Lee v McGrath
[2019] ACTCA 6
•28 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Lee v McGrath |
Citation: | [2019] ACTCA 6 |
Hearing Date: | 12 February 2019 |
DecisionDate: | 28 March 2019 |
Before: | Mossop, Rangiah JJ and Robinson AJ |
Decision: | The appeal is dismissed with costs. |
Catchwords: | NEGLIGENCE – BREACH OF DUTY OF CARE – whether trial judge erred in finding that the respondent had failed to keep a proper lookout – he did not NEGLIGENCE – CAUSATION – whether trial judge erred in finding that the accident was unavoidable – he did not NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – whether trial judge erred in his process of reasoning by considering irrelevant New South Wales law – whether trial judge erred in his apportionment of liability – he did not |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), ss 45, 46, 102 Supreme Court Act 1933 (ACT), s 37E(2)(a) |
Cases Cited: | Branir v Owston Nominees (No 2) [2001] FCA 1833; 117 FCR 424 Derrick v Cheung [2001] HCA 48; 181 ALR 301 Fox v Percy [2003] HCA 22; 214 CLR 118 Vale v Eggins [2006] NSWCA 348 |
Parties: | Grant Lee by his litigation guardian, the NSW Trustee and Guardian (Appellant) Mikaela Anne McGrath (Respondent) |
Representation: | Counsel C Barry QC with J Ronald (Appellant) K Rewell SC (Respondent) |
| Solicitors KJB Law (Appellant) Sparke Helmore Lawyers (Respondent) | |
File Number: | ACTCA 34 of 2018 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Elkaim J Date of Decision: 14 June 2018 Case Title: Lee v McGrath Citation: [2018] ACTSC 173 |
THE COURT:
Background to appeal
Grant Lee, by his litigation guardian, was the plaintiff in an action in the Supreme Court for personal injuries suffered as a result of being struck by a motor vehicle driven by the defendant, Mikaela McGrath.
The trial judge concluded that the plaintiff had not proved that the defendant was negligent and, accordingly, entered a verdict for the defendant. In the event that he was in error as to the proof of negligence, the trial judge went on to make two further findings. The trial judge found that the plaintiff's contributory negligence should be assessed at 75% and that quantum should be assessed in the sum of $8,871,158 before deduction for contributory negligence.
The plaintiff has appealed to this Court against the conclusion on negligence and also on the apportionment concerning contributory negligence. There is no dispute between the parties as to quantum of damages.
In these reasons, we will continue to refer to the parties as plaintiff and defendant for convenience.
Jurisdiction of the Court of Appeal
The jurisdiction to entertain an appeal to the Court of Appeal is relevantly given by s 37E(2)(a) of the Supreme Court Act 1933 (ACT). The appeal is not explicitly expressed to be by way of rehearing, however, it was common ground between the parties that the nature of the appeal was that of a rehearing as described in such cases as Fox v Percy [2003] HCA 22; 214 CLR 118 and sometimes referred to as a “real review”.
Trial decision
It is convenient to set out a summary of the trial judge's findings of fact and his conclusions in order to place the grounds of appeal on liability for negligence in context. The question of contributory negligence can presently be deferred.
Shortly before 4.19pm on 27 March 2009 the plaintiff, then 15 and a half years of age, ran across Clift Crescent, Richardson, in an easterly to westerly direction. He was struck by a Hyundai motor vehicle being driven by the defendant in a southerly direction approximately 20 metres north of Chauncy Crescent.
The driving conditions at the time were good. The geography of the accident scene needs to be noted. The physical features of the area can best be appreciated by taking one of the reconstructed site diagrams prepared by one of the experts who gave evidence before the trial judge. It is attached to this judgment. The point of impact, the direction in which persons ran, their speed, lines of sight and the speed of the car, although shown in this attachment were in dispute.
The trial judge recorded that he had the benefit of a view. He said at [28]:
My impression from the view was that the line of sight available to a driver of a person emerging from the pedestrian access was not as restricted as might be gleaned from the experts’ various calculations and diagrams. I had the impression that a driver proceeding in a southerly direction along Clift Crescent, at about 50 km/h, would have had a reasonable view of a person crossing the nature strip and moving towards the roadway, even at a jogging or a running pace.
The plaintiff suffered catastrophic injuries. The detail of the injuries played a part in the assessment of the point of impact. Otherwise, the injuries can be left to one side for present purposes. One consequence of those injuries, presently relevant, was that the plaintiff was left with no recollection of the circumstances of the accident.
The trial judge found that the plaintiff's two companions (Mr Winters and Mr Bradbery) had run across Clift Crescent in front of the defendant's vehicle.
The trial judge's conclusions, after that event, were, in large part, derived from the testimony of the defendant. The trial judge found that the defendant was an impressive young woman who was obviously doing her best to tell the truth. The trial judge accepted her oral evidence. He paraphrased her evidence at paragraphs [37] to [42] as follows:
37. The defendant said that she was familiar with the area. She was travelling along Clift Crescent at about 60 km/h. After she had rounded the bend, she saw two males run across the road. They were very close to each other but one was slightly in front of the other. They were sprinting or at least running.
38. One of the two males paused at or near the concrete island and then carried on. When they had both reached the other side of the roadway, they turned to look behind them.
39. The defendant said that, after seeing the two men run across the road, she took her foot off the accelerator and hovered it over the brake pedal, in case they ran back again. She thought that this was a possibility because one of them had looked back in the direction from which they had run.
40. After the defendant returned her eyes to the road, she noticed the plaintiff about two steps from the roadway. He was running and as he did he looked to the left. She hoped that he would look in her direction and see her, but he did not. She applied the brakes. By this time, she had either collided with the plaintiff or was about to. I do not think that the distinction is of any significance.
41. The defendant said that there was about three metres between the point at which the plaintiff would have emerged from behind a bush and the point where she first saw him. Her explanation for not seeing him for over three metres was that she had been distracted by the other two males. This, in my view, is the most crucial point in the evidence.
42.I had the impression from the defendant’s evidence that the first two males had crossed the road before the plaintiff had begun his crossing. Because I considered this to be an important point, I confirmed my impression with the defendant:
HIS HONOUR: I just want to ask you one thing and please tell me if you don’t remember. Okay? When you saw that boy on the left, had you already seen the other two reach the other side of the road?
MS MCGRATH: They were on the other side of the road, yes.
HIS HONOUR: And looking back?
MS MCGRATH: Yes.
HIS HONOUR: So they’d already arrived. They had crossed the whole road before the third one even got to it?
MS MCGRATH: Yes.
The trial judge regarded this evidence as generating the best argument in the plaintiff's favour. He commenced his reasoning from the starting position that the two males had completed their crossing of the roadway. He continued, that although the fact that they were looking back might have raised the possibility of them returning, they had, in fact, ceased to be a relevant potential danger to the defendant and her attention to them at that point was unnecessary. This proposition opened up a gateway for a number of submissions stemming from a failure to keep a proper lookout in all the circumstances once the distraction of the movement of the two males ought to have been removed.
The trial judge made further findings based upon conflicting evidence and differing assumptions. The first was that the plaintiff had followed some 20 to 30 metres behind the first two males in crossing Clift Crescent. The second was that the plaintiff was travelling along the same path as that taken by the two males before him. A third was the speed at which the plaintiff was running out from the verge and onto the road.
These latter findings led to the establishment of the point of impact which was in dispute between the respective experts.
The finding concerning the point of impact gives rise to the submission, developed below, that the collision was probably inevitable and the defendant could have done nothing to avoid it.
The trial judge's reasoning
The submission made by the plaintiff commenced from the position that the defendant should have looked back from the two males significantly earlier than she did and, had she done so, she would have seen the plaintiff running towards the road over a greater distance and time period, and she might have taken action to avoid him.
There were a number of reasons given by the plaintiff as to why this action, on the part of the defendant, should have been taken.
First, it was put by the plaintiff that the defendant's reaction to seeing the first two males run across the road, which would have at least given an impression that one or both of them might have returned, should have caused the plaintiff to apply the brakes and slow the vehicle down significantly. It was then said that had the defendant done so when the plaintiff came into view, the defendant would have been travelling at a much slower speed and have been in a position to either stop the vehicle or avoid a collision.
Second, it was put by the plaintiff that the presence of the walkway should have alerted the defendant to the possibility of pedestrians and dictated her driving style. The defendant should have assumed the possibility of further pedestrians and driven in a manner that would have catered for their possible presence.
The trial judge did not accede to either variation above. He concluded that the defendant was not negligent in failing to slow down further than she did owing to the presence of the two males. The danger they had posed had passed when they had crossed the road. Whilst it was always possible that they might return, the defendant was alert to this possibility by covering the brake pedal and keeping an eye on them. Further, in this case, the only pedestrians were the two males who ran across the road. The plaintiff was not then visible to the defendant and there was no reason for his presence to be anticipated. This was not a situation, the trial judge observed, such as driving near a school or in the presence of schoolchildren or similar circumstances where the defendant would have been alerted to the possibility of a person running out from behind a bush.
The trial judge found no negligence on the part of the defendant in the manner of her driving in the circumstances which confronted her. The trial judge positively found that the defendant reasonably reacted to the presence of the first two males and was not to know about the soon to emerge plaintiff.
Having made this finding, the trial judge went on to examine the question of causation in the event that he was in error in his reasoning process above. The trial judge said:
51. The defendant was definitely distracted by the first two males. This distraction was, however, a reasonable reaction to their conduct. It is possible to take the view that the defendant should have looked back to the road ahead of her sooner than she did. I do not think that the evidence allows such a conclusion. Nevertheless, if that is the case, this might have been a basis for a finding that she had failed to keep a proper lookout.
52. If I had made such a finding, the plaintiff would still need to overcome the issue of causation. I will return to causation below.
53. A related causation question, which I will also return to, is that, having seen the plaintiff when the defendant did, the assumption or hope that he would look to the right might well have been the taking of a risk. The defendant accepted that she had taken a risk, but submitted that by this stage the collision was inevitable.
The resolution of the first issue of causation was determined by resort again to the primary findings of facts made by the trial judge. He found that the plaintiff was running “flat out” when he ran across the road at the position that he reached the point of impact.
The trial judge concluded at [79]-[80]:
79. Assuming the correctness of Mr Keramidas’ [the expert called by the defendant] point of impact, the experts came to this conclusion in an agreed report, which became Exhibit K:
The experts agree that if the assumptions regarding; the point of impact, and speed of the vehicle, pedestrian speeds, and pedestrian path(s) are altered, then the results would change. To that end, the experts agree that if the point of collision (and therefore half of the Plaintiff) was within the area of the centre island (±1 metres from the centre), adopting the assumptions presented by Mr Keramidas in his primary report of 26 November 2014, then the collision was unavoidable with a range of impact speed as previously announced, being 32 to 45 km/h.
80. Ultimately the question of causation comes down to whether the plaintiff can establish that the point of impact was in the position nominated by Mr Grzebieta [the expert called by the plaintiff]. If not, the accident was likely to have been unavoidable.
The trial judge applied the provisions of ss 45 and 46 of the Civil Law (Wrongs) Act2002 (ACT) as to causation and the onus of proof as to it. No issue was taken on appeal as to the applicable law. The trial judge concluded at [83]:
83. It is impossible to know which path, assuming it was even one of the nominated two paths, had been taken by the plaintiff. Mr Keramidas’ assumption has a good deal of support in the evidence. Mr Grzebieta’s assumption has none. With the onus being on the plaintiff to establish causation, the only available conclusion is that he has failed to do so.
This conclusion expressly acknowledges the limitations of the body of evidence surrounding the accident.
The second and related question identified by the trial judge above, was also resolved in the defendant's favour. The trial judge said:
84. The second question noted above on causation concerns the defendant taking a risk in assuming the plaintiff, after looking to the left, would look to his right, see her vehicle and stop or take other evasive action. On my acceptance of the defendant’s evidence, this scenario only allows her the time during which the plaintiff, running, covered about two metres, to apply her brakes and avoid a collision. The accident was, however, by this stage inevitable. The taking of the risk, while perhaps unjustified, was not a cause of the collision.
The grounds of appeal on liability
On appeal, the plaintiff on the issue of negligence, relied upon the following grounds of appeal:
4(a) His Honour erred in failing to find that the respondent had failed to keep a proper lookout.
4(b) His Honour erred in failing to find that the respondent was in breach of the duty to pay simultaneous attention to, and consideration of, a pedestrian who was already approaching from her left and may come into the path of the vehicle she was driving.
4(c) His Honour erred in finding that the accident was unavoidable because it could have been avoided if the respondent had been keeping a proper look out.
…
4(f) His Honour should have found a verdict for the appellant
As is evident from the drafting of the grounds of appeal, there was to be no expected challenge to the primary facts as found by the trial judge. Rather, the challenge, at least from these grounds of appeal, would be directed to what is the proper conclusion to be drawn from these facts.
Hearing of the appeal
In his Written Submissions at the hearing of the appeal, Mr Barry QC, who did not appear in the trial below, identified three issues which arose as to negligence. These were consistent with the grounds of appeal in that no finding of fact made by the trial judge was put in contest. The identified issues were:
· Whether on the evidence and unchallenged findings of the primary judge, the primary judge failed to apply the relevant legal standard of care to the conduct of the respondent driver.
· Whether the respondent should have seen the appellant before she did which would have meant that the accident was not “unavoidable”.
· Whether the primary judge’s finding that the respondent was “distracted” from observing the roadway ahead of her by the presence of two persons on the opposite side of the road, rather than being evidence of her not being negligent was, on the application of the relevant principles, evidence that should have led to a finding that she had been in breach of the duty of care to keep a proper lookout.
Counsel for the plaintiff contended that the resolution of the issue of breach of duty of care by the defendant was one where the primary judge had no relevant advantage over an appeal court. That is true if a court of appeal is merely being asked to apply the relevant objective standard of care to the facts as found by the trial judge. However, that is not the way the appeal was run. There were challenges to the trial judge’s fact finding.
Challenge to trial judge’s decision
At the appeal, counsel for the plaintiff summarised the cause of the accident. He said it was “caused by two things”. “In summary”, this was “the failure of the defendant to keep a proper lookout in the direction to which she was driving her motor vehicle”. The second cause was because the plaintiff was “deceived into believing” that the defendant “was looking where she was going” and that “she had seen [the plaintiff’s] approach, she had slowed down because of this approach and therefore” the plaintiff “thought that he could get in front of her” car. Counsel developed this submission by saying that it could be inferred that the plaintiff did look to his right before entering the road and it should be inferred that he was deceived by the slowing of the respondent’s vehicle so that he reasonably thought that it was safe to enter the road across the path of the vehicle.
This submission ran counter to the findings. At [101] the trial judge found:
101.The acts of negligence on the part of the plaintiff were far more extensive. They include a general failure to keep a proper lookout in approaching the roadway, running across the road, looking to the left and not to the right and not seeing a vehicle that was very visible and could have been avoided by simply not entering the roadway.
The submission prompted the following exchange:
Bench: Was that submission about the plaintiff being deceived made before the primary judge?
Counsel: Not in those terms, no. But, again, your Honours are entitled to review the whole of the evidence and as I say, there is no evidence that he did not look to the right.
An examination of the trial record demonstrates that the submission that the plaintiff looked right was neither made to the trial judge nor put to relevant witnesses.
There is, on the other hand, evidence that the plaintiff did not look to the right. The trial judge records at [63], that Mr Winbank, a witness to the accident, said in evidence that the plaintiff “did not look one way or the other”. Additionally, the trial judge recorded at [40] that the defendant, whose evidence the trial judge accepted, gave evidence that the plaintiff looked to the left but not to the right in her direction, although the defendant had hoped he would do so but nevertheless accepted the risk he might not.
Significantly, there was an acceptance of the fact that the plaintiff did not look to the right as a distinct basis upon which the trial was fought: whether it was negligent for the defendant to have accepted that risk.
At the trial, counsel then appearing for the plaintiff, had addressed the trial judge on the evidence as follows:
Yes. I remind your Honour of her evidence. She agreed that she took a risk. She agreed that in her driving she took a risk. In my submission, that was an unjustifiable risk. The risk she took was that the plaintiff, having looked to his left, was going to look then to his right, see her, and stop. That was her assumption. That was, in her own words, and in our submissions, a very risky assumption.
At the end of his address on liability to the trial judge, counsel then said:
So your Honour we come back to the basic propositions and we ask that your Honour look at the overall situation as it was unfolding rather than simply a step minutely broken down because it is an overall situation. It is an evolving situation and that, in our submission, is the most important and we ask your honour to find that the defendant’s risky assumption was both negligence [sic] and the cause of the accident.
Another matter to be taken into account, as negating the inference sought on appeal, is the rather unlikely circumstance that having looked to the right and seen an approaching vehicle, the plaintiff would have run onto the road and into the path of this approaching vehicle even without pausing.
Having reviewed the evidence, not only do we consider that the findings made by the trial judge in respect to whether the plaintiff looked to his right are in accordance with the weight of the evidence, we also are of the view that the plaintiff cannot, under the guise of a rehearing, run a different case on appeal as was run below.
Before turning to the grounds of appeal, we remind ourselves of the content of a rehearing. In this case, the trial judge accepted the evidence of the defendant. He had the benefit of a view where he was able to obtain an impression of the lines of sight and take account of the geography and spatial relationships. He accepted part of the evidence of an eyewitness where that eyewitness’ evidence accorded with the evidence of the defendant and rejected other parts of his evidence as simply impossible. Save for one matter, the trial judge rejected the evidence of Mr Winters, who was the plaintiff’s cousin, as being a very unsatisfactory witness. The trial judge was required to make findings as to the circumstances of the accident and form an evaluative judgment as to whether the plaintiff had proved his case in negligence. It is in these circumstances that the plaintiff must demonstrate error.
We keep in mind the task as described by Allsop J (with the approval of Drummond and Mansfield JJ) in Branir v Owston Nominees (No 2) [2001] FCA 1833; 117 FCR 424 at [28]:
28. First, the appeal court must make up its own mind on the facts. Secondly, that task can only be done in the light of, and taking into account and weighing, the judgment appealed from. In this process, the advantages of the trial judge may reside in the credibility of witnesses, in which case departure is only justified in circumstances described in Abalos v Australian Postal Commission [(1988) 171 CLR 167]; Devries v Australian National Railways Commission [(1993) 177 CLR 472] and [State Railway Authority (NSW) v] Earthline [(1999) ALJR 306; 160 ALR 588]. The advantages of the trial judge may be more subtle and imprecise, yet real, not giving rise to a protection of the nature accorded credibility findings, but, nevertheless, being highly relevant to the assessment of the weight to be accorded the views of the trial judge. Thirdly, while the appeal court has a duty to make up its own mind, it does not deal with the case as if trying it at first instance. Rather, in its examination of the material, it accords proper weight to the trial judge’s views. Fourthly, in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.
As would be expected, the judgment given by the trial judge sets out what was argued before him. It can be seen that the parties isolated and concentrated on three interrelated aspects of the defendant’s driving which raised the question of negligence. First, given that the first two men had crossed the road and then ceased to be a relevant potential danger to the defendant, did the defendant fail to look back to the roadway in front of her in a timely manner. Second, given the presence of the two men behaving erratically running across the roadway, should the defendant have assumed the possibility of further pedestrians and driven in a manner that would have catered for the possible presence. Third, was the assumption or acceptance of the risk by the defendant that the plaintiff would not look to the right and see her and hence run out in front of her, reasonable in the circumstances.
The grounds of appeal, set out above, although expressed at a level of generality take up these issues.
Whilst a number of well-known cases were quoted in the written submissions and referred to on appeal, we do not consider that the law to be applied is controversial. We consider that the passage quoted by both parties from Manley v Alexander [2005] HCA 79; 80 ALJR 413 is a statement of the starting point for analysis in this case. The joint judgment at [11] says:
11. Driving requires reasonable attention to all that is happening on or near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle’s path.
It is clear that this passage does not go beyond restating a general principle. It is the application of this general principle to the facts which may provide difficulty.
There may a danger in disaggregating the defendant’s driving into components for analysis. That is shown by the majority and minority decisions in Vale v Eggins [2006] NSWCA 348. Each case needs to be considered on its own facts and an assessment made as to the response to an unfolding sequence of events. At the appeal, counsel for the plaintiff necessarily emphasised the point that, once the danger to the defendant had passed, the plaintiff should have promptly returned her eyes to the road in front of her which she did not do. Counsel for the defendant, emphasised the entirety of the defendant’s driving was a reasonable response to the circumstances and could not be said to be negligent.
Summary of primary facts found
The trial judge found the following primary facts:
· The defendant was driving along Clift Crescent at about 60 km/hour.
· Mr Winters and Mr Bradbery ran across the road in front of her with one slightly ahead of the other at either a running or sprinting pace.
· When Mr Winters and Mr Bradbery reached the other side of Clift Crescent, they turned to look back.
· When the defendant saw Winters and Bradbery run across the road, she took her foot off the accelerator and covered the brake pedal believing that there was a possibility they may run back again.
· The defendant was distracted by their presence and did not immediately return her gaze to the roadway in front of her.
· When the defendant did look back to the road the plaintiff was about two steps from the curb. He was running and looking to the left away from the defendant’s vehicle.
· The defendant saw the plaintiff when he was about three metres from the point at which he would have emerged from behind a bush into her field of view.
· It was those three metres which accounts for the time of the defendant’s distraction above.
· As the plaintiff reached the curb, he looked to his left but not to his right.
· The defendant hoped that the plaintiff would look to his right.
· The defendant braked but came into collision with the plaintiff.
These facts can be taken from the defendant’s evidence which the trial judge positively accepted.
The next question is whether the trial judge was entitled to draw inferences from the evidence and accept or reject assumptions upon which the expert testimony was based, in circumstances where direct and precise proof was not available. The speed at which the actors and the car were moving, the direction of the defendant’s passage across the roadway and the precise point of impact were matters where precise proof was not available.
The trial judge found that the plaintiff was following the same path that Mr Winters and Mr Bradbery had taken in crossing the road. He made this finding on the basis of drawing on inference and also the evidence of Mr Winters, Mr Winbank and its consistency with evidence of the defendant.
This finding led logically to a finding of the location of the point of impact, subject to matters of speed below.
The speed at which the plaintiff was running was determined by the trial judge. The choice was between jogging quickly or running “flat out”. The trial judge found that the plaintiff was running “flat out”. He based this on the evidence of Mr Winbank who gave evidence concerning this in his oral evidence at the trial. The trial judge did not rely on a previous statement given by Mr Winbank to the police about this matter.
We regard the trial judge’s conclusions as supported by the weight of evidence. We also regard the trial judge as having an advantage over an appeal court in determining those matters.
Breach of duty
Failure to look back to the roadway in front of her in a timely manner
The trial judge found that the defendant was distracted by the first two men. However, the trial judge found that this distraction was a reasonable reaction to their conduct. The trial judge said that it was possible to take the view that the defendant should have looked back to the road ahead of her sooner than she did. The trial judge’s finding, on this aspect, is a conclusion without any quantitative reasoning. It does not, explicitly, determine what a reasonable period of delay would be, as opposed to an excessive delay, noting that breach of duty is judged by an objective standard. The trial judge regarded the delay as a reasonable one in the circumstances. He regarded it as a reasonable reaction to the conduct of the first two males.
On our review, we have applied the test as to whether the plaintiff has proved that the defendant has not acted in accordance with reasonable care. The possibility of a different result is not the issue and does not represent the proper test for negligence (Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]).
Although we are aware that minds could differ in evaluating this conduct, we are unpersuaded that the plaintiff has proved that the defendant did not act in accordance with reasonable care. We are unable to determine that the trial judge was in error in his evaluation of the reasonableness of the defendant’s response to the circumstances which confronted her.
Given the presence of the two men behaving erratically running across the roadway, should the defendant have assumed the possibility of further pedestrians
The trial judge reasoned that had it been a case of there being a dedicated pedestrian crossing or if there had been pedestrians in the area of the roadway alongside the walkway entrance and the concrete island, then certainly the defendant ought to have driven in a manner that would have catered for the presence of pedestrians. The trial judge found that the only pedestrians were the two males who had run across the road. The plaintiff was, at that time, not visible to the defendant and there was no reason for his presence to be anticipated. The defendant was not driving near a school or in the presence of schoolchildren or like circumstances. The circumstances did not alert the defendant to the possibility of a person running out from behind a bush.
The plaintiff has not made out any error in the above reasoning. We agree with the trial judge’s reasoning to this conclusion.
The assumption or acceptance of the risk by the defendant that the plaintiff would not look to the right and see her
The trial judge dealt with this matter under the heading of causation but it stands analysis as an independent breach of duty although not disconnected to the driving as a whole. The trial judge did not resolve this question. He expressed the position that “The taking of the risk, while perhaps unjustified, was not a cause of the collision”.
It is difficult to think of circumstances where the taking of such a risk would be justified given that a pedestrian was potentially running into the path of a motor vehicle.
The trial judge does not appear to have made an explicit finding on this aspect of breach of duty. We conclude that the taking of such a risk was a breach of duty towards the plaintiff. In any event, we agree with the trial judge that the acceptance of such a risk was not a cause of the collision.
Causation
There were, therefore, two potential sources of breach of duty where the issue of causation needed to be established by the plaintiff. The issue was whether the defendant could have avoided the collision. The trial judge was assisted by the two experts in coming to his conclusion. Although the experts agreed on material matters of physics and calculations, they adopted different assumptions. Those assumptions included the point of impact, the path that the plaintiff took crossing the road, the speed at which the plaintiff ran on crossing the road, the speed of the car at the point of impact and the lines of sight of the driver. To this analysis there needed to be added the scientific learning on a driver’s perception response time. The resultant calculation, taking all of these matters into account, provides a measure of the prospects for collision avoidance.
We have previously referred to the fact that the trial judge made findings on all of the matters concerning these assumptions. We are not persuaded that any of the findings made by the trial judge have been shown to be in error.
As referred to at [25] above it was common ground between the experts upon the assumptions found by the trial judge that the collision was unavoidable within a range of impact speed of between 32 to 45 km/h.
It is clear that counsel for the plaintiff was critical of reliance on assumptions rather than facts. However, counsel for the plaintiff did not further analyse any of the findings or assumptions made by the trial judge and demonstrate an error in respect as to the issue of causation. His central contention was that the defendant should have looked back to the roadway in front of her in a timely manner and that would have avoided the collision. Whilst this central contention must be accepted as axiomatic, we were given no analysis as to alternative facts and assumptions to displace the existing factual material or assumptions to demonstrate, as the plaintiff must do, causation.
The trial judge did not overlook the self-evident fact, as was again common ground between the experts, that should the assumptions be varied so would the resultant calculations. Importantly, the trial judge also did not overlook the fact that the assumptions, even where derived from his own findings were not unquestionable. An example, the trial judge acknowledged, was that it wasn’t possible to know which path, assuming it was either one of the two nominated paths, had actually been taken by the plaintiff in crossing the road.
The ultimate conclusion derived by the trial judge, in that way, should be seen not as the defendant proving the collision was unavoidable but that the plaintiff had simply failed to prove causation.
In our view, the plaintiff has failed to make good any ground of appeal on the issue of negligence.
Contributory negligence
In the Australian Capital Territory (ACT), contributory negligence is dealt with by s 102 of the Civil Law (Wrongs) Act. It is in well-known terms.
102Apportionment of liability—contributory negligence
(1) If a person (the claimant) suffers damage partly because of the claimant’s failure to take reasonable care (contributory negligence) and partly because of someone else’s wrong—
(a)a claim for the damage is not defeated because of the claimant’s contributory negligence; and
(b)the damages recoverable for the wrong are to be reduced to the extent the court deciding the claim considers just and equitable having regard to the claimant’s share in the responsibility for the damage.
Under this provision it is necessary to establish that the plaintiff’s failure to take reasonable care is causally linked to the suffering of damage: The defendant bears the onus of establishing the causal connection. The test is objective. It is, in substance, the same test that existed at common law, and involves both the culpability (in the sense of the degree of departure from the standard of care of a reasonable person) and the relative importance of the act of the parties in causing damage: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 532-533.
The trial judge expressly declined to follow recent decisions where the law of New South Wales was engaged. That law has a different statutory regime. Neither party at the appeal contended that this approach was an error by the trial judge. The reference by the trial judge to New South Wales law and statute was merely in response to a submission made to him in the course of the trial which he has rejected in his judgment.
The trial judge evaluated the defendant’s breach of duty on the basis of her failure to look back to the road ahead of her at an earlier point of time than she did. The trial judge regarded the acts of negligence on the part of the plaintiff as far more extensive. He found they included a general failure to keep a proper lookout in approaching the roadway, running across the road, looking to the left and not to the right, and not seeing a vehicle that was very visible and could have been avoided by simply not entering the roadway. He concluded, adopting the approach in Pennington v Norris (1956) 96 CLR 10 (‘Pennington’), that contributory negligence should be assessed 75%.
Grounds of appeal on contributory negligence
These grounds were:
4(d) His Honour erred when he included in his process of reasoning for an apportionment of contributory negligence consideration of irrelevant New South Wales statutory law and irrelevant New South Wales case law on contributory negligence.
4(e) His Honour erred in the apportionment that he made for contributory negligence.
…
4(g) His Honour should have apportioned contributory negligence more favourably to the Appellant.
We can see no error in the trial judge’s approach to the assessment and the application of the relevant law. Once it is seen that the approach is sound then, as the High Court said in Pennington at 15-16: “latitude must be allowed to the original tribunal in arriving at a judgment as to what is just and equitable.”
Independently, our view of what the proper assessment of contributory negligence should be in the circumstances accords with that of the trial judge.
We do not uphold any of these grounds of appeal.
Order
The appeal is dismissed with costs.
| I certify that the preceding seventy-nine [79] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 28 March 2019 |
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