Karydis v Harriss No. Scciv-01-947

KARYDIS v HARRISS
[2001] SASC 321
Full Court: Prior ACJ, Williams and Bleby JJ

This is an appeal by the defendant against a judgment of a District Court Judge dated 12 April 2001 whereby upon an issue of liability upon a claim for personal injury His Honour ordered that the respondent recover from the appellant 70% of agreed damages.
The action arises out of a vehicular accident on 22 November 1996 at Henley Beach when the plaintiff, a school boy aged 15, was riding his bicycle in a northerly direction along the eastern footpath of Seaview Road when he collided with a motor car which the defendant was edging out of his driveway past a high brush fence which marked the southern boundary of his driveway up to the footpath alignment. There was effectively a blind corner as the appellant’s car moved out of the driveway so that the fence blocked his view of traffic approaching along the footpath from the south until he, in his driving position, came level with the end of the fence. By that time the front of his car would occupy almost the entire width of the paved area of the footpath.
The plaintiff’s claim for personal injury, loss and damage came to trial only on the question of liability. The trial Judge concluded:
“... Neither the defendant nor the plaintiff had much opportunity to see the other and to avoid the accident. However I am of the view that the defendant bears a greater responsibility by reason of the fact that he was emerging from a private property onto a public footpath in a motor vehicle.
I have come to the conclusion that the defendant should bear 70% of the responsibility for the accident and the plaintiff 30%.”
The appellant contends that the trial Judge was in error in finding that the appellant was negligent; alternatively, the appellant contends that the trial Judge was in error in finding that the appellant bore a greater responsibility for the accident than the respondent to the extent of 70% and he asks the Court upon appeal to re-assess the extent of his liability (if any).
Section 27a(3) of the Wrongs Act 1936 (SA) (which of course must be read together with the whole of s 27a) provided[1] that:
“(3) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage ... ”.
[1] This provision has since been replaced by the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001, s 7 in respect of a cause of action arising from an act or omission occurring on or after 16 August 2001.
We note the comment thereon of Doyle CJ (speaking for the Full Court) in Hooker v Grinham (unreported, Full Court, SA, No S6424, 5 November 1997):
“Apportioning liability involves a comparison of two things in particular. First, culpability, which is the degree of departure from the standard of care of the reasonable driver. Secondly, the relative importance of the acts of the parties in causing the damage but it is ‘the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination’: see Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 311.”
Although he did not adopt the words of the Wrongs Act it is evident that the District Court Judge decided that the defendant was at fault but that the damage recoverable by the plaintiff should be reduced by 30% being the extent by which the trial Judge considered it to be just and equitable having regard to the plaintiff’s share in the responsibility for the damage.
Owing to the breadth of the discretion to be exercised under s 27a(3) it will be an unusual case where a decision made by a trial Judge will be altered upon appeal. In Pennington v Norris (1956) 96 CLR 10 at 15-16, the High Court in a joint judgment said:
“It is clear that the Act intends to give a very wide discretion to the judge or jury entrusted with the original task of making the apportionment. Much latitude must be allowed to the original tribunal in arriving at a judgment as to what is just and equitable. It is to be expected, therefore, that cases will be rare in which the apportionment made can be successfully challenged: see British Fame (Owners) v Macgregor (Owners) (1943) AC 197 and Ingram v United Automobile Service Ltd (1943) KB 612. But, giving full weight to these considerations in the present case, we are unable to avoid the conclusion that, in apportioning the responsibility equally, his Honour must have overlooked certain features of the case, and that the amount by which he reduced the assessed damages cannot really be supported.
The only guide which the statute provides is that it requires regard to be had to ‘the claimant’s share in the responsibility for the damage’. As to the effect of this see generally an article by Mr Douglas Payne, Reduction of Damages for Contributory Negligence (1955) 18 Mod LR 344. What has to be done is to arrive at a ‘just and equitable’ apportionment as between the plaintiff and the defendant of the ‘responsibility’ for the damage. It seems clear that this must of necessity involve a comparison of culpability. By ‘culpability’ we do not mean moral blameworthiness but degree of departure from the standard of care of the reasonable man. To institute a comparison in respect of blameworthiness in such a case as the present seems more or less impracticable, because, while the defendant’s negligence is a breach of duty owed to other persons and therefore blameworthy, the plaintiff’s ‘contributory’ negligence is not a breach of any duty at all, and it is difficult to impute ‘moral’ blame to one who is careless merely of his own safety.
Here, in our opinion, the negligence of the defendant was in a high degree more culpable, more gross, than that of the plaintiff. The plaintiff’s conduct was ex hypothesi careless and unreasonable but, after all, it was the sort of thing that is very commonly done: he simply did not look when a reasonably careful man would have looked. We think too that in this case the very fact that his conduct did not endanger the defendant or anybody else is a material consideration. The defendant’s position was entirely different. ...”
In the present case the accident occurred 800 metres south of the Henley Beach High School where the school day starts at 8.50 am. The accident occurred a few minutes before this time as the respondent was riding to school. It was exactly the time at which passing school traffic should have been anticipated by the appellant who had lived at his same address for 18 years. He should have been well aware of the practice as regards riding of bicycles on the footpath.
In cross examination [AB 35] the appellant said:
“Q.Is it right that you have seen many people using the footpath in the vicinity of your house in the time you have been there.
A.Yes.
Q.Including people on bikes.
A.Sometimes.
Q.You are well aware of the fact that people ride on the footpath outside your house.
A.Sometimes, yes.
Q.You also know, I think, that Henley High School is just around the corner.
A.Yes, it is exactly 800 metres.”
Q.Regardless of how far it is; at around about that time of the day, is it right you see a lot of school kids in the area going to school.
A.In the school, on the Henley Beach Road, not on Seaview Road.
Q.You say no school kids go down Seaview Road.
A.Not a lot.”
It was the appellant’s practice as he moved down his driveway to stop and to sound his horn before moving out across the footpath.
On the day in question, according to the trial Judge’s summary of his evidence, he had stopped his car some distance back from the entrance to speak to his painter. He then moved slowly off and, when about 5 metres from the footpath, sounded his horn. He then stopped and proceeded out slowly on to the footpath for about half a metre when the collision occurred.
The blind corner at the end of the appellant’s driveway created an obvious hazard. A driver entering a public footpath from private land, where his view of the footpath is totally obscured until his body is about to cross the fence line, must take extraordinary precautions to avoid injury to users of the footpath. It is a very dangerous manoeuvre. Users of the footpath will be particularly vulnerable to injury from contact with a motor vehicle. The vehicle will usually be projecting across most, if not the whole, of the footpath before the driver can even see beyond the fence. The driver has a number of choices. He may arrange for someone to stand by while he manoeuvres his vehicle; he may alleviate the problem by erecting a mirror; he may edge forward so that the front of his car projects a few centimetres past the fence line so that it can be seen, stop his vehicle, sound the horn and then proceed very slowly. There may be other precautions that could be taken. In the absence of such precautions he is putting passers‑by at considerable risk.
There is a disturbing lack of findings by the trial Judge as to just what the appellant did do. The appellant was not entirely consistent in his evidence, and other witnesses gave evidence calling in question whether he sounded his horn at all, giving various estimates as to how far the front of the car had traversed the footpath at the time of the collision, and whether there was a collision at all. The trial Judge did make a finding that the appellant sounded his horn, although he considered that it was probable that the plaintiff did not hear it because of the amount of traffic. He found that the appellant came out slowly onto the footpath and did in fact hit the respondent’s bicycle. He said that it was very difficult to make a precise finding as to how far his vehicle came out onto the footpath, “but it was far enough to make contact with the [respondent’s] bicycle”.
It can only be inferred that the trial Judge based his decision largely on the evidence of the appellant, and that the summary of the appellant’s evidence to which reference has been made is the version that his Honour accepted. In that case, if the appellant stopped for the first time it was after he sounded the horn and before the vehicle entered the footpath.
It is plain that the appellant took none of the precautions which could and which should have been taken in the circumstances, and that by entering the footpath, albeit slowly, to a point far enough to cause a collision with the respondent’s bicycle, having sounded his horn some 5 metres before entering, he was in breach of his duty of care to the respondent. The warning was given far too early. He did not stop at the entrance to the driveway. His breach is the more obvious because he knew that there was a risk of cyclists riding on the footpath. If in fact he stopped his car before entering but after sounding his horn, the time delay between entering the footpath and sounding the horn, and therefore the breach of his duty, was all the greater.
The finding, to be inferred from the trial Judge’s reasons, that the appellant was in breach of his duty of care to the respondent was justified.
The next question which was required to be addressed was whether the respondent, in riding his bicycle, as the trial Judge found, “quite quickly” along the footpath in the direction in which he did, was guilty of a failure to take reasonable care for his own safety and wellbeing, and whether that failure contributed, at least in part, to his subsequent injury.
The respondent gave evidence that he considered that it was more dangerous to ride on the road than on the footpath at that time of the morning, that he was riding in the middle of the footpath, and that, whilst he had no memory of what he was thinking on that particular day, he had been careful on other occasions about vehicles coming out of driveways.
It was accepted that it was an offence to ride a bicycle on the footpath. However, the purpose of that law is plainly for the protection of pedestrians, and that fact in itself has no bearing on whether he failed to take reasonable care for his own safety. He should have been aware, as indeed he seems to have been on other occasions, that vehicles emerged from driveways onto the footpath. He should also have been aware that, in the case of some driveways, it is almost impossible for a driver to see along the footpath before the front (or rear) of his vehicle emerges onto the footpath. If he chooses to ride his bicycle on the footpath, he owes a duty to take reasonable care for his own safety by riding in such a manner as to be able to avoid colliding with such vehicles. He did not do that. He rode too fast. He was guilty of contributory negligence.
The final question is the apportionment of blame between the two parties, having regard to the respondent’s share in the responsibility for the damage.
The relevant factors which had to be considered in the application of s 27a(3) of the Wrongs Act included:
1.The very high standard of care required of a driver entering a footpath in the circumstances described;
2.The expectation on the part of the appellant that, at that time of day, there could well be young people riding bicycles on the footpath;
3.The inadequacy of the precautions taken by the appellant before causing his vehicle to enter the footpath;
4.The comparative vulnerability to injury of a person on a bicycle when confronted with or when hit by a motor vehicle;
5.The speed at which the respondent was riding his bicycle, knowing that vehicles could emerge from concealed driveways; and
6.The further precautions which both parties could have taken to avoid the collision.
Although it is not apparent from the trial Judge’s reasons that this has been his approach to the application of s 27a(3) of the Wrongs Act, in our opinion, he was undoubtedly correct in holding that the greater responsibility should rest with the appellant. Opinions will differ as to the weight that should be given to various factors relevant to the apportionment, and as to the final figure itself. Each one of us might have arrived at a slightly different apportionment from that of the trial Judge. That is irrelevant. The question is whether the trial Judge can be shown to have erred in his apportionment. In our opinion, the apportionment determined by the trial Judge, whilst perhaps a little higher against the appellant than some of us might have awarded, was within an appropriate range, and should not be disturbed.
For these reasons the appeal is dismissed.

[2001] SASC 321

10 October 2001