Little v Mackellar

[2012] NSWCA 331

Court of Appeal

New South Wales

Case Title:

Little v Mackellar

Medium Neutral Citation:

[2012] NSWCA 331

Hearing Date(s):

12 October 2012

Decision Date:

12 October 2012

Jurisdiction:

Before:

Basten JA at [1], [31]; 
Campbell JA at [29]; 
Barrett JA at [30]

Decision:

(1) Dismiss the appeal.

(2) Appellant to pay the respondent's costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORT - negligence - motor vehicle accident - collision at night between bicycle and car - whether driver was keeping a proper lookout - whether driver was travelling at excessive speed - whether driver should have seen cyclist - whether bicycle was carrying reflectors - whether cyclist was keeping a proper lookout

Legislation Cited:

Cases Cited:

Derrick v Cheung [2001] HCA 48; 181 ALR 301
Stocks v Baldwin (1996) 24 MVR 416

Texts Cited:

Category:

Principal judgment

Parties:

Mark John Little (Appellant)
Keith Mackellar (Respondent)

Representation

- Counsel:

Counsel:

Mr D W Elliott (Appellant)
Mr R A Cavanagh QC/Mr J Guihot

- Solicitors:

Solicitors:

S & P Lawyers (Appellant)
TL Lawyers (Respondent)

File number(s):

CA 2012/38125

Decision Under Appeal

- Court / Tribunal:

District Court

- Before:

Blanch CJDC

- Date of Decision:

26 October 2011

- Citation:

- Court File Number(s)

DC 2009/339230

Publication Restriction:

JUDGMENT

1. BASTEN JA: On the evening of 4 April 2007 the appellant, Mark John Little, was riding his bicycle to his temporary accommodation on the outskirts of Byron Bay in northern New South Wales. Approaching Ewingsdale Road from the north, the appellant turned right and travelled a short distance to the west along a path beside the inbound carriageway and facing the incoming traffic. Approximately 100 metres along and opposite the entrance to the Sunnybrand chicken farm located on the south side of the road, the separate bicycle path ended. It was therefore necessary for the appellant to cross from the northern to the southern side of Ewingsdale Road in order to continue in a westerly (outbound) direction.

2. Ewingsdale Road was straight and flat with one lane in each direction. He gave evidence that he stopped his bicycle on the northern verge to allow three eastbound cars in the lane next to him to pass and then started to cross the road. As he reached the westbound lane, he was hit by the respondent's vehicle and thrown from his bicycle, suffering a broken left fibula, injury to his left calf and knee, lacerations to his scalp and other similar injuries. The appellant was concussed and had limited recollection of the moments immediately preceding the collision.

3. In May 2009 the appellant commenced proceedings in the District Court at Lismore seeking damages in negligence from the respondent. The matter was heard by the Chief Judge, Blanch J, on 26 October 2011. The evidence was within a short compass. The appellant and the respondent (the plaintiff and the defendant respectively in the Court below) each gave brief evidence. A forensic engineer who prepared a report for the appellant was briefly cross-examined by counsel for the respondent.

4. At the conclusion of the hearing, Blanch J delivered an ex tempore judgment in favour of the respondent.

5. The particulars of negligence were, in substance, twofold; namely that the respondent was travelling at excessive speed and that he failed to keep a proper lookout. The two elements were inter-related in the sense that, if the respondent had been keeping a proper lookout and failed to see the appellant, then it should be inferred that his speed was excessive; otherwise there was no basis for the claim of excessive speed. Although it was dark and there was no street lighting in the vicinity, the road was dry, straight and flat and the respondent was travelling at or slightly below the 80kph speed limit with his lights on low beam, which was appropriate given that there was oncoming traffic.

6. The respondent gave evidence, which was accepted, that he was not aware of the appellant's presence on the road until the point of collision. Because the respondent did not see the appellant, the expert evidence as to the area which would be lit by headlights on low beam and the distance within which a driver could be expected to stop a vehicle travelling at 80kph was only relevant to the question of excessive speed.

7. The real issue was whether the respondent should have seen the appellant. At the heart of the appellant's submissions on the appeal was the complaint that the trial judge did not accept that the bicycle was fitted with reflectors.

8. There were six pieces of evidence relevant to this issue. First, there was the entry in the notebook of the police officer who attended at the site of the collision that "[t]he push bike had no visible lights or warning devices fitted" (exhibit D). The appellant submitted that this evidence was silent as to the fitting of 'reflectors' and as to the condition of the bicycle prior to the collision. The trial judge understood the reference to "warning devices" as including reflectors, an inference which was properly drawn in the circumstances, where the officer was not called for cross-examination and this reading was confirmed by the second piece of evidence.

9. The second piece of evidence involved a statement given by the police officer to an agent of an insurance company investigating the collision at an interview on 8 September 2007. In the course of the interview the officer said not only that the appellant did not have any bright-coloured clothing or reflective vest but that there were no reflectors or lights on the bike and that, in answer to a direct question, Mr Little's bicycle did not have any reflectors or lights attached to the front or the rear.

10. Thirdly, about a week after the accident the officer who attended the scene of the collision visited the appellant in hospital and recorded a number of questions and answers in his notebook, which the appellant signed. They included the following:

    "Did you have any lights or reflective devices on your bike?
    A: No lights. A reflector on the seat and wheels."

11. The fourth piece of evidence, which was said to be of greater weight in respect of the condition of the bicycle prior to the collision, was that of the appellant. He gave evidence-in-chief that there were reflectors on the rear and front of the bicycle, the rear one being red and the front one being white. He also said that the bicycle had orange reflective devices on the spokes and on the pedals.

12. Fifthly, the appellant gave evidence that he had seen the bicycle in the storage area at the police station. He described the rear wheel as a mangled mess, the frame bent and twisted and was then asked (Tcpt, p 15(40)-16(5)):

    "Q. Did you notice anything concerning the state of the reflectors on the wheels?
    A. The pedal on the left side was completely sheered off, it was missing, the rear wheel was crushed, I can't remember seeing reflectors on the bike at all, it was very badly damaged.

    Q. What about the other pedal sir?
    A. It was still there.

    Q. Were there reflectors on that pedal?
    A. Yes."

13. There was some internal inconsistency within this evidence, but it was not explored in cross-examination, which focussed on a different topic addressed next.

14. Sixthly, in his evidence-in-chief the appellant was shown a plastic bag and asked about the contents. He identified the contents as "the shirt I was wearing" and "the broken reflector from the back of the bike": Tcpt, p 13(20)-(25). He gave evidence that he had later washed the shirt but had saved the bag and the pieces of reflector: Tcpt, p 26. The cross-examination proceeded (p 26(50)-27(30)):

    "Q. Now just on the question of these two pieces of reflector that you kept, did you ever tell your solicitor Mr Cowley that you had two broken pieces of the actual reflector that you say was or were affixed to your bike?
    A. They only found it recently.

    Q. You only found them recently?
    A. Yes.

    Q. When was that?
    A. About a month ago maybe more, I just moved house and moved everything into a storage shed.

    Q. You were living in a tent at the time?
    A. At the time of the accident yes.

    Q. You had no fixed abode?
    A. No.

    Q. And you were able to keep the shirt in the plastic bag were you?
    A. Yes.

    Q. Did you ever tell Mr Cowley before a month ago that you did have a piece of the actual rear reflector from your bike but you weren't able to locate it, did you ever tell him that?
    A. No.

    Q. And the first time you told Mr Cowley was about a month from today, in the past from today, is that the case?
    A. Yes.

    Q. So sometime in September 2011?
    A. Yes."

15. It was also put to him that he had "cobbled together some reflectors from somewhere else" and given them to his solicitor, a suggestion he denied: Tcpt, p 30(20). After noting the differences in evidence between the claims made in chief as to the devices fitted to the bicycle, the statement given to the police officer and the discovery of the two broken halves of a reflector four years after the accident, the trial judge stated at pp 2-3:

    "It certainly raises a real question about whether there were any reflectors such as described by the plaintiff on the bike and in view of the observations of the police officer I believe that the probabilities are that they were not."

16. Even without considering the advantage enjoyed by the trial judge in assessing the oral evidence of the appellant, the finding of fact should be accepted. The submission that it was against the weight of the evidence depended entirely upon an unqualified acceptance of the evidence of the appellant. Even disregarding the implausible account of the finding, retention and rediscovery of the broken reflector, the weight of the various accounts in evidence was limited by inconsistencies. The challenge to that factual finding should be rejected.

17. Further, as the trial judge noted, the significance of the rear and front reflectors was somewhat obscure. The appellant's evidence was that he had come to a halt at the side of the road before crossing at right angles to the traffic. The only reflectors which could have provided any warning to the respondent would appear to have been those on the wheels, if there were such. The various possibilities were considered and assessed in a report prepared by a mechanical engineer, Mr Christopher Hall for the respondent, who considered that if the bicycle had been fitted with reflectors on the wheels they would have been ineffective in reflecting light back to the respondent: Report, Conclusions, paragraph 9.3. That conclusion was derived from an assessment of the direction from which the bicycle was approaching the respondent's vehicle, the area illuminated by the headlights on low beam and the night-time visibility at the scene of the collision.

18. Although it might have been considered of limited relevance with respect to the negligence of the respondent, the trial judge considered the circumstance which was more perplexing than the failure of the respondent to see the unlit bicycle, namely the failure of the appellant to see the respondent's car approaching with headlights lit. His Honour stated (Judgment, p 4):

    "He says that he looked both left and right and then proceeded across. If he did look to [the] left and right he must have been able to see the defendant's car coming along the roadway. The evidence clearly is uncontradicted that the defendant's vehicle was driving away from Byron Bay with its lights illuminated. So the situation must be that the plaintiff - or more probably is that the plaintiff did not look to his left before proceeding to cycle across the road and the mechanics of the accident are that he actually rode into the side of the defendant's vehicle right at the very front of the defendant's vehicle but in circumstances where in my view there was no possibility that the defendant could have done anything at all to avoid the accident."

19. That analysis is persuasive. One further implication is that the appellant probably started across the road immediately the third of the vehicles approaching from his right had passed. The sound, lights and passage of the vehicles may well have partly obscured the respondent's vehicle coming from the other direction and may well have obscured the position of the appellant from the respondent immediately before the appellant started across the road.

20. The appellant submitted that the particular risks which existed on this part of the road and of which the respondent was aware required that in the exercise of reasonable care the respondent should have been driving somewhat slower, perhaps at about 60 kilometres per hour. If travelling at that speed it was submitted that the respondent probably would have seen the cyclist and would have had time to take adequate evasive action. If the premise were accepted, the conclusion does not appear to have been agitated in precisely those terms before the trial judge.

21. The argument further appears to be directed more to the ability to avoid a collision, if the appellant had been visible for a period of some five seconds. The evidence was silent as to the position and action of the appellant immediately before the collision. It is not known how long the appellant stayed on the north side after the last car had passed, nor was the angle at which he sought to cross identified. As the respondent says, the submission as to visibility depended upon a number of unarticulated assumptions as to the appellant's conduct.

22. With respect to the premise, in cross-examination the respondent acknowledged that he knew the area and the potential risks. He denied that he was distracted in any way and many possibilities were put to him. He gave evidence in the following terms (Tcpt, p 41):

    "Q. Being aware of all those things, were you particularly on the lookout for cyclists in and around the Sunnybrand chicken factory that night?
    A. Well it's a narrow road so I was just driving, looking straight ahead, nothing caught my eye, there was no light, no reflective anything in front ahead of me so I wasn't expecting anything or anybody.

    Q. But, sir, my question was directed towards were you on the lookout for such an occurrence?
    A. Well as a driver you're always on the lookout for anything."

23. That evidence was accepted by the trial judge who concluded his assessment of the respondent's conduct in the following terms:

    "The plaintiff's claim is a claim based on an assertion that the defendant failed to keep a proper lookout. I do not believe that that has been made out. On the evidence of the defendant he was keeping a proper lookout. He was travelling within the speed limit on a dry night in a perfectly appropriate fashion and he was not negligent in any way at all."

24. That finding has not been shown to be erroneous. The fact that in other cases, as was submitted by the appellant, where the causes of an accident have been obscure the Courts have imposed liability on a driver, does not mean that there was a breach of the accepted duty of care just because the respondent was aware that there were risks.

25. As Mahoney P said in Stocks v Baldwin (1996) 24 MVR 416 at 417:

    "The use of motor vehicles in the city [and it might be added, the country] creates real dangers: vehicles may strike pedestrians or they may collide with one another. But the fact that such dangers are created and that it is apparent that they exist does not mean that vehicles must be driven and pedestrians must be controlled in such a way that these dangers are entirely removed. The foreseeability of the dangers which motor vehicles create and the degree of proximity that exists between a motorist and a pedestrian together mean that drivers have a duty of care to pedestrians. But that duty of care does not require that drivers drive in such a way or that pedestrians be so controlled that all danger is removed and that no damage can occur."

26. Aspects of Stocks v Baldwin were referred to by the High Court in Derrick v Cheung [2001] HCA 48; 181 ALR 301 but that passage was not subject to criticism.

27. There was a further finding of fact that was challenged in the written submissions although not expanded upon in oral argument. In setting the background to the collision the trial judge described the appellant as "riding his bike along Bayshore Drive and then wanting to turn left into Ewingsdale Road": Judgment, p 1. The appellant submitted, correctly, that from Bayshore Drive he in fact turned right into Ewingsdale Road. The confusion was said, in some fashion which is not entirely clear, to undermine the factual assessment of liability by the trial judge.

28. A preferable reading of the opening description in the judgment involves no error. At the point immediately prior to the collision the appellant was indeed wanting to turn left, in order to cross Ewingsdale Road. That this was well understood by the trial judge is apparent from the succeeding sentences which describe, correctly, the direction of the inbound traffic, the direction in which the appellant was attempting to cross and the direction of the respondent's vehicle. There is no substance in the challenge to this aspect of the fact-finding.

29. Accordingly the conclusion that the respondent did not fail to take reasonable care was the correct conclusion. The appeal should be dismissed and the appellant must pay the respondent's costs.

30. CAMPBELL JA: I agree with Basten JA. I would add only that the mechanical engineer, Mr Christopher Hall was not cross-examined. I agree with the orders proposed by his Honour.

31. BARRETT JA: I agree that the orders proposed by Basten JA should be made for the reasons his Honour has given.

32. BASTEN JA: Accordingly, the appeal is dismissed. The appellant is to pay the respondent's costs.

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