CATCHWORDS: TORT – Negligence – Motor vehicle accident – Standard of reasonable skill and care – Whether breached when car hit pedestrian on the road at night.
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40671/07 SC 20333/02
HODGSON JA IPP JA GYLES AJA
8 DECEMBER 2008
David HAWTHORNE v Simmone HILLCOAT
Judgment
HODGSON JA: On 6 September 2007, Latham J gave judgment for the respondent in proceedings in which the appellant had sued the respondent for damages for personal injury, arising out of a motor vehicle accident that occurred at Picton shortly after midnight on the morning of 31 July 1999. The appellant appeals from that decision.
Circumstances
The accident occurred in Argyle Street, Picton about 60 metres or thereabouts north of the intersection of Argyle Street and Lumsdaine Street.
It was clearly established that, just before the impact of the respondent’s vehicle with the appellant, the appellant was in the north-bound lane of Argyle Street, about one metre or thereabouts west of the continuous double white lines that separated the north-bound lane from the two (uphill) south-bound lanes. Although there was only one north-bound lane, there was a narrower parking lane adjacent to it.
It is also clear that there were street light poles near the western edge of the north-bound parking lane, at approximately 45 metre intervals. One pole approximately opposite the intersection with Lumsdaine Street (referred to as pole 123) had a functioning light. The next pole to the north, pole 122, had no light affixed to it. The next one to the north, pole 121, had a non-functioning light. The next one, pole 120, had a functioning light. The appellant was approximately 10 metres or thereabouts to the north of pole 122 when he was struck by the respondent’s car.
It is clear also that, prior to the accident, the respondent was travelling north along Argyle Street in her Mazda MX-5 sedan, at a speed in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Hawthorne v Hillcoat [2008] NSWCA 340
Case
[2008] NSWCA 340
Decision Date
CaseChat Overview and Summary
The appellant, Hawthorne, appealed a decision of the primary judge in a negligence claim arising from a motor vehicle accident. The respondent, Hillcoat, was the driver of the vehicle that struck the appellant, who was a pedestrian on the road at night. The central dispute concerned whether the respondent had breached the standard of reasonable skill and care expected of a driver in the circumstances.
The legal issues before the court were whether the primary judge erred in her assessment of the expert evidence, particularly that of Mr. Johnston, and whether she was correct in concluding that the respondent had not been negligent. Specifically, the court considered whether the primary judge was justified in her criticisms of Mr. Johnston's evidence regarding the point of impact and the physics of the collision, and whether the respondent's actions constituted a breach of her duty of care to the appellant.
The court dismissed the appeal, upholding the primary judge's findings. The primary judge had found the respondent's evidence credible and had been critical of Mr. Johnston's expert testimony, noting his defensive demeanour and perceived partisan approach. The primary judge accepted the evidence of the respondent's expert, Mr. Keramidas, and a police officer regarding the point of impact. The court agreed with the primary judge's assessment that, given the circumstances, including the poor lighting, the need for the respondent's eyes to adjust to changing light conditions, and potential glare from oncoming headlights, the respondent had very little time to perceive the appellant as a pedestrian and react. The primary judge concluded that the respondent had applied the brakes as soon as reasonably possible and that, thereafter, she had no means of avoiding the impact, finding that the dynamics confronting her did not allow for any other reasonable response.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
As regards point (7), neither witness was asked whether they heard any screeching of tires or skidding after the bang, so their evidence does not give significant support to a finding that there could not have been skidding for a very short time prior to the bang. Expert evidence It was submitted for the appellant that there were errors by the primary judge in reaching an adverse view of the evidence given by Mr Johnston, and not accepting that evidence, particularly in the following respects: (1)The primary judge was not justified in considering that Mr Johnston had belatedly tailored his opinion to challenge Senior Constable Bain’s evidence as to the point of impact (Judgment [51]). (2)The primary judge was not correct to say that the foundation of his opinion as to the point of impact was that the impact was a central impact (Judgment [53]). (3)The primary judge was not correct to say that Mr Johnston’s reasoning based on throw distance was circular (Judgment [55]). I note that the primary judge also said (Judgment [69]) in relation to Mr Johnston that his demeanour was at times defensive, evasive and argumentative, and that he adopted a partisan approach to the preparation of the report which was admitted into evidence after he became aware of serious deficiencies in his original report. It is not possible from the transcript to get a full impression of Mr Johnston’s demeanour; but in my opinion, the content of the transcript amply supports these views of the primary judge. To take three examples: (1)Mr Johnston’s attempt (1 Black 503LM) to minimise the importance of his earlier serious mistake as to the direction of the curve. (2)Mr Johnston’s evasion (1 Black 518) of questions concerning the omission from his report of any explanation of the divergent skid-marks. (3)Mr Johnston’s attempts (1 Black 521) to maintain that the impact by the appellant on the car was a central impact. In my opinion also, Mr Johnston’s attempt (1 Black 534) to minimise the effect on the respondent’s car of the impact of the appellant on the windscreen is damaging to his expertise. The question at lines 13 to 15, referring to absorption of energy from the pedestrian, was not aptly expressed; but in my opinion, an expert attempting to assist the court should have provided a response that was helpful and not misleading. It was correct to say there was no transfer of energy from the pedestrian to the motor vehicle: what there was, in terms of energy, was a transfer of energy from the motor vehicle to the pedestrian, resulting in a loss of kinetic energy in the motor vehicle corresponding with a slowing of the motor vehicle’s speed. It would have been more helpful and relevant to analyse the matter in terms of the forces involved: when the car applied sufficient force to accelerate the appellant from being stationary to a speed in the order of 40 to 50 kilometres per hour, Newton’s third law shows that the same force was applied in the opposite direction by the pedestrian onto the car. Accepting, as did Mr Johnston, that the appellant had about one-tenth of the mass of the car, this force would plainly be substantial. Since the major damage to the car was to the driver’s side of the windscreen, it is reasonable to infer that very substantial force was applied to this part of the windscreen.
Decision
Reasons for decision
Expert evidence was given by Mr Johnston for the appellant and Mr Keramidas for the respondent. There were differences between them, particularly concerning the visibility of the appellant to the respondent and, most importantly, the point of impact. According to Mr Johnston, the impact occurred at about the time the skid-marks began, and (accepting that the front of the car was about three metres from its rear wheels) this would put the impact about six metres north of pole 122. According to Mr Keramidas (and also according to a police officer Senior Constable Bain, who attended the scene), it was the impact that caused the car to rotate, thus putting the point of impact at about 12 metres north of pole 122. Decision of primary judge The primary judge was critical of the evidence of Mr Johnston, and accepted the evidence of Keramidas in relation to the visibility of the appellant and the point of impact. She referred to a number of cases, including Evans v Lindsay [2006] NSWCA 354, and concluded: [76]The circumstances of the instant case are of quite a different order. The defendant had no reason to think that there would be any pedestrian activity at that time of the night in Argyle St, let alone that she would encounter a pedestrian in the middle of the roadway. Accepting her evidence as I do, she was driving at an appropriate speed and was in full control of the vehicle as she approached the intersection of Argyle St with Lumsdaine St. There could be no negligence in the defendant maintaining her headlights on low beam, given that she was not challenged in respect of having passed a vehicle travelling in the opposite direction near the school in Argyle street and Ms Sheen’s vehicle approached the defendant from the south at some stage prior to impact with the plaintiff. [77]The physical conditions prevailing at the accident site are of considerable significance in assessing the range of reasonable responses available to the defendant. After the defendant negotiated the right-hand bend at Lumsdaine St, she emerged from a relatively well lit area into a dark area that extended in excess of 100 m, her headlights only illuminating the left side of the road for some distance before illuminating the road ahead where the plaintiff stood. Coupled with the need for the defendant's eyes to adjust to the changed light conditions, together with the likelihood of the disability glare produced by Ms Sheen's headlights, the defendant had little or no time within which to register that the object on the roadway was a pedestrian, before applying the brakes. [78]As the evidence of Mr Keramidas explains, at a pre-impact speed of 53 kph, the defendant was travelling at 13.7m per second, yet she had less than 35m within which to avoid impact with the plaintiff (taking the outer limits of the visibility range). A reasonable reaction time of between 1.5 and 2.5 seconds in these circumstances effectively means that the defendant had already travelled between 20.5m and 34m before she could reasonably be expected to apply the brakes. [79]Once the defendant had applied the brakes and the wheels of her vehicle had locked, the defendant had no means of changing the direction of travel. The defendant applied the brakes as soon as she was reasonably able to do and there was nothing that she could have done thereafter to avoid impact with the defendant. In other words, adopting Beazley JA's formulation in Evans v Lindsay, the dynamics confronting the defendant did not allow for any other reasonable response on the part of the defendant and I am therefore not satisfied that the plaintiff has succeeded in establishing negligence on the defendant's part.