John Ronald Waterfall v Stuart Ross Antony
[2014] VSCA 44
•19 March 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0207
| JOHN RONALD WATERFALL | Appellant |
| v | |
| STUART ROSS ANTONY | Respondent |
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| JUDGES | REDLICH, WHELAN and SANTAMARIA JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 21 October 2013 |
| DATE OF JUDGMENT | 19 March 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 44 |
| JUDGMENT APPEALED FROM | [2012] VSC 458 (Beach J) |
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ACCIDENT COMPENSATION – Accident between a motor vehicle towing a caravan and a motorcycle – Accident occurred in Western Australia – Application of the law of Western Australia – Claim in negligence – Duty of care – Breach of duty – Contributory negligence – Civil Liability Act 2002 (WA).
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr C W R Harrison SC with Mr I R Fehring | Stringer Clark |
| For the Respondent | Mr A N Murdoch SC with Mr S E Gladman | Hunt & Hunt |
REDLICH JA:
I agree with Santamaria JA for the reasons he gives that the appeal should be allowed and the appellant’s contributory negligence assessed at 50 per cent.
I add only this observation. The respondent’s evidence that he had been travelling in the centre lane travelling west for some distance before the collision cannot be accepted. The independent witness, Le Serf, who the trial judge appears to have accepted as a credible witness, observed that 20 per cent of the respondent’s caravan at the point of collision was still occupying the left-hand lane at an angle of 45 degrees to 60 degrees pointing towards the turn-off road. The inference is inescapable that the respondent’s vehicle and caravan had not completed moving into the centre lane at the time that it commenced its turn into the turn off road.
WHELAN JA:
I agree with Santamaria JA.
SANTAMARIA JA:
Introduction
On 4 October 2012, judgment was given in the Trial Division at Warrnambool in a trial arising out of injuries suffered by the appellant, John Ronald Waterfall, when his motorcycle collided with the motor vehicle driven by the respondent, Stuart Ross Antony.[1] The collision occurred on 14 November 2008, on the Eyre Highway, Madura Pass, Western Australia. At the time of the collision, both the appellant and the respondent were travelling in a westerly direction. The collision occurred when the respondent was towing a caravan and attempting to make a right hand turn off the highway into an intersecting road to a lookout to the north of the highway while the appellant was attempting to overtake the respondent’s vehicle.
[1]Waterfall v Antony [2012] VSC 458 (‘Reasons’).
In the proceeding, the appellant claimed damages from the respondent, alleging that his injuries were caused by the negligence of the respondent. The respondent denied negligence; alternatively, he alleged that, if he was negligent, there was contributory negligence on the part of the appellant.
As the accident occurred in Western Australia, the law to be applied was that of Western Australia.[2] The claim in negligence was subject to the Civil Liability Act 2002 (WA).[3]
[2]John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503.
[3]See ss 5B, 5C, 5D and 5K. (See also Motor Vehicle (Third Party Insurance) Act1943 (WA), s 3A.) The relevant provisions are discussed in the Reasons [44]-[52].
It was not in dispute that the respondent owed a duty of care to the appellant.[4] The judge held that the respondent had been negligent, and that, as a result, the appellant had suffered serious injuries. Initially both liability and quantum were in dispute. On the final day of the trial, damages were agreed at $774,980. Applying s 5K of the Civil Liability Act 2002 (WA), the judge also held that there was contributory negligence on the part of the appellant, and that his contributory negligence was also a cause of the collision. He held that the appellant’s negligence should be assessed at 60 per cent. In the event, he ordered that there be judgment for the appellant in the sum of $309,992.
[4]Reasons [53].
In support of his main contention that the judge should have found that the collision was solely the fault of the respondent, or, alternatively, that any contributory negligence by him was of a very low order, by his notice of appeal, the appellant impeaches various factual findings made by the judge.
Nature of appellate jurisdiction
In a case such as the present case, where no significant question of law arises and where it is not suggested that the findings of the judge were not open to him, it is as well for an appellate court to remind itself of the nature of the jurisdiction it is required to exercise.
Section 75A of the Constitution Act 1975 (Vic) divides the Supreme Court into the Court of Appeal and the Trial Division. Section 10(1)(a) of the Supreme Court Act 1986 (Vic) provides that the Court of Appeal has jurisdiction to hear and determine ‘all appeals from the Trial Division constituted by a Judge of the Court’. The appeal ‘is in the nature of a rehearing and not a hearing de novo’.[5]
[5]Financial Wisdom Ltd v Newman (2005) 12 VR 79, 110 [81]; Freeman v Rabinov [1981] VR 539, 548.
The nature of appellate jurisdiction is governed by the statute that confers the jurisdiction.[6] Some statutes are more prescriptive than others.[7] That said, over the last decade or so, particular attention has been given to the nature of appellate jurisdiction when the appeal is by way of a ‘rehearing’.
[6]Fox v Percy (2003) 214 CLR 118, 124 [20].
[7]Compare, for example, s 10(1)(a) of the Supreme Court Act 1986 (Vic) with s 75A of the Supreme Court Act 1970 (NSW).
In Fox v Percy,[8] the High Court said that, in an appeal by way of rehearing, a court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’.[9] The identification of ‘specific error is not necessary and, if this court thinks the decision was wrong, it is not saved because it might be described as embodying a view that was reasonably open to the trial judge.’[10]
[8](2003) 214 CLR 118. In Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 594, a Full Bench of this Court considered the jurisdiction conferred on it by s 134AD of the Accident Compensation Act 1985. The leading judgment (in which Buchanan, Nettle, Ashley and Kellam JJA concurred) is that of Dodds-Streeton JA, to which I am much indebted. That judgment must be read subject to one caveat. It approved the decision of the Court Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622. In Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124, the High Court allowed an appeal from this Court’s decision at [2006] VSCA 187 and at CLR 134-141 [27]–[50], the High Court overruled Barwon Spinners Pty Ltd v Podolak.
[9](2003) 214 CLR 118, 125 [23] citing Dearman v Dearman (1908) 7 CLR 549, 561 (Isaacs J).
[10]Per Buchanan JA in Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 594 [2]. The full reference is as follows: ‘… that s 134AD of the Accident Compensation Act 1985 …. does not create a new type of appeal, but rather emphasises that the Court of Appeal is to conduct an appeal by way of rehearing in accordance with the principles stated by the majority in Warren v Coombes. The appellant bears an onus to persuade this court that the decision below was wrong, but the identification of specific error is not necessary and, if this court thinks the decision was wrong, it is not saved because it might be described as embodying a view that was reasonably open to the trial judge.’ (citation omitted.)
But, the appellate court is at a disadvantage when compared with the trial judge. In Fox v Percy,[11] Gleeson CJ, Gummow and Kirby JJ described these disadvantages as follows:
On the other, it (the appellate court) must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.[12]
[11](2003) 214 CLR 118.
[12]Ibid 125-126 [23] (citations omitted).
The task of the appellate court was discussed as follows:
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’ - fn_LAWREP-AUS-214-CLR-0118-FN.39#fn_LAWREP-AUS-214-CLR-0118-FN.39. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
As this Court there said, that approach was “not only sound in law, but beneficial in ... operation”.[13]
[13]Ibid 126-127 [25] (citations omitted).
For an example of the application of these principles in the case of a motor vehicle accident, see TAC v Cuthbertson.[14]
[14][2013] VSCA 29, [29]-[34] (Whelan JA).
The judicial act may only be based on evidence. Speculation as to the probable cause of an act causing damage is not open.[15]
[15]Nesterczuk v Mortimore (1965) 115 CLR 140, 149 (Kitto J).
Fulfilment by trial judges of their obligation to give reasons facilitates the exercise of appellate jurisdiction by way of rehearing.[16]
[16] Alcoa Portland Aluminium Pty Ltd v Husson (2007) 18 VR 112, 138 [92] (Chernov JA); Hunter v TAC [2005] VSCA 1, [21]-[22] (Nettle JA); Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, [37]-[52] (Ashley JA); Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 18 (Gray J).
Summary
For the reasons that follow, in my opinion, the appeal should be allowed.
The facts and circumstances
At the point of the collision, the highway runs east-west; it comprises three lanes. Two lanes are designated for drivers proceeding in a westerly direction (the westbound lanes); and, the remaining lane is for drivers proceeding in the opposite easterly direction (the eastbound lane). The two westbound lanes are to the south; the eastbound lane is to the north. Facing west, the two westbound lanes may be designated as the left hand lane and the centre lane.
The lookout is on an elevated area. From the Madura Roadhouse, the two westbound lanes are on a steep rising incline: hence, the location of the lookout. Before the point of the collision, the road has flattened out. From the point of the collision heading east, the eastbound lane is similarly flat, and, then, commences a corresponding decline.
The centre (westbound) lane was separated from the eastbound lane by two continuous double lines. The northern edge of the eastbound lane was separated from the gravel by a single white line.
It was agreed that there were two relevant sign posts to the lookout. Each was addressed to vehicles travelling west. Both were located on the southern side of the Eyre Highway. The first sign was located approximately 200 metres to the east of the lookout road. The first sign advised a driver that he or she was approaching the turnoff to the lookout, but it gave no advice as to the distance to the turnoff. The second sign was located at about the point of the turnoff to the lookout road.
At the point of the collision, the highway curves. From the perspective of a vehicle heading west, the curve is around to the right; from the perspective of a driver heading east, the road curves around to the left.
Photographs of the respondent’s vehicle show that the point of collision was towards the front of the front panel above the forward driver’s side wheel. The damaged metal together with the damaged bull bar has signs of the collision.
Following the collision, marks were observed on the eastbound lane of the highway. It was accepted that these marks were made by the motorcycle when it landed after the collision.
Certain facts seemed to be uncontroversial. Both the appellant and the respondent had stopped at the Madura Roadhouse to buy fuel. The respondent was accompanied by his wife. They left the Roadhouse first. They had decided to lunch at a lookout that they were aware was ahead, situated to the north of the highway. After the Roadhouse, the highway commenced to rise steeply. Upon seeing the first sign, the respondent said that he moved his vehicle and caravan completely into the centre (westbound) lane. He was travelling slowly in second gear. He was unaware that he was being followed by the appellant on his motorcycle. The motorcycle was moving much more rapidly than the respondent’s vehicle. At the point of the second sign, the respondent immediately changed into first gear, and commenced to turn right over the double white lines. At this stage, the appellant was attempting to pass the respondent’s vehicle on its right hand side. Very soon after the respondent had commenced to turn right, the motorcycle of the appellant collided with the front section of the respondent’s vehicle above and forward of the front right wheel. The appellant was thrown over the bonnet of the respondent’s vehicle, and the vehicle stopped almost immediately. The appellant was injured.
The parties’ versions of the collision
The judge summarised the appellant’s version of how the collision occurred as follows:
The [appellant’s] version is that he was travelling at about 100 kilometres per hour when he first saw the [respondent’s] caravan in the left lane. The [appellant] moved into the right lane to overtake. While overtaking, the [respondent] turned right [from the left lane across his path] in front of him. While he attempted to steer right to avoid the collision, the collision occurred somewhere near the double white lines. Further, no indication was given by the [respondent warning] of the manoeuvre he was about to perform before the accident occurred.[17]
[17]Reasons [29].
The judge summarised the respondent’s version as follows:
… [the respondent and his wife] were always intending to go to the lookout. At about the time they saw the first lookout sign, the [respondent] moved from the left lane to the right [centre] lane (having previously looked in his mirror and indicated). They were in the right lane, travelling slowly when they came to the second sign [to] the lookout — at which point the [respondent] turned right from the right lane across the double lines, and the collision occurred. The [respondent’s] right indicators were operating at the time of the collision. For how long they had been operating prior to the collision, is a matter of dispute.[18]
[18]Reasons [30].
The appellant submitted that, if what the respondent said was correct, then the left lane was clear and the appellant would have overtaken on the left hand side without any risk to himself. Why, it was submitted, would the appellant overtake on the wrong side of double white lines on an uphill blind corner, when, if the respondent’s version were to be accepted, there must have been space to pass in the left lane?
The respondent submitted that the appellant’s version must be wrong because, immediately prior to the collision, the appellant would have been travelling at approximately five times the speed of the respondent’s vehicle and sought to ‘just whip around’ the respondent’s vehicle as it came from the left hand to right centre lane of the westbound lanes.
The evidence
Evidence was given by four witnesses: (1) the appellant, (2) the respondent, (3) the respondent’s wife and (4) by an independent witness, Mr Peter Le Serf. Mr Le Serf did not witness the collision; but he arrived at the scene of the collision shortly after it occurred.
The appellant gave evidence that he was travelling from Simpson in Victoria to an area near Lake King in Western Australia where he had an offer of employment. He was driving a Harley Davidson motorcycle which was just under two years old. He had left Simpson on Tuesday 11 November and spent the first night at Victor Harbour, South Australia. On 12 November, he had reached Port Augusta, and the Nullarbor Roadhouse on 13 November. Along the route, he would meet up with other travellers at various service stations. On several occasions, he met Mr Le Serf with whom he would have casual conversation. He spoke with Mr Le Serf at the Madura Roadhouse and, ‘because [he] was enjoying the ride’ rejected a proposal to throw his bike onto the back of Mr Le Serf’s truck to save fuel. He left the Madura Roadhouse at about 11.30am. The weather was fine and clear. There was not much traffic on the road. The collision occurred just minutes later; it occurred a kilometre or two beyond the Roadhouse. As the appellant left the Roadhouse, heading west, along the highway the road began to rise. There were 3 marked lanes: 2 were going west. He saw a caravan ahead of him (the caravan was that of the respondent). He believed that the caravan was on a tour or a trip. When the appellant first saw the caravan, he was travelling between 90 and 100 kilometres per hour: ‘around the speed limit’. The appellant did not see any signs to the lookout. When he first saw the caravan, it was in the left hand lane: ‘moving but it was slow’; it was a bit like ‘a slow moving truck going up a hill’. The appellant resisted suggestions that the caravan and vehicle had been in the right hand lane. Some 50 to 100 metres, back from the caravan, the appellant moved across to the centre lane, ‘the overtaking lane’, in order to pass the caravan. At no stage when he was approaching the caravan and the vehicle towing it did the appellant observe the operation of any indicator; there was, he said, ‘no indicator’. He had ‘no reason to think that [the] caravan would have any reason at all to pull over to the right’. The collision occurred ‘coming to the crest of the hill’. The respondent’s vehicle was ‘facing straight ahead when I approached it’. The eastbound carriageway was ‘completely clear’. The appellant proceeded to overtake the caravan ‘and I got almost past (sic) the caravan and the vehicle towing the van came straight across in front of me’. He said that the caravan and vehicle had been in the left hand lane. It did not move first into the right hand or overtaking lane. Rather, ‘it turned across in front of me’. It ‘came straight across in front of me’. The appellant said that he was near the back of the van ‘very close to the vehicle’ when it ‘just turned across in front of’ him. It was when he ‘came up behind the vehicle’ that it commenced its turn. The appellant said that he tried to avoid the collision; he ‘tried to turn right away from the vehicle’. Asked whether he had crossed the double white lines before he hit the vehicle, the appellant said: ‘I honestly couldn’t answer that but I don’t think so.’ He may have crossed the double white lines in the centre of the road ‘to avoid the crash’.[19] The appellant hit the car, went over the top and both the appellant and his bike ended up on the right hand side of the road. The respondent’s case is illustrated by the following cross examination:
[19]In an affidavit sworn 30 March 2010, the appellant had sworn: ‘I tried to take corrective action and steer to the right to avoid the car. I was not able to avoid a collision and the contact that eventually was made would have probably been over the double lines or close to the other side of the road’.
QAnd a very slow moving vehicle in front of you, and what I suggest to you is that what in fact occurred in the surroundings that we have discussed that in fact the very slow moving vehicle - the caravan - and of course the pulling vehicle in front of it, moved to the right with its indicator on?
A No.
QAnd I suggest to you that you simply just failed to take that into account?
ANo, there was no indicator, the vehicle did not move from the left lane to the right lane so ‑ ‑ ‑
QAnd indeed it was going so slowly compared to your vehicle that you thought, I suggest, that you could just whip around it?
A No trials (sic) in overtaking and then passing it.
QBecause the vehicle, the evidence will be, that immediately before the turning the driver was in first gear, of a five-speed manual gearbox, he was in first gear and was commencing to do his turn to go into the pathway or gravel, or whatever it is, to the lookout?
A The caravan was in the left-hand lane.
QYes, and what I suggest to you is that if he was in first gear and he will indicate that he thinks the speed was something in the order of ten kilometres an hour, something like that, that you I suggest thought that you'd just whip around?
A Yes.
QAnd it would have taken you effectively a split second to pass that vehicle?
A Yes, it would have going at 100.
QDoing 100 kilometres an hour compared to a vehicle doing certainly less than 20 kilometres an hour it's just - and you are passed?
A Yes, that was - that was the intention.
QExactly, and what I suggest is that you've just missed it. You think that both vehicles are going straight ahead, you weren't aware that there was any prospect of this vehicle doing a right-hand turn, and accordingly you didn't take much notice of it except to notice it was slow?
A Yes, it was slow in the left-hand lane.
QYes, and what I am suggesting to you is that it remained slow in the right-hand lane?
A It turned across - across the right-hand lane in front of my path.[20]
[20]There was a further passage in the cross examination of the appellant that related to the indicator.
QSo once again you don't notice this vehicle moving right at all until it's beside you?
AIt turned straight out in front of me.
QIf it's right beside you and it starts to turn you wouldn't even know if it had an indicator on?
AIt didn't have an indicator on as I approached from behind where I could see.
The appellant rejected suggestions that the collision occurred to the north of the bituminized part of the road; he said it happened closer to the centre of the road. He was ‘pretty close’ to the vehicle when it started to turn. The appellant denied the suggestion that he decided to take advantage of his greater speed to ‘whip around’ the slower moving vehicle.[21]
[21]In part, the cross examination was based on a statement given by the appellant to the police on 25 November 2008 and, in part, on an affidavit that the appellant had sworn on 30 March 2010 which seems to have been part of a ‘serious injury’ application under the Transport Accident Act1986 that, it appears, was discontinued when the implications of John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503 were appreciated by the parties.
In his evidence, the appellant repeatedly said that, until immediately before the collision, the respondent’s caravan and vehicle had been travelling very slowly in the left (westbound) lane, and that, as he approached to pass, the centre (westbound) carriageway was clear.
Mr Le Serf was called to give evidence on behalf of the appellant. He was a vehicle licensing inspector who had previously been tow truck driver. He had met the appellant at least four times at different roadhouses on the highway. He had met him most recently at the Madura Roadhouse. He came across the scene very soon after the collision. He gave evidence of his observation of the situation of the respondent’s vehicle and caravan when he arrived on the scene. He described the road at the point of the collision: ‘the road wasn't straight, it was veering around to the left if you're heading east, so it wasn't a straight stretch of road and it was also on a raised stretch with a hill so it was fairly blind on both ways’. In examination-in-chief, he gave the following evidence:
QWhat was the next significant thing you saw?
AWell, as we travelled up that path, which is a sort of an uphill grade, when we got to the top we saw the - the car and caravan spread across the road and as we went round - as we got to it then I could see the motorcycle and - and John off in the - on the verge on the right-hand side of the road.
QDid you pull up?
AWe did, we went around the back of the caravan on the - on the verge in the left lane and went forward of that and pulled up to see if we could offer any assistance.
QWhen you arrived, are you able to describe - as best as you're able - the position of the caravan and the vehicle pulling it by reference to the lanes?
AThe car was - the car and caravan was on an angle from the left-hand side of the road across to the right-hand side of the road. The - the car was in the right-hand lane which I guess is a passing lane because it was two lanes going west and only one lane going east.
QYes?
AThe car was partly in the - the oncoming lane. The caravan was in the right-hand lane heading west with a part of the caravan sitting in the left lane heading west. So it was all on a bit of an angle pointing towards where the - where the - where there was a turn-off to a - a dirt road off the road.
QThere are double lines that delineate the east bound single lane from the two west bound lanes?
AYes.
QWas any portion of the towing vehicle across that line?
AYes, there was.
QHow much of the towing vehicle was across the line?
ANot a major amount of it, but there was certainly some of it across there. There was part of it in that - in that oncoming lane and the rest of the vehicle was in the right-hand lane heading west.
QDo you have any recollection in relation to the front driver's side wheel?
AWell, there was a substantial amount of damage to the car.
QDo you have any recollection as to the location of that in relation to the double lines?
ANot - in all honesty no. I would - I would say that it was probably over the line but I honestly couldn't be sure.
QYou say a portion of the caravan was still in the left-hand lane?
AYes.
QRoughly how much?
AMaybe 20 per cent.
QThis is obviously the rear of the caravan?
AYes, it was the left - it was the left-hand rear corner of the - of the van.
QIf one assumes that the road was sort of straight ahead, at what sort of angle would the caravan be located, or was it articulated in the middle?
ANo, it was pretty straight, but I'm - I'm guessing 45 to maybe 60 degree angle.
Later, Mr Le Serf said that the caravan was ‘in the two westerly lanes. It was partly in the left lane, most of it was in the right lane’. The vehicle had not completely blocked the eastbound lane; he said that it would have been possible to manoeuvre past it.
Mr Le Serf said that the appellant was ‘on the shoulder or verge of the lane of the road heading east’ and that his motorcycle was ‘partly on top of him’. He managed to get the vehicle off the road as it was a danger to traffic coming from the west heading east. He did not observe any skid marks at all.
The respondent gave evidence that he was travelling west with his wife in a four wheel drive Toyota Hilux vehicle pulling a Millard Longreach caravan. They had stopped at the Madura Roadhouse for fuel, and had decided to stop for lunch at the lookout. It was mentioned on their maps, and included in their GPS. The turnoff to the lookout is a bit over a kilometre from the Roadhouse. Having left the Roadhouse, they began to climb the upwards gradient which was ‘quite steep’. His vehicle was in the far left-hand lane. He said that there were ‘two lanes going up and one coming down’. Travelling up the incline, ‘we were probably doing around about 30 kilometres an hour’; his fastest speed was ‘probably 32, 34 kilometres an hour’. He ‘would have been in second gear’. At the first sign ‘I looked in the mirror, put the indicators on and moved across into the other lane’. The whole vehicle and caravan had moved into the right hand lane. When he changed lanes, he changed down to first gear. He slowed down to 10-15 kilometres an hour. At that point, he was probably 50 to 70 metres from the turnoff. Having moved into the right hand lane (that is the centre (westbound) lane), he accepted that there was now ‘a completely open pathway for the left hand lane’. For ‘most of the time (in that 50 to 70 metres) we would have had’ the right hand blinker on. Close to the point of the collision, the road still has a slight incline and it veers around to the right. It is at the crest of a hill; ‘you’re coming up very steep and then it flattens out’. He turned to the right and as ‘we were nearly to the edge of the bitumen and – when (sic) I heard a noise and the bike - the bike hit us.’ At the point of the collision ‘the front wheel (of his vehicle) would have been just over the … white line on the single lane going down the hill’ (marking the northern edge of the eastbound lane); it would have been on the edge of the bitumen. After the collision, the motorcycle stayed by the wheel, and the appellant went over the top of the bonnet.
The respondent did not see the appellant before the collision. He was cross examined about his failure to see the appellant:
QSo if he’s coming up behind you at that speed he can only have been tucked in behind the blind spot, which would be immediately behind your caravan, if he ever was, for a very short time?
A Yes.
Q So for the rest of the time, if he is there he has got to be visible down the road?
A Until he come over the rise, yes.
QIs the rise down at the bottom of that photograph, the furthest away from the photograph, is that what you are talking about?
A Yes.
Q You never saw him before the accident?
A Not on the road, no.
Q The first you saw of him was when he went across your bonnet?
A Yes.
QWhat I want to suggest to you is that bearing in mind that aggregation of factors, that is him coming up behind you pretty quickly, you travelling that slow, the curved road, if you’d looked you would have had to have seen him?
A I don’t think so, that’s your opinion.
QI’d like you to comment on it. I’m suggesting to you that for whatever reason, an oversight or whatever, on this occasion you can’t have looked?
AWell, we turned our corner and the mirror doesn’t go a long way one side and if he’s over the brow of the hill I can’t see him, no.
QBut you would look when you turn on your blinker, that would be a normal pattern wouldn't it? Blinker on, have a look in the mirror?
A No. You look in the mirror and then put the blinker on.
QSo if you’ve done that you would have had to have seen him if your recollection is – I’m sorry. If you had done that, if you’d looked in the mirror and turned on the blinker at the same time and proceeded on for another 50 to 70 metres, he’s closing fast on you, you’d have to have seen him if you’d looked, wouldn’t you?
A Well, I don’t think so.
Q What other explanation is there?
AWell, somebody doing 100 and somebody doing 15, he would have caught - made that difference in a pretty quick time.
Q What, three, five, ten seconds?
A I don’t know.
QBut if you’d looked before you’d embarked on the right hand turn, by that stage at least you would have had to have seen him?
A Well, that’s your opinion.
Q It has got to be right doesn’t it, sir?
A No.
QIf you looked when you actually start turning the wheel you would have had to have seen him?
AOkay, yes, I didn’t look when I started turning the wheel, no. We were on double lines and we weren’t …
The respondent insisted that his vehicle was close to the edge of the bitumen when the collision took place. His vehicle stopped ‘within about a metre after the accident’. The respondent said that the collision occurred further to the north than Mr Le Serf had said in his evidence.
The appellant’s case is well illustrated in the following cross examination of the respondent:
QYour recollection is that that has a sign pointing to the right saying ‘Lookout Road’?
A There was a sign there, yes.
QI think your evidence was that you believe it had a sign pointing to the right saying ‘Lookout Road’?
A Yes.
Q Do you adhere to that, that that's the situation to your recollection?
A Yes.
Q You're not familiar with the road?
A No.
QIt's not the situation, I suggest to you, that you're coming up, you've seen the signs warning, you come up to the road and then all of a sudden you see that sign and you think ‘Oh good, here it is’ and over you go from the left lane into the right lane and across the double lines and ‘bang’?
A200 metres before there was another sign with an arrow pointing to the right. We also have a GPS system in our car.
QThe sign that is 200 metres back, that doesn't tell you how far to go, does it?
A No.
Q You're still looking for it?
A Yes.
QAnd it's scrubby country. I mean you don't see a road like that until you're on to it, there's not a house conveniently on the corner or a street sign?
A You can see a fair way.
QI put to you again, it's not the situation, is it, sir, that you're looking out for this turnoff, you're in the left-hand lane because you're going very slowly and you don't want to be a nuisance and you see the sign on the left-hand side and think "Right, there it is’ and ‘bang’ across you go?
A No.
Q I suggest to you that that is exactly what happened?
A No.
QAnd you went across without looking and you went across without indicating?
A That's totally incorrect.
QBut certainly you did not see the motorcycle at any stage before it impacted with you?
A No.
QAnd on your version, if you're in the lane for 50 to 70 metres it was a completely open path on the left-hand lane for anyone wanting to go past and with you with the right-hand blinker on?
A Yes.
QYou can't think of any hypothesis why someone would want to pass over the double line up a blind corner in the eastern ‑ ‑ ‑?
A I don't know why anybody would want to cross a double line.
The respondent said that, as the vehicle was at the edge of the bitumen on the north, the caravan ‘wouldn’t have gone much over the double lines’. As the turn was being negotiated, the vehicle and the caravan were not in a straight line; there was a bend. But, with the impact of the collision, they were forced back into a straight line.
The respondent was recalled for further examination in chief in which he stated that about 15 to 20 minutes after the collision, he went back to his vehicle and the ignition was still on, and the indicators were still working. In cross examination, the respondent conceded that he could not remember ‘physically actually switching the (indicator) switch on’. He could not remember turning them on. He rejected the suggestion that he turned the indicator on a ‘nano-second’ before he turned right. He was asked about the time it took to move his vehicle off the road. He did not know how long it took as he was looking after the appellant. He rejected the idea that his vehicle was only partially obstructing the eastbound lane.
The respondent’s wife was the last person to give evidence. She stated that after they left the Madura Roadhouse, they were travelling in the left-hand lane. They were travelling pretty slowly looking for the turnoff. They moved into the right-hand lane. She noticed her husband look in the rear mirror before commencing to turn. She said that they were practically at a standstill as they were going so slowly. At the point of the collision, they were ‘nearly to the gravel on the other side of the oncoming lane’. There was a scream. The appellant went over the bonnet. The appellant’s motorcycle was nowhere near him.
She said that she saw her husband look in his rear vision mirror before he started to turn, but cannot say whether the indicator was operating. She said:
All I remember is - you know, I remember Madura, I remember going up the pass, I remember we were in the right-hand lane, I remember we were going very slow because we had seen one sign down the hill and we were getting to the top. There was another sign and he said ‘It's got to be here somewhere’ and I said ‘There it is over there’ and I saw my husband look in the rear view mirror and then he started to turn.
After the collision, their vehicle was either touching the gravel or almost touching the gravel. She rejected the suggestion that vehicles heading east could have navigated around their vehicle.
Reasons of the trial judge
The judge found that the collision took place somewhere in the eastbound lane. He found that the respondent had been negligent and, applying ss 5C and 5D of the Civil Liability Act2002 (WA), that his negligence been a cause of the appellant’s injuries. He said:
As might be expected, the defendant did not contest the proposition that he owed the plaintiff a duty of care. The central issue in this case was whether the defendant breached that duty of care. In all the circumstances, I have concluded that he did. The defendant executed a right hand turn from a position on the roadway where part of the caravan he was towing was, as I have found, over or in the left hand lane. This turn was not executed from as near as practicable to the double continuous white lines. Further, while the defendant’s indicators were operating at the time of the turn, they were not operated with sufficient time so as to warn anyone travelling behind the defendant or, more particularly, the plaintiff. Additionally, the defendant did not check his mirrors for the presence of another vehicle before commencing the turn.
While the defendant’s answer to not looking in his mirrors at the time of the turn (he having looked when he moved from the left lane to the right lane earlier) was that ‘[w]e were on double lines’, in my view it was incumbent on the defendant to look in any event – and particularly having regard to the fact that the turn was made from the left of where it should have been made and without appropriate indication. Further, the presence of double white lines does not obviate the need for a driver to keep a proper lookout for vehicles with which he or she might potentially collide, when changing position on the roadway.
While the defendant did not seek to contest the issue of causation, in the event that I found a breach of duty had been established, I should say for the sake of completeness that the defendant’s negligence was a cause of the plaintiff’s injuries. But for the defendant’s driving as I have described it, the accident would not have occurred.[22]
[22]Reasons [53]-[55] (citations omitted).
The respondent has not appealed that part of the judge’s reasons.
Applying, s 5K of the Civil Liability Act 2002 (WA), the judge then found that the respondent had established that there was contributory negligence on the part of the appellant and that his contributory negligence was also a cause of the accident. Comparing the relative departures by the respondent and the appellant from the standard of care required of them, the judge assessed that contributory negligence of the appellant at 60 per cent. It is to those two findings that this appeal has been addressed.
The judge described Mr Le Serf as the most independent of the witnesses. But, having not accepted his evidence that the motorcycle finished on top of the appellant, he held that he needed to give some scrutiny to his evidence before he acted upon it. The judge did not accept all of Mr Le Serf’s evidence.[23] In the event, he accepted his evidence that part of the caravan remained in the left-hand lane, but not 20 per cent of it.
[23]Reasons [31].
The principal reasons were as follows:
Central to the evidence of the [respondent] and his wife is the proposition that they were in the left lane some distance back from the lookout, they were aware of the lookout, and the [respondent] moved into the right hand lane (again, some distance from the lookout road). I accept that at this time, the [respondent] looked in his mirror and indicated, before moving into the right hand lane. Having moved into the right hand lane, the probability is that the [respondent] turned off his indicator. So much is consistent with his evidence that he only had his right hand blinker on for ‘most of the time’ he was in the right lane or for ‘50 metres of it’.
The caravan the [respondent] was towing is wider than the vehicle he was driving. It seems to me probable that while the [respondent] moved into the right lane, there was no great precision about this. In my view, it is likely that the left hand side of the caravan remained partly in the left lane, and partially obstructed any vehicle that might have wanted to overtake the [respondent] on the left hand side. This conclusion is consistent with Mr Le Serf’s evidence that when he arrived at the accident scene, the back left corner of the caravan was in the left lane.
The [respondent] and his wife then observed the second lookout sign and lookout road. In the words of the [respondent]’s wife, ‘I spotted it and I said, ‘[t]here it is there’ … we were practically at a standstill we were so slow, and I noticed my husband look in the rear view mirror, the mirror at the side and start to turn’. While Mrs Antony may have seen her husband’s head turn to the right, the [respondent] conceded that he did not look in his mirror before commencing to turn. In the circumstances, it is more likely that the [respondent] turned his head to look at the road he was about to turn into, rather than into a mirror. In the circumstances, it also seems likely to me that the [respondent] activated his indicators at about the same time he commenced to turn. This was insufficient to give any real warning to the [appellant] having regard to the speed at which the [appellant] was then travelling.
At the same time the [respondent] was commencing to turn, the [appellant] was approaching the front of the [respondent]’s vehicle on the right hand side, attempting to overtake. Whether the [appellant] was on the double white lines, or marginally to the left of them (lane splitting), or over the double white lines, when he observed the [respondent] turn right in front of him, he was forced to move to the right, and the collision occurred somewhere in the eastbound lane.
From the marks to the north of the single line marking the northern edge of the eastbound lane, I might infer that the collision occurred somewhere in the northern half of the eastbound lane. In truth, it is not necessary to go so far. There can be no doubt that the marks were caused by the motorcycle coming into contact with the roadway. Indeed, the trial was conducted on that basis. The question arises as to whether that is the point of impact, or whether the motorcycle was thrown sideways to the north after the collision. In the end, all that I am able to conclude safely as a probability is that the collision occurred somewhere in the centre of the eastbound lane.
While a significant part of the trial was taken up testing witnesses about the precise location of the impact and the position of the front of the [respondent]’s vehicle for the 20 or so minutes after the accident (on the basis that one or other position was improbable because it would or would not have permitted other vehicles free passage down the road, and/or other collisions might have ensued), the evidence is not substantial enough to enable me to accept or reject any of the particular hypotheses advanced. Notwithstanding the attempts at precision, it seems to me that one can do no better than say that the impact probably occurred at or about the centre of the eastbound lane.
As I have said above, I accept the evidence of the [respondent] and his wife that they moved from the left lane into the right lane some time before the collision (albeit with the caravan protruding to some extent in the left lane). …[24]
[24]Reasons [36]-[42].
The judge said that he was fortified in his conclusion by two circumstances. First, given the relative speeds of the two vehicles (the appellant was travelling up to five times the speed of the respondent), if the respondent had been travelling wholly in the left hand of the two westbound lanes and had simply cut across into the eastbound lane, the appellant would have had ample time to pass him on the right hand side without collision. Secondly, the fact that the respondent did not check his rear vision mirror before executing his right hand turn suggested that he was much closer to the double white lines than he would have been if he had remained wholly in the left hand lane before commencing to execute his right hand turn that resulted in his collision with the motorcycle of the appellant.
Notice of appeal
That the respondent had a duty of care was never in issue. Nor has the respondent cross appealed the holding that the collision was caused by a breach of his duty of care to the appellant. The only issue in the appeal is whether the respondent’s negligence was the sole cause of the collision or whether there was any contributory negligence on the part of the appellant, and, if so, how that should be quantified.
The notice of appeal is in a narrative form. It takes, as its point of departure, some findings of fact of the judge. It criticizes the conclusions that the judge drew from his findings and suggests an hypothesis that it says is more probable. It is as follows:
1.The Judge erred in finding that the Plaintiff, mounted on his motorcycle, while overtaking the Defendant’s vehicle and caravan (which were primarily in the right hand or passing lane of the two westbound lanes of the Eyre Highway), the Plaintiff was either lane splitting with the Defendant, travelling on the double white lines or travelling on the wrong side of the double white lines delineating the two westbound lanes from the single eastbound lane.
2.His Honour found that at the time the Defendant moved from the left hand westbound lane into the right hand westbound lane, after passing a Lookout turnoff sign 200 metres back from his intended right hand turn at the Lookout turnoff, the Defendant operated his right turn indicator for some 50 metres while proceeding at the described slow speed of 5 to 15 kilometres per hour and then turned off his indicator, on the evidence approximately 20 metres from the Lookout turnoff, before he commenced to turn right, at the same time re-activating his indicator.
3.His Honour accepted the evidence of the witness Peter Le Serf, that after the accident, when stationary, a portion (although less than the 20% reported by Mr Le Serf) of the caravan was still in the left hand westbound lane.
4.His Honour recited without demur the evidence of Mr Le Serf that when stationary after the accident, the vehicle and caravan were at an angle of 45 to 60 degrees across both westbound lanes and into the eastbound lane.
5. His Honour found by implication, or it was a necessary corollary of the finding recited in paragraph 2 above, that the right hand indicator being displayed by the Defendant for 50 metres before the turnoff while the Defendant’s vehicle and caravan were travelling at 5 to 15 kilometres per hour or (at 15 kilometres per hour), 2.5 kilometres per minute or 4 metres per second, meant that indicator was displaying for approximately 12.5 seconds.
6.His Honour by implication, or it was a necessary corollary of the finding recited in paragraph 2 above, that the Defendant’s vehicle and caravan were predominantly in the right hand lane of the westbound lane for 50 to 70 metres before the Defendant commenced to turn right into the Lookout Road across the double white lines, that the orientation of the Defendant’s vehicle and caravan prior to commencing his right hand turn was normal (in that there was no perceptible angle across the road or articulation between the vehicle and caravan) whereby the angle across the roadway described by Mr Le Serf post collision, (and confirmed by the defendant), must have been a function of the Defendant embarking upon his turn.
7.His Honour erred in that he failed in his reasons for judgment to refer to and hence did not take into account:
(a)the unchallenged evidence of the Plaintiff that he first saw the defendant’s caravan some hundreds of metres in front of him and yet did not see any indicator operating (and hence the 12.5 second display), before the Defendant commenced his right hand turn; and
(b)the unchallenged evidence of Mr Le Serf that there were no skidmarks on the roadway post collision;
and thereby failed to adequately address the inherent improbability of the Plaintiff electing to ignore a right hand indicator displayed for 12.5 seconds and to forego a substantially unobstructed safe pathway to pass the Defendant in the left lane, which pathway was open for over 12.5 seconds, (save for some speculation about the possible impact of light traffic volumes on the Eyre Highway on the parties’ attitudes to driving behaviour).
8.His Honour should have found, (there being no allegation of excessive speed by the Plaintiff), that the evidence led to a conclusion that the Defendant did not operate his indicator for the initial period of 12.5 seconds so that, as his Honour found, the activation of the Defendant’s indicator at the time of turning, was insufficient to give any real warning to the Plaintiff of the intended right hand turn, such that the accident was solely the fault of the Defendant, alternatively any contributory negligence by the Plaintiff was of a very low order.
9.Alternatively, in the event his Honour’s factual findings are upheld, the finding of 60 percent contributory negligence failed to adequately reflect his Honour’s findings that the defendant did not commence to execute his turn from as near as practicable to the double white lines, rather he commence (sic) to turn without adequate warning or appropriate indication to the plaintiff, without checking his mirrors, without which negligence the accident would not have happened.
So far as I understand it, the appellant fixes on several findings of the judge, and then draws from them implications (or ‘necessary corollaries’) which, he contends, the judge should have drawn. The judge found that, after seeing the first sign, the respondent began to move into the centre (westbound) lane. He put on his indicator and the indicator operated for about 50 metres before it was deactivated. Because of the distance that the respondent travelled using his indicator (50 metres) and the speed at which he was travelling (5 to 15 kilometres an hour), the indicator must have been displayed for at least approximately 12.5 seconds (based upon 15 kilometres an hour).[25] At the time of the collision, the respondent had moved his vehicle and caravan such that only a small part of them remained in the left hand westbound lane. The appellant gave unchallenged evidence that, as he was approaching the respondent’s caravan, he had a clear sight of it for ‘some hundreds of metres’, yet he did not see any sign of its indicators operating. The appellant contends that the reasons of the judge are deficient in that they do not address the ‘inherent improbability’ that the appellant elected to ignore the activated indicator and to pass up the opportunity to pass the respondent on the left hand side using the pathway which had become ‘a substantially unobstructed safe pathway’, one which had itself been opened up for all or much of the time that the respondent was operating his indicator. In the event, the appellant contends that the more probable view of the evidence is that the respondent did not use his indicator ‘for the initial period of 12.5 seconds’ with the result that he gave the appellant insufficient notice of his intention to make a right hand turn. The fact that insufficient notice was given is corroborated by the finding of the judge that there were no skid marks at the point of the collision indicating that the appellant had no apprehension that the respondent was about to turn right in a northerly direction. In the premises, the appellant says that the collision was solely the fault of the respondent or, if there was any contributory negligence, it ‘was of a very low order’. Alternatively, he says that the holding of 60 per cent contributory negligence of the appellant failed ‘adequately’ to reflect the findings of the judge that (a) ‘the respondent did not commence to execute his turn from as near as practicable to the double white lines’ and (b) that the respondent commenced his turn without (i) ‘warning or appropriate indication’, and (ii) without checking his mirrors.
[25]The maths: if a vehicle is travelling at 15 kph, it will travel 250 metres a minute and (approx) 4.16 metres a second. A vehicle moving at 4.16 metres a second will take approximately 12 seconds to travel 50 metres.
Analysis
As indicated above, at trial, the respondent did not dispute that he owed a duty of care to the appellant. The judge found that he had breached that duty, and that his negligence was a cause of the appellant’s injuries. Although the appellant has not appealed those findings, they remain relevant to any assessment of contributory negligence. In the event that this Court finds that there was contributory negligence on the part of the appellant and that that contributory negligence was also a cause of his injuries, it will still be necessary for this Court, as it was necessary for the judge, to assess and compare the relative departures by the respondent and the appellant from the standard of care required of each of them.[26]
[26]The judge referred to s 60 (Reckless driving), s 61 (Dangerous driving) and s 52 (Careless driving) of the Road Traffic Act 1974 (WA). He also referred to the following provisions of the Road Traffic Code 2000 (WA): reg 35 (When drivers are to give signals), reg 36 (How drivers are to give signals), reg 122 (Overtaking) and reg 124 (Keeping a safe distance when overtaking). During argument, reference was also made to reg 116. However, that reference became irrelevant once the appellant ‘abandoned any suggestion that the [respondent]’s right turn was not “permissible” within the meaning of that regulation’.
In my opinion, the uncontroversial evidence of the topography and the alignment of the road provide the vital background to the collision. The collision occurred on a road that had been rising steeply, although, as it approached the turnoff to the lookout, the gradient was much less steep. Just before the point of the collision, the road, heading west, had begun to veer around to the right. These two circumstances would have accounted for the presence of the double white lines that separated the centre (westbound) lane from the single eastbound lane. They would also explain why, even if the respondent’s caravan and vehicle had moved completely into the centre (westbound) lane, there would not have been a pathway in the left (westbound) lane that gave the appellant, travelling at the speed he was, a clear view of a pathway to the left of the respondent’s caravan and vehicle. However, given the evidence, I would not find that the respondent’s caravan and vehicle were wholly in the centre (westbound) lane. They remained partly in the left (westbound) lane. That circumstance had a particular bearing on what took place.
The evidence of Mr Le Serf was independent. His evidence as to the location and orientation of the respondent’s vehicle and caravan after the collision makes it more likely than not that, despite the evidence of the respondent, the latter had not moved both into the centre (westbound) lane before coming to the second sign, although it is probable that the respondent was in the process of moving his vehicle and the caravan towards the centre of the road.
Moreover, Mr Le Serf’s evidence also makes it more likely than not that the respondent had not so moved his vehicle and caravan that a clear pathway had opened up on the left hand lane for the appellant to see this as a clearer means of passing the respondent.
Further, Mr Le Serf’s evidence makes it more probable than not that, while the respondent had moved most of his vehicle and caravan over towards the middle of the road and closer to the double white lines, he had not yet positioned them sufficiently close to the double white lines as to make a right hand turn entirely safe.
In my opinion, it is a safe inference from all of the evidence that the appellant was rapidly bearing down on the slow moving caravan and the vehicle towing it. The appellant decided to pass it. He could not pass on the left hand side, as part of the caravan remained in the left (westbound) lane and obstructed safe passage on that side. So, the appellant decided to pass on the right hand side. By this time, the respondent’s vehicle was close (but not adjacent) to the double white lines separating the centre (westbound) from the eastbound lane. As indicated above, that double white lines signified the danger of any westbound vehicle moving into the eastbound lane. It seems probable that the appellant had expected that his greater speed would permit him to pass the respondent’s vehicle notwithstanding its proximity to the double white lines. It is probable that the existence of the dangers signified by those lines cautioned the appellant not to travel too far across into the eastbound lane. But, the risk that he ran, in my opinion, contributed to the collision.
The fact that the respondent’s vehicle and caravan were already partly in the centre (westbound) lane made it dangerous for anybody to attempt to pass them until the lane was clear. That danger was exacerbated by the space occupied by the vehicle and the caravan, and the vulnerability of a motorcycle. In the circumstances, the appellant’s contention that the collision was solely the fault of the respondent must be dismissed. Without his negligence, the accident would not have occurred.
The principal issue raised in the notice of appeal relates to the question whether the respondent used his right-turn indicator before (a) moving into the centre westbound lane and (b) before turning north towards the Lookout road immediately before the collision. The respondent gave evidence that, after the collision, his indicator was still working. Thus, it must have been activated before the collision.
The judge decided that it had been activated twice. He found that it had been activated, first, when the respondent’s vehicle moved out of the left into the centre (westbound) lane. Then, the judge held that it was probable that the respondent turned off the indicator. He found that the respondent reactivated the indicator for the second time just as he commenced to turn right across the double white lines. In doing so, he gave insufficient warning to the appellant, given the speed that the latter was moving.
The appellant gave evidence that he had a clear view of the caravan and vehicle ahead of him, and that, at no stage did he see any operating indicator.
The respondent gave frank evidence that he could not recall activating his indicator. But, it is not in dispute that he must have done so. For my part, I cannot share the judge’s conclusion that the indicator was activated (as the respondent changed lanes), then deactivated, then reactivated (as the respondent came upon the turnoff). It seems more probable to me that the respondent activated it only once. It seems to me more likely that the respondent was travelling very slowly looking for the turnoff, and that he activated his indicator when he calculated that he was in the vicinity of the turnoff.
I also doubt that the indicator was activated only so close to the turnoff that the appellant had no opportunity to observe it, and to be cautioned by it. The appellant gave evidence that, at no stage, did he see any indication from the respondent that he was about to turn north across the double white lines. But, in my opinion, it was there to be seen. Why the appellant did not see it must be a matter of speculation. Probably, the answer lies in the manifold observations and calculations that the appellant was himself making, given the topography and the alignment of the road, about passing the slow moving caravan and vehicle ahead of him, particularly given the speed at which he was travelling relative to that of the caravan and vehicle.
In assessing the parties’ departure from the required standard of care, the judge held that the appellant’s departure was ‘significantly greater than that of the [respondent]’.[27]
[27]Reasons [59].
With respect to the standards of contributory negligence, s 5K of the Civil Liability Act 2002 (WA) provides:
(1)The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
Those principles are identified in ss 5B, 5C and 5D of the Act.
As indicated in [45] above, the judge made the findings as to the negligence of the respondent.
In my opinion, the appellant was also negligent. To the extent that he has appealed from that finding the appeal must fail.
It is not easy to quantify the degree to which the appellant’s own carelessness contributed to his injuries. In Podrebersek v Australian Iron & Steel Pty Ltd,[28] 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’: British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury: Zoukra v Lowenstern [1958] VR 594.[29]
[28](1985) 59 ALJR 492; 59 ALR 529.
[29](1985) 59 ALJR 492, 493-494; 59 ALR 529, 532.
In the present case, the Court is not reviewing the exercise of discretion. Further, in Podrebersek v Australian Iron & Steel Pty Ltd, the trial had been conducted before a jury which had made the finding of contributory negligence and had determined the respective shares of responsibility.In an appeal by way of rehearing, this Court must make up its own mind, even though the judgment below betrays no error. In doing so, the Court must be mindful that the trial judge has had the advantage of hearing all the evidence from the witnesses in person, whereas this Court’s access to the evidence is confined to the transcript of oral evidence and the exhibits.
However, I disagree with the judge’s assessment that the appellant’s negligence was significantly higher than that of the respondent. In this matter, I would assess the appellant as slightly less negligent than the judge assessed his negligence. In Podrebersek v Australian Iron & Steel Pty Ltd, the issue is described as one ‘of proportion, of balance and relative emphasis, and of weighing different considerations’.[30] In my view, the appellant’s and the respondent’s respective departures from the requisite standard of care were of the same order. I would assess the appellant’s contributory negligence at 50 per cent.
[30]Ibid.
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