerbation of the injuries.
…
The merits of ground 1 of the cross-appeal
29 The learned judge found that, immediately before the impact, the respondent's motorcycle was travelling 'well in excess of the speed limit of 60 kilometres per hour and probably in the vicinity of 90 to 100 kilometres per hour'. His Honour based this conclusion on the following:
(a) I am satisfied that the [respondent] gave a conservative estimate of his speed when he admitted that he initially accelerated up to about 80 kilometres per hour to pass two vehicles. I reject the [respondent's] evidence that he then slowed down. Once he had passed the other two vehicles he was faced with a long stretch of open road and I am satisfied that he maintained his motorcycle at a high speed. This is consistent with the evidence of Ms Turner who saw the motorcycle just prior to the collision.
I also reject the evidence of Mr Farr that the [respondent] slowed down after he had passed vehicles near the Gull service station. Mr Farr I find to be an unreliable witness.
Overall, I conclude that the [respondent] and Mr Farr attempted to minimise the [respondent's] responsibility for the accident. The [respondent] did not mention in his evidence-in-chief that he had
- seen the [appellant's] vehicle in the driveway when he was about 200 metres from it. He stated the first time he saw the [appellant's] vehicle was when he was 30 metres from the vehicle. I believe he deliberately did not mention in his evidence-in-chief that he had seen the [appellant's] vehicle in the driveway earlier. This was meant to create the impression that the [appellant's] vehicle suddenly pulled out in front of the [respondent's] motorcycle without the [respondent] having any prior warning of its presence and giving him no opportunity to avoid a collision. Further, his evidence that he first saw the vehicle when he was only 30 metres from it, contradicted his answers in interrogatories where he said 15 metres. Although these were only approximations, I believe that the difference is significant and indicates the unreliability of the [respondent's] evidence as to the circumstances of the accident.
- (b) A speed of 90 to 100 kilometres per hour is consistent with Ms Turner's evidence, who, as I have stated, I find a reliable witness. One has to be somewhat cautious about estimates of speeds particularly when based in part on the sound of a motorcycle, because the sound of a motorcycle can cause alarm to a driver of a motor vehicle being suddenly passed. However notwithstanding this caution, I accept Ms Turner's evidence that the motorcycle was travelling at a very high speed. She heard a sound which she described as a very high pitched whine. She also saw the motorcycle first in her right hand rear mirror and then immediately after this, the motorcycle passed her. Her opinion was that the motorcycle was travelling very fast. This is also consistent with the evidence of Ms Perron and Mr Murphy who described the motorcycle passing them at a very high speed earlier.
(c) I find that after the collision between the two vehicles the [respondent] and his pillion passenger were thrown through the air and on hitting the ground then tumbled some distance before coming to rest 80 to 100 metres down the roadway from the point of the collision. I accept the evidence of Mr Raymond that one of the persons from the motorcycle finished up in front of the driveway of 432 Canning Highway and Mr Simms had measured the distance from the driveway of 422 to 432 Canning Highway as being 83 metres. Also the petrol tank was completely removed from the motorcycle as a result of the impact from the [appellant's] vehicle as indicated by the evidence of Ms Turner. I am satisfied that the body of the motorcycle after the collision with the [appellant's] vehicle ricocheted off at an angle and impacted with a cycling railing on the footpath on the left hand side of the south bound lane. Also a part of the motorcycle flew off and hit an awning on the front of the house at 428 Canning Highway, Como. I believe the considerable distance the [respondent] and the pillion passenger travelled after the collision, and the distance that parts of
- the motorcycle travelled after the collision are consistent with the motorcycle travelling at a high speed at the time of the collision.
- (d) The [respondent's] counsel presented a number of arithmetic calculations to suggest the evidence did not support the conclusion that the [respondent's] motorcycle was travelling at high speed prior to impact.
Firstly the [respondent's] counsel relied upon the evidence of the [appellant] who stated that she observed the [respondent's] motorcycle 50 metres away, and she observed him for a few seconds before impact. From this the [respondent's] counsel submitted as follows:
'By simple arithmetic, if the [respondent] was travelling 70 kilometres per hour for those 50 metres, it would take him 2.57 seconds to reach the point of impact. At 60 kilometres per hour the result is three seconds. (See Simms' evidence in support of speed in relation to reaction time, response time and braking time at 270). Further the faster the [respondent] is travelling, the less time there was to traverse those 50 metres. What is critical is the evidence of the distance of the [respondent] when the [appellant] first saw him, is the only evidence of such distance on the [appellant's] case. No other evidence has been produced by any other [appellant's] witnesses. Ms Turner and the [respondent] indicated the lesser distance before the [appellant] commenced her manoeuvre. Thus, there can be no inference of speed at or about the point of impact'.
However, the [appellant], Ms Gorman was only giving an estimate when she stated that the motorcycle was approximately 50 metres away when she first saw it. In relation to the estimate of two seconds, the [appellant] in her evidence stated that this was not an exact time. She stated 'it appeared like seconds'. (T175)
This makes the calculations of the [respondent's] counsel somewhat imprecise.
Further, if the [respondent's] motorcycle was travelling at 90 kilometres per hour, then he would travel the distance of 50 metres in two seconds which is consistent with the [appellant's] evidence.
Further, the [respondent's] counsel in closing submissions suggested the evidence of Ms Turner that when she looked to her right she did not see the [respondent's] motorcycle, did not necessarily lead to an inference that the motorcyclist was so far back that it must have travelled at very high speed to reach the
- point of impact with the [appellant's] vehicle at about the same time that Ms Turner's vehicle travelled from Saunders Street to the point of impact. The written submissions stated as follows:
- 'Arithmetic dictates that if she travelled 91 metres from Saunders Street to the point of impact or parallel with it at an average speed of 20 kilometres per hour (to be reasonably inferred from the evidence), it would take her 14.72 seconds to get there. After she saw that the road to her right was clear and she entered Canning Highway, it would be reasonable to allow for two seconds. If the [respondent] was travelling at 65 kilometres per hour for those two seconds and then, the 14.2 seconds, ie, 16.72 seconds, he would have traversed a distance of 18.05 metres per second, a distance of 301.7 metres. This places the [respondent] east of the Gull service station which was 81 metres plus 200 metres away on the evidence agreed. If the [respondent] maintained a speed of 70 kilometres per hour for the same 16.72 seconds, he would have traversed 325.1 metres in that time, ie, out of sight of Turner when she entered Canning Highway.'
- The submission makes a number of assumptions which are not necessarily valid (eg, the average speed of Ms Turner's vehicle and the number of seconds before she entered Canning Highway).
However, even if these assumptions are correct, the calculation suggested does not remove the possibility of the [respondent] travelling at a higher speed. If the [respondent] was travelling at 100 kilometres per hour (27.8 metres per second) in the 16.72 seconds used by the [respondent's] calculation, the [respondent] would have travelled 464.8 metres (ie, 383.8 metres from the corner of Saunders Street) and the possibility of him being out of sight of Ms Turner is even greater due to greater distance.
My finding that the [respondent] was travelling at an excessive speed is not based upon Ms Turner's evidence that she did not see the [respondent's] motorcycle just before entering into Canning Highway, but upon other items of evidence mentioned earlier [114].
30 The respondent's counsel submitted to this court that the learned judge misconceived and gave 'excessive undue weight' to the evidence of Ms Turner in relation to the respondent's speed. It was also submitted that the respondent was not challenged in relation to his evidence-in-chief that he reduced speed after passing Ms Perron and Mr Murphy. Further, it was asserted that his Honour erroneously based his rejection of the respondent's evidence as to speed on a misunderstanding of the respondent's evidence relating to when he first saw the appellant's vehicle.
(Page 16)
- According to counsel for the respondent, the respondent's evidence was that:
(a) he was 30 metres from the appellant when she exited the driveway; and
(b) he was 200 metres from the appellant when he first saw her vehicle in the driveway.
Finally, the respondent's counsel contended that it was not open to his Honour to infer a speed of 90 - 100 kilometres an hour based, in part, on the distance which the respondent and his motorcycle travelled after the impact, in the absence of evidence as to the relevance of the distance travelled to the speed at the point of impact or evidence as to the correlation between mass and velocity.
31 In my opinion, it was reasonably open to the learned judge to infer that the respondent was travelling at a speed of 90 - 100 kilometres an hour immediately before the collision. I am of that opinion for these reasons. First, his Honour's conclusion was based, in part, on credibility findings which were plainly open to him. Secondly, his Honour was entitled to accept the opinions of Ms Turner, Ms Perron and Mr Murphy that at material times the respondent's motorcycle passed them at a very high speed. Thirdly, the respondent's evidence as to his speed was challenged. The following exchange occurred in cross-examination:
What sort of distance do you think you travelled then, Mr Scofield, with the brake on?---Only a couple of metres. A very short distance.
A couple of metres?---Yes. It was a very short, quick jab. It wasn't going to happen. There was just no time to brake at all.
That's because you were probably going way over a hundred kilometres an hour, isn't it?---No, it's because the car was - only gave me a few metres to react.
You were showing off to Mr Farr, weren't you, what your bike could do, and you were travelling well in excess of a hundred kilometres an hour, weren't you?---No.
…
I would suggest, Mr Scofield, that you were travelling at such an excessive speed that you simply could not slow down or take evasive action in relation to a vehicle which under normal circumstances would have had more than adequate time to pull out [sic]. That's what happened, isn't it?---No.
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- You were travelling at an excessive speed?---No (ts 80, 82).
- Fourthly, the respondent said in evidence-in-chief that he had 'just passed' Ms Turner's vehicle when the appellant's vehicle 'came out of a driveway into my lane and stopped' and that he was 'maybe 30 metres' from the appellant's vehicle when he first saw it (ts 28). The respondent said in cross-examination that he did not see the appellant's vehicle before, according to him, it pulled out in front of him (ts 71). Counsel for the appellant put to the respondent his prior evidence in proceedings in the Magistrates Court to the effect that he was about 200 metres from the appellant's vehicle when he first saw it (ts 71 - 72). Counsel for the appellant also put to the respondent his answer to an interrogatory in which he asserted that he was approximately 15 metres from the appellant's vehicle when he first saw it (answer 6(a), ts 72). It was plainly open to his Honour, in these circumstances and in combination with the evidence which he accepted, to reject the respondent's evidence in relation to speed and distance. Fifthly, his Honour was entitled to make an estimate as to the respondent's speed based on the opinions and evidence of the witnesses whom he found to be honest and reliable (including evidence as to the distance travelled by the respondent and his motorcycle after the impact) without expert evidence as to the relevance of the distance travelled to the assessment of the respondent's speed or as to the correlation between mass and velocity.
32 Ground 1 fails.
The merits of ground 2 of the cross-appeal
33 Ground 2 is based on a false premise in that it asserts the learned judge 'correctly found that it was not possible to find that if the respondent had been travelling slower he would have avoided the collision'. His Honour made a clear and unequivocal finding that if the respondent had been travelling at the speed limit, given the fact that he observed the appellant's vehicle when he was 200 metres from the point of impact, he had sufficient time to slow down and stop before the collision, or at least reduce the impact of the collision to a minor one [119(b)].
34 The falsity of the premise on which ground 2 is based also falsifies the assertion in ground 2 that the learned judge erroneously concluded that the respondent's speed contributed to the collision.
35 It is manifest from the learned judge's conclusion in relation to the speed of the respondent's motorcycle immediately before the collision and his Honour's conclusion that if the respondent had been travelling at the
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- speed limit he would have been able to slow down and stop before the collision (or at least reduce the impact of the collision to a minor one), both of which were plainly open on the evidence he accepted, that the respondent's speed did partly cause the accident.
36 Ground 2 fails.
The merits of ground 3 of the cross-appeal
37 Ground 3 contends that the learned judge erred in fact and law in failing to find that the appellant's negligence was the sole cause of the collision.
38 My findings in relation to the merits of the ground of the appeal, and grounds 1 and 2 of the cross-appeal, require, inevitably, the rejection of ground 3.
39 On the basis of my findings on those other grounds, the learned judge was entitled (and, indeed, required) to find that the respondent was negligent and that his negligence materially contributed to the occurrence of the accident.
40 Ground 3 fails.
The merits of ground 4 of the cross-appeal
41 Ground 4 contends, relevantly, that the learned judge erred in taking into account, in exercising his discretion in relation to apportionment, the speed at which the respondent's motorcycle was travelling both as a factor contributing to the occurrence of the accident and also as a factor exacerbating the respondent's injuries.
42 The learned judge was required to evaluate the negligent conduct of each of the appellant and the respondent in relation to the circumstances of the accident, and to apportion liability on the basis of his Honour's assessment of the relative importance of each party's conduct in causing the damage.
43 The respondent's excessive speed was relevant to the damage which he suffered in that it materially contributed to the occurrence of the accident and it also exacerbated the injuries he suffered. His Honour properly took into account both of those factors in deciding on the apportionment of liability. His reasons do not indicate that there was any element of 'double counting' or 'overlap' between the factors in question in
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- deciding on the reduction in damages which should be made for the respondent's contributory negligence.
44 Ground 4 fails.
Appellant's notice of contention relating to the respondent's cross-appeal
45 The appellant filed a notice of contention in relation to the respondent's cross-appeal. The notice alleges:
The Respondent's cross-appeal having put in issue the correctness of the learned trial Judge's finding that the Respondent was travelling at 90 - 100 kms per hour immediately prior to the collision, the Appellant respectfully contends that the learned trial Judge's finding was correct not only for the reasons given, but on the basis of the expert evidence of Mr Martin Simms as to the speed of the respondent's motorcycle prior to skidding and at the point of collision.
46 It is unnecessary, in the circumstances, to consider the appellant's notice of contention.
Conclusion
47 I would allow the appeal, set aside the learned judge's apportionment, and substitute an apportionment of 35% liability against the appellant and 65% liability against the respondent, so that the respondent's damages, as assessed by his Honour, are reduced by 65% for contributory negligence.
48 I would dismiss the cross-appeal.
49 NEWNES AJA: I agree with Buss JA.
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