McInnes, Colin David v Corney, Francis Harold

[1978] FCA 76

!

I

I N THE FEDERAL COURT OF AUSTRALIA

NCXTI?€IEFUV TERRITORY DISTRICT REGISTFtY { No. NTG 20 of 1977

GENF,ERAL D I V I S I O N

!

COLIN DAVID NcINNES and

m T E MATTHEW McINNES

A p p e l l a n t s

_.	AND:
FRANCIS HAROLD CO=

R e s p o n d e n t

O R D E R

JUDGES MAKING ORDER: Forster, S t . John and Fisher JJ

DATE OF ORDER: 1 S e p t e m b e r , 1978

WiiRE MADE: D a r w i n

THl3 COURT ORDERS THAT:

The A p p e a l be dismissed w i t h costs.

IN THE FEDERAL COURT OF AUSTRALIA	1
1
NORTHERN TERRITORY DISTRICT REGISTRY	) NTG 20 of 1977
1

DIVISION GENERAL 1

BETWEEN:

COLIN DAVID McINNES and

KENNETH MATTHEW McINNES

Appellants

_.	AND:
FRANCIS HAROLD CORNEY

Respondent

I

CORAM: Forster, St. John and Fisher JJ.

Delivered 1 September 1978.

REASONS FOR JUDGMENT

Shortly after 8.00 p.m. in the evening of

I

was walkmg along Casuarina Drive, Nightcliff in the	4 February 1975 the respondent with two of his workmates three were tradesmen who had volunteered to come to
Darwin to assist in repairing the ravages of Cyclone
Tracy to that city which had occurred on 25 December
1974. They were walklng on the roadway abreast, with
the respondent furthest from the gutter and towards the

2.

centre of the road. Whilst so walking the respondent

was struck from behind by a motor vehicle driven by the

first appellant and owned by the second appellant.

The respondent sued the appellants in the

Supreme Court of the Northern Territory claiming damages

for his injuries caused as he alleged by the first

appellant's negligence in the management of the motor

vehicle. The appellants disputed negllgence on their

part and contended that the respondent's negligence

caused or contributed to his injuries. The trial judge

found that the injuries were caused by the negligence of

the appellants, declined to find contributory negligence

on the part of the respondent and entered judgment for

him for $70,351 with costs.

I The appellants now appeal to this court against

the findings of the trial that hey were wholly I responsible for the respondent's injuries and that the respondent was not guilty of contributory negligence.

There is no challenge to the trial judge's findings that

I

the appellants were gullty of negligence.

The primary facts as found by the trial judge

I

were not in dispute at the appeal, the only question

being whether the trial judge should have found that in

the circumstances the conduct of the respondent

contrlbuted to his injuries. These facts are as

follows .

Casuarina Drlve is a bitumen road running

east and west with a footpath on its southern side but

I

3.

no footpath on the northern side. The respondent and

his workmates were walking in a westerly direction on

the southern (i.e. left hand) side of the roadway. The

respondent was furthest out from the gutter, and towards

the centre of the road which was 30' wide. It would

appear from the evidence that the respondent was

approximately 8' from the kerb, though there is no

specific finding by the trial Judge on this point. The

respondent was wearing dark clothing and as he walked was

lndicating by his right arm his desire to be given a lift

by passing cars. The cyclone had caused much damage in

the area, it was a dark night without a moon and there

was no street or house lighting. There were patches of

debris on the footpath which was uneven and over-run by I

grass. As it happened the footpath was clear of debris

for an appreciable distance on either slde of the point of

i

I

accident. However, the evidence of Police Sergeant Manzie

and the respondent's workmates indicated that it was not

I

reasonable in the circumstances to expect pedestrians to

walk on the footpath as in the absence of lighting it was

impossible to see what obstructions were on the footpath.

As to the conduct of the first appellant, the trial judge found that he was drlvlng too fast in the

circumstances, that he was not keepmg a proper look-out

for pedestrians whom he should have expected to find on

the roads, and that his consumption of alcohol had

rendered him incapable of taking actlon to avoid the

respondent. In addition,' there was evidence that he was

!

4.

driving a vehicle with defective brakes, which upon

application pulled the car to the right. The first

appellant vas in the hablt of correcting this pull by

steering to the left, and the evldence that he swerved

to the left just prior to the accident does appear to

indicate that an over correction contributed to the

accident. In these circumstances the trial Judge found

that the flrst appellant's negligent driving caused the

accident, and this finding is not challenged.

The trial judge conceded that the question

whether negligence on the part of the plaintiff disputed that in ordinary circumstances to walk three

contributed to the accident was difficult. Counsel for

the appellants had pressed on him the baslc rule of the

road, that pedestrians should face the oncoming traffic.

Thls baslc rule is provlded for in Regulatlon 38 of the

I

abreast on the left hand side of the road is prima facle

negllgent conduct. However, it was the view of the

trial judge that the circumstances were out of the

ordinary and that it was conunon practice for pedestrlans

to walk on the roadway, as the first appellant

acknowledged he was aware. In fact he had conceded

that he had himself walked on the roadway rather than

on the footpath.

i

These were exceptional times when a driver

should have been on the look-out for the unexpected.

The first appellant, although aware that there were

5.

people walklng on the roadway because of the obstruction by rubbish of the footpath, had by his conduct disabled

himself from dealing with the unexpected. He was

driving a car with defectlve brakes at an excessive

speed in the circumstances and he was affected by drlnk.

He had warning that there were pedestrians on the left

hand side of the road approximately two hundred yards

prlor to the accident. The learned trial Judge found

that notwithstanding the dark clothing worn by the

respondent, he would have been seen at a time when it

should have been possible for the first appellant to have

taken action to avoid him. When he did apply his brakes,

i

it is reasonable to infer that his instinctive action of

correcting rendered the impact inevitable by pulling the

vehicle towards rather than away from the respondent.

The trial Judge had found as a fact that in

the particular circumstances there was nothing unreasonable

in the respondent's conduct and that he was not guilty of

contributory negligence. The proper approach of this

court In these circumstances was established in Whim Creek

Consolidated N.L. v. F.C.T. (1977) 17 A.L.R. 421 at 426

namely, "In hearing such appeals from judgments or orders

of Supreme Court Judges involvlng declsions by them on

question of fact, the Court will apply the prlnclples

I

which were laid down by the High Court in Paterson v.

Paterson (1953) 89 C.L.R. 212 and, more recently, in

Da Costa v. Cockburn Salvaqe and Tradinq Pty. Llmited

(1970) 124 C.L.R. 192 and Edwards v. Noble (1971) 125

6.

C.L.R. 296. Before this Court wlll reverse such a

finding of fact, it wlll have to be convinced that the

trial judge came to a wrong concluslon."

In this matter we are not convinced that the

trial judge came to a wrong conclusion. His finding

1 s wlthout doubt a tenable vlew and is supported by the

evidence. There was in the exceptional clrcumstances

prevailing in Darwin at the time much to support hls

finding and we see no reason to disagree. Counsel for

the appellants put to us everything that could posslbly

be said in Favour of allowing the appeal but failed to

convince us that the trial judge came to wrong

conclusion or made any mistakes either of law or in

dealing with the facts. In the result the appeal is

I dismlssed wlth costs.

I

I