March v E. & M.H. Stramare Pty Ltd

[1990] HCATrans 180

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide	No A35 of 1989
PETER MAXWELL MARCH

Appellant

and

E. & M.H. STRAMARE PTY LTD

and STEFANATO

Respondents

MASON CJ
DEANE J
TOOHEY J
GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 21 AUGUST 1990, AT 10.33 AM

March(2) 1 21/8/90

Copyright in the High Court of Australia

MR M.L. ROBERTSON, QC: If the Court pleases, I appear with

my learned friend, MR M. FRAYNE, for the appellant.

(instructed by J. Bennett)

MR D. TRIM: If the Court pleases, I appear with my learned

friend, MR D. GREENWELL, for the respondents.

(instructed by Ross & McCarthy)

MASON CJ:· Mr Robertson.

MR ROBERTSON:  Yes, if the Court pleases, I do not start off

on a particularly good basis. I need to apologize

to the Court for one particular oversight which is

entirely my fault and that is that we do not have a

separate book of authorities for each of the

Justices of the Court.

MASON CJ:  I do not think that is a matter that calls for an

apology as long as you have the authorities.

MR ROBERTSON: Well, Your Honour, we are saved, if you like,

by the fact that the authorities in the

respondents' list are in all respects the same as

our authorities, save for two, and I hope the

mountings will arrive very quickly. I have sent my

instructing solicitor off to photostat the two that

are not there and if they do arrive in time my skin

will be, to some extent, saved but I do apologize

for that fact.

MASON CJ: Well, apart from it being appropriate to accept

your apology we should congratulate you in that you

have managed to avoid the unnecessary duplication

of copying of authorities.

MR ROBERTSON:  I thought of putting that as a submission to

Your Honours but I thought that might have been

slightly presumptuous but I am obliged to
Your Honour the Chief Justice for observing that.

Does the Court have our outline of submissions?

MASON CJ: Yes, we have, Mr Robertson.
MR ROBERTSON:	Thank you, Your Honour.  If the Court

pleases, could I take the Court initially to

paragraph 3 of our summary which puts our case for

allowing the appeal. Basically, what we submit is

that the majority of the Full Court misunderstood

or misapplied the principle of causation in the

circumstances that were presented to it at the

hearing before the Full Court. We do say, in

paragraph 3(b), that if that is not the case then

the majority have concluded that the common law

treatment of contributory negligence of a plaintiff

has in some ways survived the apportionment

legislation introduced by section 27a(3) of the

Wrongs Act 1936.

March(2) 21/8/90

Now, we only say that because if, in fact, it

is found that they have not misunderstood the

principles of causation it naturally flows that

that must be the result. Your Honours may say,

"Well, that has been a dead issue for so long, why

is it raised?" Should I indicate to Your Honours

that in the judgment of Justice Bollen there was

some discussion by him on the last opportunity rule

and, in fact, he concluded that it still survived

but then proceeded to say, "Well, last opportunity doesn't apply in causation", and then put it aside.

So, basically, our submission is that they

have misunderstood or misapplied the principle of

causation but if the Court formed the view that

really what they were doing - that is, the majority

of the Full Court - is in some way reintroducing
the old principles of common law regarding last
opportunity, then we would argue that it is not
appropriate in these circumstances. In fact, we

would say that the last opportunity rule and the

common law treatment of contributory negligence of

the plaintiff, as extinct, seeks the introduction

of the apportionment legislation.

Could I then invite the Court's attention - I

think it is probably a worthwhile exercise before I

proceed with paragraph 1 of the outline which is

our rationale of the majority of the Full Court's

decision, if I could spend a small moment on the

facts of this case, unless the Court does not wish

me to take it specifically to the facts?

MASON CJ:  No, you can briefly deal with the facts in so far

as is necessary to develop your argument.

MR ROBERTSON:  Thank you, Your Honour. If I could invite

the Court's attention to the judgment of

Justice White; the facts are quite neatly

summarized by His Honour.

MASON CJ: But are they summarized by reference to the

findings made by the primary judge because that is

critical, is it not - - -

MR ROBERTSON: Well, it is critical.

MASON CJ:  - - - what were the relevant findings of fact

made by the primary judge?

MR ROBERTSON:  Yes, they are, Your Honour. Your Honours,

could I, firstly, take - - -

McHUGH J: Well, there is one difference, is there, that

Justice White said that the hazard lights were not

like the lights on a police vehicle? Did the trial

judge make that point as well?

March(2) 21/8/90

MR ROBERTSON:  No, he did not, Your Honour. We do not make

any moment of that. In fact, if Your Honours have

seen the photographs that were part of the exhibits

before the trial judge, there is a photograph of

the hazard light at the rear of the truck. As it

turned out, late in the hearing, it was discovered

by the defendant that the hazard lights that were

presented as being the hazard lights on the night

and part of the exhibits in the photographs were

not. The hazard lights in the photograph, if the

Court recalls, the hazard light was part of a combination - in the photographs, that is -

horizontal piece of equipment with a hazard light

on one side and a parking light and a brake light

all in the same assembly in a horizontal way.

In fact, what was produced - I think at the close of the defendant's case, or if not close to

it - was, in fact, the true hazard light which was

a vertical assembly with the hazard light under - I

am not sure if it was underneath or above it,

anyway there was a brake or parking light and a

hazard light in a vertical combination but nothing

specifically turned on that. The findings are that

the hazard lights and the brake lights were

operating at the time.

McHUGH J: Yes, but the difference, I thought, or the point

was that Justice White was making at, I think, page

450 of the book - at about line 24 he says that:

the amber hazard lights came on and went off

at short intervals, not in the manner of

"flashing" lights of a police car or ambulance

or other vehicle giving dramatic and

unequivocal warning -

MR ROBERTSON:  Yes, the finding was that the lights were

intermittent, blinking lights -

Mc HUGH J: Yes .

MR ROBERTSON: - - - and I think that is all, as I understood

His Honour, that is what he was saying there.

McHUGH J: The only point is - I could not recollect the

trial judge making that point.

MR ROBERTSON:  He did not, certainly, make the comparison

with the police vehicle, if Your Honour pleases,

but the first part of what His Honour Justice White

says, I think is in accord with what the trial

judge found, that the red parking lights were on

and they were fixed lights - in other words they were not blinking at all - and the hazard lights were on and were blinking and that is basically, as

far as the lighting on the truck was concerned,

March(2) 4 21/8/90

there is no dispute with any of the justices who
heard the matter in the Full Court or with the

learned trial judge's findings on that point.

MASON CJ:  So that Mr Justice White's description of the

hazard lights accords with the evidence and there

.. was no contest about the accuracy of that?

MR ROBERTSON:	There certainly was no contest in the Full Court, Your Honour, on that. We accepted
that, in the Full Court - because that was the
finding and was not challenged in the Full Court -
that there were red parking lights on and hazard lights of an amber colour intermittently flicking or blinking.

MASON CJ: Yes.

TOOHEY J: But Justice Bollen seems to have taken a

different view to Justice White of the effect of

other lights in the area.

MR ROBERTSON:	Yes, Your Honour.
TOOHEY J:	And it may be in that respect that the findings of the trial judge become important.
MR ROBERTSON:	The findings of the trial judge did not

relate to that other aspect, Your Honour

Justice Toohey, which Justice White dealt with,

that is the other surrounding lights. The trial

judge did not make any comment on that at all.

Justice White is the only one that has raised that

of the four justices that have dealt with this

matter.· .

TOOHEY J:	Did not Justice Bollen express some views
MR ROBERTSON:	Yes, I am sorry, you are quite right, he

did.

TOOHEY J: In fact he seems to have taken the impression

that the "other" lights, if I can use that term to

identify street lights and so on, were much more

likely to highlight the stationary truck in the

view that Justice White took of the facts.

MR ROBERTSON:  Yes, Your Honour is quite correct. As far as

the trial judge is concerned, my memory is that he

did not address himself on that aspect at all.

TOOHEY J: Yet it may have been an important aspect.

MR ROBERTSON:  Yes, it may have been. When I say he did not

address it, he did not conclude in any firm fashion

one way or the other whether the surrounding lights were of benefit or a detriment in the circumstances

March(2) 21/8/90

of this case. So, if I could return to the

description of Justice White. First of all could I

take Your Honours to page 442; Justice White sets

out precisely what the argument is of the

respondents in this case and it is probably a

worthwhile exercise to look at it once again.	He
says, at line 16, the paragraph starting in the
centre of the page:

In their appeal, the defendants complain that

they should have been exonerated entirely,

principally on the basis that any negligence

on their part did not cause the collision.	On
the contrary, they submitted that the sole cause of the collision was the plaintiff's failure to see and avoid the defendants'

stationary truck straddling the centre-line of

Frome Street, City, a truck which was clearly

capable of being seen by an ordinary competent

and alert driver because it was "well lit" and

had its rear red lights and rear hazard lights

on.

That, in fact, does encapsulate the findings of the trial judge relating to the lights that were

on the vehicle. Then, if I could take the Court to

page 443 line 4, His Honour gives this description

of the facts:

The collision occurred at 1.00 am on a Friday

morning, that is, an hour after midnight on

March 15 1985. The defendants were

wholesalers in the market business of selling

fruit and vegetables. The defendants parked

their large tray-top truck in an extraordinary

position in the middle of Frame Street, City.

Frome Street runs north-south.

In fact, north-south is the manner in which I am

now standing and Your Honours are now sitting;
north being precisely where Your Honours are

looking and south is where·! am looking.	It is
exactly the same geographical direction.
The truck faced south, straddled the
centre-line and stood with half of its width to the east of the centre-line and the other
half of its width to the west. The truck was
about 2.5 metres wide. Half its width was
1.25 metres. It follows that the left (east)
half of the width of the truck was obstructing one half of the 2.5 metre width of the lane in
which the plaintiff was driving.
Then His Honour follows with certain

measurements regarding the width of the road, which

I do not wish to trouble the Court with, but if I

March(2) 6 21/8/90

can take you to the very last three lines on

page 443:

From these measurements it can be seen that

the defendants' truck obstructed not only one

half of the right lane for south-bound traffic in which the plaintiff was travelling but also one half of the right lane for north-bound

traffic.

So, the truck was parked right over the centre

line. Then His Honour goes on and talks about

lighting in the general area. At about line 8:

The lighting in the general area and the

lighting on the truck to some extent

ameliorated the gravity of the obvious danger

arising from its continuing presence there.

Now, I may pause to say that that is His Honour's

reflection of the facts as he saw it when it came

before him in the Full Court. Then His Honour goes

on:

The truck had been stationary in that position

for at least eight minutes before the

plaintiff collided with its rear end. It was

the defendants' intention to leave the truck
there for a considerable time while the driver

was loading the truck with crates which the

defendants had piled up on the eastern

footpath and also on the surface of the left
traffic lane for south-bound traffic near the

footpath.

May I just pause there, Your Honours, to indicate

that on the left-hand side or the western side of the carriageway where the accident occurred there

were three lanes: one lane, as His Honour points
out, was blocked by crates of vegetables and they were on the footpath as well; the second lane was

clear and the third lane was partly obstructed by

the position of the truck.

MASON CJ: So, there was only one clear lane for south-bound

traffic?

MR ROBERTSON:  Yes, that is so, Your Honour. Then

His Honour proceeds with his narrative:

The excuses put forward by the defendants that

the nearby market premises were inconvenient

were rightly rejected by the trial judge.
These excuses were no justification for them

causing this traffic hazard of positioning the truck along and straddling the centre-line or,

March(2) 7 21/8/90

for that matter, stacking crates along the

left lane.

And then he refers to the fact that nuisance was

not pleaded but only negligence and then proceeds,

over the page:

The question raised by the defendants is

whether, in this particular case, the damage

eventually suffered by this particular

plaintiff was caused by their continuing

(nuisance and) negligence.

Well, of course, as I indicate to the Court,

nuisance was not an issue in the case. It is

without dispute and the trial judge so found that the purpose of parking the truck in the centre of

Freme Street, straddling the centre-line, was a

matter of convenience for loading goods; that is the vegetables and crates that were placed along side the building on the footpath and in the

nearest lane to the footpath on to his truck

because there was not sufficient room inside the

East End Market to do so.

So, His Honour found that it was simply a

convenient exercise. He could do it because he

could approach it from both sides with his

fork-lift truck; he can load it on the left and

then go on to the eastern side of the carriageway -

which is not the side which we are dealing with, we
are dealing with the south-bound traffic on the
western side of the carriageway - but he could use

the road, if you like as a -

TOOHEY J:  I am sorry, is that right, Mr Robertson? We are

dealing with the eastern side of the carriageway,

are we not?

MR ROBERTSON:  You are quite right, Your Honour

Justice Toohey. I should know better - I live in

the eastern suburbs of Adelaide - it is the eastern

side of the carriageway we are dealing with.

TOOHEY J:	I take it there is no median strip?
MR ROBERTSON:	No.
TOOHEY J:	It is just six marked lanes?

MR ROBERTSON:  Yes. It may be on the basis that one picture

is greater than a thousand words. If I could

invite the Court's attention to the exhibits at the

rear. Could I ask the Court to first examine

exhibits Pl(a) and Pl(b). That gives a very good

photograph of the position as it then was. In

fact, due to progress the buildings around it no

March(2) 21/8/90

longer appear as they do in this photograph. That

part of the East End Market has been knocked down

for, of all things, a car park.

But, Your Honours will see, in exhibit Pl(a),

the truck parked adjacent to the eastern footpath.

The position of the truck there, as the evidence

disclosed, was similar to where it was on that

night except you have to, of course, extend it

across to the right of the photograph so that it is

actually straddling the centre-line.

TOOHEY J: Well, its only relevance to the night in

question, presumably, is the distance from the

intersection.

MR ROBERTSON:  Yes, that is so, Your Honour, and that

basically, as I recall the evidence, is the

distance that it was on that night. That

intersection, that Your Honours see there, is the

intersection of Rundle Street and Frome Street.

Your Honours may be familiar with some of the

geography of Adelaide: we have Rundle Mall which

was formerly part of Rundle Street and then after

the mall finishes at Poulteney Street it then

proceeds in an easterly direction until it joins

East Terrace and Frome Street dissects Rundle

Street and all the other streets that run in an

east-west direction.

MASON CJ:  We are looking in a southerly direction in these

photographs?

MR ROBERTSON:  We are looking in a southerly direction; that

is the direction from which the plaintiff

travelled. The other exhibit which may be of

assistance in comprehending - if I can pick it up.

If I can invite the Court's attention to exhibits D4(a) and D4(b) - there are only two

photographs in that packet. There should be a

photograph which some black markings on it.

The first photograph is, in fact, looking in a

northerly direction; in other words, from the

opposite direction to which the plaintiff was

travelling. The traffic lights that the Court can

see in the photograph are the traffic lights in the previous photograph; that is, the traffic lights at

the intersection of Rundle Street and Frome Street.

This is, if Your Honour Justice Deane pleases,

exhibit D4(a) and D4(b).

Further down the road is the intersection of

North Terrace and Frome Street. Your Honours may

be familiar with that because the Royal Adelaide

Hospital is on the north-eastern corner of that and

that road that is on the other side of North

March(2) 9 21/8/90

Terrace is Freme Road - Your Honours may be

familiar with that lovely road that travels by the university with those huge plane trees over it. I

do not know how familiar you are with the geography

but I guess it is significant to this extent, that

Justice Bollen, in his findings of fact, seemed to

suggest that the plaintiff commenced his journey

from a stationary position at the intersection of

Rundle Street and Frome Street.

In fact he had stopped at the furthest intersection to the north; that is, North Terrace

and Frome Street, which you can see - well, it is

not particularly identified but it is in the

distance in photograph D4(a). The lights had

turned to green; he travelled down in a southerly

direction, along Frome Street; approached the

intersection of Rundle Street - which is the one

Your Honours can see in D4(a) - the lights were

green there and there was some dispute about that

but His Honour the trial judge found that the

lights were green in his favour - and he crossed

that intersection and then immediately was

confronted with the stationary truck and simply

drove under it.

McHUGH J: When you say "immediately", the point of impact

was 37.7 metres south of the southern alignment,

was it not?

MR ROBERTSON:  I was not intending to express "immediate" in

a literal sense. At approximately 60 kilometres

per hour - I think it was a little more than that -

it would not have taken very long; but "short",

yes. The position of the truck, Your Honour

Justice McHugh, as I said, on the night is well identified by exhibit Pl(a). So, yes, it was some

distance past it. There was an independent

witness, a Mr Rumball, who was stationary at the

same intersection at North Terrace and Freme Street

and observed the plaintiff's journey along that

road - or along Freme Street, across the

intersection until it came into impact with the

truck that was stationary.

For what it is worth, Mr Rumball - there was a

large dispute in the case at first instance, as to

whether the hazard lights and the parking lights
were on. The learned trial judge found that they were on and that is accepted, but Mr Rumball gave

evidence that he did not observe them on and the

first time he saw the truck was the outline of its cabin against the city lights as he approached the

intersection at Rundle Street. His Honour

Justice White refers to that in the course of his

judgment.

March(2) 10 21/8/90

So, they are basically the facts at the time

the plaintiff crossed the intersection of Rundle

Street and Frome Street. The trial judge found	that he was travelling slightly in excess of
60 kilometres per hour but, I think, under 70 kilometres per hour; something of that nature.

TOOHEY J:  Mr Robertson, was there evidence as to weather

conditions at the time?

MR ROBERTSON:  Yes, the evidence was that it was not raining

it was a fine night, if Your Honour pleases. So

they basically are the facts upon which the learned

trial judge found that the defendant/respondents in

this matter were in breach of their duty of care

and he found so even though the parking lights were

on and the hazard lights were on, he still found

that they were in breach of a duty of care to the

plaintiff and he did not address the issue of

causation as such and His Honour Justice White says

that he, in a similar case of Sloan v Kirby, did

not address the issue of causation because in his
view causation was not an issue in the
circumstances of this case and, of course, that is

our case. That this is not a case of causation,

that once you determine that there is a breach of

duty in circumstances of this case causation is not
an issue as it is not an issue in 99 per cent of

motor accident cases in this country.

Could I now take you, Your Honours, to the

outline of submissions for the appellant and to

paragraph one, where we attempt to rationalize the

decision of the majority of the Full Court and we

say this, in subparagraph (a) that the respondents

(defendants) were in breach of duty of care in

parking the truck straddling the centre line of the

carriageway even with its parking lights and hazard

lights operating. What we say there is that it has

been accepted by the majority of the Full Court

that there has been a breacn of duty of care owed

to the plaintiff by the defendant in parking the

truck in the position that it did on that night.

DEANE J:  How much, in your submission, turns on the absence

of good reason? I mean say, for example, without

negligence the truck had suddenly run out of

petrol?

MR ROBERTSON: Well, yes, the whole thing is prefaced on

"without negligence", Your Honour and - - -

DEANE J: Well, no, "out of petrol" is a bad example. The

truck had suddenly broken down and stopped.

MR ROBERTSON: Well, there may be in the appropriate

circumstances a case to be able to be set for a

March(2) 11 21/8/90

defendant that there is an absence of negligence in

those circumstances but one would need to go a

little further, in our respectful submission, and

say, "Well, it broke down without any forewarning,

the truck, let us say, had been serviced and

thoroughly checked 24 hours before", so that the

defendant could never have recognized or foreseen

that it would break down in that case.

The next step would have to be, one would need

to ask oneself is, "Was it possible to remove the
truck from that position at that time that it broke

down or were all of the circumstances such -

DEANE J: Well, we will assume it had just happened. In

those circumstances your client's conduct would

have been, so far as negligence was concerned,

100 per cent of the cause?

MR ROBERTSON:	Yes, we would have to accept that.
DEANE J:	Is there any discussion in the cases you are going

to refer us to as to how, as it were, explanation a

move back from the events, that the immediate

events can produce a difference between the

percentage responsibility? You would think it

would have arisen?

MR ROBERTSON:  Yes. In none of the cases which we propose

to refer to the Court was that subject discussed on

the basis of a percentage responsibility. It was
discussed in His Honour Justice White's judgment at

first instance, the only judgment, in a matter of

Sloan v Kirby, which was a judgment which
His Honour the trial judge relied upon,

His Honour Justice White relied upon in his

judgment and which we put was apposite to our

case - - -

DEANE J:  I have read that, it does not really seem to deal

with the precise question.

MR ROBERTSON:  No, although His Honour did say in that case

that there was no reason. That was a case that

Your Honours may recall where, on a country road a

truck broke down. It is No 12 in the respondent's

list of authorities, it is No 2 on our list, but

because of the circumstances I have already

described I am required to use the respondent's

list. It is set out there, but briefly what

happened in that case was that on a country road a

truck broke down, I think His Honour found in that

case that the driver of the truck was aware that it

had been playing up as far as its mechanical

performance was concerned and he took the risk that

it was not going to break down on this occasion.

It broke down on a country road and he pulled off

March(2) 12 21/8/90

to the left but had his offside wheels still on the

bitumen and his nearside wheels on the dirt - the

verge of the road.

The driver of the motor vehicle approaching

had a passenger with him and he drove into the back

of the truck; in similar circumstances, there were

hazard lights operating in the Sloan v Kirby

factual situation, and there were parking lights

on, and the driver was in Sloan v Kirby intoxicated

as was the driver in the case at bar. And

His Honour found there was some argument in that

case that because of the muddy conditions of the

side of the road that the driver could not have

pulled off safely any further than he did, in other

words, partly on the bitumen, partly off, and

His Honour Justice White there found that that was

not so and that was not an appropriate excuse to

leave it in that position, and it ought to have

been taken completely off the bitumen. And so, to

that extent, an excuse was proffered in that case.

His Honour Justice White found that the plaintiff and the defendants were guilty of negligence and

apportioned, in that case, in favour of the

plaintiff 40 per cent and 60 per cent against him.

TOOHEY J:	I am not sure how far the question of excuse can run in this sort of question, Mr Robertson. Say,
for instance, in the example you have just given us
that the truck was completely unlit, is it any
answer to say that you could not get it further off
the road, if it is run into from behind by another
vehicle? These are all rhetorical questions but they do have some bearing upon the situation here. For instance, in the instant case, if the truck had
simply come to a gentle stop because a pedestrian
was moving across the road and the present
plaintiff had run into the back of it, is that a
different situation from him having run into the
back of a truck which was there in a situation
where it ought not to have been there.

MR ROBERTSON:  I am sorry, where it?

TOOHEY J: Where it ought not to have been there, in a sense

that if it was being used for unloading then it

could well have been in the lane alongside the

kerb?

MR ROBERTSON:	Yes.
TOOHEY J:	The point of all this is what is negligence in

this sort of situation? Is it related merely to,

as it were, the immediate conduct of the parties

involved or do you look to the wider circumstances

to see why the vehicles were where they were at the

time of the accident?

March(2)	13	21/8/90
MR ROBERTSON:	I think that is what one has to address.	Why

was it placed there. If in fact as His Honour

Justice Deane raised, that it was there because of

an unexpected breakdown, that may be different

circumstances than placing it there for the

purposes of loading and unloading. But the point

we have made, throughout the whole of the progress

of this matter is the significance of it, it was in

an unexpected and extraordinary position on the

road. It was straddling both sides of the road in

a place where a motorist would not expect it to be.

MASON CJ:  Now, Mr Robertson, can we come back to the

question that Justice Deane put to you. Now, it turns on the interpretation of section 26 of the

Wrongs Act, and that part of section 26 which says

that:

the amount of the contribution ..... shall be

such as may be found by the court to be just

and equitable, having regard to the extent of

that person's responsibility for the damage.

So that, apportionment raises this question of

"responsibility for the damage". Now, has there

been any decided case that discusses that matter?

MR ROBERTSON:  No, as far as I am aware there is not,

Your Honour.

MASON CJ:  Now, is there any writing, any learned writing

about discussing the question?

MR ROBERTSON: Well, we have spent a lot of time researching

the matters, Your Honour, and the answer as far as.

we are concerned is, no, there is no learning as we

understand it, on that particular point that

Your Honour Justice Deane has specifically raised.

McHUGH J: But there is, is there not, I mean what about in

this Court, cases like Pennington v Norris, they

deal with that question.

MR ROBERTSON: Well, Pennington v Norris did not in fact

deal specifically with that, Your Honour. All that

Pennington v Norris ended up dealing with - there

was the question of the last opportunity argument
was raised by counsel in that case and, of course

that was only shortly after the introduction of the

apportionment legislation in Tasmania and

Pennington v Norris simply put aside that issue and

said that on the circumstances that was before the

Court that they did not need to decide whether any

vestiges of the last opportunity will survive the

apportionment legislation. But if Your Honour

recalls that Pennington v Norris was a simple

factual case of two people walking across a road

March(2) 14 21/8/90

in, I think it was Devenport in Tasmania, and a

motor vehicle coming down the road on a rainy night

with his vision slightly obscured by the problems

of rain on the windscreen, with the windscreen

wipers working, and ran down the two pedestrians,

one in particular - - -

McHUGH J:  But there were a number of separate issues. The

first issue is: was the defendant negligent; the

second is, did his negligence materially contribute

to the damage which the plaintiff suffered but for

causation. I find it amazing that throughout the whole of these judgments there is not a reference

to "but for causation" or "material contribution to

damage".

MR ROBERTSON:  Your Honour, the "but for" test, if you like,

if I can express it that way, was raised and

discussed before the Full Court. It may not be in

the judgments but certainly that was addressed

because there was references to some passages from

CLERK V LINDSELL on - - -

TOOHEY J:  I think it is touched on by Justice Bollen too,

Mr Robertson.

ROBERTSON J: Yes. But as far as whether the reasons for

the vehicle being in a specific position was

concerned, as I understand Your Honour

Justice Deane to be asking me, there is nothing

that I have found in my researches where this

matter has been specifically addressed and none of
the learning specifically addresses that as well.

We.would say that it has probably not been

addressed because of the circumstances which differ
in each case, Your Honour has put forward to me a

situation where a breakdown occurs suddenly, then

those circumstances are clearly different where

somebody decides with significant disdain for road

users, to use the road as a parking bay or a

loading bay if I should say, and places the vehicle

there.

Now, if one accepts that placing it there it

is reasonably foreseeable that a driver is going to

come into collision with it because it is in an

unexpected position and that foreseeability extends

not only to careful drivers but to drunken drivers

and careless drivers and matters of that nature,

then when one gets to that position and a driver
intoxicated collides with it, in our respectful

submission, the act of negligence in placing it

there is a continuing act of negligence right up to
the point of impact. There is no snapping of the

chain of causation. Once you have got an

acceptance that there has been a breach of duty of

March(2) 15 21/8/90

care on the circumstances of the particular case,
in a case such as this there is no break in the

chain of causation, there is an ongoing continuing

act of negligence and, in our respectful

submission, it is overwhelming that that negligence

was causative negligence which is the - - -

MASON CJ: It seems that the primary judge so found, at

least in one sentence he found, that the

defendant's negligence caused or contributed to the
accident and the plaintiff's injuries, though he

did not elaborate on that - - -

MR ROBERTSON:  No, he did not, Your Honour.

MASON CJ: But that was his findings.

MR ROBERTSON:  Yes, Your Honour.

MASON CJ: So, his finding had to be displaced in some way?

MR ROBERTSON: Yes, and the Full Court, the majority of the

Full Court, it seems to us to have done one of two

things; they have either said that there has been

a break or a snapping of the chain of causation or,

alternatively, that in some way the last

opportunity rule in reverse applies here.

Could I just take Your Honours back to the

rationale of the decision of the Full Court. It is

important to recognize, as we say in paragraph (a)

that Justice Bollen, with whom Justice Prior was

"in substantial agreement", did find a breach of

duty of care. I think it is a worthwhile exercise

if I take Your Honours to the two passages to which

we refer in paragraph l(a). First of all, at page

474, line 14, this is Justice Bollen's judgment,

His Honour says this:

There was a truck parked where it should

not have been. But it was clearly visible.

It had rear lights. Most importantly it had

flashing hazard lights, flashing to the rear.

Contrary to some submissions made during

Argument, I think that all of these lights

would have stood out from, and not become

absorbed, in other lights.

I pause there because Justice White had put forward

that particular proposition. His Honour then goes

on:

The flashing hazard lights could not fail to

have caught attention even with the most

cursory look out. The respondent did not see

the truck because he did not exercise the

slightest vigilance. No doubt alcohol

March(2) 16 21/8/90

contributed to his lack of attention to the

road ahead. Rumball cannot have exercised

much vigilance.

I pause there, Rumball was the driver of the other

vehicle who took off at the same time from North
Terrace and followed the path of the plaintiff and

his evidence was, he did not see flashing lights, the first time he saw the truck was there was the

outline of the cabin against the city lights.	Then
His Honour goes on:

Why then was the second appellant condemned in

negligence? The mere fact that he was lacking

in care or at fault in ranking his vehicle in

the middle of the road could not make him

liable. Even if it be said that that conduct

was a breach of duty to the respondent it was

not causative of the accident.

And His Honour also, at page 475, line 30 -

DEANE J: But should you not stop there for a moment because

does it not depend on the definition of the duty of

care involved. I mean, if what was involved was a

breach of a duty of care owed to negligent and

inattentive drivers what His Honour says cannot be

right, can it?

MR ROBERTSON:	No, no, that is so, Your Honour.
DEANE J:	If what was involved was to be measured by the

reference only to the attentive and non-negligent

driver, what His Honour says would be right, in

that the attentive and non-negligent driver would

not have had this accident so what was done would

not have been causative of the accident?

MR ROBERTSON: That is so, Your Honour, and may I take that

point a little further. His Honour did accept that
the duty of care owed is owed not only to drivers

who are attentive, but those who are inattentive as

well. He accepted the proposition that

Justice White had put, enunciated in Sloan v Kirby,

that drivers on the road owe a duty of care, both

to attentive and inattentive drivers, to drivers

who do not keep a proper look out; drivers whose,

through the consumption of alcohol, lookout has

been defective and matters of - - -

DEANE J: Well, that brings us back to what I asked you and

that is, has there been any discussion in the cases

or writings as to how the apportionment legislation

has effectively changed the nature of the duty of

care, in that if you did not have apportionment and

what you did could not have caused injury to a

non-negligent driver in the old contributory

March(2) 17 21/8/90

negligent days, was very difficult to see how you

could be liable.

MR ROBERTSON:  No, our researches have not disclosed that

that is the case, Your Honour.

DEANE J: That answers my question.

MR ROBERTSON:  Could I take the Court over to page at 475,

line 30. His Honour Justice Bollen quotes from the

judgment of the learned trial judge, Justice Perry,

and then he again says and once again I am

addressing the Court to the acceptance of the

justices of the Full Court that there was

negligence here:

So far so good. The second appellant was at

fault, or careless, or foolish, or even (if

one limits the word "negligent" to "conduct

minus causation") negligent in ranking the
truck.

So, I go back to the original proposition that, whilst Justice Prior did not address this point in

so many words, he did indicate right at the outset

of his judgment that he was in substantial

agreement with Justice Bollen and only addressed

himself to the causation issue. In our respectful

submission, the Full Court accepted that it was a

duty of care and a breach of duty of care.

MASON CJ: Yes, Mr Robertson. Well, I think we follow the

tenor of your argument.	We have had the benefit of
reading your outline of submissions.	Now is there

any other point that you want to direct our

attention to?

MR ROBERTSON:  No, well only Your Honour - - -

MASON CJ: Perhaps you want to go to Mr Justice Prier's

judgment?

MR ROBERTSON:  Yes, if Your Honour pleases, could I take

Your Honours to paragraph 1. (c) of the outline,

because that really does address the point that

Justice Prior made. First of all, in (c)(i) we say

that this the rationale which we say is applicable

to the Full Court's decision. (i) the appellant

had the last opportunity of avoiding the collision,

therefore it was the appellant's negligence which

was the sole cause of the injuries he suffered in

the collision, or (ii) the appellant's negligence

"snapped the chain of causation" between the

respondents' fault and the resulting injury.

Now, that proposition is highlighted by the

judgment of Justice Prior and perhaps if I could

March(2) 18 21/8/90

take the Court to that, at page 487, line 21, but before I do that I think it is worthwhile looking

at what His Honour Justice Prior said, at page 486,

line 11, where he says:

I have borrowed from the language of

Lord Sumner referred to -

I apologize to the Court, I should go to the very

commencement of his judgment to indicate that he

does say:

I am in substantial agreement with the

reasons published by Justice Bollen.

Then he proceeds, at line 11:

I have borrowed from the language of

Lord Sumner referred to by Windeyer J. in The

National Insurance Company of New Zealand Ltd

v. Espagne. I refer to what Sir Victor says

at 594 of the report also. Legal

responsibility attaches to the "real cause" of

the plaintiff's injuries as distinct from a

cause without which the accident would not

have happened. In this case, without the
vehicle being left there the accident would

not have happened, but that matter is one in

this particular case that does not attract

legal responsibility. The use of the truck in

the middle of the road is "merely an incident

which precedes in the history or narrative of

events".

Then, His Honour, goes on over a page, after he quotes from a decision of Rouse v Squires, I am

sorry it is a decision of the Admiralty

Commissioners vs. S. Volute, he says this, at line

21:

In this case a clear line can and should

be drawn so that the subsequent act of the

plaintiff is the only one to look to.

I think to make sense of that, one needs to look at

the quote above of the s. s. Volute, so if I could

take the Court to line 10, His Honour says this:

In those cases -

That is, Rouse v Squires and Chapman v Hearse:

the two Acts found to be negligent came closely together, the second Act being:

" ... so much mixed up with the state of things

brought about by the first act, that the party

March(2) 19 21/8/90

secondly negligent, while not held free from

blame ... might, on the other hand, invoke the

prior negligence as being part of the cause of

the collision so as to make it a case of

contribution."

Then, His Honour goes on:

In this case a clear line can and should be drawn so that the subsequent act of the

plaintiff is the only one to look to.

Now, could I remind Your Honours the decisions of

Chapman v Hearse and Rouse v Squires were both

cases where there were three parties involved, if I

could say this. In Chapman v Hearse Dr Cherry had
been run down on a road right opposite the Royal

Adelaide golf course in Adelaide, whilst he was

attending the driver of a motor vehicle which had

been involved in a motor accident with another

vehicle, he was lying on the road. Another driver

came along whilst he was attending to him and

killed Dr Cherry. Now, the issue in Chapman

v Hearse was between the defendant Chapman who was

the driver who killed him and the third party, the

driver of the other vehicle, as to whether the
previous accident and the negligence involved was

causative of Dr Cherry's injury.

McHUGH J: Well, was it causation or was it remoteness, they

are two different concepts?

MR ROBERTSON: Well, I accept that, Your Honour. In my

reading of it it was a causation case. There was

discussions on the questions of remoteness and the

more famous quote that foreseeability as the out of

bounds of responsibility was expressed there but

certainly there was an issue of causation in that

case. And the same in Rouse v Squires, where

there was an accident on a motorway in the United

Kingdom and a semi-trailer was partly blocking the

carriageway. A helper was helping the injured

parties in that case and the defendant came up from

behind hit the vehicle and killed the aider - the

Good Samaritan - and the issues were again a

question of causation.

I simply refer you to those factual situations

so that one can understand what His Honour

Justice Prior is saying there, but what His Honour

then says, in a case here where there are only two

parties involved in assessing negligence and

accepting, as he does, because he is in substantial

agreement with Justice Prior that there has been a

breach of duty of care to the plaintiff, that
somehow the plaintiff's negligence snapped the

chain of causation, and we say - - -

March(2) 20 21/8/90

McHUGH J: 

I .must say, I have never been able to understand

these statements about prior negligence not being
sufficient. If they were literally applied most

plaintiffs in industrial accident cases, where they

are relying on their employers negligence in system
cases, would not succeed because the employers

negligence may have taken place years before.

MR ROBERTSON: 

Yes.

McHUGH J: 

The plaintiff comes along and works the system or

works this, works the machine, the unguarded

machine, nobody ever suggests for a moment that his
case fails because he is the sole cause of his

negligence.

MR ROBERTSON: With respect, Your Honour, precisely that is

the point we make. If this case was allowed to

stand then, in our respectful submission, untold

havoc would apply because if you adopt the

rationale and the reasoning in this case you adopt
it in the very circumstances that Your Honour

Justice McHugh has raised.

MASON CJ:  It might be an appropriate note on which you

might end your address, Mr Robertson?

MR ROBERTSON:  Thank you. I am obliged to Your Honour.

MASON CJ: Yes, Mr Trim.

MR TRIM:  If the Court pleases, if I could commence in the

same manner as my learned friend, Mr Robertson, and

perhaps attempt to succinctly summarize the

respondent's case before going to the outline of

submissions, the crux of the respondent's case is

that the majority in the Full Court have correctly

approached the issue of causation, they have

applied the appropriate test, or in the case of

Justice Prior tests, to determine that issue and

that no issue of contributory negligence arises.

Having started in that manner, can I go back

to the outline of the respondent's submissions.

Your Honours will see from paragraph 1 that the

respondents formally concede, firstly, that the

respondent Stefanato owed a duty of care to other

road users in respect of the manner of parking his

vehicle, that he was in breach of that duty and

that it was foreseeable that injury to another road

user, including the appellant, could have arisen.

we make that formal concession because,

despite the submissions made by my learned friend

and the passages he relies upon in the judgment of

Justice Bollen, perhaps it can be said it is

March(2) 21 21/8/90

equivocal as to whether the majority found that

Stefanato was negligent and it could be said that
they have passed over that issue in light of their
approach to the issue of causation that we think is
appropriate to make the concession so as to focus
on what the respondents say to be the sole issue
arising in the appeal, namely, that of causation.

The second paragraph of the outline makes the

point that has been touched upon by my learned
friend, Mr Robertson - I do not want to labour it
accordingly at any length - namely that the
decision of Chapman v Hearse which appears in the
respondent's book of cases at number 3 makes the
point that foreseeability marks the limits of
causation but it is, of itself, not a test of
causation.

McHUGH J:  Well, it marks the limits of legal

responsibility for damage, does it not?

MR TRIM:  Yes, Your Honour, and in this context we say

that although the damage falls within the bounds of

what was foreseeable this was one of those cases

that notwithstanding the damage falls within the

bounds of foreseeability, it is not determinative

of the issue of causation. As I said, I will not

take the Court at length to the passage at page 122

which deals with the submission that then was put

to the Court.

DEANE J:  But we cannot get on to causation to the extent

that it applies here until you define precisely the

breach of the duty of care. Now, what if you

define this breach as a breach of the duty of care

owed to negligent and inattentive drivers?

MR TRIM:	It must be so defined, if Your Honour pleases.
DEANE J:	Well, then, if you so define it, does the

question of causation not answer itself?

MR TRIM:  No, if Your Honour pleases because

DEANE J: 

I mean, what you are saying is the breach of the

duty of care to an inattentive and negligent driver
will not cause injury to such a driver if the
driver was very negligent and inattentive.

MR TRIM: 

There is a question of circumstance and degree

and despite the concession that has been made the

thrust of the majority's approach to the issue of

causation in the Supreme Court was that as a matter

of fact and degree, or circumstances and degree,

there was a clear line to be drawn and that is the

essence of the respondent's case, that there was,

on all of the facts the clear line and really that

March(2) 22 21/8/90

submission revolves in large part around the
question of the lighting and the extent to which,

the truck, as it were, stood out on the roadway.

The majority found that the degree of lighting

was such that the clear break existed whereas

Justice White only found the causal nexus to

survive as a consequence of one finding he makes,

which has been touched upon already, namely, that

there were competing lights and objects ahead of an

approaching driver. The reference to those

findings is made in the outline of submissions at

paragraph 3.3(iii). The findings are to be found

at page 451 line 13:

The inference is fairly open, in my opinion,

that both drivers failed to see the hazard
lights because of the existence of a variety

of competing lights and objects ahead of them. His Honour goes on to discuss the evidence and the

finding again surfaces of the conclusion of

His Honour's analysis of the evidence at page 455,

again at line 13.

McHUGH J:  But, Mr Trim, I must say I am very puzzled by

this because the negligence consisted of your

client's leaving the truck there when he should

have foreseen and could have reasonably avoided

damage to the plaintiff corning along at an

excessive speed or failing to keep a proper look

out. Now, if that is the negligence, how could it

be said there is no causal connection between that

negligence and the damage which the plaintiff
suffered? The damage which he suffered is the very

thing that the defendant should have foreseen and

avoided.

MR TRIM:  That, if Your Honour pleases, goes to the issue

of foreseeability but does not, with respect, in
our submission, deal with the question of the clear

break in the causal chain.

McHUGH J:  But there is no clear break. The negligence

caused the damage directly. I mean, it was the

very thing that should have been foreseen and

guarded against.

MR TRIM:  With respect, the approach of the majority was to

look at the issue of, firstly, the negligence of

the respondents and then to compare that - - -

McHUGH J:  What was the negligence? What do you concede

the negligence was?

MR TRIM:  In essence to park the truck where it was

straddling the middle of the road.

March(2) 23 21/8/90

McHUGH J:	Well why was it negligent?
MR TRIM:	Because that was an inappropriate place to park

a vehicle any time of the day.

McHUGH J:  But surely it was negligent because the

defendant should have foreseen that careless

drivers coming along might fail to see the truck

there and they failed to take action to prevent it.

Now, if that is the negligence, how can you say

there is no causal connection between what happened and that negligence? That was the very thing that

was expected to happen.

MR TRIM:  With respect, the answer to Your Honour's

proposition, in our submission, is to be found in the application of the principles to be extracted

from the Volute decision, which I will come to

shortly, and the application of the touchstone of

the common sense approach to the issue of causation

which is touched upon in the outline, and those

tests, the application of those principles, dictate

that there is the necessary break, the clear break

between the two.

McHUGH J: Yes, well, I know you are going to deal with

them, but all those statements have got to be read

against the background of the stalemate rule where

contributory negligence was an absolute bar. I

appreciate that Volute was an Admiralty case, so it

was not, but that was the general context of

statements about causation, courts were trying to avoid the injustice of the stalemate rule talking

about real causes and subsequent acts and last

opportunity. I mean, it is all gone.

The real question is, but for the defendant's negligence could this damage have been avoided?

MR TRIM:  Well, with respect, the "but for" test is an

exclusionary test most appropriate to some

circumstances but the test relied upon, in

particular the tests, plural, relied upon by

Justice Prior in the Full Court are more appropriate

to the situation ofa stationary object case.

Your Honour has touched upon the stalemate rule but,

with respect, the last opportunity rule, that has

also been touched upon by my learned friend,

Mr Robertson, is not, at least in this country, a

test of causation and cannot be said to be such

since the decision of this Court in Alford v Magee

and this is the case as put to rest finally by

Chapman v Hearse.

The last opportunity rule is a means of

comparing negligence and thus it overlaps, if it

exists at all, with the question or the principle

March(2) 24 21/8/90

of contributory negligence under the apportionment legislation. But the approach of the courts under the old common law principles to the question of,

or rather, the means of avoiding the effect of the
stalemate rule are not appropriate to a question of

causation. However this rule may have been applied

in the United Kingdom.

So that we put aside, with respect, the stalemate principle and common law principle as

contributory negligence and although the Volute is
an Admiralty case in the respondent's submission,

it is, or rather prescribes a test that is entirely appropriate to a stationary object case and that is made plain by the adoption of it in several cases

in the similar fact situation, and in particular,

the decision of Rouse v Squires that has been

referred to briefly by my friend is number 4 in the

respondent's list of cases.

There is one passage in the judgment of

Lord Justice Buckley at page 901 of that case that

summarizes the respondent's case in a way that we

would not seek to alter or impinge upon at all.

The passage commences at page 901 five lines from

the top:

Anyone who by a negligent act creates a danger

on a highway to other users of the highway can

be liable to another user if damage results

from the danger so caused. The question

whether there is a danger is to be determined

by the ordinary test of foreseeability. But

for that purpose, when considering how other ro~d users can reasonably be expected to use the road, you are not entitled to assume that

they will all exercise the proper degree of care. For instance, one should not proceed

upon the assumption that every driver will be

able to stop within the limits of his own

vision, because common experience shows that

people do not always drive in that way. But

when there is ample visibility and ample

opportunity for the driver of an oncoming

vehicle to see and appreciate the nature and extent of an obstruction and to take evasive action, then the obstruction does not

constitute a danger, and in such a case there

is a break in the chain of causation between

the prior negligent act which caused the
obstruction and the immediate consequences of

the latter negligent act of a driver on the

highway who causes an accident. In such a

case there is what Viscount Birkenhead in
Admiralty Commissioners v. S.S. Volute

described as a "clear line".

March(2) 25 21/8/90

McHUGH J: Well, I must say, with all respect to

Lord Justice Buckley, I would have thought that

that meant that there was no duty of care owed to a

driver who had plenty of opportunity to see it and

take evasive action.	It has got nothing to do with
causation.

MR TRIM:  .A duty of care is owed, Your Honour, but one

applies the common law test, with respect, the line

is broken, the nexus is broken, and I come back to

the point I made before that the only basis upon

which Justice White in the Full Court was able to

maintain the nexus was by his findings that I have

referred to that appear in two places in respect of

the competing lights and an examination of the

evidence, with the greatest of respect to

His Honour, indicates that that finding cannot

stand, that indeed there were no competing lights

and that all that occurred was there was some
limited spillage of light out of the adjacent

archway to the east of the point of collision, but

nothing that could be said to amount to competing

lights.

MASON CJ:  Mr Trim, you have got to put against that

statement by Lord Justice Buckley, which I have

difficulty in appreciating, what

Mr Justice Windeyer said in National Insurance Co of New Zealand v Espagne. Now, at the very page

from which Mr Justice Prior quoted you will see two

sentences at the end of the long paragraph on that

page commencing about 10 lines from the bottom.

MR TRIM:	That is page 593, Your Honour?
MASON CJ:	Page 593 - you will see about 10 lines from the

bottom His Honour says:

How can one factor be logically more

efficacious than another in producing a result

for which both must e~ist?

And that was the case here: 

This question has its special difficulties for
contributory negligence: and it may affect
the apportionment of damages for negligence

where that is provided for, although there,

generally speaking, the law has abandoned vain
ideas of causal efficacy for the more

practical comparison of degrees of departure

from the standard of a care of a reasonable

man.

MR TRIM:  Yes, I understand the thrust of what Your Honour

is putting to me but my response is that there has

to be a distinction drawn between elements of an

March(2) 26 21/8/90

event that can be characterized as relevant in the

philosophical scientific sense and relevant in the

legal sense and the law discards some matters of

causation in a scientific sense to determine what

is relevant in the legal sense and that is, with

respect, the underlying philosophy between the

clear line test advanced by Lord Birkenhead in the

Volute and adopted by Lord Justice Buckley in the

Squires decision, to which I have just referred.

Also, that the clear line test is appropriate

is demonstrated in this State by the approach of

Justice Reed in Tucker v Tucker which is case

number 8 in the respondent's list of cases. I will

not tarry over the facts for more than a moment,

but it was a case where two vehicles parked nose to

nose on a country road with headlights shining into

the engine compartment of one and a third vehicle

came along and hit the rear of one of the two

parked vehicles.

His Honour Justice Bollen quotes a lengthy

passage commencing at page 307 and going on to page 308 from the judgment of Justice Reed, and I do not

intend to read any of that to Your Honours. It is

a lengthy passage commencing at about point 6 of

page 307 and finishing at about point 8 of page 308

and His Honour Justice Bollen, if we may say so

respectfully, correctly points to that passage as

indicating the need to determine the issue of

causation as a separate issue in a stationary

object case and the passage when it is read in full

indicates that His Honour repeatedly touched upon

the important criteria of common sense.

The passage to which I particularly rely in

support of the submission that we are now making

appears at page 310, and if I could take the Court

to that page, the third line from the top, the

commencement of the paragraph:

My view is, and I so find, that the

negligence of the defendant was the cause of

the collision and that the defence of

contributory negligence fails.

Notwithstanding the negligence of the

plaintiff, the defendant, by the exercise of
ordinary care and skill, might have avoided

the accident.

And that, with respect, is the position that

pertains here:

In his speech in The Volute,

Viscount Birkenhead, speaking of a claim by A for damage received as a result of a

collision, said:  "He was negligent, but his

March(2) 27 21/8/90

negligence has brought about a state of things

in which there would have been no damage if B

had not been subsequently and severably

negligent. A recovers in full".

That, in fact, is the converse of the situation

here, but the example holds good:

If the temporal order of events is considered,

there is no doubt that the plaintiff's

negligence began before that of the defendant,

and brought about the situation which existed

when the collision occurred. I do not,

however, regard that circumstance as requiring

me to hold that the plaintiff was guilty of

contributory negligence, or that his

negligence was a cause of the collision.

With respect, that passage again encapsulates to a

very large part, the respondent's case. I should

add by way of completeness that from about point 7

of the page, His Honour goes on to deal with a
submission put on the last opportunity rule and
deals with the last opportunity rule as one of

causation. But to that extent, His Honour, with

the greatest respect, fell into error because that

failed to place appropriate weight upon the

decisions of Alford v Magee and Chapman v Hearse

but that passage thereafter, from the foot of page

310, can be severed off from what we submit to be

the correct approach to the facts of the case
before His Honour which are so appropriate to the

case before Your Honours.

The one point I wanted to expand upon is the

submission I have made twice to date, namely, that

His Honour Justice White only found the continuance

of the causal nexus by his finding in respect of

competing lights. The appropriate evidence of the

witness Rumball is to be found at page 44 of the

appeal book and His Honour relies upon that in his

judgment at page 452 at line 26. His Honour, at

the paragraph commencing at line 22, deals with the

issue of the intensity of the distracting light to

the left, that is, coming from the archway in the
market-place, and he refers to the evidence of the
witness Rumball to the effect that the light at the

northern archway was "very very bright", and that

evidence is to be found at the top of page 44 of

the first volume of the appeal book.

His Honour goes on then to say, at the second

last line of the page, drawing a comparison between

that source of light and the light of the truck,
that "the truck was very poorly lit". Firstly, can

I make the observation that there is no such

passage in the evidence as "the truck was very

March(2) 28 21/8/90

poorly lit". Mr Greenwell and I have carefully

read and reread the evidence and it is simply not

there and it must be an attempt by His Honour to

paraphrase a passage in the evidence, and I think

it must be the passage at page 44 line 11, where

the evidence of the witness Rurnball is that the
area around the vehicle was very poorly lit. But,

of course, if I may say so, with respect to

His Honour, there is a very marked difference

between the truck being poorly lit and a truck

properly illuminated with flashing lights being in

an area which is very poorly lit.

If one goes back to page 43 of the appeal

book, if I can take the Court to line 7, the

witness Rurnball is asked:

There were other lights in that area on the night of the accident.

A. I don't recall any other lights

specifically corning to my attention.

He is asked some more questions about the

surrounding area but if I could jump then to line

16:

I don't recall any lighting attracting my attention. What I'm really trying to say is

there could have been some background

lighting. It was not bright, put it that way.

If I can then jump down to line 32, dealing once

again with the lighting in the archway, what the

witness Rurnball says is, he looks back to the

archway which is immediately to his east and says

at line 29:

The only light I can recall seeing was when I

stood at the car and looked across back to

where the person had yelled out for the

ambulance, into the doorway -

I emphasize the word "into" -

and I noticed there was a very bright light

there, very bright.

I then take the Court to page 44, just under the

passage relied upon by His Honour Justice White for

his findings, at line 4, the witness Rurnball:

No, not from - the archway itself was

brilliantly lit -

and I emphasize the word "itself". Jumping down to

line 10:

March(2) 29 21/8/90

I think the only thing I can say in response

to that was the area around the vehicle was

poorly lit.

At line 31:

It was a bright light in the archway -

and again, I emphasize the word "in". If I go down

three lines from there:

but the whole archway was lit up. It

appeared to be internally, and on top of that

I can't recall if a light was shining out.

When all that evidence is read in its full context,

it reinforces the submission which we have made

that, with respect, His Honour's finding that there

were competing lights cannot be sustained, and

against that one has to have regard to the evidence

of, firstly, the witness Rositano at page 296 - he

is another market gardener coming to the market at

the appropriate time and he is asked, in effect,

what can he see as he approaches. He is coming

along Frome Street in the same direction as the

appellant and at line 6 he is asked:

You stopped at the lights -

A. And noticed his truck parked in the middle of the road with the hazard lights blinking, I

turned left and went to my employment.

If I can jump from there down'to the foot of the

page, the question at line 29:

And could you describe to the court anything

more about the lights. Just try and go back

and put yourself in your truck at that time.

The lights, if I may interpolate, is a reference

back, if one reads the previous lines, to the

lighting on the truck. The answer is:

They were fairly bright. The truck was quite

visible, it had overhead lights. Other than
that I didn't take much notice of anything

else.

So to Rositano it was visible from a long way back,

that is about a block back, and the witness Protik,

the other witness who was driving along also says,

of course, he saw it from about a block and a half

back before he reached the intersection which was a

block and a half back. All of this goes to

reinforce the correctness of the finding, with

respect, to the learned trial judge, appearing at

page 396 at line 13:

March(2) 30 21/8/90

At least the hazard lights at the rear of the truck would have been visible to approaching traffic. Furthermore, they were by reason of the hazard light mechanism, flashing on and

off.

That only reinforces the finding made by His Honour

Justice Bollen at page 474 line 17, the passage

that has been already read:

Contrary to some submissions made during

argument, I think that all of these lights

would have stood out from, and not become

absorbed.

Now, if the only basis upon which His Honour

Justice White makes the nexus can be demonstrated

to be not sustainable, as in our respectful

submission it cannot be, this is, in our

submission, a most telling or compelling reason

pointing to the correctness of the approach by the

majority both in fact and in law.

McHUGH J:  Mr Trim, it seems to me, though, that is not the

approach and that the negligence consisted in

failing to avoid the foreseeable risk that some

drivers, through speed or failure to keep a proper

look out, would not see the parked truck and would

collide with it. Now, in this particular case the

plaintiff failed to keep a proper look out and,
perhaps, was driving at excessive speed and he

collided with it. It is not as though he saw it

and deliberately ran into it. Then, there would be

no causal connection between the negligence and the

damage but the very thing that was foreseen, or

should have been foreseen as happening and which

constituted the negligence, occurred. How could

it be otherwise than a causal connection between

the negligence and the damage?

MR TRIM:  Because, Your Honour, it was not simply a

question of an inadvertent driver driving into a
rear of the stationary vehicle.	It was a

culmination - that is the eventual accident -

viewed as a matter of, and I repeat the expression,

"common sense" of a series of gross negligent acts

on the part of the appellant and, in particular,

his gross intoxication and where His Honour the

learned trial judge, with the greatest of respect,

fell into error in his approach to the issue of

negligence and contributory negligence was having

firstly dealt with the negligence of the

respondents and found them negligent, upon which we

do not quibble, he then immediately proceeded to
find the causal nexus without pausing to separately

consider the nature and extent and quality of the

negligence of the appellant and to compare that and

March(2) 31 21/8/90

to see whether, indeed, there was an intermixing of
the issues of foreseeability and causation, as

there is in so many moving vehicle cases, or

whether, on the facts of this particular case, the

intermixing did not exist and that one could be

separated from the other.

That, with respect, is the same error that

His Honour Justice White fell into in the Full

Court in that he, again on the facts, erroneously,

in our respectful submission, found there was such

an intermixing.

MASON CJ:  What enables you to separate the two? After

all, if it had not been for the defendant's
negligence there would not have been any accident,

there would not have been any injury to the

plaintiff.	So how can you say there is no
intermixing?

MR TRIM:  If I could respond to that by picking up the

example given by Justice Deane as being, if I may

say so, a very convenient example for the
respondent's case, His Honour put to my learned
friend the proposition that what if this truck had
got there by dint of running out of petrol and had

been stuck there for a short time in circumstances

which did not give rise to an allegation of

negligence on behalf of the driver. In that fact

situation, in this case, this appellant would have

still run into the truck and that is the point of

distinction.

The direct cause of the action, to switch

tests, as it were, and to pick up the expression

"direct cause" rather than "a clear line" - - -

McHUGH J:  But that only means there is a causal connection

between his contributory negligence and the damage.

It does not answer the vital question as to whether

there was causal connection between your client's

negligence and the plaintiff's damage. In the

illustration about the truck running out of petrol

there would have been no negligence.

MR TRIM:  But what the illustration provides, Your Honour,

is an answer to the proposition put to me by the

learned Chief Justice, it demonstrates why the

prior negligence of the respondents can be severed

off. It becomes causally inconsequential.

McHUGH J: Well, could I ask you this, how do you explain

the industrial accident cases? Employer fails to

fence a piece of dangerous machinery; two months

later workman starts the machine up and his arm

goes in the machinery. I do not think anybody has

March(2) 32 21/8/90

ever suggested that the defendant's negligence is

not causally connected.

MR TRIM:  But in that fact situation there is no break in

the cause or nexus. The negligence of the

employer, whether it be by dent of a breach of the

statutory regulation or otherwise, is something

that continues and continues in place and is a

direct and immediate cause of the injury to the

workman.

McHUGH J: Well, so does your truck continue, it is still

there, it is there.	I mean it was a public
nuisance.

MR TRIM:  But I come back to the example put by

Justice Deane and put another gloss to it; if this

truck had been parked on the side of the road this

appellant would have still driven into it as a

consequence of his gross negligence and there is

the break. It becomes, as it were, causally

inconsequential that it happens to be in the middle

of the road.

The outline goes on to mention three cases

where what we say to be the appropriate test has

been applied, and I do not propose to canvass those

at any length before Your Honours, I have already

dealt with what we contend to be the relevant

passage from Rouse v Squires and I have dealt with

Tucker v Tucker. Dymond v Pearce is a case on its

facts and that is only helpful to, in so far as

cases can be in such factual situations,
demonstrating as we say the correctness of the

approach to the issue of causation adopted by the

majority in this case.

The last paragraph of the outline takes up a

point that I have already canvassed and do not need

to traverse again at length, what is the direct

cause.

GAUDRON J: Could I ask you about direct cause, Mr Trim. Is

that any different from the last cause and if so,

how?

MR TRIM:  Not every last cause, Your Honour, might be a

direct cause. It would be, once again, a question

of fact and degree. It may be that the last cause

in a philosophic or scientific sense, may be
legally inconsequential and that upon the legal, as

opposed to a scientific approach to the issue of

causation, the law would attribute causation not to

the last cause but to what might be, in a

commonsense basis, seen to be the direct cause.

They are our submissions, if the Court pleases.

March(2) 33 21/8/90

MASON CJ: Yes, thank you Mr Trim. Yes, Mr Robertson.

MR ROBERTSON:  There are only two brief matters that I wish

to direct the Court's attention to. My learned

friend, Mr Trim, referred to passages from

Justice White, relating to the competing lights and

claiming that that was the nexus upon which

His Honour determined that there was causation

here. Could I invite the Court's attention to page

458, at line 35. He was referring there,

initially, to Sloan v Kirby and at the very bottom

he says this:

It was foreseeable in that case -

And that is Sloan's case -

that a driver could be taken completely by

surprise by the existence of a stationary

vehicle parked so far on to the road surface
at night, the surprise element being the
causative link between the defendant's
negligence and the plaintiff's ultimate

negligence. So, too, in the present case

under appeal.

While it is true that foreseeability and

causation are two separate issues they tend to merge in those cases where the position of the

stationary vehicle is utterly unexpected. In

my opinion, causation and foreseeability

tended to merge in both Sloan's case and the

present case.

So, that is, in our respectful submission, the basis on which he determined the question of

causation. He did not need to indulge in the

competing lights propositions that he put to

achieve the end that he did. My learned friend

took you to various passages of evidence of other

witnesses who saw this vehicle for some distance

off. It must be remembered, in this case, that

both the judges of the majority, the dissenting	judge and also the judge at first instance, all
concluded that there was a breach of duty of care.
And that is the significant matter in relation to
this particular plaintiff. What the other
witnesses saw or did not see has no relevance, in our respectful submission, to the matter at bar.

McHUGH J: Could I just ask you one. It may be that

Mr Justice Prior found that there was no

negligence.	What does he mean on 488, line 22,
where he says:

Causal proximity was not established.

March(2) 34 21/8/90

He must be talking about negligence there, must he

not, when he talks about "causal proximity"?

MR ROBERTSON: Well, I have been troubled by that passage,

Your Honour, and of course I did go to His Honour

Mr Justice Deane's decision in Jensch v Coffey

which, of course, was dealing with foreseeability

in that.

McHUGH J: And causal proximity.

MR ROBERTSON:  And causal proximity when he set out a series

of - - -

McHUGH J: Yes, but this all goes to a question of duty

care.

MR ROBERTSON:  Well it does, Your Honour, although we would

submit that what His Honour has done is confuse the

two issues and that he spent the whole of his

judgment discussing causation and then suddenly

with a - I would not dare say a throw away line -

but a line that really comes at the very last

breath, he says:

Causal proximity was not established.

We would submit that His Honour was just being

confused between the two principles of

foreseeability and causation and that he was still

presenting, in that proposition, the matters that

he had referred to previously, that is that there

was no causal nexus in this case.

He does, as I reminded the Court earlier,

indicate that he is in substantial agreement with

the reasons published by Justice Bollen and, we

would submit, amongst those reasons is the

acceptance of the breach of duty which His Honour

has referred to in those two passages that I

directed the Court's attention to. That being the

case it would simply be an exercise of confusion,

on His Honour's part, in blending the two together.

And as far as Rouse v Squires is concerned and His Lordship Lord Justice Buckley, we would adopt,

Your Honour Justice McHugh's observation there.

His Honour, again - the issue of foreseeability was the real issue there.

MASON CJ: Mr Robertson, there is just one matter. If we

look at page 494 which sets out the orders you seek

in the event you are successful, 3(b) contains an exception in relation to the costs of the action?

MR ROBERTSON:  Yes, I am obliged to Your Honour.

March(2) 35 21/8/90

MASON CJ: But you seek the costs of the action with an

exception for the costs of the appeal to the Full

Court in a cross appeal?

MR ROBERTSON:  Yes, I am obliged to Your Honour for raising

that. In fact, I have some red ink and have

. crossed it out. I would ask Your Honours to delete

that and ask that the order would read "and his

costs of action including the costs of the appeal

to the Full Court".

TOOHEY J:	You came before the Full Court as a cross appellant?
MR ROBERTSON:	We did, Your Honour, on the basis of

apportionment. The major thrust of the case, of

course, was addressed in causation but certainly

the question of apportionment was argued.	We have
not brought that - - -

TOOHEY J:  You do not seek now to increase the apportionment

that was - - -

MR ROBERTSON:  No, we accept the apportionment as it is,

Your Honour.

TOOHEY J:	- arrived at by the trial judge?
MR ROBERTSON:	Yes, we accept the apportionment arrived at

by the trial judge. We do not press it and I am

obliged to Your Honour the Chief Justice for

raising that and we would seek leave to amend by

deleting all of those words from and including

"except" to the end of paragraph 3(b) and

inserting, in lieu thereof, the words: "including

the costs of appeal to the Full Court".

They are our submissions in reply, if the

Court pleases.

March(2) 36 21/8/90

MASON CJ: Yes, thank you, Mr Robertson. You do not want to

say anything about that, do you, Mr Trim?

MR TRIM:	No, Your Honour, no.
MASON CJ-:	The Court will consider its decision in this

matter.

AT 12.10 PM THE MATTER WAS ADJOURNED SINE DIE

March(2) 37 21/8/90