Manley v Alexander

[2005] HCATrans 874

[2005] HCATrans 874

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P18 of 2005

B e t w e e n -

WAYNE EDWARD MANLEY

Appellant

and

IAIN STEWART ALEXANDER

Respondent

GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 25 OCTOBER 2005, AT 10.10 AM

(Continued from 24/10/05)

Copyright in the High Court of Australia

GUMMOW J:   Yes, Mr Walker.

MR WALKER:   Your Honours, could I go now directly to pages 146 and 147 of the appeal book.  Paragraph 51 and paragraph 56 are together, in our submission, the crux of the matter where either the Full Court committed error or it did not.  In paragraph 51, having observed that there are of course duties of care owed by people such as my client to more than one other user of or person near a road, his Honour turns to the question posed by the two persons to whom those duties were of course owed. 

In line 5 of paragraph 51 the notion of extinguishing a duty of care to all users or all other users are, in our submission, alien to the enquiry.  One duty does not drive out another duty.  It is the response called by one duty which may of course inform the reasonableness decision as to the response to another duty.  To put it another way, the law of negligence does not require that by compliance with one duty of care you have, by the very conduct called for by the first duty of care, breached the second duty of care.  That would be, in our submission, the antithesis of reasonableness and as the antithesis of reasonableness it would be rejected at the threshold in any factual argument about what the second duty of care called for by way of response.

So there was not an argument below, is not an argument here, that any element of the duty of care owed to the prone man was extinguished by reason of the coexisting duty of care owed to the upright but swaying man.

KIRBY J:   What is this case of Teubner v Humble?  Have you looked at that?

MR WALKER:   Yes.  It is, in our submission, nothing other than an illustration of the facts of a particular case.

KIRBY J:   Justice Hayne in one of those recent cases said we have to be very careful about using cases on facts as if they are laying down some great legal principle.

MR WALKER:   Quite so.

KIRBY J:   But apparently there is some reference there to the duty to take care in respect of people who are unlikely to be in a given spot.

MR WALKER:   So there is.  We would not commit ourselves, of course, to any proposition such as your duty extends only to taking precautions against that which is likely to occur – without going to Wagon Mound (No 2), Caterson or Shirt as to the breach question that flows from the duty question.  We, of course, are not arguing any such thing here.  Of course a duty of care can embrace the need to take precautions or to shape your conduct lest you cause injury by what might be regarded as an unlikely combination of circumstances. 

Teubner v Humble in particular illustrates, in a decision of this Court, that one may be guilty of negligence, notwithstanding the unlikely – uncommon perhaps would be another word – combination of circumstances that produce the injury.  However, what it does not have is anything which resembles the coexisting duties of care to two people almost literally right on the same spot in the circumstances which are the particular circumstances of this case.  That is why there is no precedential value about the decision of the facts.  There is, however, of course guidance to be taken in relation to true matters of principle which, as between Teubner v Humble and this case, really do not go beyond – the true matters of commonality does not go beyond the need to ascertain that which is reasonable by current relevant societal standards.

In paragraph 51 the reason, by way of conclusion, that his Honour gives for upholding the appeal is found at about line 34 and following.  There is a reference to continuing at the same speed.  However, what there is not in the evidence is any suggestion that the speed he was travelling at was excessive for the conditions.  There is, of course, a reference to the commencement of braking and then the cessation of braking because of the fact that he was so close to the second man he had just spotted.  It is not in fact, we think, sought to be argued that it is negligent to decide not to go, for example, into conditions which may produce a skid, particularly if you are about to run over someone.

In particular, that sentence does not tell you whether or not that continuing of the same speed is to be treated as negligent or not, that is falling short of the reasonable standard called for by the first duty of care owed to the person who was upright and swaying.  In our submission, we cannot be liable, as it were, to the second man lying down because of something that we did – apparently, according to findings, not unreasonably in response to what we perceived in relation to the first man standing up.

The reference to take his eyes off the road for some two to three seconds is, I suppose, at the heart of the matter of physical causation in the sense that it gives rise to the possibility that with some split second division of that time that there may have been, or there would have been obviously, more time either to hit the brakes or to take a wider veering‑off manoeuvre – presumably to cross the centre line away from the recumbent man altogether.  However, there is not evidence which suggests that with what would literally be split-second calculations that there was anything which it would be fair or appropriate to level against my client as having been negligent, that is falling below a reasonable standard of skill and competence in the control of a motor car and the response to your own ‑ ‑ ‑

GUMMOW J:   What challenge do you make, if you do make one, to the last two sentences in paragraph 51?

MR WALKER:   Now, the first is – I have just about finished what I wanted to say, namely that neither the speed nor the direction, which are of course responses to the first man standing up, they are not seen as in any sense short of the appropriate standard of care owed to him and, therefore, cannot, without unreasonableness, be treated as showing negligence in the discharge of the duty of care owed to the second man.  That is the first thing.  The fact that it has causal significance does not of course make it an indication of negligence.

The second sentence, the last sentence of paragraph 51, is, in our submission, where the error is most clear.  The last two words in particular, in our submission, are going far too far.  “[H]owever unexpectedly” means at the extremity of the uncommonness, rarity or extraordinary combination of circumstances.  The word “however” goes to the extremity of the range.  In our submission, that is quite contrary to Wagon Mound (No 2), it is quite contrary to what is still to be derived from Caterson and it is quite contrary in relation to the breach question, that is the reasonableness of the response, it is quite contrary to the Shirt calculus.  The probability of the combination of circumstances in this case is infinitesimally small.

Now, the combination of those two sentences shows, particularly by the use of the word “thereby” at line 36, “He thereby breached”, that the not unreasonable – we would urge the reasonable – response to the duty owed to the first upright man is seen itself as constituting the breach of the duty owed to the second prone man – the as yet unseen man.  There lies the unreasonableness which is the contradiction of the driving principle, and the only relevant principle, in our submission, of the law of negligence.  In paragraph 56 on the next page ‑ ‑ ‑

GUMMOW J:   You fix on the second sentence, do you not?

MR WALKER:   Yes, quite so.

KIRBY J:   Going back to 51 though, was it not open to the Court of Appeal to take the view that if you came upon a scene with a person lurching and so on that a reasonable driver would slow down?

MR WALKER:   No, your Honour.  There is no evidence to show that the speed at which he was travelling was excessive to the conditions or prevented him from being able to keep an eye out for – in fact two eyes out, both eyes – be wary of, the man not on the carriageway, moving over so as to give as much room as the law would permit – so moving over, not over the centre line – moving away from the person that he had seen.  In our submission, your Honour, unless he was to stop so as not to pass the person altogether at all, then he was going to have to pass him at a speed which, if there were a collision, would obviously be a grave danger to the life and limb of the first man.  So he is watching him.  He is steering.  There is no evidence that supports that he should have moved from the 50 or 60 down to – and then it is pure speculation.  What, 20, 15?  If you hit a person at 15 kilometres an hour, it is going to be dangerous.

KIRBY J:   It is my experience that when people see something unusual happening they do tend to slow down.

MR WALKER:   The second and most important matter, in answer to Justice Kirby’s question, is this.  This case was not fought as being “You were negligent, though you caused no loss, not liable, but you were negligent in relation to the first upright man, and so there is no difficulty about us saying that your response to him also constitutes negligence in relation to the second man.”  There was no case run that this was an unreasonable response to the swaying man by the side of the road.  That, in our submission, is highly significant because it being not unreasonable, we would urge on the face of things a reasonable, careful, guarded response to the first man, the man on the footpath – not on the road, on the footpath – that being reasonable, it cannot constitute unreasonableness simultaneously owed to somebody else who had not been seen.

KIRBY J:   Is it possible that the interpretation of Mr Turner’s behaviour was that in his drunken way he was trying to catch the attention of the driver to say that there is a man on the road?

MR WALKER:   No, it is not.  Now, in relation to the other element that is called up by Justice Kirby’s question, one asks of course, “Was the carelessness the failing to notice, the failing to see?” hence Dr Chew’s engineering evidence, to which attention was drawn yesterday, in paragraph 42, particularly at the top of page 134.  I misled your Honours yesterday by excessive summary.

Dr Chew performed an experiment which at first was unlike what had happened because though he used the same vehicle he had the dummy transverse.  That was eventually fixed.  Dr Chew knew the dummy was there.  That of course was not true of the plaintiff.  In other words, it was not a blinded experiment, which would have been the proper way to do it.  Of course Dr Chew was there to tell the driver, “Brake now”.  In other words, it was not the person himself controlling the brakes.  So it is no wonder that neither in the Full Court nor at trial was Dr Chew’s evidence the basis of being able to hold that in response to the upright person, not just to a dummy, there had been negligence.

KIRBY J:   You have a finding in your favour on this, have you not?

MR WALKER:   Yes, quite.

KIRBY J:   And that is not challenged in this Court.

MR WALKER:   No.  I wanted to correct what I elliptically said yesterday.  Page 147, paragraph 56, it is indeed the word “inattentiveness” which is said to be that of which the negligence consisted upon which we attach.  That inattentiveness is, of course, given its own content by the following words.  That is the inattentiveness of being distracted by Mr Turner.  In other words, it is attentiveness to Mr Turner which becomes the inattentiveness to Mr Alexander.

HAYNE J:   I rather think that is splitting hairs, is it not, Mr Walker?  Can I put to you that the Full Court’s reasoning, or Justice Le Miere’s reasoning, comes to this:  (1) movement attracts notice; (2) the trial judge did not decide when the injured person moved onto the road; (3) because movement attracts notice, the Full Court infers, or Justice Le Miere infers, that the injured person was on the road when the appellant approached the intersection with Vine Street.

MR WALKER:   Yes, your Honour, paragraph 46.

HAYNE J:   Steps (4) and (5) are the appellant did not look at the roadway for some two or three seconds, during which he maintained his speed and changed direction.

MR WALKER:   Yes, paragraph 51.

HAYNE J:   Conclusion:  the combination of not looking at the roadway for that period while maintaining the same speed and diverging was negligent.

MR WALKER:   Yes, that is the reasoning, your Honour.  Now, we attack it as to particularly the last two components.

HAYNE J:   On the basis that it is not possible to describe that as negligent, or what?

MR WALKER:   Yes.  That simply cannot answer the description in the Full Court of the relevant error that should have been detected in the trial judge’s finding that that was not negligent.  The error of course I refer to is the sense in which Justices Callinan and Heydon refer to it in their quotation from Warren v Coombes at paragraph 43 and your Honour’s conclusions in paragraph 46 of Pledge.  That is how I am using “error”.  I hope, with respect, that will not be a heresy.

Now, in answer to Justice Hayne, taking the change in direction first, no doubt because it is an easier one for me, the change of direction is the giving as wide a berth as reasonable to the man that has been seen first.  No one has said it was unreasonable to see the man who was moving, swaying upright.  No one said it was unreasonable for him to be spotted first and no one surely would say it was unreasonable to give him the wide berth.  Indeed, had there been a maintenance of the same direction, one could easily see that that would be subject to criticism.

The second element is continuing at the same speed.  No one has said that continuing at the same speed as a response to spotting the upright man swaying was itself negligent in relation to the duty of care owed to the first man.  There is no suggestion that that modest speed at which he was proceeding on an empty road, there is no suggestion that that either prevented him from altering direction in the modest and careful way he had done, prudent way he had done, nor that it disabled him from being able to keep an eye on the person as he proceeded to pass him.

HAYNE J:   The essence of the reasoning in the Full Court is that the driver did not know that the road was empty because for two or three seconds he was not looking at that part of the road ‑ ‑ ‑

MR WALKER:   Quite so.

HAYNE J:   ‑ ‑ ‑ along which he proposed to travel when he diverged at the same speed.  Now, that is what it comes to, is it not?

MR WALKER:   Quite so, your Honour.  Yes, it does.

GUMMOW J:   You are saying that if this had been a jury trial that could not have gone to a jury.

MR WALKER:   Yes, your Honour, because it would be unreasonable for, by ordinary standards, it to be said that it was excessively cautious, that is a super abundance of attention was paid to the man by the side of the road by looking at him for two to three seconds.  Now, that is what it comes down.  Could a jury really have said, “Well, that is overeating the pudding, you shouldn’t have looked at him, the one you had spotted, for two to three seconds”?  Bearing in mind the two to three seconds obviously enables quite a bit of distance to be covered but is nonetheless only a very, very short time, in our submission, it would be indeed an unreasonably jury who said, “Well, we are the kind of people who can size up this unexpected swaying man by the side of the road” in, what, a third of that time or a quarter of that time?  It has to be a sufficiently small fraction of that time to be an appreciable difference in what might have happened thereafter. 

In our submission, a jury who in effect says, “Well, two to three seconds, that’s over the top.  We could do it in a quarter of a second, and that is all that was necessary.  Anything more than that you were favouring the first man, being prudent in relation to him and thereby being negligent in relation to somebody you had not seen because you were paying attention to the first one”.  That, in our respectful submission, is why a distraction which represents a reasonable, human and humane, prudent response to one emergency arising will cause things which are truly accidents, not negligent wrongdoing, more often than not, because you are placed in the position where the natural human response, both physically reflexive plus also, in our submission, socially responsible, is to pay a regard – and we are talking about two to three seconds – with a faculty that is directional, “I’m looking at my left, therefore I’m not looking at my right”, “I’m looking straight ahead, therefore I’m not looking in my rear vision mirror” and, in our submission, all of that adds up to it not being reasonable to say that the prudent response to the first man itself comprises that which is the inattentiveness being the negligence for the second man.

With great respect, we do accept the analysis of the reasoning in the Full Court and the issues that that throws up that Justice Hayne has asked me to comment upon.  My answer to why that does in fact produce error of the kind that one sees, for example, in Jones or for that matter in the issue upon which there was the overturning in Pledge ‑ ‑ ‑

GUMMOW J:   Can we just be quite clear about this.  There is no challenge on your side’s part to the factual propositions in 51:

continued at the same speed and changed the direction . . . eyes off the road for some two to three seconds.

MR WALKER:   No.  The fact of the matter is estimations of how long people are doing things when they drive are notoriously inexact.  Two to three ‑ ‑ ‑

GUMMOW J:   If that had been pleaded in the traditional system, it would have been demurrable.

MR WALKER:   That is what we say.  That it would simply be unreasonable that those things which were entirely reasonable as a response to the first bringing about that which causes the second, that is you do not see him until it is too late, in our submission, we are talking about jurors who are applying Superman standards.

HEYDON J:   You are putting it a bit high, are you not, when you say that it could not have gone to a jury or it could have been demurrable?  You do not have to go that far, do you?

MR WALKER:   Your Honour, I was about to sit down but I am grateful for the opportunity to give a last thought.

HEYDON J:   I mean, it either is or is not negligent.

MR WALKER:   I am appealing here against the Full Court’s overturning.  This Court asks itself, “What should the Full Court have done?  What would this Court have done in the Full Court’s position?”  And it is not a demurrer test, nor is it a no case for it to go to the jury test.  On the other hand ‑ ‑ ‑

GUMMOW J:   What is it?

MR WALKER:   It is simply, “Was there error?”

GUMMOW J:   What does the “error” mean?

MR WALKER:   That is the error by the trial judge ‑ ‑ ‑

GUMMOW J:   In what?

MR WALKER:   In finding that this was not negligent.  In finding that it was unreasonably ‑ ‑ ‑

GUMMOW J:   Negligence is a proposition of law, surely.

MR WALKER:   No, I am sorry, your Honour.  Finding that the response to the prone man fell below reasonable standards by reason of what was done in response to the upright man.  Now, that is a mixed ‑ ‑ ‑

GUMMOW J:   But the facts are admitted.

MR WALKER:   The facts are there, yes.

GUMMOW J:   Whether there is a tort being committed must be a proposition of law.

MR WALKER:   Your Honour, in our submission, there is a mixture of law and fact in this.  If it be reasonable in response to the first man, it

thereby – I do not shrink from it, a matter of law – cannot be unreasonable in response to the second man.  May it please your Honours.

GUMMOW J:   Yes, Mr Zelestis.

MR ZELESTIS:   May it please your Honours, in our respectful submission, the approach of the Full Court which your Honour Justice Hayne has summarised effectively involved three steps.  The first was to consider the facts and circumstances, the second was to draw an inference which the trial judge had not drawn concerning where the respondent was as the appellant approached and the third step was to apply what the court understood was the appropriate standard of reasonableness.  In our submission, in terms of approach there was no error.  Can I say something briefly about each of those three elements of the approach.

The first matter is the facts and circumstances.  We have set them out in our written submissions and I do not need to labour them all but something needs to be said about Dr Chew’s evidence because it was not as controversial as your Honours may have thought.  Dr Chew’s evidence is relevantly summarised in the trial judge’s reasons at page 115, paragraphs 9, 10 and 11 going over the page.  Now, Dr Chew’s evidence is relied upon by us as establishing objective physical facts:  what the contour of the road permitted; a line of sight; what contours there were; what illumination was provided close in by the low beam headlights; and the stopping distance of this truck, albeit conducted on a test some two years later but it was the same truck. 

The objection made to Dr Chew’s evidence concerned what you might call the evaluative questions that he tried to address.  What he had observed was not really the subject of objection.  If one goes to page 22, line – I am sorry, I have just lost it.  Perhaps I will return to it in a moment.  The objection was not really to what he observed, it was to his evaluation.

HEYDON J:   The objection was that it was not expert evidence.  The evidence was simply evidence of observation and there was a failure to, as it were, to equiparate the conditions of the tort time with the test time.

MR ZELESTIS:   Yes, it is page 22, line 45, not 25 that I mistakenly had noted.  But the objection, with respect, did not affect the accuracy of what the witness was able to observe and say about the layout of the road.  It is important for a couple of reasons.  The first is that the photographs reveal – and they can be found beginning at page 91, but importantly the photograph at 96 which is looking back down towards the approaching truck – the photographs reveal that the approach to the scene was up a rise and it was important, therefore ‑ ‑ ‑

KIRBY J:   What did you say?

MR ZELESTIS:   The photograph reveals that as the appellant’s truck approached, he was coming up a rise.  What Dr Chew’s evidence establishes is that for some 116 metres back from the point of impact there was a line of vision available to a motorist in this truck.

GUMMOW J:   What does it say about the street lighting?

MR ZELESTIS:   The street lighting – in order to understand that one needs to look at a couple of photographs.  If one begins at page 91, photograph No 2 is looking back in towards the approaching truck and one can see a grass verge and in the closest foreground is an entrance to a car park and there is a little white plate, metal plate I think it is or card, on the grass.  It is easier to see that same object at page 94, photograph 8.  It is numbered 1 at about point 8 on the page.  If one relates that back to photograph 2 on page 91, that is the position that Turner was standing in according to the appellant. 

The significance of taking your Honours to this paragraph on page 91 is it shows the lamp post near the stop sign controlling entry to Vine Street.  Now, this is described in the trial judge’s reasons, but it is depicted better here.  The photographs at 94, which are looking in the direction of travel, do not pick up that stop sign or the lamp post.

HEYDON J:   Can I just get one thing straight, Mr Zelestis.  You said that the defendant was coming up a slight hill.  Photograph No 8 seems to suggest it is going down a slight hill but ‑ ‑ ‑

MR ZELESTIS:   As well, but it is doing both in a sense because if you go to photograph 9 on page 96, which is looking back down from where the defendant/appellant was coming, you can see the cemetery on the left, he is coming up a hill.

HEYDON J:   Yes.

MR ZELESTIS:   So, if one is aware of the problem of photographs compressing distance, my concern is that the Court should be aware of the significance, with respect, the uncontroversial significance of Dr Chew’s evidence.  Certainly, he put the dummy on the road and he was keeping a lookout for it, but that does not change ‑ ‑ ‑

GUMMOW J:   That is in spot 2, is it? 

MR ZELESTIS:   The dummy is in spot 2, which can be seen most clearly on page 95.  If I could just give your Honours the references, the spot No 2 is identified by the appellant at page 53, point 40 and spot No 1 is identified by him at page 55, point 10.  So those physical features of the scene are important because they establish, as I say, that the appellant had a line of vision of at least 116 metres from the truck and he had a low beam which cast intense light or bright light for some 62 metres and the truck was one that had a stopping distance, albeit in a different test and two years later – the brakes might have been better or worse – recorded by the judge at page 116 of 25 metres. 

There was evidence also from the appellant that Turner was about 6 foot tall and Turner was standing some 10 to 15 metres from the lamp post, and that seems to accord with the position that has been marked on the photographs.  The evidence of the appellant which is part and parcel of the two or three seconds looking away, which is his own evidence – it is not really a finding that required the judge to evaluate other evidence, that came directly from what the appellant said – the evidence of the appellant effectively was that he did not see Turner at all until he was near Vine Street.  That emerges from a number of passages but can be best seen in the trial judge’s reasons at 119, paragraph 28 where part of the evidence of the appellant is summarised.

Of course, finally, in relation to the circumstances, although it was a dark, overcast night with some showers having fallen at some time and with the appellant having his windscreen wipers on intermittent, when asked why he had not seen Turner earlier or the person on the road earlier, he did not really give an explanation other than to say, as the trial judge sets out at page 119, there was nothing there.  What is significant about that is that the appellant himself did not say that the rain or mist in the cabin had affected his visibility.  Of course, had he gone down that route, there would have been a question about his speed, but he did not offer any physical circumstance as impeding his visibility. 

Now, mathematics tells us that at 60 kilometres an hour he is travelling at 16.67 metres per second.  Although there is no evidence of that, it is necessary to have that in one’s mind.  Now, the inference which the Full Court ‑ ‑ ‑

KIRBY J:   Is that in Dr Chew’s evidence, the ‑ ‑ ‑

MR ZELESTIS:   No, there was no evidence that mentioned that.

KIRBY J:   Well, how do we know that?

MR ZELESTIS:   Mathematics, 60,000 divided by ‑ ‑ ‑

GUMMOW J:   Because we went to school.

KIRBY J:   Justice Gummow says it is because we went to school, but when I went to school we learnt nothing about metres, nothing at all.  We were better for it too.

MR ZELESTIS:   Well, 60,000 divided by 3,600.  I doubt that it is controversial.

HAYNE J:   I do not know, give two lawyers a calculator and they would probably get four answers, I reckon, Mr Zelestis.

MR ZELESTIS:   Yes.  That is the circumstances in summary.  As I say, they are set out in more detail in our written submissions.  I need not labour them.  The inference, to take the second step which the Full Court drew, is of course paragraph 46 of Justice Le Miere’s reasons at page 145.  This is drawn in the circumstances I have just described.  In other words, objectively, there was an available field of vision for at least 116 metres and, objectively, it is known that at least two or three seconds before the impact the appellant saw Turner and the fact that he had sufficient lookout to see Turner supports the notion that had there been other movement he would have seen that.  So, in our respectful submission, the drawing of the inference cannot be attacked as being without foundation.  In our submission, it was an inference reasonably and properly open and properly drawn.

That then comes to the final step and that is applying the community standard of reasonableness to this motorist.  The reasons of Justice Le Miere have been noted at paragraphs 49 to 51 but it is also necessary to draw attention to what Justice Heenan said at the foot of page 135 in paragraph 16 of his Honour’s reasons.  I invite the Court to read the last sentence beginning “However”. 

Now, it is not entirely clear whether his Honour was making a slightly different finding to that of Justice Le Miere or not.  He seems to have considered that what he was doing was the same as, or at least consistent with, the conclusion of Justice Le Miere, but on one reading of this his Honour has put it on a slightly wider footing and that is that the negligence lay in the failure to exercise a proper lookout and that brings to account the circumstances that I have just described.  That is a finding made in the context of the evidence, his Honour having some few lines earlier on the same page, just at line 32 in the sentence beginning “Nevertheless” referred to the fact that the court had examined the evidence. 

So although the reasoning is compressed and it is not articulated step by step, what may be seen perhaps at paragraph 16 is his Honour saying, in these circumstances, notwithstanding the fact that Turner is there providing some focus of attention, there was opportunity by the exercise of a proper lookout to have seen the person on the road earlier and ‑ ‑ ‑

KIRBY J:   I understand that way you put that, but Mr Walker puts against you that it is, after all, pretty unusual to have a person lying in the middle of the road and lying in a way parallel to the centre line and with dark hair and dark clothing.  The question is really whether, though he should be keeping a proper lookout, the conduct of your client was so peculiar that it is really not reasonable to expect a driver to notice such a thing.

CALLINAN J:   And at 4.00 am on a rainy morning in an area where you just would not expect to see pedestrians. 

MR ZELESTIS:   In our submission, it is necessary to separate the accepted unusualness of the conduct of the respondent from the standard to be expected of the appellant.  With respect, there is an assumption underlying our opponents’ submissions and that is that a driver at night in these circumstances with two good eyes has to do one or other of several things.  That is, with respect, a false assumption.  A driver who is proceeding in a normal way with normal capacity can take in ‑ ‑ ‑

CALLINAN J:   This is unrealistic.  Here is a man driving along the street at 4.00 am in the morning and there is another man lying parallel to the roadway, possibly insensible, on a rainy morning at 4.00 am.  The last thing you would expect is that.

MR ZELESTIS:   One can accept that it would be an unexpected event.  One puts aside for the moment how that happened, because from the driver’s point of view, he has no idea.  The person on the road could be the victim of a crime or an accident.  But what I am trying to submit is that ordinary human capacity runs to keeping a clear eye, a clear lookout on not just either the verge or the carriageway on your side or the carriageway going in the opposite direction, the human field of vision is capable of encompassing all at the same time. 

To use an example, if one was driving down a two or three lane carriageway, a driver in the middle of three lanes going in the same direction could not, with the exercise of reasonable care, for two or three seconds take his eyes off the carriageway immediately ahead of the driver and at normal human capacity is not limited in the sense of one being able only to focus on such a narrow field of vision.  In our respectful submission, that assumption needs to be examined here and it is, on ordinary human experience, just wrong.  A driver who is proceeding down a carriageway can take in the verge as well as taking in the carriageway on the driver’s side and the other carriageway.  Now, there are limits, of course, if you get a six or eight lane highway in both directions, but for a carriageway of this size it is ordinary human experience that the whole scene can be taken in and ‑ ‑ ‑

KIRBY J:   We gave a very learned opinion on a case of a bus going along a road and the field of vision – I think it was the last word in field of vision.  Do you know the name of that case?

MR ZELESTIS:   Anikin v Sierra, I think it is.  It is in my learned friend’s argument, I think, is it not?  Something caused us to bring it down.  I thought it was.

KIRBY J:   Do not worry about it.  I just wanted to have a look at it again just to make sure that we were consistent with our erudition on field of vision.

MR ZELESTIS:   These are matters, of course, upon which expert evidence is not ordinarily led because they are regarded as part of what is ordinary human experience, but it does require the Court to contemplate for a moment the Court’s own experience of what is within a field of vision.

HEYDON J:   Is it not also part of human experience, Justice Cardozo said, that danger invites rescue?  Does not danger invite intense concentration on the danger?

MR ZELESTIS:   That is true but, with respect, to characterise Turner’s presence as a danger or a distraction may be going too far.  The sense in which it was a distraction needs to be understood.  It was a distraction in the sense that he needed to be noticed but, with respect, one could not say that the presence of a pedestrian whose movements were unpredictable by the side of the road was an unusual event.  Even in the early hours of the morning these things are common and it is not such a dramatic, unexpected event as to justify the singular attention which this motorist gave to it for two or three seconds.  That is a long time to look away from the carriageway bearing in mind that you are going to travel at the distances I have given your Honours, about 50 metres.  That is almost the length of the line of vision of the bright, low beam lights while you are looking away.  Now, a second or two or three ‑ ‑ ‑

KIRBY J:   What was the final word on the light, whether it was illuminated or not?  There was some conflict in the evidence about that.

MR ZELESTIS:   The controversy was about the light further on near the Gull station.  There was no controversy that the light near the stop sign was on.  So much is found, in effect, by the judge, and if I can just show your Honours the photographs.  The light which was controversial can be seen in photograph 9 on page 95 and there was some controversy ‑ ‑ ‑

KIRBY J:   Is that the light that is within the Gull service station or the light a bit further down at the centre of the photograph which is an obvious street light?

MR ZELESTIS:   It is the one in the foreground that looks like it is just before the Gull service station in the direction that the ‑ ‑ ‑

KIRBY J:   Where is the actual light on that object?

MR ZELESTIS:   You cannot see it in the photograph.  The photograph is too pale ‑ ‑ ‑

KIRBY J:   Are you sure it is not an advertising beacon?  I just do not know, but it may be an illusion from the angle ‑ ‑ ‑

GUMMOW J:   You can see it in photograph 7, can you not?

MR ZELESTIS:   You can see it in photograph 7, just.  Your Honour is quite right.  The top of the light just appears, as does the top of the next light past the service station, very faint.

KIRBY J:   So it is really just a poor photograph or poor reproduction of it.

MR ZELESTIS:   Poor reproduction.  So, in our respectful ‑ ‑ ‑

KIRBY J:   That light was on, was it?

MR ZELESTIS:   Yes, there was no doubt that – I am sorry ‑ ‑ ‑

KIRBY J:   The judge found that it was on.

MR ZELESTIS:   That is the light to which there was controversy and no finding made. 

GUMMOW J:   Which light?

MR ZELESTIS:   The one near the Gull station.  The one that was on is the one that I took your Honours to a moment ago.  It appears at page 91, photograph 2 near the stop sign.  This photograph, as I took your Honours to a moment ago, photograph 2 on page 91, has the number 1 only just visible showing where the person, Turner, was standing.  The evidence of the appellant was it was some 10 to 15 metres from the light post itself. 

KIRBY J:   What is the inference that was available to be drawn from that evidence?

MR ZELESTIS:   The inference, in our submission, that is available to be drawn was that there was clear visibility sufficient to see Turner clearly and, really, no explanation for why Turner had not been seen earlier.  That is part of the context in which the Full Court came to apply the community standard.  The evidence of the appellant was that he really only saw Turner as he approached the intersection with Vine Street. 

So, that is, looking at it in terms of the photographs and looking at it from his direction of travel looking back towards him, at page 91, photograph 2, one sees there what appears to be a police car on the right, back towards the intersection, the beginning of the intersection, and if he is travelling at 60 kilometres an hour and he has taken two or three seconds to look at Turner before he strikes the respondent, he has travelled some 50 metres.  He has had a field of vision of over 100 metres and he has had his low beam lights casting 60 metres of clear light.  So he was at least able to see Turner in circumstances where, in our respectful submission, there was good lighting both from the overhead street lighting and from the car and it was unreasonable of him, not just to look away, exclusively focusing on Turner for two or three seconds, but at the same time to allow his truck to veer to the right.  This could have produced, for example, a collision with something coming the other way.  So, in our respectful submission ‑ ‑ ‑

HEYDON J:   He did not veer off his side of the road though.

MR ZELESTIS:   No, he did not, but he was allowing his truck to change direction without braking while he looked for two or three seconds away from the carriageway and in that two or three seconds he was going to almost exhaust the brightest distance lit by his low beam.  Now, one of the basic principles ‑ ‑ ‑

HEYDON J:   This is hindsight reasoning big time.

MR ZELESTIS:   With respect, it is not, your Honour, because one of the basic principles of driving at night is to drive within the field of vision of the intense lighting, whether it is low beam or high beam.  By that I mean to drive in a way that you are able to stop if you see something within your field of vision.  It would be, with respect, inappropriate for the Court to make any conclusion or decision in the case which gave any hint that some different course of conduct could be an appropriate management of a vehicle. 

So, in our respectful submission, these are simple, ordinary concepts of keeping a lookout at night when there are, if you like, as the witness described, two stages of lighting.  Perhaps that is putting it too simply.  There is the brightest lighting cast by the headlights and then there is a

wider penumbra of lighting thrown both by the headlights at less intensity and by the street lighting, whatever it is.  Although this reasoning, as I say, is not articulated directly, it is part of the circumstances which emerge from the evidence of Dr Chew which is set out really in the trial judge’s reasons.  The aspects of it that are not controversial, with respect, provide a platform for the reasoning. 

So, in our submission, in the end it was a case of the court applying its own understanding of what is human capacity and human experience.  It was not as if there was some sudden event that occurred.  It is not as if people ran from somewhere or there was a loud noise or an explosion or something dramatic outside one’s ordinary experience occurred.  All that happened was there was a pedestrian whose movement was unpredictable.  That, with respect, is not an unusual danger.  This response to it though, in our submission, was unusual and exceeded what was proper.  Those are our submissions.

GUMMOW J:   Yes, thank you, Mr Zelestis.  Mr Walker.

MR WALKER:   In our submission, the key aspect of the evidence of Dr Chew and an aspect in which it is also relevantly uncontroversial is found in paragraph 18 of the trial judge’s reasons at appeal book page 117, line 15.  In our submission, it is important to note:

There was no attempt by Dr Chew to measure a reasonable time within which to react to the sight of the plaintiff lying on the road.

There was not a case of unreasonableness in relation to stopping distance and the bright length of headlight.  In any event, in our submission, whether or not it would have needed a notice of contention in this Court, what my learned friend puts as self‑evidently correct does not strike one as such, we argue, namely that 50 metres of travel while attending to the swaying Mr Turner, in our submission, it is not self‑evidently excessive. 

In relation to my learned friend’s attempt to ameliorate the description of Mr Turner’s presence as a distraction, a description which was given to it after all by the Full Court, the evidence at page 48, lines 37 to 43, being the evidence of my client, in our submission, do render what my client did an entirely proper, decent thing to have done as a driver.  At page 48, line 37 he describes:

a male standing on the side of the road which I spotted, so I was keeping my eye on the male because he was moving around a fair bit like he had been drinking.

I have been summarising that as “swaying”.

I was veering.  The man didn’t do any movements, nothing.  He just stared at me through the windscreen of the vehicle, looking at me, didn’t wave his hands or nothing like that.  So I started to veer because I thought he was going to walk out.

That, in our submission, was a distraction and he behaved very reasonably in what he did.  A prone figure, after all, lying along the direction of travel of the road, at any time of the day or night, is really not in the ordinary repertoire of what motorists perceive through their visual faculties. 

My friend, of course, is quite right.  The prone figure could have been there because somebody fainted; someone was dead drunk; someone was drugged; someone had been mugged.  It could have come about – it had nothing to do with culpability on the part of the plaintiff, we entirely accept that.  It has to do with the reasonableness of asking for a motorist to be judged by standards to do with the ordinary standards of visual acuity and cognitive understanding of what is going on in the special circumstances of the distraction of this case.  It is thus not, in our submission, a complete description or a reasonable description of my client’s conduct through the relevant two or three seconds that he was giving some focus on Turner.  He was, with ordinary binocular vision, looking where ordinary human instincts would require him to do. 

Appeal book 119 is referred to by my learned friend as providing in the defendant’s evidence no explanation for not having seen someone.  It is quite a difficult question of course, “Why didn’t you see someone?”  The real answer is, “I didn’t see them”.  Now, if you had your eyes closed ‑ ‑ ‑

CALLINAN J:   It is always hard to prove a negative, really that is ‑ ‑ ‑

MR WALKER:   And what one does as a witness when asked, “Why didn’t you see someone?” most answers will come back as a paraphrase of the question, “Well, I just didn’t see him”.  So “There was nothing there”, is in our submission, a very plausible, colloquial way of saying, in effect, “But I didn’t see him”.  In our submission, there was never sufficient evidence before the trial judge to permit the Full Court to overturn the finding that he had not unreasonably failed to see him.  May it please the Court.

GUMMOW J:   Yes, thank you, Mr Walker.  The Court will consider its decision in this matter and the Court will now adjourn to reconstitute for the next appeal.

AT 11.02 AM THE MATTER WAS ADJOURNED