Hennessey v House

[1991] HCATrans 222

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pl7 of 1991

B e t w e e n -

ROBERT IAN GORDON HENNESSEY

Applicant

and

WALTER DAVID HOUSE

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA ON FRIDAY, 9 AUGUST 1991, AT 1.05 PM

Copyright in the High Court of Australia

Hennessey 1 9/8/91

MR E.M. HEENAN, OC:  May it please Your Honours, I appear

with my learned friend, MR P. NISBET, for the

applicant. (instructed by Chris Phillips)

MR P.R. MOMBER, May it please the Court, I appear for the

respondent. (instructed by Jackson McDonald)

MASON CJ:  Yes, Mr Heenan.

MR HEENAN: Your Honours, this was the case of a collision

between a motor cycle and the Holden Kingswood

sedan ..... side of the hill in Fremantle.

MASON CJ: Yes.

MR HEENAN:  It is a conventional enough motor vehicle

accident case but its distinguishing feature is

that it occurred on a deceptively dangerous stretch

of suburban road. We certainly do not want to

trouble Your Honours in any detail with the facts

of the case but we have put in some photographs and

a plan and we just ask Your Honours to glance for a

few seconds at those to set the scene.

At the back of that supplementary booklet is

an enlarged plan, an exhibit which was tendered at

the trial. Only the area within the large black margin of that plan was an actual exhibit at the trial but we have taken the liberty of showing the

prolongation of the street in the lot of material

about oral evidence.	Your Honours will see the
compass direction north.	The respondent was

travelling in his Holden sedan south, that is from

the left to the right of the page, and the

applicant was driving his motor cycle north, that

is from right to left of the page. He came over

the crest of the hill and the accident occurred a
very short distance to the south of the chicane

which is at the left-hand margin of the black

diagram.

Your Honours will see in the colour

photographs the general topography of the area.

The first photograph shows the southern side of the

hill; that is, the area traversed by the applicant

before he came to the crest and before the

collision occurred.

The second and third photographs show the view

from the crest looking north. And that is the view

which confronted the applicant as he came over the

hill, and the chicane is just in that ground in

front of the oncoming car. One can see a zebra
sign showing the narrowing of the road; that is

the third photograph.

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The fourth photograph shows a close-up of the vehicle passing through the chicane and its narrow width. And the sixth and seventh photographs show

the view of the hill looking south from the
direction of approach of the respondent. That is

the scene and that is the only use we make of those

materials.

Now, Your Honours, we have a written outline

of submissions. I trust that that has reached

Your Honours successfully.

MASON CJ: Yes, it has, Mr Heenan.

MR HEENAN:  Now, before the district court the only matter

in issue was the question of liability for

negligence as a preliminary issue.	Damages were
not in question.	The result of the trial was that

the learned judge was satisfied that there was no

negligence and the claim was dismissed. That claim

was confirmed on appeal, and we say that that is a
wrong decision and that this was a case which, in all probability, called for an apportionment, and

probably an apportionment of 50/50 between the two

drivers.

The significant facts are set out very briefly

in paragraph 1 of our outline. Collision occurred

on a Saturday afternoon at 4 pm. The crest of the

hill is about 50 metres south of the nearest part

of the chicane. At the time the applicant reached

the crest of the hill, going north, the

respondent's Kingswood sedan was only a short

distance - about 10 or 20 metres - north of the

chicane, and was lined up to go through it. The

respondent had the right of way and, at this time

the applicant's speed coming over the crest was

about 50 to 60 kilometres per hour - that is within

the conventional speed limit - and the applicant,

seeing the respondent's vehicle, believed that

there was sufficient time for it to negotiate the

chicane and for him to pass through it afterwards.

The chicane caused a constriction in the

roadway, and the dimensions are given there. It is

quite obvious from the plan. The direction of the slant of the chicane meant that a vehicle entering it from either direction was forced to move well

into the centre of the roadway and, hence, any car

passing through the chicane would necessarily be

well over an imaginary centre line.

Next, the station sedan stopped, or slowed

rapidly, shortly before the north of the chicane,
partly over the centre of the carriageway,

substantially blocking the applicant's path. That

is a critical finding made by His Honour at first

Hennessey 3 9/8/91

instance. It was challenged in the Full Court,

confirmed, and we now accept it.

The respondent saw the motor cycle approaching

before he stopped, and as soon as the applicant

noticed the respondent's vehicle unexpectedly

slowing and stopping he applied his brakes, and at

about this point was half-way down the incline.	He
braked as hard as he could but was unable to stop, so he tried to steer his motor cycle through the
gap between the station sedan and the kerb of the

chicane, and in doing so he clipped his rear wheel

on the western lip of the chicane and collided with

the front right-hand panel by the roo bar of the

Kingswood sedan travelling then at a speed only of

about ten kilometres per hour.

All that is narrated in more detail in the

judgment	below, but at page 10 of the application
book His	Honour is considering the crisis which
emerged.	At the foot of the preceding page the
sentence	begins:

Perhaps he -

speaking of the respondent -

could have driven through the chicane before

the plaintiff reached it. But, had he

accelerated suddenly, it would have been more

difficult for him to negotiate the obstacle

successfully. Perhaps he could have steered further to the left to clear the path of the

motorcycle. But there were at least two

advantages in stopping: first, the plaintiff
could concentrate on steering the motorcycle

without wondering where the station sedan was

going; secondly, if there was to be a

collision, the force of the impact would not

be as great. Perhaps the defendant did the

wrong thing. But, as Lord Blackburn observed

in Stoomvaart Maatschappy Nederland v

Peninsular and Oriental Steam Navigation

Company,

a man may not do the right thing -

et cetera. And in the circumstances, although

His-Honour was prepared to see some shortcomings on

the part of the respondent, he would not regard

that as negligence.

Your Honour, might I just mention very briefly

in relation to the dicta of Lord Blackburn in

Stoomuaart, that that was examined by

Chief Justice Napier in a case in South Australia,

Municipal Tramways v Ashby, (1951) SASR, which is

Hennessey 4 9/8/91

among the cases on the list. Perhaps it is not
necessary for me to trouble Your Honours to look at
the reasons, but there is a passage in which the

learned Chief Justice distinguished that dicta, we

would say quite justifiably, on the footing that it

was simply an observation of fact and that the

matter of importance was undue importance and even

opportunity. It is all a question for the

circumstances of the particular scene to determine

the content of the duty.

Now, these findings, which I have just

summarized, were confirmed in the Full Court. The

relevant passage is at page 19, in the judgment of

the Chief Justice with whom the other two judges

agreed. It can also be found at page - I think the

appeal book is a little misleading; the pages are

on the bottom left-hand corner, Your Honours.

MASON CJ: At page 18 of the Chief Justice's judgment, he

deals with the standard of care as well - page

number 29 in the bottom left-hand corner - - -

MR HEENAN:	Yes, that is so, Your Honour.
MASON CJ:	- - - where he says he did not depart from the objective standard of care.

MR HEENAN:  Standard of care, yes Your Honours. Now, in our

respectful submission, what has occurred here is

that the agony of the moment or the dilemma test

has been utilized to determine the standard of

care. As a consequence, the standard which the

court has chosen upon has been an unduly tolerant

one. We say it is unduly tolerant because it

excuses the very misjudgment or mischance which
contributed to this accident.

The point of importance, in our respectful

submission, is to determine what scope there is

left for this doctrine of sudden emergency or

dilemma of the moment in a case where the proximity

between the parties calls for a standard of care

which will avoid an accident.

We put it as it is set out in paragraph 3 of

our outline, Your Honours. We say that the

circumstances of the accident were that each driver

was- faced with a dangerous stretch of road, limited

visibility ahead and a very confined space and time

to deal with the hazard of two vehicles travelling

in opposite directions corning suddenly into view.

What occurred when the crisis developed was

that each driver had to decide to arrange the order

of his travel through the obstruction. This was

not due to any want of care on either side but

Hennessey 9/8/91

predominantly the hazards of the road design and

the topography.

We make that point because the agony of the

moment and the emergency situations - when that

doctrine has been utilized to avoid negligence, or

more often contributory negligence - almost

invariably proceed from a situation where the

crisis has been caused or contributed to by a lack

of care or foresight by one of the parties. And we

stress that in this case there was no lack of care

on either side until the vehicles came in view and

that it is inappropriate to deploy the emergency

doctrine, or the agony of the moment, to the

advantage of the respondent rather than to the

applicant/plaintiff.

We say in paragraph 3 that the standard of

care paid by each driver to the other must be the

product of the objective standard of the reasonable

driver suddenly but innocently faced with that

situation. Then we go on to say that the

relationship of proximity fills the standard of
care with an obligation to act coolly and

adequately when confronted with the stress of the

moment and to avoid any action or omission which

will aggravate the risk. We say that because

otherwise the standard of care will have no

effective content.

Now that last proposition, Your Honours, we

venture to suggest is axiomatic. If I may draw on
some persuasive authority or persuasive words to

strengthen it, it really comes down to Kipling's

"if", "if you can keep your head when all about you

are losing theirs arid blaming it on you". That is

the standard required. If a man loses his head in

the emergency which developed here, the accident is

almost inevitable and, therefore, unless there is
careful foresight and prejudgment, there will be no

effective content in a standard of care.

Now we go on in paragraph 4 to submit that at

first instance and the in the Full Court there was

this attitude of tolerance to the

respondent ..... the course of conduct which

aggravated the danger. When I say the course of conduct, that is the sudden stopping in a manner whlch blocked the exit to the chicane or a

failure - if one asks what the driver could or

should have done, two alternatives are open. Those

were the ones identified by the learned trial

judge. The first was to move through the chicane

rapidly, as the applicant had expected; the second

was to move well to the left of the road and avoid

blocking the exit. Now, the failure to do that

Hennessey 6 9/8/91

aggravated the danger and contributed to the

accident.

DEANE J: Did the trial judge find that he could have moved

through the chicane?

MR HEENAN:  I read the passage, Your Honour, previously. It

is right at the end of His Honour's judgment.	I
understand it is at the bottom of page 9,
Your Honour. His Honour says, at the foot of
page 9:

Perhaps he could have driven through the chicane before the plaintiff reached it.

DEANE J: Yes, except above that he said that he had

reasonable grounds for believing that he could not.

MR HEENAN:  There is no doubt that he was faced with an

awkward choice.

DEANE J: Which the trial judge says was brought about by

your client not slowing down until after the

respondent had stopped.

MR HEENAN:  Your Honours, the sequence of events was that

the applicant naturally and, we would say
reasonably, assumed the respondent would drive

through, exercise his right of way ..... chicane

vacant for him to traverse it after ..... That would

have been the normal expectation and he formed a

judgement - - -

DEANE J: Well, you say that, but if you are driving slowly

through this sort of obstruction and you see a

motor bike coming at you, which is not slowing

down, the first question that you would ask would

be:  am I going to get through? What the trial

judge said, "I am satisfied that in doing so, he

did not act thoughtlessly". He stopped because, as

he said in cross-examination, he believed that he

would never get through the chicane. There was

reasonable ground for that belief and there is no

finding that he would have got through.

MR HEENAN:  That is so, Your Honour. Can I add one

incremental piece of information to the facts which

have just been recited. It was that the plaintiff/

applicant came into view before the respondent

entered the chicane, when he was some 10 or

20 metres short of the chicane. So, he had, at

that point, a decision to make. The decision was

to attempt to go through the chicane, go to the

left, to stop.	It was stop ..... such a fashion that
he blocked the exit to the chicane.	Now there were

some opportunities at that stage. Going through

the chicane may have been ill-advised and he may

Hennessey 9/8/91

well have had reasonable grounds to decline that

option ...... is in a position where doing nothing

and stopping in the way was no answer. Some

avoidance action was commanded by the fact

situation as it arose and it may well be that the

learned judge was correct in assuming, as one might

expect tacitly, that the applicant was travelling
too fast in the particular circumstances of this

case, although, as the learned Chief Justice

observed, there were no signs which drew to his
attention the need to slow or to reduce the speed

limit, nevertheless there may have been negligence

on the applicant's case. We have conceded as much

by our opinion that this was a case for an

apportionment. It was a case of multiple causes.

It was a case of the misjudgment of the plaintiff

as he came over the hill and it was a case of the

misjudgment of the defendant in responding to the

situation.

Now, in ordinary circumstances, that should

lead to a verdict which would apportion in a proper

manner the degree of culpability ..... In our

respectful submission, it is not a situation which

would not cause the defendant to escape liability

altogether. Now we would not expect Your Honours

to entertain an application for special leave on a

matter of apportionment. That obviously must be a
matter for the ultimate court of appeal, the

Full Court. But the question is, did the

Full Court ..... appellate power correctly. Did it,

as it is required to do in Warren v Coombes, review

the facts fully, formulate legal duty and the

standard of care, make its own judgment on an

undisputed or resolved set of facts. If it had

done that we would not venture to trouble

Your Honours.

In our respectful submission, what it has done

has been to treat judgment at first instance as the

verdict of a jury, to refrain from interfering with

and, in the process, to accept a standard of care	it unless there was some clearly demonstrable error
which has been depressed because of the so-called
doctrine of emergency.

It is a question of some importance, in our

re~pectful submission, to determine just what is

left for this doctrine of emergency, the dilemma of

the moment, in the light of the emerging doctrine

espoused by this Court of proximity. We have said

in our submissions that the recent case of

Gala v Preston contains much dicta to support a

submission that a particular standard of care in

any case ends the actual proximity between the

parties.

Hennessey 9/8/91

It is true to say in court that it is an

duty in a practical sense depends on the proximity	objective standard; the measure or content of the
of the parties. If the proximity of the parties is
such, as we have set out in paragraph 3, that to
give the standard any effective content some cool
and adequate response from the defendant is called
for, then the dilemma doctrine is nothing than an
unjustifiable dilution of that standard.

Your Honours, in the cases that have dev~loped

the doctrine of proximity in which this Court has

been so conspicuous - Bus v Sydney County Council,

March v Stramare Pty Ltd, Sutherland Shire

Council v Hayman, Jaensch v Coffey, Best v San

Sebastian and others - what has so far

predominantly developed the doctrine of proximity

in relation to the situation in which the duty of

care exists.

Gala v Preston demonstrates ..... has an obvious

connection with the standard. This is a case, in
our respectful submission, where there is an
opportunity to develop the doctrine of proximity,
to complete the exposition of the tort of
negligence, applying it to the second part of the

test, namely, the standard of care ..... this were done .... have to push to one side or at least very

substantially moderate the application of the

doctrine of emergency or sudden dilemma, and that

this is an opportune case for that to be done.

There can be little doubt, in our respectful

submission, on the facts of this case that if the content of the standard of care was that of a man acting adequately and making some kind of

reasonable response in the circumstances, ..... been

a finding of negligence against this

respondent ..... , the crisis of the moment may well

have moderated the effect of that finding .....

suitable allocation of proportionality and an

apportionment of responsibility to the plaintiff.

In our respectful submission, the proper

application of the doctrine of proximity would have

resulted in a finding of negligence against this

respondent. So the question which we invite

Your Honours to accept as a special leave point,

namely the application of proximity to standard of

care, may well have a determinative effect in this

case and it would continue the exposition of the

tort of negligence which has been adopted in the

cases to which reference has been made, and more

than that, do justice to this applicant. May it

please Your Honours.

Hennessey 9 9/8/91

MASON CJ: Thank you, Mr Heenan.

Notwithstanding the extremely able argument

presented by Mr Heenan, we consider that this case
turns on its own essential facts. That being so,
the case does not give rise to any question of

general principle such as would attract a grant of

special leave to appeal.	The application is,
therefore, refused.

MR MOMBER:  If it pleases the Court, the respondent would

seek an order for costs.

MASON CJ:	You do not oppose an order for costs, Mr Heenan?
MR HEENAN:	We do not oppose any such order, may it please

Your Honour.

MASON CJ: Very well, the application will be refused with

costs.

AT 1.34 PM THE MATTER WAS ADJOURNED SINE DIE

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