Hawthorne v Hillcoat

[2009] HCATrans 127

[2009] HCATrans 127

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S8 of 2009

B e t w e e n -

DAVID ANTHONY HAWTHORNE

Applicant

and

SIMMONE HILLCOAT

Respondent

Application for special leave to appeal

FRENCH CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 JUNE 2009, AT 3.30 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR E.G. ROMANIUK, for the applicant.  (instructed by Farrell Lusher Solicitors)

MR P.J. DEAKIN, QC:   If the Court pleases, I appear for the respondent with MR P.J. NOLAN.  (instructed by Sparke Helmore Lawyers)

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, in Manley v Alexander the majority reasoning, particularly at paragraphs [11] and [12], moved from the particular facts that, of course, provided the decisive reasons for decision in that case to generalisations about the exigencies of driving – that is, motor vehicles – from the point of view of the common law duty, which was not disputed – that is, from the point of view of the standard, including the scope or content of the duty.

HEYDON J:   Are these propositions of law in paragraphs [11] and [12]?

MR WALKER:   No, they cannot be.  Interestingly, they are from time to time, including in intermediate courts of appeal, described as “principles”.  We would like to be able to embrace that description, but that probably also is gilding the lily.  But the fact that they are from time to time sometimes called “principles” does accord with the way in which the pronouncements of this Court in particular, but any court which is binding on trial courts in general, ought to be seen from the point of view of consistency of adjudication so as to accord with what one might expect to be the objective standard that applies in negligence – namely, the reasonable standard.

Part of that objectivity is that there will not be, as it were, a silo appearance given in relation to different decisions – namely, each depends so much on their own facts they have nothing to communicate with any other cases, let alone with the future.  That, in our submission, means that when there are generalisations, which is the word I would respectfully offer in place of the word “principle”, and certainly in place of the fallacy “principle of law”, when there are generalisations that emerge from a second appellate look at the facts of a ‑ ‑ ‑

FRENCH CJ:   I am sorry, Mr Walker; when you say “generalisations”, do you mean generalisations of factual propositions?

MR WALKER:   Yes.

FRENCH CJ:   A generalised application, if you like, of the principle.

MR WALKER:   I am trying to avoid the word “principle”, as attractive as it is to us ‑ ‑ ‑

FRENCH CJ:   I accept that you are disclaiming that this is a principle you are invoking but rather an application of the principle which has been stated in general terms.

MR WALKER:   In effect, yes.  Could I perhaps ‑ ‑ ‑

FRENCH CJ:   To borrow from an earlier application, a sort of factual precedent?

MR WALKER:   Yes.  I am not arguing for factual precedent, but I am coming very close to that.  In our submission, why this case should get special leave is that this is an immensely practical aspect of this Court’s role in the trial and intermediate courts of this country.  It is immensely practical because it does not only provide guides to how decisions ought to be reached, it also provides guidance to how cases ought to be fought and, perhaps most important of all, the iceberg underneath the tip; it provides guidance to what cases ought to be fought at all.

When one comes to a generalisation such as one finds in paragraph [11] of Manley v Alexander or the one which was at the heart of the argument that failed below in this Court, the one in paragraph [12] of Manley v Alexander, a first and reasonable view of what it is doing is that this Court is trying to say something about the particular case before it generalised in a way which of necessity from the very terms of the generalisation promises some utility in future or other cases.  Otherwise it is difficult to understand the point of the generalised language, particularly if one takes, for example, the statement in the middle of paragraph [11]:

Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger.

It does not make sense of that in the reasons of the Court if one were to add what I will call a particularising rider along the lines of “for the circumstances of this case” and then move into the generalisation.

HEYDON J:   It says, “much more often than not”.

MR WALKER:   Yes, “and much more often that not”.  That is a generalisation about what I will call a very usual case.  “And much more often that not” immediately means you are talking about not just this case but what their Honours perceived to be what I will call a run of cases but not all cases.

FRENCH CJ:   One can see the significance of the notion of reasonable attention by reference, of course, to the facts of that particular case – this is not necessarily detracting from what you are saying – where the driver was distracted, as it were, by the movement of a third party on the side of the road and then did not look to what was actually on the road.  There is no finding of primary fact or otherwise which would be supportive of relevant inattention on the part of the driver in this case?

MR WALKER:   Your Honour, the only way in which “inattention” would be a fair word to use about her conduct is by the combination of speed and limits of visibility.  In other words, combined, that amounts to the incapacity to give sufficient attention sufficiently quickly, but it would not be a natural use of language, no.  This is a case which we say, we would say, we have to say, fits within the last sentence of paragraph [12] of Manley v Alexander.

That is also a generalisation.  It is a generalisation which, like the one in paragraph [11], may well have to yield in a particular case to something quite special, but it is a generalisation precisely because, if not universally true, it is sufficiently often in the usual run true as to be a sensible and, we respectfully submit, a useful thing for courts at the top of the hierarchy to say why – not in order to import some generalised support or commendation for the particular outcome in that case, it is not to command a popular assent for the outcome in that case; it is in order to explain why the outcome of this case follows from the objective standard of reasonableness which is to be gathered from the experience of people in the relevant circumstances.

We say that is a necessarily generic approach.  If it is correct that there is something generic about these statements and they are couched in such language then the next thing to ask is was there anything unusual about the High Court speaking in that fashion?  The answer is no.  Judges in this Court have been saying matters in such generalised fashion for the whole of the last century.

The generalisation in paragraph [12] has to do with the obvious balance between the speed, which involves stopping capacity, which of course includes reaction times, and visibility, that is, commonsense says that when your stopping distance increases, such as in the rain, or your visibility decreases, such as in the dark, then, all other things being equal, the speed should decrease otherwise the risk you present to others or yourself will itself increase.

Then when one puts this case in a genus which it certainly shares with Manley, namely, the not unknown but there and then unexpected presence of a pedestrian on the carriageway, in our submission, it becomes a sensible matter for appellate courts to generalise about.  What should the courts, here acting as jurors, as a jury would in a jury case, we accept – what attitude should be taken to the case of somebody who, reacting quickly – that is, within the norm – doing the right thing, that is, braking or steering away, nonetheless in the nature of things, that is, imported by the laws of physics, cannot stop in time to avoid a collision?

The courts could either accept that as the inevitable outcome of the unfortunate conjunction of human bodies and motor cars on carriageways or, as in our submission, the Court said in paragraph [12] of Manley v Alexander, plainly as a balance, applying in effect the Shirt calculus, working out the harm that we suffered by having to slow down as opposed to the harm that is suffered when there is a collision, that the better thing is whether as a rule of thumb, whether as a generalisation, whether as a finding of what on facts like this – I stress “facts like this” – ought to be the reasoning towards application of the objective standard, something along the lines of what was said in paragraph [12] of Manley is not the case.

If it is the case then it is not to the point that of course it is not a rule of law, it is not to the point that all these cases, including every one that ever gets special leave, depend on their own facts and it is not to the point that it cannot attract the glamour of being called a principle.  It is, rather, a statement susceptible to change from time to time as circumstances may change and susceptible always to special circumstances, such as the obvious one with which we are all familiar, when the speed limit, the legal limit, is much increased because pedestrians are by and large kept off a road.  A barricaded expressway – obviously this statement in paragraph [12], whilst still true – is going to have a vastly different practical effect on permissible speed.

Your Honours, if we are correct then there are some, in our submission, inappropriate matters of comment and approach in the Court of Appeal in this case to be left as the last word in the dispute between these parties and with a more general effect, transcending the dispute between these parties in such litigation, which of course is a very common form of litigation.  The respondent, I think, has supplied a bundle of authorities and you will notice the fifth of those, Dunleavy v Peak [2009] NSWCA 72, is one in which Manley v Alexander is referred to, much in the same way as in this decision other references are made, to which I will come in just one moment.

Could I take you in the application book, please, to page 52.  In paragraph 37 your Honours will see Justice Hodgson referring to what he calls “the quoted statement” – that is the one I have made reference to – from Manley v Alexander having been “applied by this Court” in two decisions.  That is, in our respectful submission, a careful and perfectly acceptable way, with great respect, for a judge in an intermediate court of appeal to refer to the use being made in that court of statements of a generalised form, yes, albeit in a negligence action, concerning matters of this generic character – how should one drive.  It is not particular or special to individuals or individual circumstances, however much they may heighten or lower in unusual cases what would otherwise ordinarily be the case.

In our submission, there is a concern raised which ought to be the subject of further consideration on an appeal in this Court by the way in which there was gloss or strained interpretation of that statement in Manley on page 58, paragraph 47.  The second sentence of paragraph [12] is, as I say, the statement in question.

Now, his Honour read the expression “may know” as if it were the opposite of something of certainty – that is, “may” in the sense of a possibility that may not happen.  It is to be recalled the statement is:

But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know –

Obviously that is not talking about might or might not know.  It says that the driver has the capacity to know.  It is “may” in that sense.

FRENCH CJ:   It does not say the driver will know, does it?

MR WALKER:   No, it does not.

FRENCH CJ:   Of course, we are not construing a statute, we are construing words in a judgment.

MR WALKER:   No, we are not, and I ‑ ‑ ‑

HEYDON J:   On a pure question of fact.

MR WALKER:   Your Honour, yes.  It is not, with great respect, holy writ, nor is it a statute and it certainly is on a question of fact.

HEYDON J:   What is wrong with what Justice Hodgson says in the sentence, “In my opinion, the best understanding”?  Is there anything wrong with that sentence?

MR WALKER:   If that sentence were not preceded by the sentences before it there is, with great respect, nothing wrong with that, not least because it requires a standard of reasonableness to be achieved and does not talk about not knowing, as opposed to certainly knowing which is, of course, what is raised as a possibility if you mean may – that is, may or may not.  There is nothing wrong with that third sentence.  However, in the context it cannot be read in the way that, with respect, Justice Heydon has asked me to consider because it would appear that it has been suggested that you do not have to drive at a speed which will enable you to stop in time, that is, will give you the capacity to stop in time, you have to drive at a speed that may not give you that capacity.

FRENCH CJ:   The House of Lords decision, I think, which again, in a factual context, offered the fairly high ideal that if you cannot see where you are going you must not go.

MR WALKER:   Yes.  Your Honour, if one could wipe clean the slate on motor vehicle negligence it may be that there would be some things more or less startling to modern ears about the risks that are or are not acceptable, particularly in mingling pedestrians and moving vehicles but, in our submission, Manley v Alexander was not pronouncing anything startling. Certainly, that was what Mr Justice Gyles considered to be the case if one turns to application book page 60.  The comment to be drawn to attention there is what his Honour called at line 20:

the somewhat surprising importance it seems to have assumed in motor vehicle cases of this kind.

Now, if one is talking about that second sentence in paragraph [12], with great respect, it is not a bad guide, certainly, it would tend to protect people against injuries of this kind and unless and until the facts are such as to make it inappropriate in the sense of not only, presumably, illegal but also quite unlikely ever to occur for pedestrians to share carriageways then, in our submission, one would have thought it was a useful and sensible canon of behaviour.

FRENCH CJ:   You are really boiling this down to speed, are you not?  There is no question of inattention.  She had her lights properly on low beam.

MR WALKER:   It has to be, yes.

FRENCH CJ:   Speed.  So, she was travelling at 53 kilometres an hour in a 60 zone, I think, was it, at the time of impact?

MR WALKER:   Yes.

FRENCH CJ:   So, presumably, to accord with the general application of the proposition that you extract from paragraph [12] there is some lower speed which would enable her to see everything that was necessary to see or do you tailor it to the facts of this particular case, the distance from the ‑ ‑ ‑

MR WALKER:   No, it is speed.

FRENCH CJ:   Yes.

HEYDON J:   She was not asked about that, was she?

MR WALKER:   About speed?  About what lesser speed?

HEYDON J:   What ‑ ‑ ‑

MR WALKER:   The position is, she was driving at about the speed – she is familiar with this part of the road – it was lawful and she was driving at about the speed she would in daylight.  I am not quite sure what your Honour Justice Heydon is asking me she was not asked about, I am sorry.

HEYDON J:   “Madam, you may have to pay hundreds of thousands or millions of dollars to the plaintiff.  What do you say to the proposition that it is all because you were driving too fast?”

MR WALKER:   I think I can safely say there was no cross‑examination like that, your Honour.

HEYDON J:   Yes, but it is a serious matter, though.

MR WALKER:   It is, your Honour.  The question of speed was at the heart of the trial, that is, speed because that is the variable that would be fed into a constant reaction time, a decreased visibility, so the reaction time would be the same, regardless of the visibility.  The visibility means you see the object with which you might collide later than you would with better visibility.

This is not a steering away case, even if that is a theoretical possibility.  It does have to do with speed, either because stopping before the collision or steering away from the collision, safely, or at all, so that there is no question that issue was joined between the parties factually on the basis that she was driving in the circumstances at a speed that did not enable her to comply with the generalised canon of conduct which, in our submission, will in all but special cases, that is it might be said much more often or not, ought to be followed by drivers in such circumstances.

Now, your Honours, that, if there is any, is the special leave point.  This is a case which says of High Court generalisations, they have no

influence beyond an explanation retrospectively of the decision in the High Court in that case.  That, in our submission, is a serious matter worthy of attention.

FRENCH CJ:   Thank you, Mr Walker.  We will not need to hear from you, Mr Deakin.

In July 1999 in the early hours of the morning the applicant was struck by a motor vehicle driven by the respondent on Argyle Road, Picton.  The applicant was intoxicated and was walking on the road into the path of the respondent’s vehicle.  The applicant suffered severe injuries.  The respondent was driving within the speed limit.  It was not suggested that she was not keeping a proper lookout.

The applicant’s claim for damages for negligence against the respondent was dismissed by the District Court of New South Wales.  An appeal to the Court of Appeal was also dismissed.  It is said that the trial judge and the Court of Appeal failed to apply a statement of general principle about the duty of care of motor vehicle drivers enunciated by the majority in Manley v Alexander (2005) 80 ALJR 413. The judgment of the majority in Manley v Alexander enunciated no new principle departing from the general proposition that a driver has a duty to take reasonable care in relation to other road users.  The outcome in Manley v Alexander turned upon the application of that general duty to the facts of that case in which a driver, distracted by the movement of a pedestrian on the side of the road, failed to see another person lying on the road in front of the vehicle.

No question of principle is raised in this case sufficient to warrant the grant of special leave.  Special leave will be refused.  Do you seek costs, Mr Deakin?

MR DEAKIN:   We do.

FRENCH CJ:   All right, the application will be refused with costs.  The Court will adjourn to reconstitute.

AT 3.53 PM THE MATTER WAS CONCLUDED