Joel Roche v Bill Kigetzis
[2015] VSCA 207
•6 August 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0011
| JOEL ROCHE | Applicant |
| v | |
| BILL KIGETZIS | Respondent |
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| JUDGES: | OSBORN and KYROU JJA and GARDE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 August 2015 |
| DATE OF JUDGMENT: | 6 August 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 207 |
| JUDGMENT APPEALED FROM: | Kitgetzis v Roche [2014] VSC 657 (Rush J) |
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NEGLIGENCE – Application for leave to appeal – Duty of care – Breach – Causation – Whether proper findings of fact of trial judge on the evidence – Inferences available and correct – No error shown – Leave refused.
CONTRIBUTORY NEGLIGENCE – Application for leave to appeal – Role of trial judge – When Court of Appeal may intervene on rehearing on apportionment – Decision of trial judge reasonably open on the evidence – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Ruskin QC with Mr D C Oldfield | Transport Accident Commission |
| For the Respondent | Mr A J Keogh SC with Mr J P Brett | Arnold Thomas & Becker |
OSBORN JA:
At about 9:30 pm on 6 August 2002 the respondent walked out of the Birmingham Hotel and across Johnston Street, Fitzroy, in a northerly direction, at the intersection with Smith Street. Having traversed two lanes intended for west-bound traffic, a right-hand turn lane for traffic turning south and the first of two lanes for east-bound traffic, he was struck as he crossed the northern most of the east-bound lanes by a motor vehicle driven by the applicant.
At the time of the incident, the traffic lights facing the applicant were green and there was a bus stationary in the right-hand (southern most) of the two through lanes for east-bound traffic. The respondent was walking against a ‘red man’ pedestrian traffic signal.
The respondent suffered serious injury and sued the applicant in negligence. The applicant denied negligence and in the alternative alleged contributory negligence on the part of the respondent.
After a three-day trial in December 2014 Rush J gave judgment for the respondent, finding the applicant was negligent and that the respondent was contributorily negligent to the extent of 60 per cent.
The applicant now seeks leave to appeal against these decisions. The Court has treated the application for leave as the hearing of the appeal.
The applicant submits:
(a) the judge erred in his approach to the questions of duty and breach;
(b) the judge erred in holding that the applicant’s negligence was the cause of the incident;
(c) the judge erred in failing to provide any or any sufficient path of reasoning; and
(d) the judge’s finding that the respondent’s damages be reduced by 60 per cent was not reasonably open (if negligence and causation were made out).
It is necessary to say something more about the evidence as to the facts of the case before returning to the judge’s reasons and the grounds of appeal.
The evidence as to the facts
The trial judge summarised the evidence as to the critical facts as follows:
Agreed evidence
8It was not contested the Incident occurred at about 9.30pm. The intersection is well lit. The road conditions were dry. Johnson Street runs east-west and Smith Street runs north-south.
9For traffic travelling east in Johnson Street at the intersection of Smith Street, there is a right turn lane and two lanes for traffic to travel east. There are two lanes for traffic travelling west in Johnson Street.
The defendant’s evidence
10The defendant’s driving leading up to the collision with the plaintiff can be summarised as follows:
(a)the defendant initially travelled in an easterly direction along Johnson Street in the right hand lane closest to the centre of the road;
(b)he indicated to change from the right lane to the left lane and did so. At this time, he was travelling at 50 to 60 kilometres per hour;
(c)because, at the intersection of Johnson Street and Smith Street, there was a red light facing him, he slowed down and prepared the car to stop at the red light. He slowed down to 15 to 20 kilometres per hour;
(d)he observed a bus in the right hand lane of Johnson Street which was stationary at the red light;
(e)as he approached the intersection, the lights facing him turned from red to green and he accelerated into the intersection. His speed increased to 30 to 40 kilometres per hour;
(f)after the lights turned to green, he observed the bus remain stationary at the intersection;
(g)he estimated the bus was stationary at the intersection before the Incident for five seconds. He stated the bus, stationary at the intersection, blocked his vision of the pedestrian crossing. He described his vision of the intersection as he drove past the bus as ‘sort of straight ahead vision really’;
(i)he said the Incident happened almost instantaneously with the sighting of the plaintiff walking across the intersection;
(j)as to why the bus in the right hand lane remained stationary, the defendant stated: ‘We can keep assuming why he [the bus] might have been waiting …we could think up a hundred possibilities for why he was slow to get going’;
(k)in cross-examination, the defendant agreed he entered the intersection without slowing down or even putting his foot near the brake so that he could check the part of the intersection which was blocked by the bus.
Witnesses’ evidence
11The defendant called the driver of the vehicle which was stationary behind the bus at the intersection, Mrs S M Andrews, and her sister, a passenger in that vehicle, Ms B V Chalmer. Ms Chalmer stated that after the light facing their vehicle had turned to green, she observed a pedestrian (the plaintiff) walk onto the pedestrian crossing from the south-west corner. The plaintiff walked briskly and directly across the pedestrian crossing; he seemed agitated ‘and he just wasn’t looking’. She observed a car (the defendant) in the left lane and commented to her sister that, ‘I think someone’s going to be hit’.
12Both Mrs Andrews and Ms Chalmer believed from their observations that the defendant was travelling at a safe or moderate speed in the circumstances.
13In her evidence-in-chief, Ms Chalmer stated the bus remained stationary for ‘probably about three seconds’ after the lights turned to green. However, in cross-examination, Ms Chalmer agreed that somewhere between three and eight seconds elapsed from the time the plaintiff commenced to cross the intersection to the time of the Incident.
The plaintiff’s evidence
14On the night of, but prior to, the Incident, the plaintiff drove his car to Kew to pick up a female acquaintance before heading to Collingwood for the purpose of obtaining heroin. He parked his car in Smith Street on the northern side of the intersection with Johnson Street. The plaintiff crossed Johnson Street at the pedestrian crossing, walking in a southerly direction to a hotel on the south-west corner of the intersection to purchase cigarettes and water. The female went to a needle exchange in Smith Street to obtain syringes.
15The plaintiff stated that he recalled purchasing the items in the hotel, and whilst inside the hotel or at the door of the hotel, he saw ‘the green man’ on the pedestrian crossing facing him and then attempted to cross the road. He stated that, ‘once I'd seen the green man I went for the lights and I didn’t basically look up again’. The plaintiff also stated that he recalled seeing a bus stationary in the middle of the road.
16In closing submissions, Mr J P Brett, leading counsel for the plaintiff, accepted the weight of the evidence suggested the plaintiff crossed the road against a red light.[1]
[1]Kigetzis v Roche [2014] VSC 657 [8]-[16] (citations omitted) (‘Reasons’).
Findings of fact
In turn, the trial judge made a series of findings of fact in respect of the relatively limited issues which were in dispute as to circumstantial matters at trial.
Breach of duty
17The question of breach in this case concerns whether the driving of the defendant was negligent, notwithstanding the defendant was facing a green light at the intersection, by passing on the left hand side of stationary vehicles (bus and car) and accelerating into the intersection when his view of the intersection to his right, in particular the pedestrian crossing, was blocked because of the presence of the bus?
18The defendant stated that the bus was stationary for a period of five seconds whilst facing the green light. In submissions, Mr Ruskin urged me to find that the bus was stationary ‘for only a few seconds’ and relied upon the evidence of Ms Andrews that the lights were green for only a second. In my view, it is likely the lights were green prior to the Incident for at least the five seconds the defendant referred to in his evidence, and more likely close to eight seconds.
19Such a finding is supported by the evidence of Mr M J Chellini, manager of Signal Design with VicRoads, who provided evidence of the signal sequence of lights at the intersection of Johnson and Smith Streets on the date of the Incident.
20Mr Chellini stated that the ‘green man light’ facing the plaintiff at the pedestrian crossing remained green for eight seconds. The eight seconds was calculated to permit the average pedestrian to reach half way across the intersection before changing to a flashing red light. At the time of the Incident, the plaintiff was further than half way across the intersection. As stated above, he was described by Ms Chalmer as walking briskly. On this evidence, it is likely the lights would have been green to traffic travelling east on Johnson Street, the direction the defendant’s vehicle was travelling, for close to eight seconds prior to the Incident.[2]
[2]Ibid [17]-[20] (citations omitted).
In my view, the trial judge’s conclusion as to the probable period the bus was stationary facing a green light accords with the weight of the evidence. Ms Chalmer’s evidence was that the light facing east-bound traffic had turned green before the respondent commenced walking briskly across Johnston Street in a northerly direction. The respondent then traversed two west-bound lanes, a right-hand turn lane for traffic turning south, and the lane in which the bus was stationary before he stepped into the northern most lane and was struck by the applicant’s car.
The sequence of events was sufficiently protracted for Ms Chalmer to apprehend that a collision was likely and voice that apprehension to her sister.
When interviewed by a Transport Accident Commission investigator in May 2003 the applicant said the bus was stationary while the traffic lights facing it were green for at least five seconds.
Mr Chellini’s evidence supported the view that the average pedestrian would take eight seconds to walk halfway across the intersection. The respondent had walked substantially more than halfway across the intersection when struck.
The manner in which the applicant accelerated past the bus was not in issue. Nor was the approximate speed of his vehicle.
The primary issue between the parties at trial and on appeal is, whether in these circumstances, the trial judge was correct to find that the applicant was negligent.
The extent of the duty
The proposed grounds of appeal with respect to duty and breach are as follows:
1.1The learned trial judge erred in his findings as to duty and breach by imposing on the applicant a duty of care which was beyond a duty to take reasonable care and by holding that duty was breached.
1.2The learned trial judge erred in holding that, because the bus was stationary at the green light for at least five seconds and close to eight seconds, reasonable care required the applicant to drive at a very low speed and with a foot at the brake, which would have enabled him to stop immediately at the point of entry to the intersection.
1.3The learned trial judge’s finding that the applicant failed to exercise reasonable care in the circumstances was not reasonably open and was against the evidence and the weight of the evidence.
The trial judge stated the content of the relevant duty of care at the outset of his Reasons:[3]
[3]Ibid [3]-[5].
3It was, of course, not disputed on behalf of the defendant that as a driver on the roadway he owed a duty of care to other road users.
4The content of the duty of care of a driver was referred to in Manley v Alexander (‘Manley’):
[T]he 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 what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.[4]
5The standard invoked is the standard of the ‘reasonable driver’.[5] Windeyer J, in Teubner v Humble, explained the content of the duty of taking reasonable care as follows:
I know of no relevant rule of law except that a man driving a motor car must act as a reasonable and prudent man driving a motor car would act in the circumstances: and a pedestrian must act as would a reasonable and prudent pedestrian in the circumstances.[6]
[4](2005) 223 ALR 228, 231 [12] (Gummow, Kirby and Hayne JJ).
[5]Imbree v McNeilly (2008) 236 CLR 510, 521, [27] (Gummow, Hayne and Kiefel JJ).
[6](1963) 108 CLR 491, 504 (Dixon CJ, McTiernan, Windeyer and Owen JJ).
There was no error in these statements.
Likewise, his Honour was correct to state the principles governing the question of breach of duty as follows:[7]
[7]Reasons [6]-[7] (emphasis in original).
6The secondary consideration for the Court is whether the duty of care has been breached. Whether a duty of care has been breached in any particular case is a question of fact. It is a matter for determination in consideration of the facts within the parameters of the duty. The nature and scope of the duty is informed by consideration of all of the presenting circumstances. In the context of the driving of a motor vehicle, a failure to do certain things, such as keep a proper lookout or sound a warning, may constitute a breach of the duty to take reasonable care.[8] The standard demanded of the duty, however, is dependent upon the facts and what is reasonable in the circumstances. Two questions therefore arise: whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class or persons including the plaintiff and, if so, what a reasonable man would do by way of response to the risk.[9] Mason J, in Wyong Shire Council v Shirt (‘Shirt’), detailed how the Court should evaluate the response to the risk:
The perception of the reasonable man’s response calls for consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with any expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.[10]
Essentially, the Court’s task is to make a value judgment balancing the totality of the circumstances.[11]
7Mr J Ruskin QC, senior counsel for the defendant, submitted that care needed to be exercised in the manner in which previous cases are relied upon to support a breach of duty. I agree. Issues concerning breach of duty and contributory negligence are matters to be decided on the facts of this case, not by factually analogous cases. Each case will turn on its own particular facts.[12]
[8]Vairy v Wyong Shire Council (2005) 223 CLR 422, 432 [26] (McHugh J).
[9]Wyong Shire Council v Shirt (1980) 146 CLR 40, 47–8 (Mason J with Stephen and Aickin JJ in agreement).
[10]Ibid.
[11]See also Ibrahim v Davis [2013] VSCA 238 [36] (Maxwell P, Bongiorno JA and Robson AJA).
[12]See Joslyn v Berryman (2003) 214 CLR 552, 602 [158] (Hayne J).
The fundamental question for the trial judge was whether the applicant exercised reasonable care in the circumstances as they presented to him. That question was to be answered by reference to what a reasonable person in his position would have done by way of response to any foreseeable risk of harm to a user of the roadway. The question fell to be approached in the manner elaborated in Marien v Gardiner and the authorities there referred to.[13]
[13][2013] NSWCA 396 [33]-[40] (Meagher JA with McFarlan and Emmett JJA in agreement).
The applicant submits, however, that the trial judge imposed a duty which went beyond a duty to take reasonable care.
After making the findings of fact, to which I have already referred, the trial judge analysed the question of breach as follows:
21In my opinion, the defendant was negligent in the manner he approached and entered the intersection prior to the Incident, and this negligence was a cause of the Incident. A stationary bus and car in the right hand lane of Johnson Street facing a green light should have put the defendant on notice that caution was required upon entering the intersection. It is likely the bus was stationary at the green light for close to eight seconds prior to the Incident. This time, combined with the defendant’s lack of vision of the pedestrian crossing as a consequence of the presence of the stationary bus, are circumstances that demanded caution on the part of the defendant as he drove into the intersection. Accepting the words of the High Court in Manley, the defendant was required to enter this intersection at a speed and with control to enable him to drive in such a way that he would have been aware of what is happening in the vicinity of his vehicle and be able to take reasonable steps to react to those events.
22The defendant in fact accelerated past the stationary vehicles on his right hand side, he entered the intersection at a speed of 30 to 40 kilometres per hour at a time when his ability to observe what was occurring within the intersection was limited to ‘straight ahead’. The defendant did not slow down, he did not have his foot near the brake to slow down, nor did he stop to check the intersection. This is not the driving of a reasonably prudent driver.
23I have regard to the conduct of the plaintiff. He has blindly set off to cross the intersection against a red light, seemingly uncaring of the consequences and, as discussed below, the plaintiff bears a very significant responsibility for the occurrence of the Incident. Yet the stationary vehicles on the roadway, in my opinion, should have put the defendant on notice of a potential incident at the intersection, including the unpredictable behaviour of a pedestrian at the intersection.
24The circumstances required defensive driving on the part of the defendant. The defendant should have entered the intersection at a very low speed and with a foot at the brake, which would have enabled him to stop immediately at the point of entry to the intersection.
25In weighing the Shirt calculus in addition to the matters referred to above, I have regard to the injury that a motor vehicle may cause to a pedestrian. A motor vehicle is capable of causing devastating injury. This is a matter, in the circumstances presented to the defendant as he approached the intersection, that he should have borne in mind.
26I reject the submission made on behalf of the defendant that the probability of the Incident eventuating ‘was so very low as to be almost a theoretical risk’. As I understand the submission, it is put that the low risk in some way justified the manner of the defendant’s approach to the intersection, accelerating past stationary vehicles. The risk was real and the potential consequences of an incident, a significant incident if travelling at 30 to 40 kilometres per hour, were not merely theoretical and were required to be taken into account by the defendant by ensuring that he could stop at the point of entry to the intersection.
27I do not consider in the circumstances of this case that being in a position to stop the car, if necessary, required an overly cautious approach from the defendant when entering the intersection. In my opinion, the ability to be able to stop prior to, or upon, entering the intersection was what was required of a reasonably prudent driver in the presenting circumstances.
28Whilst the Incident occurred almost instantaneously with the defendant entering the intersection, the lack of time for the defendant to take avoiding action has much to do with his speed of 30 to 40 kilometres per hour. In my opinion, if the defendant had been driving in the reasonably prudent manner described above the Incident would have likely been avoided. Further, the defendant’s motor vehicle would not have collided ‘centre front’ with the plaintiff’s person; there would likely have been no collision at all.[14]
[14]Reasons [21]-[28] (citations omitted).
The applicant submits that the trial judge went beyond the duty articulated by the majority in Manley[15] by holding that reasonable care required the applicant to drive at a very low speed with a foot at the brake, which would have enabled him to stop immediately at the point of entry to the intersection.
[15]Manley v Alexander (2005) 223 ALR 228.
The approach this Court should take on appeal was explained in Warren v Coombes. Gibbs ACJ, Jacobs and Murphy JJ said:
The duty of the appellate court is to decide the case — the facts as well as the law — for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. Further there is, in our opinion, no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question. The only arguments that can be advanced in favour of the view that an appellate court should defer to the decision of the trial judge on such a question are that opinions on these matters very frequently differ, and that it is in the public interest that there should be finality in litigation. The fact that judges differ often and markedly as to what would in particular circumstances be expected of a reasonable man seems to us in itself to be a reason why no narrow view should be taken of the appellate function. The resolution of these questions by courts of appeal should lead ultimately not to uncertainty but to consistency and predictability, besides being more likely to result in the attainment of justice in individual cases. The interest of the community in the speedy termination of litigation might, no doubt, be an argument in favour of the complete abolition of appeals, although that would be far too high a price to pay merely for finality. However, if the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it.[16]
[16](1979) 142 CLR 531, 552-3.
In the present case, a fair reading of his Honour’s judgment makes clear that he applied the standard of reasonable care to the facts of the case in the light of the observations of the majority in Manley.[17]
[17](2005) 223 ALR 228, 231 [12].
His Honour did not, as the applicant submits, hold that a driver is required to be in a position where he or she can react to everything which may happen in the vicinity of his or her vehicle. He did not apply a standard of perfection possessed with the wisdom of hindsight but rather evaluated what was required as a matter of reasonable care in the particular circumstances of the case. The critical circumstances which gave rise to a need for caution were the fact that the bus remained stationary in the right-hand through lane when it would, in ordinary circumstances, have been safe to proceed with a green light and that the bus obscured the applicant’s view of what was happening in front of it.
The context to which the applicant was required to respond as a driver thus included the following elements:
(e) the intersection was a complex one with three lanes provided for vehicular traffic travelling both east and west (including separate right turn lanes);
(f) two lanes were provided for vehicular traffic travelling north and south respectively and designated pedestrian crossings were provided across each street;
(g) the intersection was in an inner urban area in which both vehicular and pedestrian traffic might be expected at 9:30 pm;
(h) the movement of traffic through the intersection after the light facing the applicant turned green was not free or indicative of ordinary safe passage through the intersection by traffic travelling east;
(i) the bus remained stationary after the light facing it turned green for a reason, which was not apparent to the applicant;
(j) the bus concealed what was occurring in front of it from the applicant’s view and this concealment meant the presence or absence of a potential hazard could not be readily ascertained in circumstances indicative of the real possibility of the existence of such a hazard; and
(k) the duration of the time the bus was stationary after the light facing it turned green was sufficient to alert the applicant to the real possibility of a concealed hazard and to respond to that possibility.
Contrary to the applicant’s submission, it was open on the evidence and in accordance with the weight of the evidence to conclude that the continuing presence of the bus in a stationary position facing a green light raised a real possibility that it concealed something or somebody which might move into the path of the applicant’s vehicle. As the Reasons quoted above indicate, his Honour concluded that the stationary vehicles on the roadway should have put the applicant on notice of a potential incident at the intersection including the unpredictable behaviour of a pedestrian at the intersection. In turn, the trial judge correctly took account of the potential for serious injury which a motor vehicle driven into the intersection at 30-40 kilometres per hour might cause a pedestrian moving into the path of the vehicle.
This was a case in which there were factors which would cause a reasonable motorist to reduce his or her speed below the speed which would ordinarily be appropriate when entering the intersection with a green light.[18] It may be contrasted with cases such as Derrick v Cheung[19] and Knight v Maclean[20] in that there was present, in this case, a particular perceivable risk which the applicant should have taken into account but did not.
[18]Cf Dungan v Chan [2013] NSWCA 182 [18].
[19](2001) 181 ALR 301, 303-4 [10]-[11].
[20][2002] NSWCA 314 [63]-[67].
At trial the applicant argued that the probability of the incident eventuating ‘was so low as to be almost a theoretical risk’.
The real possibility of a person being on the roadway within the intersection given the presence of the stationary bus, and the magnitude of risk to that person should a collision with the applicant’s vehicle occur required a reasonable response from the applicant. In the circumstances, the learned trial judge’s finding as to breach of duty was entirely justified.
Furthermore, contrary to the applicant’s submission, the trial judge did not form a retrospective conclusion at a high level of abstraction of the kind criticised in Mobbs v Kain.[21] The trial judge formulated his conclusions as to duty and breach in direct response to the risk which he identified as arising from the particular circumstances of this case.
[21][2009] NSWCA 301 [103].
In argument the applicant also emphasised the evidence of a lack of apprehended risk on the part not only of the applicant but also of the witnesses, Ms Chalmer and Mrs Andrews, when confronted with the presence of the stationary bus. These witnesses were sisters who had been out to dinner and were returning home. At the time of the collision they were in a stationary vehicle which had initially stopped behind the bus at the red light. Although Mrs Andrews said she was not very good at estimating time, she noted that the fact that the bus did not move straight away was ‘a little bit odd’. Ms Chalmer did not comment on her reaction to the movements of the bus. She did not know why the bus stopped. She observed the respondent step onto the roadway against the red light and thus her thoughts were entirely on the accident which she perceived was imminent. The reactions of the witnesses do not demonstrate any error in the conclusions of the judge.
In my view, his Honour did not err in his conclusions either with respect to the questions of duty or breach.
Causation
The proposed grounds of appeal directed to the question of causation are as follows:
2.1The learned trial judge erred in finding causation by reference to erroneous findings as to duty and breach, namely that reasonable care required the applicant in the circumstances to drive at a very low speed and with a foot at the brake, which would have enabled him to stop immediately at the point of entry to the intersection.
2.2There was no evidence upon which the learned trial judge could have found causation on the balance of probabilities in circumstances where the exercise of reasonable care did not require the applicant to drive at a very low speed and with a foot at the brake, which ' would have enabled him to stop immediately at the point of entry to the intersection.
It can be seen that the applicant’s case as to causation is premised upon his case as to duty and breach, which I have rejected above. Put at its crudest, the applicant elected to accelerate past the stationary bus in circumstances when he should not have. His speed materially affected his capacity to brake and stop. It also affected the capacity of the respondent to react to and avoid the applicant’s vehicle. If the trial judge’s conclusions as to breach are upheld, then the conclusions he reached as to causation at [28] of his Reasons accorded squarely with the probabilities.
Inadequate reasons
Proposed ground 3 of appeal is as follows:
3.1The learned trial judge erred in failing to provide any or any sufficient path of reasoning based in the evidence, in holding that the applicant breached his duty to take reasonable care.
3.2The learned trial judge erred in failing to provide any consideration or analysis of the evidence of the applicant, Ms Susan Andrews, and Ms Barbara Chalmer regarding the significance of the presence of the bus at the intersection, when concluding that the applicant was negligent in the manner he approached and entered the intersection prior to the incident.
His Honour’s path of reasoning as to breach is clear as the passages I have quoted above demonstrate.
His Honour dealt fairly with the evidence of Ms Andrews and her sister at paragraphs [11] to [13] of his Reasons, which I have quoted above.
Contributory negligence
Proposed ground 4 of appeal is as follows:
4.1The learned trial judge erred in holding that the respondent’s damages should be reduced by only 60% when such a finding was not reasonably open having regard to the findings (inter alia) that the respondent’s conduct amounted to ‘a reckless departure from the reasonable care to be expected of a pedestrian’, whereas the applicant ‘entered the intersection legally, with a green light and at a permitted speed’.
4.2The learned trial judge erred in finding that the respondent’s damages be reduced by only 60% having regard to the erroneous finding that reasonable care required the applicant to drive at a very low speed and with a foot at the brake, which would have enabled him to stop immediately at the point of entry to the intersection, which finding must have (wrongly) formed a component of the apportionment of negligence against the applicant.
It can be seen, once again, that ground 4.2 is expressed in terms consequential upon the propositions advanced on behalf of the applicant in respect of duty and breach. It falls away with the failure of ground 1.
This leaves the submission that the finding of 60 per cent was not reasonably open. In Podrebersek v Australian Iron and Steel Pty Ltd, the High Court said:
A finding on a question of apportionment is a finding upon a ‘question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds’. Such a finding, if made by a judge, is not lightly reviewed.[22]
[22](1985) 59 ALJR 492, 494 [8] (emphasis added) (citations omitted).
As Hayne J observed in Joslyn v Berryman,[23] so much follows from the nature of the task that is undertaken in making such an apportionment. That task was described in Podrebersek v Australian Iron and Steel Pty Ltd as follows:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.[24]
[23](2003) 214 CLR 552, 601 [157].
[24](1985) 59 ALJR 492, 494 [10] (citations omitted); see also Joslyn v Berryman (2003) 214 CLR 552, 601 [157] (Hayne J); Liftronic Pty Ltd v Unver (2001) 75 ALJR 867, 868 [3] (Gleeson CJ), 872-3 [28]-[30] (McHugh J), 876-7 [58]-[59] (Gummow and Callinan JJ).
On an appeal by way of rehearing such as the present, the appellate court will only interfere if it is satisfied the order the subject of appeal is the result of some legal, factual or discretionary error.[25]
[25]Allesch v Maunz (2000) 203 CLR 172, 180 [23] (Gaudron, McHugh, Gummow and Hayne JJ); Lacey v A-G (Qld) (2011) 242 CLR 573, 597 [57] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Obviously enough, it will be necessary for an appeal court conducting an appeal by way of rehearing to re-evaluate the question of contributory negligence for itself if it reaches different conclusions with respect to the primary facts from that of a trial judge. This, however, is not such a case. For the reasons I have explained, I accept the trial judge’s conclusions as to the primary facts. In turn, this is a case in which the trial judge’s finding as to contribution is not to be lightly reviewed. Due deference must be given to the fact that he heard the oral evidence of the relevant witnesses and was immersed in the evidence by the trial process in a way in which this Court is not.[26] This Court must be persuaded he erred in making a multifactorial evaluation of the facts as a whole. I am not persuaded that the judge’s finding as to apportionment was not reasonably open.
[26]See the observations of Whelan JA in TAC v Cuthbertson [2013] VSCA 29 [34].
I accept the applicant’s written submission that the following findings bear squarely on this issue:
(a)The respondent blindly set off to cross the intersection against a red light.
(b)The respondent bears a very significant responsibility for the occurrence of the incident, namely primary responsibility for the incident, a failure to check the lights or the traffic immediately prior to crossing the intersection, no regard for his own safety or the safety of other road users, his conduct was in breach of the road rules, his conduct amounts to a reckless departure from the reasonable care to be expected of a pedestrian at an intersection of two major roads.
(c)The respondent’s failure to comply with fundamental obligations of a reasonable road user was a major cause of the incident.
(d)The applicant in contrast, entered the intersection legally, with a green light and at a permitted speed but failed to react appropriately to the presence of the stationary bus.
Nevertheless, the trial judge explicitly acknowledged these matters in his Reasons. Moreover, in reaching his conclusions as to apportionment of responsibility, the trial judge specifically stated as follows:
33In my opinion, the plaintiff’s conduct amounts to a reckless departure from the reasonable care to be expected of a pedestrian at an intersection of two major roads. His failure to comply with fundamental obligations of a reasonable pedestrian has, in my opinion, been the major cause of the Incident.
34I have determined the defendant was negligent; but in evaluating the defendant’s respective share of responsibility for the Incident, I consider evidence that the defendant entered the intersection legally, with a green light and at a permitted speed are important factors in a comparative examination of the responsibility of plaintiff and defendant.[27]
[27]Reasons [33]-[34].
On the hearing of the appeal it was put that the trial judge did not expressly refer to the briskness with which the respondent walked across the roadway as constituting an element of his contributory negligence. When the trial judge’s Reasons are read as a whole I do not infer that he failed to take account of this circumstance. Moreover, the applicant was correct not to refer to this circumstance in his written submissions, which I have quoted above. The respondent’s failure to take care for his own safety was constituted by his entry of the intersection against a red light, and his failure to look out for traffic. In particular, after having entered the intersection against the red light, he walked in front of the bus and, after doing so, did not stop or check if any cars were approaching the intersection in the northern most lane of Johnston Street. The trial judge specifically adverted to each of these factors. It was not of itself negligent to walk briskly. It was the combination of proceeding against the light and not keeping any or any proper lookout for traffic that were the essential elements of the respondent’s contributory negligence.
As against these matters the whole conduct of the applicant fell to be evaluated including the real and potential consequences of the impact of a motor vehicle travelling at 30-40 kilometres per hour with any person who emerged from behind the front of the stationary bus into the path of the vehicle. Both the relative departure of each of the parties from the standard of reasonable care and the importance of those departures in causal terms fell to be considered.
In my opinion the view ultimately taken by the trial judge was reasonably open to him.
Conclusion
In my view the appeal should fail and the grant of leave to appeal would be nugatory. The application for leave to appeal should be refused.
KYROU JA:
I agree.
GARDE AJA:
I also agree.
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