Gorton v Essex

[1997] HCATrans 199

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S130 of 1996

B e t w e e n -

DERRICK JOHN GORTON by his Tutor THE PROTECTIVE COMMISSIONER FOR NEW SOUTH WALES

Applicant

and

WAYNE DAVID ESSEX

Respondent

Application for special leave to appeal

DAWSON J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 4 AUGUST 1997, AT 9.35 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC, Acting President of the Law Council of Australia:

May it please your Honours, before the list for the day commences and lest the Bar in Sydney does not have the pleasure of your Honour Justice Dawson’s presiding on a similar such occasion again, may I, on behalf of the Law Council of Australia and the Bar Association of New South Wales, make the following short comments.

One of the irritations or entertainments of your Honour’s high office, depending upon one’s attitude, is that over the years labels are attached to one’s judicial personality and among the labels that your Honour has been suffered or been honoured to wear are labels which one can read as tributes to your Honour’s Dixonian legalism or otherwise, but the label which the Sydney Bar would prefer to attach to your Honour is that you have been a constant, courteous and pleasurable target of argument, not always successfully, of course, by advocates whose arguments will not stand up to your Honour’s scrutiny, and it is for that, in particular, that the Bar in Sydney and those who instruct the Bar in Sydney will particularly remember your Honour. 

It is perhaps a sign of the times and of the high regard in which your Honour is held by the litigators of New South Wales that when we are told by our colleagues in Victoria how proud they are of you, as a quintessentially Victorian lawyer, that is no longer treated as a mark of Cain north of the Murray.  Your Honour, while agreeing wholeheartedly with our Victorian colleagues, may we also say how greatly we have appreciated your Honour’s long service, as you approach the end of your fifteenth year on this Bench, and how well we wish you for the future.  May it please the Court.

DAWSON J:   Thank you, Mr Walker.

As you know, it is not the custom of recent years on this Court for there to be farewells to, at least, puisne Judges and it is therefore with some surprise, but pleasure, that I hear your remarks and good wishes.  Thank you very much.

It may be that I am cast in the mould of someone who believes that he has inherited the corpus juris in the Dixonian tradition and that it is the duty of a Judge to treat that as a trust.  And it may be that I have not come under the influence of Professor Stone.  Nevertheless, I have enjoyed the arguments and the intellectual exhilaration that has been provided by members of the Sydney Bar over the years.  They, in turn, have been very good friends both on this side of the Bar table and on the other and I have enjoyed their company and their stimulus.  Thank you very much.  If you would convey on my behalf my thanks for all those things for which I should be and am grateful to the Sydney Bar over the years.

________________________

MR B.J. GROSS, QC:   May it please the Court, I appear for the applicant. (instructed by Thompson Wheelahan & Hampshire)

MR M.J. NEIL, QC:   May it please the Court, I appear with my learned friend, MR R.C. TONNER, for the respondent (instructed by J.M. Crestani).

DAWSON J:   Mr Gross.

MR GROSS:   Your Honours, we submit that this case raises a particular miscarriage of justice but beyond that we contend that it raises general questions concerning the obligation to anticipate negligent conduct of others, in particular, that a motorist would make the right-hand turn into traffic or anticipate not merely on-coming vehicles which you can see and readily avoid, but also potentially or actually obscured vehicles which are about to appear giving rise to a collision.

We add that it also raises the question of whether the obligation to anticipate risk taking, negligent conduct by other motorists extends beyond those which are presently unseen, but whose future presence is a foreseeable possibility.  Your Honours, the - - -

McHUGH J:   But are these questions not totally academic or hypothetical in this particular case?  Because the trial judge found that the driver had made a right-hand turn with safety, and he had got 55.7 metres, I think it was, down the road before your client, on a motor bike, suddenly came out of the back from behind a truck and giving the defendant no opportunity to avoid him.

MR GROSS:   Your Honour, the finding by the judge that the turn had been made safely was plainly directed to safety as regards the semi-trailer which he could see, that is, avoiding the risk of a collision, in effect at or about the intersection with that vehicle.

Our case was considered on an entirely different matter, namely, the need to anticipate the risk that there be a bike or other vehicle behind the semi-trailer which would, at the point where the defendant took off, also itself be taking off to overtake thereby putting the vehicles into inevitable collision, given the fact that it was a very, very narrow road as everyone understood.

McHUGH J:   But on your hypothesis, what was the defendant supposed to do?  If I understand the evidence correctly, your driver or your client came out on the wrong side of the road.  He pulled out from behind a van onto the wrong side of the road, in front of another vehicle, which had already traversed 55.7 metres.

MR GROSS:   That was point of collision, obviously, the point at which they were - - -

McHUGH J:   That only makes it worse from your point of view, does it not?

MR GROSS:   What it indicates is, in our submission - 55 metres on a highway is a very short distance, as your Honour appreciates.

McHUGH J:   It may be.

MR GROSS:   And what one had was a - - -

McHUGH J:   But on the other hand, the defendant had to make the right‑hand turn.  The truck must have been a lot further down the road, 100 metres at least one would imagine.  The defendant does not see anything.  Where is any great question of principle in this case?  It is simply a question of fact which I have to say from my part, seems to be absolutely correct.

MR GROSS:   The defendant could not see any vehicle behind the semi‑trailer because of the size and shape of the semi-trailer.  He took the chance that there was nothing behind that vehicle intending to overtake at about the time when he came out and made his right-hand turn.

McHUGH J:   What do you mean by overtaking?  He had made his turn and he was on his side of the road going west, was he not, when your client going east, suddenly pulls out and goes onto the wrong side of the road?

MR GROSS:   Your Honour, we submit that according to the findings by his Honour, the defendant did not see the bike, the passenger did not see the bike, and one can guess that - sorry, the passenger did not see the pantechnicon and the plaintiff, one can infer, before he had pulled out had not seen the pantechnicon.  Now, in our submission, that indicates a position which the court did not address itself to adequately, namely, the fact that the failure by all concerned to recognise their respective movements were creating a risk of collision, which related to the fact that the defendant did not perform his duty to wait until he could see whether there was any vehicles behind the truck which might, if they moved out to overtake that semi-trailer, which was foreseeable, then be a part of inevitable collision with his vehicle.

McHUGH J:   Does this lead to the theory that no one can ever make a right-hand turn at an intersection like this if there is any vehicle at all coming down the highway?

MR GROSS:   No, your Honour.  The defendant was able to make a right‑hand turn by waiting a matter of a few seconds so that the state of the traffic would be clearer to him and he had eliminated the possibility, which reasonable care required him to eliminate, that there was a faster moving vehicle coming from behind the semi‑trailer.  Waiting a few seconds obviously costs nothing in terms of money or time and that is something that motorists do every day.

Now, the basis upon which the trial judge dismissed the case was it was not possible for the defendant to see any vehicle or, in particular, the plaintiff’s motor cycle behind the semi-trailer.  Now, with respect, that is no answer to the question of whether or not the presence of such a vehicle, although not seen, should have been anticipated so that appropriate risk avoidance behaviour took place.  When one goes to the trial judge’s decision, at page 7, where the judge is addressing this particular question, that is page 7, line 10:

the defendant should have foreseen the possibility that there was a motor cycle behind the semi-trailer and that it might overtake the semi-trailer once it passed the unbroken centre line for east bound traffic.  I cannot accept this submission.  The defendant did not see the motor cycle until it pulled out in front of his pantechnicon and I am not satisfied that the defendant was negligent in failing to see the motor cycle any earlier.  The semi-trailer was a large vehicle and could easily have blocked the defendant’s view of the cycle at all relevant times before the cycle pulled out to overtake the semi-trailer.

Now, that is merely restating a number of forms, the basic undeniable fact that the large semi-trailer blocked out the view of the motor cycle in the circumstances.  It does not address the submission which is in that paragraph, namely, foreseeing the possibility, that is, an unforeseen plaintiff but whose possible existence should have been anticipated because he was on the point of making an overtaking step that would create a collision which could not be avoided because of the very narrow state of the road being surrounded by railings on either side.

So we start off with the fact that the trial judge dismissed the submission, not on the basis your Honour Justice McHugh is talking about, but because the plaintiff was not seen and could not be seen by the defendant before he moved off.

McHUGH J:   Supposing he had seen the cyclist there, what would have been negligent about him making a right-hand turn?

MR GROSS:   We would submit that if he got - - -

McHUGH J:   The sole cause of the accident, on that basis, would be your client’s negligence in pulling out and going on the wrong side of the road.

MR GROSS:   If you have a slow moving semi-trailer on a busy highway, it is evident that vehicles do overtake such slow moving vehicles, so the possibility of overtaking was one which was real.

DAWSON J:   You do not deny the negligence of your client?

MR GROSS:   We accept there is negligence there.  The duty, of course, is owed, even to the fool hardy, a negligent plaintiff.  But when we look at the matter at trial level, the question of the defendant’s obligation in foreseeing these possibilities was not addressed but, rather, was dealt by virtue of the irrelevant fact that the defendant could not see the plaintiff because of the obscured view.  When there is an obscured view, you take appropriate steps to eliminate the risk that there is a dangerous situation about to evolve from matters which cannot presently be seen.

Your Honours, we appreciate that Nagle v Rottnest Island and other cases of this Court establish that a risk of injury can give rise to a breach of duty situation, even though the activity is possible, yet unlikely.  We also recognise that a defendant must take into account the potential negligence of a plaintiff.  But, in our submission, this is a slightly different situation, namely, it is an unforeseen plaintiff and, in our submission, neither Justice Studdert nor the Court of Appeal moved to address that question.

If your Honours would then just briefly go to Justice Sheller’s judgment in the Court of Appeal.  The judgment was challenged on other grounds which I can pass over but, in short, grounds 3 and 4 which are at pages 10 and 11, contended that there was negligence “in failing to foresee the possibility that the plaintiff’s motor cycle was overtaking” or was about to overtake.  They are the two expressions in grounds 3 and 4 on pages 10 and 11.

His Honour Justice Sheller deals with this matter, at the bottom of page 18:

In my opinion, both the third and fourth grounds of appeal proceed on a misapprehension.  The facts were, as found by his Honour, that the defendant had completed turn onto the Pacific Highway safely and had begun to travel -

it is actually west rather than north.

Between the intersection and the bridge, the defendant passed the semi-trailer which was coming in the opposite direction.  Suddenly the motor cycle appeared.  The motor cycle had quite simply overtaken the semi-trailer into the on-coming traffic.

There is then a reference in the next paragraph to our submission:

that the defendant initiated the right hand turn when he believed correctly that the turn could be made so far as the semi-trailer was concerned without risk of collision with it, but when the state of traffic behind the semi-trailer was obscured so that the defendant did not know was behind it.

The conclusion, in one paragraph:

In my opinion, in the circumstances of this case, this point is simply not made out.  As I have said, his Honour found, in my opinion correctly, that the turn was made safely.  The sole cause of the collision was the decision of the motor cyclist to overtake the semi‑trailer into the on-coming traffic.

Your Honours, it is true that, on the basis of his Honour’s findings and what the Court of Appeal has said, that overtaking step commences at a stage when the defendant has completed his turn and, in effect, is proceeding west.

We would submit that neither court addressed the fact that that behaviour was due to unnecessary risk taken on the part of the defendant in moving out into a lane where it was foreseeable that the motor cycle would thereafter be overtaking within a very short space of time.

It is evident, in our submission, from the fact that no one seems to have seen each other, that there was a correlation, not only in time, but also in cause, between the movement of the defendant out from the intersection and the plaintiff commencing his overtaking and, of course, that is what is inherently likely to occur when you have a defendant failing to take proper steps to check the state of following traffic before initiating his turn.

In our submission, there is a plain causal relationship because the combined movements of each at that time, for which the defendant is partly responsible, had the effect of leaving both motorists in a state of ignorance until they were at the point of imminent collision.

Your Honours, our written submissions summarise the other matters in terms of what we argue is matters of general importance arising out of this case.  That completes my submissions, thank you.

DAWSON J:   Thank you, Mr Gross.  The Court need not trouble you, Mr Neil. 

There is no reason to doubt the correctness of the decision of the court below.  Accordingly, special leave to appeal is refused.

MR NEIL:   I ask for costs, if your Honour pleases.

DAWSON J:   Can you say anything about, Mr Gross?

MR GROSS:   No, your Honour.

DAWSON J:   It is refused with costs.

AT 9.49 AM THE MATTER WAS CONCLUDED