Hooker v Grinham No. Scgrg-97-509 Judgment No. S6424

[1997] SASC 6424

HOOKER  v  GRINHAM

Full Court:  Doyle CJ, Lander and Bleby JJ 
DOYLE CJ:        This is an appeal against a decision by a judge of the District Court.  The appeal is against the judge’s decision in a claim by the plaintiff for damages for personal injury arising out of a motor vehicle accident. The judge decided that the plaintiff’s damages should be reduced by 50 per cent having regard to her share in the responsibility for the injuries and loss sustained.  I am expressing the matter in terms of the provision in the Wrongs Act. In colloquial terms the judge assessed the plaintiff’s contributory negligence as 50 per cent.
Apportioning liability involves a comparison of two things in particular. First, culpability, which is the degree of departure from the standard of care of the reasonable driver. Secondly, the relative importance of the acts of the parties in causing the damage but it is "...the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination", see Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 311.
The plaintiff suffered her injuries when a car that she was driving collided with the car driven by the defendant. The collision took place in a shopping centre car park. More precisely, the collision took place on an access roadway between two lines of parked motor cars.  The roadway ran east-west.  Spaces were marked for cars to park in a north-south direction on each side of the access roadway. The plaintiff’s car was parked on the northern side of the roadway and facing north.  The plaintiff reversed her car from that parking space, turning the back of her car to her right, that is, in an easterly or south-easterly direction, with a view to driving off along the roadway in a westerly direction.
At about the same time the defendant had driven her car along the roadway from the western end.  The defendant must have driven past the plaintiff’s parked car. The defendant then stopped and reversed her car in a westerly direction, approaching the space where the plaintiff’s car was parked.  She did this so that she could enter a parking space on her right, that is, on the southern side of the roadway.
Both plaintiff and defendant were performing the sort of manoeuvre that takes place every day in shopping centres.  Because they were reversing, reasonable care required that each of them keep a lookout to the rear of their car, and that each of them be alert to the possibility of other cars manoeuvring into or out of parking spaces.
The two cars collided while the plaintiff was backing out of her space and turning, and while the defendant was reversing to get adjacent to the space in which she intended to park her car.  The impact was between the right rear corner of the plaintiff’s vehicle and the left rear corner of the defendant’s vehicle.  Neither driver saw the other before the impact. Each said that she had checked for objects behind her. Clearly enough the lookout of each was defective.  The plaintiff should have seen the defendant approaching, because the defendant must have been close at hand as the plaintiff backed out, however, the accident happened.  The defendant also should have seen the plaintiff’s car entering the roadway as the defendant reversed towards it.  As best I can tell, the impact was not a heavy one.  The impact speed was quite low as one would expect.
The judge found that neither plaintiff nor defendant was able to say precisely the angle or position of the respective cars at the relevant time. That is not surprising under the circumstances and is not a criticism of either the plaintiff or the defendant.  I can find no basis to disturb that finding.  While the description of events given by each driver was clear enough, it was lacking in the detail that would be required if really precise findings were to be made.  The judge also found that neither party saw the other before the impact. That finding also cannot be criticised, and has not been challenged. Although the plaintiff initially said that she was stationary at the moment of impact and about to drive off to the west, the judge found that the plaintiff was unsure about that.  That finding also was open to him being based upon the manner in which the plaintiff gave her evidence. I see no reason to reject that finding.
The judge went on to conclude he could not make "Any precise findings as to the positions and angles of the cars prior to the collision and whether they were stationary or moving and if moving, how fast".  Even so, the circumstances are reasonably clear.  On the judge’s findings the defendant was moving slowly, and if the plaintiff was moving it must have been very slowly.  We also know approximately how and where the two cars were placed at the moment of impact.  Precision is not always possible.  I do not consider it can be said the judge erred in failing to come to a more precise finding. Moreover, I doubt whether more precise findings would have made any difference to the outcome.
The overall picture, in my opinion, is clear enough.  The plaintiff was backing out and turning to her right, and the defendant was reversing towards her from the plaintiff’s right.  Neither saw the other.  Even if the plaintiff was momentarily stationary before impact, I doubt whether one’s approach to liability would differ.  In any event, on those findings the judge found each party equally responsible.
In my opinion no error has been pointed to in that conclusion. It has been said on many occasions that a decision on contributory negligence will be upset only in relatively rare cases because of the wide discretion involved in making the decision; see, for example, Pennington v Norris (1956) 96 CLR 1 at 15-16.
I return to the criteria which I stated earlier to be used in assessing contributory negligence.  In the present case on the findings each driver made a similar mistake. Each driver failed to look with sufficient care.  Probably it was easier for the defendant to see the plaintiff than it was for the plaintiff to see the defendant.  But on the other hand, the plaintiff had to bear in mind that as she was the one reversing into the roadway, she had to take extra care before entering the roadway.  In my opinion, while the degree of carelessness by the defendant and the plaintiff was minor, it was about equal in each case.  I can see no reason to say that the judge had to conclude that the defendant was more careless than the plaintiff.  As I said, perhaps it was a bit easier for the defendant to look along the roadway than it was for the plaintiff to see into the roadway, because of other parked cars.  But all of this happened in a few seconds and, therefore, the plaintiff only had to stop and look again, once her car had edged into the roadway, to get a clear view in the defendant’s direction.
Nor can I find any difference in the degree to which their acts contributed to the damage suffered.  Each was driving a motor car at a relatively low speed.  The situation is not one that involves a comparison such as must be made between a pedestrian and a driver when a motor car strikes a pedestrian. It seems to me that the driving of each party must have made the same contribution to the plaintiff’s injuries.
Had I been the trial judge I might have come to the same conclusion as the trial judge, or I might have differed slightly, but that is not the issue.  The issue is whether I am satisfied that he was wrong.  In my opinion, in this case it cannot be said that the trial judge was wrong to reach the conclusion that each party was equally to blame. In my opinion, his conclusion lay within the range that was open to him on these facts.  For those reasons I would dismiss the appeal.
LANDER J:         I agree with the reasons of the Chief Justice and I agree the appeal should be dismissed.
BLEBY J:   I also agree with the reasons of the Chief Justice and that the appeal should be dismissed.
DOYLE CJ:        The orders of the Court are as follows:

1. appeal dismissed;

2. that the appellant pay the respondent’s costs of the appeal to be taxed.