Hair & Anor v Government Insurance Office of New South Wales

[1991] HCATrans 219

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4

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IN THE HIGH COURT OF AUSTRALIA	*
Office of the Registry

Sydney No S42 of 1991

B e t w e e n -

DAVID McCALLUM HAIR and JIMMY

HAIR PTY LIMITED

Applicants

and

GOVERNMENT INSURANCE OFFICE OF

NEW SOUTH WALES

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

GAUDRON J

Hair 1 9/8/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 AUGUST 1991, AT 10.52 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR G. INATEY, for the

applicants. (instructed by Adelsteins)

MR B.M. TOOMEY, QC:  May it please Your Honour, I appear

with my learned friend, MR R.C. TONNER, -for the

respondent. (instructed by Roslyn O'Reilly)

BRENNAN J: Yes, Mr Jackson?

MR JACKSON:  Your Honour, this is a case where it is

accepted that the subject-matter of the litigation

itself would not ordinarily attract the grant of

special leave. What is contended, however, is that

special leave should be granted because of the

manner in which the case was dealt with in the

Court of Appeal.

Your Honours, by that I mean that the Court of

Appeal took what, in our submission, is the unusual

course of interfering with the trial judge's

apportionment of liability between tortfeasors and

did so on the basis that the trial judge had
misapprehended the facts or that the result at

which he arrived was outside the range of possible

results, and the contention we would seek to make

is that the Court of Appeal's view that there was a

misapprehension by the trial judge was itself based

on that court's misapprehension of the judge's

reasons and, secondly, that in itself summarizing

the facts, the Court of Appeal, again,

misapprehended those facts and his findings and

that in consequence the decision was sufficiently

unsatisfactory for the court to entertain an appeal

from it.

Now, Your Honours, I would take a moment or

two if I may to indicate precisely the nature of

our contentions in relation to those matters and I

will do so as briefly as I can. But, may I, before

turning to that, refer Your Honours to two

decisions of the Court in which the approach to a

trial judge's apportionment has been discussed.

Your Honours should have them. The first is

A.V. Jennings Constructions Pty Limited v Maumill,

(1956) 30 ALJR 100, at page 101. Your Honours will

see the passage marked.

The second decision, Your Honours, is

Pennington v Norris, (1956) 96 CLR 10, at pages 15 to 16, and once again the passage has been marked.

BRENNAN J: Well, there is another case of Watt v Brettag,

as I remember?

MR JACKSON:  Yes, Your Honour. Your Honour, what emerges from the cases are that appeals against

Hair 2 9/8/91

apportionment have two features, in effect: one is

that they are akin to appeals from the exercise of

a discretion; the second is that, accordingly,
they are relatively rarely successful.

Your Honours, may I go very briefly· to the findings of the primary judge which are material?

Your Honours, the basic facts were of the simplest

kind. A school bus had been at the side of the

Newell Highway and facing south. It was stationary

to pick up children. Our vehicle was a car transporter travelling also south along the

highway.	The bus moved out on to the highway in
front of the car transporter.	The two vehicles

collided with part of the transporter hitting about two feet of the driver's side corner of the rear of

the bus.

The collision gave rise to 11 actions in the

district court and a number of actions in the

supreme court. That appears, Your Honours, at

page 48, paragraph 5. The particular proceedings

were to determine the respective levels of

negligence applicable, of course, for all those

cases. That appears at page 46, paragraph 3.

The trial judge found that the bus driver was

75 per cent to blame and the truck driver,

25 per cent to blame. Those findings, on the facts

to which I have so adverted, Your Honours, would

seem hardly unusual and would seem to be of the
most ordinary kind. But in the Court of Appeal the

findings were reversed so that 75 became our

responsibility and 25 per cent, the other side.

Your Honours, could I go then to the reasons

in the judgment of the trial judge. At the bottom

of page 1, line 29, the general nature of the

accident is referred to. Your Honours will see at

the top of the next page his finding as to the

speed of our vehicle.	Now, Your Honours, the
passage goes on to the bottom of page 3, and may I

ask Your Honours to note particularly that the trial judge declined to make a precise finding about the location of the bus when stopped in

relation to the fog line. That is the white line

on the left-hand side of the road. Your Honours,

that appears from page 2, line 13. His Honour

refers to there being:

a considerable amount of evidence devoted to

enabling me to determine -

et cetera. He refers to the witnesses, and then at

the top of the next page, in line 3, he says:

Doing as best I can -

Hair 3 9/8/91

he is -

not satisfied that any one particular location

is any more preferable to any other particular

location as sworn to by any of the witnesses.

The long and the short of it, of cGurse, is

that the bus was parked partly on the road and

partly -

on the highway.

Your Honours, he then, at page 4, refers to the basic elements constituting what he regarded as

the negligence of the parties. That appears - - -

BRENNAN J:  What does that mean, that part that you have

just referred to on page 3, that that is where it

was parked. It does not mean that is where the

collision took place but that is where the bus had

been parked. Is that the situation?

MR JACKSON:	I am sorry, Your Honour, the point to which I was referring was where His Honour declined to make
a finding about the point at which the bus had been
stopped. Now, what I mean by that, Your Honour, is that the road was one that had on both sides fog
lines and he was saying there was evidence from
various witnesses about where precisely the
driver's side of the bus was - driver's side wheels
were, in effect: were they on the fog line, on the
gravel side of it, or on the bitumen side of it, in
effect, and he said that there was evidence from a
number of witnesses and he was not satisfied that
any one particular location was more preferable than any other one and goes on to say:

The long and the short of it -

The reason why I have referred to that,

Your Honour, is that the Court of Appeal appears to

have adopted a precise location for the bus,

about it, or notwithstanding the judge made that notwithstanding the judge did not make a finding finding.

Your Honours, at page 4, commencing at

line 13, His Honour referred to the basic element

of negligence on the part of the bus driver, that

is:

negligent in moving off before the truck had

passed him and ..... negligent ..... in moving

west -

that is, on to the roadway -

Hair 4 9/8/91

as well as forward in the process of moving

off from the position from where he picked up

the two children.

Then on the next line he refers to the negligence on our part.

Now, Your Honours, at the bottom of page 4 he

said that the apportionment exercise was:

not so much to do with where the accident

occurred on the roadway -

and speaking in the context of where the point of

impact was -

as why it happened on the roadway.

And he said he had indicated why it happened.

He proceeded to deal with his finding about

the manner in which the accident happened in more

detail at page 6, commencing at line 13, and

Your Honours will see a passage which His Honour

appears to have adopted, where the bus driver said,

between lines 15 and 28, what happened and, in

particular, about line 22:

As I was moving out I looked in my rear-vision

mirror and I saw this truck coming and he was

coming straight on to the back of me.

And he gives the version of the truck driver at the

bottom of the same page and appears to adopt that

also, Your Honours.

Your Honours, if one goes then to the core finding which was made by the primary judge, it

appears at page 7, commencing at about line 20,

where he said:

I find it would have been safer for him to

look in the rear-vision mirror first before he

had started to move the bus forward.

And Your Honours will see that he goes on to deal
with that towards the bottom of the page and over

to the end of the same paragraph on the next page

about line 12. Your Honours, at page 8, line 19,

going through to page 9, line 10, he takes into

account the nature of the vehicle that our driver

was driving and in the end he arrives at the

apportionment to which he came at page 10, line 13.

Now, Your Honours, in the Court of Appeal

there was one set of reasons for judgment, those of

Hair 5 9/8/91

Mr Justice Handley. At page 21, commencing at

line 19, His Honour said:

The bus driver pulled off the carriageway -

and he then, Your Honours, on that page,·proceeds

to treat it, in effect, as a fact something which

was a finding that the judge had not made and, in

fact, declined to make below. But he then

proceeds, Your Honours, at page 25 at about line 12

to deal with the negligence of the bus driver.	He
says:

While the bus driver was negligent in failing

to look carefully and then not waiting for the

truck to pass or, at least, not moving any

further onto the carriageway, the bus driver,

not unnaturally, thought that the truck driver

would see the bus and move over to give

himself plenty of room and so drive past with

complete safety.

Your Honours, if I could say just about that one

thing: the first is that there is no finding by the primary judge in terms of that passage. The

second thing is that whilst it is true to say that

the bus driver gave some evidence to that effect,
the passage in the findings of the primary judge

that I have referred Your Honours to already at

page 6, line 13, through to page 8, line 1, where

he found that the bus driver looked in his

rear-vision mirror at the time he moved on the

road, seems inconsistent with it.

BRENNAN J: Well, that is a fact problem, is it not?

MR JACKSON:  Yes, Your Honour, it is, but I really wanted to

say that by introduction to the next matter which

lies at the heart of the case and that is this,

that Your Honours will then see the reasons of the

Court of Appeal proceeding at line 18 through on to

the next page and Their Honours set out what had

been said by the primary judge and Your Honours

will see that he said at the bottom of page 25, the

greater responsibility was with the bus driver and,

at the top of the next page:

he had ..... in the palm of his hand the ability

to avoid the accident. There would have been

nothing more than at most, a one or two second

delay on the versions of all concerned, an

extremely short time frame, in which he could

have behaved differently -

Now, Your Honours will see at page 26 in the

passage immediately following that that

Their Honours refer to the fact the bus driver

Hair 6 9/8/91

could have avoided the accident by waiting for the

truck to pass but they then, at about line 14,

construe, in effect, the findings of the primary

judge. They say:

However stopping the bus one or twq. seconds

before the collision would not have avoided

the accident because during those further
seconds the bus would have travelled only a

tiny distance onto the carriageway and much

less than the two feet or thereabouts of the

rear of the bus which was struck by the truck.

Now, Your Honours, may we say several things about

that? The first is that the evaluation of the

responsibility of the parties depends very much on

the impression formed by the judge of the witnesses

and of their evidence and, Your Honours, it is not

entirely clear, in our submission, if one looks at

the passage from the primary judge's reasons for

judgment whether the trial judge was, indeed,

intending to be in any way mathematically precise

when he used the expression "one or two seconds" or
whether he was simply using the expression as

synonymous with the words which follow, "an

extremely short time frame".

Now, Your Honours, if he was using them with

mathematical precision, then one would think that

he was referring to the time involved that it would

have taken the truck driver to travel the hundred

feet from where the bus first veered on to the

road, which would take about one and a half seconds

at the speed that was found to have been the

relevant speed.

But what is apparent, in our submission, is

the trial judge was simply saying, if one looks at
the particular passage extracted, that it lay in

the hands of the bus driver not to create the

situation of danger. And, Your Honours, I

mentioned a moment ago that the evaluation of the

responsibility depended very much on the impression

of the judge of the witnesses and of their

evidence. Your Honours, that that is so, I would

seek to demonstrate very briefly, by taking

Your Honours to some passages in the evidence. It

is not repeated in the application book but which

Your Honours will have a copy of the evidence.

BRENNAN J:	Mr Jackson, what is the point which you are seeking to make in this respect?
MR JACKSON:	The point I am seeking to make in the

particular respect, Your Honours, putting it

generally, that what the Court of Appeal did was to

treat the primary judge as having engaged in some

Hair 9/8/91

kind of mathematical exercise whereby he said the

vehicle could have, if it was moving, been stopped

and there would have been only a one or two second

delay. All that the primary judge was saying, as

we would submit is apparent, is that he was dealing

with a case where a vehicle had come on to the

roadway in front of a vehicle that was coming on it

and he said all that had to happen was that the

driver either had to wait for the vehicle to go by

or he had to stop and then wait for the vehicle to

go by if he was moving.

BRENNAN J:  Be it so. Then the Court of Appeal has

misconceived the finding of the trial judge in the

light of all the evidence that obviously the Court

of Appeal had regard to. Well now, where does that

leave you in this application?

MR JACKSON: Well, Your Honour, it leaves us in this way.

We do not suggest, in the first place, as I said earlier, that the factual issues themselves are such as would merit special leave, of course they do not. But having said that, the Court then has

to consider whether the extent to which there was a

misapprehension by the Court of Appeal makes it

appropriate for the Court to entertain the

particular case. Now, Your Honour, that is on the

grounds of the interest of justice in the

particular case.

Now, Your Honours, it is possible, I suppose,

to convert it to a case in which one says, "Well,

the question is what is the test? Did the Court of Appeal adopt the correct test?". The tests are well

enough established, of course. So, Your Honours,

that is the point with which I am dealing. This is

a case that is - - -

BRENNAN J: So, it is a miscarriage of justice case?

MR JACKSON:	Yes, Your Honour.
BRENNAN J: It is not a general question of principle case?
MR JACKSON:	Your Honour, I do not think I have ever said

that, with respect.

BRENNAN J: Very well.

MR JACKSON: So, that is the point with which I deal. So,

what I want to do, Your Honours, is simply this, to

say that if one is dealing with the question of the

apportionment by the trial judge, apportionment is

not a thing that just depends on reading, in

effect, the transcript afterwards. The extent to

which there is an air of danger or risk may depend,

as it did in the present case, upon an appreciation

Hair 9/8/91

of the witnesses in the particular case, and what I

was going to do, Your Honour, was to refer

Your Honours to three passages in the evidence

given by the applicant with a view to indicating

that they were passages on which the trial judge

might well have relied in arriving at his

assessment.

Your Honours, I wonder if I might proceed to

do that? Your Honours, they commence at page lOOJ

through to page 101R and, Your Honours, that sets

out the appreciation of the matter which the

applicant had, that is, at 100T:

bus was stationary ..... The passenger side

tyres were off on the gravel -

and then, Your Honours, 101J:

the bus veered out -

when he was about 100 feet away from the rear of

it. Your Honours, page 107W to 108Q. What is

apparent, Your Honours, is that the applicant was

faced with a situation or the judge was entitled to

take the view, the applicant was faced with a

situation which suddenly occurred when he was only

100 feet away from it. And finally, Your Honours,

page 109W through to llOG. So if I could come back

from that, Your Honours, to page 26 of the record

when, at line 14, the Court of Appeal said:

However stopping the bus one or two seconds

before the collision would not have avoided the
accident because during those further seconds

the bus would have travelled -

et cetera, misapprehending, in our submission,

what the judge had said, and that was the judge was

really directing his attention to the fact the

vehicle was only 100 feet away from it and there

was only one or two seconds necessary to wait to let it go by. So we would submit the Court of

Appeal was wrong to say the judge had mistaken the

facts.

Your Honours, the second basis adopted by the

Court of Appeal appears at page 26, about line 25.

We would simply put it this way: why, we would

submit, could it possibly be said that an

apportionment of three-quarters in favour of the

driver in front of whom a vehicle pulled out could

be said to be outside the facts or outside the

possibilities? It is just one of those things that

happens, Your Honours, and it is a matter for the

trial judge.

Hair 9 9/8/91

Your Honours, finally, we would submit that in

the light of those things this is a matter which
does merit special leave and, of course, the

amounts involved are not trivial. That appears at

page 49 paragraph 6 subparagraph (vi).

Your Honours, those are our submissions.

BRENNAN J: Yes, Mr Toomey.

MR TOOMEY:  Your Honours, we did not come prepared to argue

the facts, but may I just take you, since my
learned friend has provided you with facts, to a
couple of crucial matters which have not been

mentioned and these are in the evidence of the

applicant.	Your Honours will remember he was
driving a heavy semitrailer.	He came round a bend

500 metres before the point at which a bus was

parked on a road which was about 9 metres wide,
1.2 metres from the edge to a white fog line,

6.7 metres from that fog line to the fog line on

the other side, and then another 1.2 metres. So

that is just over 9 metres the total width of the

road, 30 feet.

The finding of the trial judge was that there

was a flat uninterrupted view for some two to three

kilometres from the bend and there was no traffic

on it. In other words, available to the truck

driver was whatever part of that 30 feet of bitumen

was not being occupied by the bus.

Can I now read you some short passages of

evidence from the applicant's evidence. At

page 105S it was put to him in cross-examination:

Q. If the bus had not moved at all and your

vehicle had gone past it ..... I am suggesting

to you that you intended to give six to ten

inches of clearance between your vehicle and

the bus. Is that correct? A. My mirrors

might have hit if I kept the same course, is

that what you say?

Q. Yes? A. Yes.

Q. There would have been about	a six to ten
inch clearance between yourself	and the bus at
the line you were driving? A.	Yes, or a bit

more. If I kept going?

Q. If you kept going in the line you were

going and the bus remained stationary, the

clearance distance between your vehicle and

the bus would have been six to ten inches, is

that correct? A. Yes.

Hair 10 9/8/91

So this man is driving this heavily laden truck

along a road towards a bus which His Honour finds

has a three to four feet sign on it saying "School

Bus" at 8.30 in the morning on a road near a town

and he intends to pass six to ten inches from it.

Then at page 107J:

Q. Do you have any recollection now how far

the bus moved from the first time you saw it

move to when the collision took place? A.	I
can't honestly say, no.

Q. It was a short distance? A. Yes, a short

distance.	He was only going slow, yeah.
Q.	Would it be fair to say he was doing about
two to three miles an hour? A.	Yes.
Q. It was approximately -

and then there is some slightly unclear examination

and then, at letter R:

Q. The 100 feet is correct; he was 100 feet

away when he first saw the bus move.

HIS HONOUR:  Q. Is that what you understood

him to mean? A.	Yes, that's what I
understood.

MR TONNER:  Q. When you first saw the bus

commence to move forward you did not change

your line of driving, did you?	You stayed on
the same course, didn't you? A.	Yes.

In other words, the bus is moving into his line of driving and view and he continues in the same line.

At page 108F, the crucial piece of evidence on

behalf of the applicant:

Q.	What I suggest to you is that when the bus
first started to move you were about 100 feet
away from it, is that correct? A.	Yes.

Q. That movement was a forward movement; the

initial movement, it was driving forward?	A.
Yes, and out.
Q.	How far do you say that it moved out onto

the road:	A.	A couple of feet over the fog
line.

Q. And that is the side of the bus which

moved a couple of feet over the fog line? A.

Yes, towards the centre of the road.

Hair 11 9/8/91

BRENNAN J:  We need not trouble you any further, Mr Toomey.

Mr Jackson.

MR JACKSON:  Your Honours, may I just say one thing in

relation to all that. It omits what appears at

page 114D and that is, at the top of the-page, the

applicant was asked:

Q. I suggest that if the bus had not moved

your plan was to continue at that speed in the

direction you were in order to go past the

bus? A. I would have moved towards the

centre line.

But, Your Honours, could I also say that it is

perfectly apparent, if one looks at the bottom of

page 8 and the top of page 9 that the trial judge

weighed that evidence and took a particular view

of it. There was nothing to suggest he was wrong.

BRENNAN J: Thank you, Mr Jackson.

This application was founded on the argument

that the judgment of the Court of Appeal so

misconceived the findings of fact made by the trial

judge and found facts so much at variance with the

findings made by the trial judge that the case is one which, in the interests of the administration of justice in the particular case, warrants the

grant of special leave. The dividing line between

a case which involves no more than a doubtful and
disputed set of facts on the one hand and a case

where the administration of justice requires the

intervention of this Court on a question of fact on

the other cannot be defined a priori, but this case

does not fall into the latter category.

Accordingly, special leave is refused.

MR TOOMEY:	May we have our costs, Your Honour?
BRENNAN J: Refused with costs.

AT 11.22 AM THE MATTER WAS ADJOURNED SINE DIE

Hair 12 9/8/91