Manley v Alexander

[2005] HCATrans 233

[2005] HCATrans 233

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P56 of 2004

B e t w e e n -

WAYNE EDWARD MANLEY

Applicant

and

IAIN STEWART ALEXANDER

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 22 APRIL 2005, AT 2.00 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MR P.J. BRERETON and MR P.KULEVSKI, for the applicant.  (instructed by Edward John Myers)

MR C.L. ZELESTIS, QC:   May it please the Court, I appear for the respondent.  (instructed by Bradley & Bayly)

HAYNE J:   Yes, Mr Walker.

MR WALKER:   Your Honours, at page 36 of the record there is to be found in succinct form in conclusion the reasons by which my client was held to have been negligent in causing injuries to Mr Alexander, Mr Alexander having been lying down in the road either very late at night or very early in the morning, affected by alcohol, in the carriageway, parallel to the centre line.

HEYDON J:   You mentioned page 36.  Do you not mean page 35, because 36 is contributory negligence?

MR WALKER:   I want to go in particular to the description in 56 by way of summary which is used in the contributory negligence finding.  In paragraph 56 you will see a reference to the negligence of the respondent in the second sentence.

HAYNE J:   Yes.

MR WALKER:   And the description is that it:

consisted of inattentiveness when he was distracted by the presence of Mr Turner on the road verge.

HAYNE J:   Well, you have to read that, surely, Mr Walker, in light of what appears in paragraph 51, page 35, namely, failing to keep a proper lookout for two or three seconds.

MR WALKER:   Yes.

HAYNE J:   Now, do you dispute that finding of fact?

MR WALKER:   No, we cannot.

HAYNE J:   Well, two or three seconds is a very long time.

MR WALKER:   Your Honour, two or three seconds, when one is paying regard to the plight or position of another person to whom you owe a simultaneous duty of care is not something which, in our submission, justified appellate interference, and that is an essential part of our case.  If two or three seconds be too long, then we ought to fail.

HAYNE J:   Well, there is a finding of fact that the driver was failing to keep a proper lookout.

MR WALKER:   The finding of fact about failure to keep a proper lookout, however, is in this context.  In the very same paragraph to which your Honour draws attention, the first sentence, there is the reference to:

his attention would naturally have been drawn to the figure of [Mr] Turner standing on the side of the road –

and not standing on the side of the road so as to suggest that there was no need to take account of what he was doing – half past four in the morning.  Mr Turner presented as a hazard to himself and my client’s duty of care required him to pay regard to that.  It is not, in our submission, by community standards of reasonableness, excessive care, that is, greater care than was necessarily owed to Mr Turner to be distracted, as the Court finds my client was, by his relatively noteworthy presence by the side of the road, the carriageway being such that had he stepped in an unbalanced fashion he could well have caused a collision.

This is a case where my client did, by what is called the veering, he gave what everybody being taught to drive learns to do with something dangerous like a horse or the like.  You give them a wide berth.  No suggestion that in doing so there was any carelessness under another duty of care owed to any motorist who might have been, for example, close to the centre line of the road.  So that we have here a case presented by facts which are, on any view of it, extreme on the part of the plaintiff voluntarily lying down in the carriageway, parallel to the centre line, so that when first visible to my client he would have been presenting the smallest imaginable mass by way of profile that one could imagine.

HEYDON J:   You mean all you could see was about one square foot, or could you see about six square feet?

MR WALKER:   No, I cannot say that.  All I can say is the smallest you could have.  The smallest way he could have configured himself to present to the eyesight of the driver would be, as he did, to lie face down, head first in the direction of the car’s travel and depending upon the height of the car when he first came into the first point of visibility you would see more or less the length or, if it was below or level, you would see only a very small part, being the elevation, as it were, of the top of his head.

HEYDON J:   Feet first or head first?

MR WALKER:   Head first. 

HEYDON J:   What colour hair?

MR WALKER:   I do not know, and there is no suggestion in any of the findings of fact that the colour of the hair affected visibility.  Your Honours will recall there is some reference to some – I will call it expert evidence in relation to visibility, but that was treated by the trial judge as of little weight and does not seem to have played any decisive influence in the reasoning of their Honours upholding the appeal.  So the position presented by this case is of a plaintiff who after all has been held 70 per cent contributorily negligent, a plaintiff who had done something, placing himself in that position of hazard, leading to, in the Full Court, a summary description of my client’s negligence being inattentiveness by being distracted.

Now, the distraction is in fact, of course, part of the necessary component of the care he owed to another person to whom he simultaneously owed a duty of care.  As your Honours will recall in what I can call the famous calculus paragraph in Sir Anthony Mason’s judgment in Shirt, the presence of possibly conflicting duties is of course something that needs to be taken into account.  Now, this is an even clearer case than the child darting out from between parked cars when one as a driver of a moving vehicle will have duties not only to that child, also of course to people getting out of parked cars, but perhaps most obviously and palpably, the people in the car in front of you in the traffic.

This is a much clearer case even than that because there is nothing to suggest that watching the person who appeared in a less than able‑bodied state on the verge, paying regard to him, veering away from him so as to give him a wide berth, leads to it being too late to avoid the unfortunate collision that has caused Mr Alexander’s injuries.  In our submission, the description in paragraph 49 and in paragraph 51 at pages 34 and 35 of the application book is a description which does not accord with an ordinary community standard in the expectation of what reasonable care required.

What reasonable care required could not be focused only on the plaintiff’s position, either figuratively using the word “position” or literally.  It had to include that which he first and most obviously saw, the pedestrian who could well have been about to step off, inadvertently or less than careful for his own safety, into the carriageway.  The law requires my client to have taken account of that and, in our submission, it is going too far to say that the difference between, say, one and a half seconds and two seconds, or one and a half seconds and three seconds, is a difference which makes the difference between someone, my client, the driver of the tow

truck, being himself a kind of victim of a terrible accident and, rather, being stigmatised as somebody negligent because, in our submission, that is a meaningful reflection of the community expectation in relation to the law of negligence that the epithet “negligent” will not be applied if the conduct in question is the kind of conduct to which a heartfelt response goes, “There but for the grace of God”.  I am distracted by the person upright ‑ ‑ ‑

HAYNE J:   Well, these are elaborate methods of putting the one point, are they not?

MR WALKER:   Your Honour, I do not ‑ ‑ ‑

HAYNE J:   The point is narrow.

MR WALKER:   Yes, the point is narrow.

HAYNE J:   Yes, I think we understand the point.  We might be assisted, though, hearing from Mr Zelestis.

MR WALKER:   May it please your Honour.

HAYNE J:   Yes, Mr Zelestis.

MR ZELESTIS:   In our submission, your Honour, the critical difference between the trial judge and the Full Court was in relation to the primary question of fact, namely, whether the respondent was on the roadway at the time the vehicle driven by the present appellant came to a position where it could see Turner on the side and where the respondent was lying.  Now, the primary judge took the view that there was no evidence, meaning clearly, when his Honour said that, no direct evidence as to the presence or where indeed the respondent was.  His Honour said so at page 10, paragraph 32.

The critical difference between the judge below and the Full Court was in relation to that matter, because the Full Court took the view that that was an incomplete assessment of the evidence and the Full Court took the view that an inference was open and should be drawn that the respondent was indeed lying on the road already.  That emerges at page 34, paragraph 46 in the judgment of Justice Le Miere, the second last sentence. 

So it is necessary to approach the matter on that footing, in our submission, that that inference in that it was open to be drawn and was correctly drawn by the Full Court.  So you then ‑ ‑ ‑

HEYDON J:   Why is that crucial in your favour?

MR ZELESTIS:   Well, it is crucial in our favour because the position then is that as Turner came into view so was the respondent, on the finding, lying on the road and to speak of a distraction justifying not looking at the road, in our submission, confuses the position.  It compartmentalises what is going on.  The fact is as the truck comes to a position some 90 to 116 metres, on the evidence of Dr Chew, from the position where the two men are, one standing, one lying, within that distance both, on the findings of the court, ought to have been visible.

The Full Court has given emphasis to the evidence of Dr Chew.  The judge below said he would admit it – said that the weight was a question, but then did not go on to attribute any weight to it.  He did not use it in his analysis at all whereas, in our submission, what the Full Court has done is has used that evidence from Dr Chew and has really taken the view that both men, one standing, one lying, ought to have been seen earlier.

HEYDON J:   At paragraph 18 of the trial judge’s judgment one I suppose might disagree with it, but it is quite convincing reasoning for discounting Dr Chew’s conclusions, is it not?  If you know that there is a dummy there you are more likely to say it is visible than if you are driving along without knowing that something is there.

MR ZELESTIS:   Well, it goes to the weight, but what is important ‑ ‑ ‑

HEYDON J:   Different weather conditions, different position.

MR ZELESTIS:   Entirely.  But what is important is that it establishes the order of magnitude of the distance back from which a person lying on the ground on the road was visible.  Now, in other words, it is not a short distance.  It is not 20 or 30 or 40 metres.  It is a much longer distance.  So the notion of a distraction justifying inattention to the roadway itself, in our submission, has no foothold in the findings.

One bears in mind that the other things which occurred were the driver, the appellant, did not slow down and his evidence as to whether or not the man on the side of the road represented a risk and was vulnerable to stepping on the road was itself inconsistent.  So much emerges from the extract from his evidence which is set out in the trial judge’s reasons at page 3, paragraph 3, where in about the middle of the answer the appellant said that:

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.  I started to veer to the centre . . . I was braking . . . not at this time.

So there was really no specific movement on the part of Turner on the side of the road which suggested he might move.

HEYDON J:   Well:

he was moving around a fair bit like he had been drinking.

MR ZELESTIS:   The answer goes on really to say that he “didn’t do any movements, nothing”.  So there is no firm foundation for a finding there that a person in the position of the driver was justified in veering without braking and without keeping a lookout on the road.

HEYDON J:   So if he had hit Turner, Turner would have no cause of action, you say?

MR ZELESTIS:   Well, if Turner had stayed on the side of the road he could not have hit him without getting off the road.

HEYDON J:   If Turner had, contrary to one view, unexpectedly moved onto the road and had been hit, he would have no cause of action on your argument.

MR ZELESTIS:   Well, no.  On our argument the first thing he should have done was slowed down, and that would have both given him time to avoid Turner and more time to see the respondent.  That is the critical thing that he did not do.  He was not braking when he saw Turner.  That suggests that he did not really regard Turner as such a threat, as I say.

HEYDON J:   Well, he veered to give space.

MR ZELESTIS:   He says he veered, but he has not veered that far in the time that this has occurred, and he has travelled of the order of 90 to 116 metres and in that time he has failed to see the respondent at all.  Now, in our submission, there is nothing unusual at all in the proposition that negligence can subsist in momentary inattention.  Many accidents on the road are a result of momentary inattention.  A driver is not entitled to take the view that his lookout can be focused here and not there for a second or two or three.  Driving requires ‑ ‑ ‑

HEYDON J:   The problem is though he was attentive but really, on your argument, not attentive to every possibility or attentive ‑ ‑ ‑

MR ZELESTIS:   Not attentive ‑ ‑ ‑

HEYDON J:   Attending to the wrong thing.

MR ZELESTIS:   Not attentive to the road ahead, really.  We put it directly and simply in that way.  In our submission, as I say, the proposition upon which he was found liable in the end was really momentary inattentiveness.  It is called a distraction by the other figure, but in truth it is a kind of negligence which is found every day with respect to driving.  So, in our submission, accepting the facts which were found, and found differently in the Full Court, there really is no question of law which arises and it is unhelpful, with respect, to try to frame the duty in terms of a person such as an intoxicated person being on the road.  From the motorist’s point of view, the manner in which the person came to be on the road is irrelevant and, with respect, that can only be relevant to contributory negligence.

So, in our submission, there is no error of law in the way the court has approached the matter.  It required a normative judgment, and the court made the judgment.  In our submission, really there is no ground upon which one would find error on the part of the Full Court.  Those are our submissions.

HAYNE J:   Yes, thank you, Mr Zelestis.

There will be a grant of leave in this matter.  Counsel for both parties should order their affairs on the assumption that no more than two hours of time will be allowed for the hearing of this appeal.  It will be for counsel to agree upon a division of that time.  Absent agreement, they may, of course, approach a single Justice if they think that that is a necessary step to take, but there will be a grant of leave.

AT 2.18 PM THE MATTER WAS CONCLUDED