Hawes v Cook

[2003] HCATrans 614

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S203 of 2002

B e t w e e n -

ALLAN LESLIE HAWES

Applicant

and

BRIAN JAMES COOK

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 MARCH 2003, AT 11.06 AM

Copyright in the High Court of Australia

MS S. NORTON, SC:   If the Court pleases, I appear with my learned friend, MR R.A. SMITH, who seems to be in absentia.  (instructed by Andrew Fegent & Company)

MR J.D. HISLOP, QC:   May it please the Court, I appear with my learned friend, MR G.J. BELLEW, for the respondent.  (instructed by Blake Dawson Waldron)

GLEESON CJ:   Thank you.  I am sure he wishes you every success.

MS NORTON:   I think he did that last night in a call.

GLEESON CJ:   He will ring you up later to find out how you got on too. 

MS NORTON:   Yes, he is one of those juniors, your Honour.

GLEESON CJ:   Yes.  Do you need an extension of time?

MS NORTON:   It depends on when you take the date of the judgment from.

GLEESON CJ:   Is it opposed, Mr Hislop?

MR HISLOP:   No, it is not opposed, your Honour.

GLEESON CJ:   All right, if you need one, you have one.

MS NORTON:   Thank you.

GLEESON CJ:   Yes.

MS NORTON:   Your Honours are probably aware this is an appeal from a decision of the Court of Appeal of New South Wales overturning an apportionment of contributory negligence made by a trial judge, Judge Goldring.  Now, when I examined the application book, the wrong judgment of Judge Goldring had been placed in the book, but I ‑ ‑ ‑

GUMMOW J:   We now have the right one.

MS NORTON:   Thank you, your Honours.  I was hoping it had got there.  There is nothing particularly special about his appeal, similar to what was said by Judges of the High Court in the matter of Liftronic.  Justices Gummow and Callinan said that there is no point of principle involved in this particular appeal, but it is one where we say, similar to in the Liftronic Case, it requires the intervention of this Court to correct an impermissible interference by the Court of Appeal of New South Wales with an entirely reasonable apportionment of fault, not by a properly instructed jury, but by a judge who has given a judgment touching on all the relevant issues. 

The case of Liftronic was cited before the Court of Appeal and it was distinguished by Justice Hodgson on the basis that Liftronic applied to a jury appeal and not to a judge appeal.  He does that at page 19 of the judgment at paragraph 17 where he says:

This case is different from Podrebersek and Liftronic, which related to jury verdicts returned after adequate directions, whereas this is a judge’s assessment unsupported by reasons. 

As pointed in the written submissions, we say that is wrong on a number of bases, first, because in the earlier case of Podrebersek the High Court and the Court of Appeal accepted that the jury had not been properly instructed in that particular case and although Liftronic does relate to a jury case, when the judgment is read, that is not a point that is central to the reasoning of the Court in the matter of Liftronic.

The present situation in New South Wales, therefore, is that there is this decision of the Court of Appeal which says the earlier authorities about the interference by an appellate court in a decision apportioning liability will depend on whether the matter comes from a jury or from a trial judge.  In our submission, that is not obvious from a reading of the various decisions of the High Court which have come down in favour of not disturbing such verdicts. 

If that is to be the case, then given that an increasing number of trials, particularly in New South Wales, are dealt with without juries, then the situation will be that the principles that underlie the earlier cases where the High Court has said you should not interfere with these things will be set aside unless it is made clear to intermediate appellate courts that either the same principles apply to jury verdicts and non-jury verdicts or that different principles do, in fact, apply.

There is a more recent decision of the Court of Appeal which my learned junior, who is now here, has turned up where Justice Meagher sitting on the New South Wales Court of Appeal reached a decision emphasising that it appeared to make no difference whether the trial came from a verdict of a jury or a verdict of a judge.  Now, I have not sent up a copy of that judgment because it is just another judgment from the Court of Appeal.

GLEESON CJ:   I wonder, Ms Norton, whether all that Justice Hodgson meant in relation to the difference as appears from page 19, paragraphs 16 and 17, is that there is at least this practical difference in the case of a jury that they do not give reasoned decisions and so, in a sense, an appellant from a judge always has that advantage.  Now, the real ground of the decision in this case, as I would understand it, is disclosed in the first sentence in paragraph 16.

MS NORTON:   Yes, your Honour.  The submission is that if you just read that sentence itself:

However, in my opinion the apportionment was so unreasonable as to disclose error.

Now, there is no doubt that what Justice Hodgson is doing there is putting his own opinion in the place of the opinion of the trial judge and his reason for doing this, he says, is because the trial judge did not give reasons for his apportionment of liability in contributory negligence.  That is not correct because what the trial judge did was give one series of reasons on the question of contribution and negligence on the part of the driver of the vehicle.  Therefore, they are not set out, “These are the reasons for finding negligence on behalf of the driver and these are the reasons for the apportionment.”  He simply sets out the relevant findings on the negligence of both the driver and then the pedestrian and decides that it is 50/50. 

We say even if the Court of Appeal does have some power to intervene in decisions which divide up negligence and contributory negligence, this was not a case where they should have done so because the trial judge did give reasons which the Court of Appeal accepted ‑ ‑ ‑

GLEESON CJ:   Just where do we find those reasons, Ms Norton?

MS NORTON:   In the additional documents that I handed up or had sent over, sorry. 

GLEESON CJ:   Thank you.

MS NORTON:   The judgment of the District Court judge should be the first document there.

GLEESON CJ:   Yes, 5 July 2001.

MS NORTON:   That is correct, 5 July 2001.  If you go to page 3 – there are two pages on each page.  Page 2 is the bigger number of the right-hand side of the page.  This is where he starts his discussion of the different negligence on behalf of each party:

In any event, the defendant, Mr Cook, who was a self-employed courier at the time, was driving his van north along George Street, as he normally did about this time of the morning.  He was quite frank.  He was familiar with the area and the Central Business District.

That is of relevance and then he goes through the different evidence given by Mr Cook to that given by the plaintiff and accepts the evidence of Mr Cook, supported as it was by other witnesses.

GUMMOW J:   What time of day was it?

MS NORTON:   About 9 o’clock in the morning.

GUMMOW J:   Yes.

MS NORTON:   Every page seems to have 2 on the bottom of it, so I will read the numbers in the middle.

GLEESON CJ:   Yes.

MS NORTON:   Then we get down to page 4 and he is talking of the other witnesses and then the plaintiff’s evidence is at page 5.

GLEESON CJ:   Was the plaintiff in a pedestrian crossing?

MS NORTON:   The plaintiff was either on or near the pedestrian crossing.  It could have been slightly north of the crossing but it was very close to it.

GUMMOW J:   He was colour blind too.

MS NORTON:   He is colour blind.

The plaintiff gave evidence that he is, and has always been, colour blind, and is unable to distinguish between red and green.  It is, therefore, not difficult for me to find on the balance of probabilities, as I do, that, at the time, the lights were against the plaintiff and that he crossed ‑ ‑ ‑

GLEESON CJ:   A walk through the city must be a pretty interesting experience for him.

MS NORTON:   It would make life more difficult, there is no doubt about it.  There are a few barristers I know who have the same problem, but they have to be very careful when they drive.  You can correct it, but you have to be concentrating all the time –

he crossed the road while there a red “Don’t walk” sign facing him.

GUMMOW J:   Anyhow, the judge said that, if you go to page 8 last line:

Knowing that he was colour blind, he should have worked out some way of dealing with the situation ‑ ‑ ‑

MS NORTON:   Yes.  Now, the trial judge formed the opinion that the driver of the motor vehicle who was driving at an acknowledged 50 kilometres an hour was driving too fast.  That is at page 6 at the top of the page at about point E.  Then the next paragraph down:

The defendant’s evidence was that he was driving and that he saw something . . . that he knew was that he had collided with the plaintiff –

So there was also evidence which the Court of Appeal picks up when it is making its determination on the question of primary negligence that the negligence on behalf of the driver was basically he was going 50 kilometres an hour down George Street at 9 o’clock in the morning when he knows that pedestrians cross against the lights and, even if he does not know, he ought to know, anyone who drives regularly through Sydney must know it.

GLEESON CJ:   He is a courier.

MS NORTON:   He is a courier and there is a dispute in the application books about whether he actually gave evidence that he did know and there is a page reference where he says people dart out all the time, so, in my submission, he did know; but, in any event, he ought to know about what happens.  He sees something out of the left-hand corner of his eye, he sees something move, he does not stop then or slow down then, he waits another couple of seconds until he realises it is a pedestrian.  Now, the Court of Appeal said he should have started to slow down as soon as he saw something move out on his left and that would seem to be reasonable.  Although he was driving with a bull-bar on his car, it was really unlikely to be anything other than a pedestrian moving out suddenly from the left.

GUMMOW J:   We are talking about the difference between 50 and 75, are we not?

MS NORTON:   No, your Honour.

GLEESON CJ:   In the percentages.

MS NORTON:   Yes, sorry, I thought you were talking about – yes, the trial judge found it 50/50 and the Court of Appeal intervened to make it 75/25 which had a number of flow-on consequences.  But the Court of Appeal accepted that the trial judge was correct in finding that the defendant was going too fast, that he did not slow down immediately he saw something to his left and that, given that he was driving in an area where he was familiar with the habit of pedestrians in crossing against the lights, he was not paying enough attention. 

The plaintiff’s negligence, the pedestrian’s negligence, was in crossing against the lights and, as pointed out in Pennington v Norris, what you have is a driver who owes a duty of care and if he breaches that duty of care can cause serious damage to a number of people, particularly pedestrians.  What the pedestrian has done in this case, he has breached his duty of care to himself, he has been careless.

GLEESON CJ:   But, as I think they also pointed out in Pennington, in a situation where the capacity of the driver to cause harm is much greater, yes.

MS NORTON:   Is much greater, yes.  So although we are not saying that there is any absolute rule of law that you can never intervene in an apportionment of contributory negligence, in this case not only did they intervene, but they intervened incorrectly because the 50/50 finding of the trial judge was perfectly open and it was, in our submission, correct if you bear in mind the different responsibilities of drivers versus pedestrians.  The Court of Appeal, the main judgment is Justice Hodgson and in that paragraph your Honour took me to, at paragraph 16, he says the appellant’s negligence was:

a small and momentary lapse from that high standard.  On the other hand, the respondent moved quickly across the road, against the traffic lights, without looking for traffic, in circumstances where there were no other pedestrians on the crossing but were other pedestrians waiting at the kerb.

The negligence, in essence, of both the driver and the pedestrian are very much the same.  They are both momentary things.  The pedestrian momentarily crosses without properly looking for cars that will come into his path and the driver drives around at 50 kilometres an hour in what would be one of the busiest streets in Sydney at one of the busiest times of the day.

GLEESON CJ:   Where is the key part of Justice Hodgson’s reasoning?

MS NORTON:   Page 19 of the application book, paragraph 16.

GLEESON CJ:   Thank you.

MS NORTON:   At the bottom of that paragraph he concludes:

The respondent’s –

which was the applicant down below –

responsibility for the accident was substantially greater than the appellant’s.

What he is looking at is responsibility for the two things coming into contact with each other, rather than taking any account of the different duties that a pedestrian versus a driver has.

GLEESON CJ:   How old was your client?

MS NORTON:   He was 38, I think.  He was not a young person or an old person.

GLEESON CJ:   That is all I was trying to find out.  I did not want to get too precise about what those terms mean.

MS NORTON:   Middle aged, your Honour.  That is the main thrust of the appeal.  The part of the transcript where – the part in my written submissions where I said the driver was aware of the propensity of pedestrians to dash across the road, was on 20 June 2001, when he was asked a question by my learned junior, “When you first saw Mr Hawes to your far left, you didn’t form a view at that stage that it possibly could have been a pedestrian?”  “There is always a possibility of that when you are driving in the city” was the answer.  “At that stage you didn’t consider putting your foot on the brakes to decrease speed?”  “My foot was hovering on the brakes.  Until you recognise something you don’t act.” 

So, in my submission, not only ought the driver have known about the propensity of pedestrians in Sydney to cross against lights, but, in fact, as a professional driver he has admitted that he did know that and that, in those circumstances, he is the one driving not only a car, but some kind of delivery van with a bull-bar that can cause serious damage to any pedestrian that it hits or, indeed, any other car that it hits and, in those circumstances, driving 50 kilometres an hour – the Court of Appeal and the trial judge were both right, 50 kilometres an hour is far too fast and, if you are driving at that speed, you have to react immediately to anything untoward that you see.  In those circumstances, the trial judge’s apportionment of 50/50 was not only open but, in our submission, the correct apportionment.

On the reasoning in Pennington v Norris, the really old case, the pedestrian was found to be even less at fault than that in reasonably similar circumstances.  The Court of Appeal, in my submission, although it said, “We accept that drivers have a high responsibility”, they have not really applied that high responsibility when balancing the negligence of the driver and the contributory negligence of the pedestrian.

Your Honours, the other two points which are raised in the appeal again deal with relatively small matters, whether one should reassess non‑economic loss under the Motor Accidents Act whenever there is appeal.  There is a decision of the Court of Appeal in the matter of Marsland which I sent up.  There is in fact about three Marsland judgments but on two occasions they did that.  In this case they have not done it.  It is true they were not reminded during the running of the appeal that that is what should be done, but when it became obvious they had not done it and submissions were made on costs, they were asked to correct that under the slip rule and the only reason for not doing so was that the application was made too late.  But it was only made after the error was made.  It was not made – otherwise the submission would have had to have been made to remind them to do something that one would assume they would do anyway.

Then the final point is on the offers of compromise and they are relatively specific legislation to New South Wales and are not perhaps of much special interest to the rest of the country. But the major point is the question of redividing contributory negligence. In the submissions made by my learned friend, it is suggested that section 75A of the Supreme Court Act, in effect, ousts the gravitas of the decisions of this Court in cases like Liftronic, Pennington and Podrebersek and, in my submission, that is not true. They remain good law and the law is, even though the court has the powers under section 75A, they should only be exercised where it is clear that something has seriously gone wrong either in the jury trial or in the judge trial that took place.

The intervention is not permissible just to change percentages to a percentage that personally appeals to whichever judge is sitting on the Court of Appeal.  Otherwise, as you can see even in this judgment, two of the judges say 75/25, one says 80/20.  The reason behind the rule is that these things are so subjective and so likely to differ in percentages from whoever is deciding them that the Act itself gives that power to make that decision to the trial judge or jury and that is where it should remain unless it is obviously wrong.  The changing of 50/50 to 75/25 is, one, wrong, and, two, not sufficient a change to justify the interference in any event.  Those are my submissions.

GLEESON CJ:   We do not need to hear you, Mr Hislop.

The Court is of the view that this case does not raise an issue suitable for a grant of special leave to appeal and that the interests of justice do not require such a grant.  The application is refused with costs.

We will adjourn for a short time to reconstitute.

AT 11.26 AM THE MATTER WAS CONCLUDED