Mikaera v Newman Transport Pty Ltd

[2013] NSWCA 464

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464

Decision date:

20 December 2013

Before:

McColl JA at [1], Basten JA at [49], Macfarlan JA at [54]

Decision:

Appeal dismissed with costs.

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

Catchwords:

TORTS - contributory negligence - where appellant injured when his truck collided with respondents' illegally parked truck - where primary judge found respondents negligent but reduced damages for appellant's contributory negligence - whether error in fact-finding process underpinned finding of contributory negligence - whether primary judge erred in apportionment of liability by failing to compare relative culpability of parties

Legislation Cited:

Civil Liability Act 2002
Motor Accidents Compensation Act 1999
Supreme Court Act 1970

Cases Cited:

Council of the City of Greater Taree v Wells [2010] NSWCA 147; (2010) 174 LGERA 208
Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Reports ¶81-731
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Nominal Defendant v Green [2013] NSWCA 219; (2013) 64 MVR 354
Nominal Defendant v Meakes [2012] NSWCA 66; (2012) 60 MVR 380
Origin Energy LPG Ltd v BestCare Foods Ltd [2012] NSWCA 407
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Smith v Zhang [2012] NSWCA 142; (2012) 60 MVR 525

Texts Cited:

New South Wales Barristers' Rules

Category:

Principal judgment

Parties:

Ashley Dion Mikaera - Appellant
Newman Transport Pty Ltd - First Respondent
John Arthur Collins - Second Respondent

Representation:

Counsel:
Mr P E Blacket SC with Mr B G McManamey - Appellant
Mr S E Torrington - Respondents
Solicitors:
Turner Freeman - Appellant
Curwoods Lawyers - Respondents

File Number(s):

2013/7555

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-12-14 00:00:00

Before:

Balla DCJ

File Number(s):

2010/261427

Judgment

1. McCOLL JA: Ashley Mikaera, the appellant, was injured on 9 August 2007 when the B-double semi-trailer he was driving collided with a parked semi-trailer in which John Collins, the second respondent, was sleeping. Newman Transport Pty Ltd ("Newman Transport"), the first respondent, owned Mr Collins' vehicle.

1. The appellant brought proceedings claiming that the respondents were negligent and that their negligence caused his injuries. Judge Balla found the second respondent was negligent and that the first respondent was vicariously liable for that conduct. Her Honour assessed damages at $444,435.59, but reduced them by 66 per cent to account for the appellant's contributory negligence. Accordingly she awarded him $151,108.10 plus costs: Mikaera v Newman Transport Pty Ltd (District Court of New South Wales, Balla DCJ, 14 December 2012, unreported).

1. The appellant appeals only from her Honour's determination of the extent of his contributory negligence. He submits that there should not have been a finding of contributory negligence greater than 25%.

1. For the reasons that follow, I am of the view that the appeal should be dismissed.

Statement of the case

1. The appellant was employed as a truck driver. On 9 August 2007, he was driving a B-double semi-trailer, which was about 25 metres long, north along the Pacific Highway, just past Coffs Harbour. At about 4.30 am, when it was still dark, he turned off the Pacific Highway onto an area the primary judge said was misleadingly called a "truck parking bay" - misleading apparently because the road was, according to her Honour, marked for through traffic by an unbroken white line on each side. However, truck drivers parked their vehicles within the parking bays marked by the unbroken white line so they could rest.

1. Her Honour described the lane between the white lines exiting drivers drove along to rejoin the Pacific Highway further north as the "through road". At the commencement of the through road, and before the parking bays, the shoulders of the road were marked with angled thick white painted lines known as "chevrons". As the road continued, the chevrons on each side finished and the two shoulders of the through road, delineated by the unbroken white line, became the bays available for parking.

1. The accident occurred in an area known as Halfway Creek. As the appellant approached the area where the accident occurred, the two lanes of the Pacific Highway available for northbound traffic merged into one. Shortly after that point, there was a fork in the road. Traffic travelling to the left drove into the through road and entered the truck parking bay. Traffic travelling to the right continued north along the Pacific Highway.

1. The appellant had not intended to enter the truck parking bay. Prior to doing so, he had been driving at the front of a convoy of up to five semi-trailers. He had been talking with the other drivers on the two-way radio about whether to call into Grafton for breakfast. He said that he had finished the conversation 30 seconds or a minute before turning into the through road. He then checked in his right and left mirror to make sure he had no straps dangling and that all his sidelights were visible.

1. He looked back to the road. Immediately in front of him he saw the road divide to the left and right. He estimated that he was travelling at 90 kph. He said that he had a split second to make a decision as to which side to go. He decided to go left because he mistakenly thought this was an area where the Pacific Highway became a divided road, so that if he had driven to the right he would have been confronted by oncoming traffic. However, taking the left hand road took him into the truck parking bay.

1. Upon going left, the appellant realised almost immediately where he was. He did not want to come back out and cut off the driver behind him so he decided to drive through and rejoin the highway at the northern exit. He said there were trucks parked all along the left side of the through road which were straddling the white line at the entry to the parking bay. He said that he had to "avoid" them as they obscured his vision into the parking bay and also that he had to come across to the right hand side a bit more to allow space between his semi-trailer and the parked semi-trailers on the left.

1. The appellant said that he did not see Mr Collins' semi-trailer until the last instant when he came around a bend at the entrance to the parking bay and it was right in front of him. He agreed in cross-examination that there had probably been reflectors on the back of it. He did not notice whether there were, because he had been busy looking for a gap to try and squeeze through. He said that he tried his best to avoid Mr Collins' semi-trailer, but when he saw that he would not be able to, he braced himself for impact.

1. The appellant hit the back left hand corner of the parked trailer. He estimated that he had slowed down to about 70 kph by that time, although he had not checked his speedometer. He said initially that he had slowed down as much as possible, but later said in cross-examination that he had tried to slow down without making much noise because there were people sleeping in their semi-trailers.

1. The appellant claimed at trial that Mr Collins' semi-trailer was parked on the chevrons to his right. Mr Collins said his semi-trailer was parked in this area where parking was permitted. The primary judge rejected Mr Collins' evidence. Her Honour found that his semi-trailer was wholly parked on the chevrons near the fork in the road.

1. The primary judge's findings regarding the appellant's approach to the scene of the accident were, in substance, as follows:

(1)   The appellant was distracted and his concentration was impaired on his approach to the fork in the road, as evidenced by his surprise at being confronted by the decision whether to turn left or right. Expert and photographic evidence suggested that the approach was straight and level for several hundred metres and that there were reflectors and advance signs advising of the location of the rest area on the left with a final sign at the rest area entry. The weather was good. The most likely explanations for the appellant only having a split second to decide whether to turn left or right were that he had been distracted by talking on the radio, putting the handset back in the unit and then looking into both mirrors rather than straight ahead.

(2)   Probably as a result of his 'mistake' in taking the left hand road, the appellant was travelling too fast for the road conditions as he drove along the through road. He initially thought he was still on the highway. Although it was not suggested there were any road signs warning drivers to slow down, the appellant was familiar with the area and the truck parking bay. While he did slow down his vehicle, he chose not to slow down as much as possible to avoid waking other drivers. He agreed he would have slowed down more if he had been planning to stop. He conceded that at an appropriate speed his semi-trailer could have passed through the truck parking bay staying wholly within the through road. His speed contributed to his difficulty in manoeuvring along the through road so that his semi-trailer failed to stay wholly within the white lines.

(3)   The overall effect of the appellant's evidence was that none of the parked vehicles on either side protruded into the through road. He over-corrected to the right because there were parked trucks to his left and once he was committed to this path he could not stay wholly within the through road.

(4)   There was expert evidence that as Mr Collins' vehicle was parked well clear of the exit traffic lane, his position should not have presented a problem for a vehicle following the signs and markings provided.

1. Thus, her Honour found that Mr Collins had parked in a position which would not have presented a problem for a vehicle (such as Mr Mikaera's semi-trailer) driving along the through road at a safe speed.

1. The primary judge then turned to the respondents' liability.

1. Mr Collins conceded that he was aware that there was a real risk in parking in the area where the appellant said he had parked and that the purpose of the chevroned area was to warn people not to park there, as there was a risk of semi-trailers going a bit wider than the path of the through road. He also conceded that parking in this area was a dangerous thing to do. Therefore, based on the likely seriousness of harm, the fact there was no burden in taking precautions to avoid the risk of harm, such as parking elsewhere and the foreseeable risk of harm, the primary judge found the respondents had breached their duty of care.

1. Her Honour also concluded that factual causation was established (s 5D(1)(a), Civil Liability Act 2002) as the appellant would not have suffered harm if the chevroned area had been clear.

1. Her Honour then turned to the issue of contributory negligence. She set out the principles concerning contributory negligence and apportionment from Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 (at 494) ("Podrebersek") as follows:

"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] UKHL 4; (1953) AC 663, at p 682; Smith v McIntyre (1958) Tas SR 36, at pp 42-49 and Broadhurst v Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."

1. Her Honour's conclusions as to contributory negligence were as follows:

"I am satisfied that in this case the primary cause of the accident was the driving of Mr Mikaera. He was distracted as he approached the fork in the road. This meant he unnecessarily had to make a decision in a split second and did not realise where he was until he had turned into the truck parking bay. Even when he did realise where he was, he decided not to slow down as much as he could have slowed down in circumstances where he appreciated that the truck parking bay was busy. He steered to the right of the through road even when the trucks parked on his left did not encroach onto the through road. I consider that it is likely that if even one of these steps had not occurred it is likely that the accident would not have happened."

Issues on appeal

1. The appellant relies on the following grounds of appeal:

"1. Her Honour made the following findings of fact that were erroneous:

(a) It was the overall effect of the appellant's evidence that none of the parked vehicles to his left or right protruded into the through road.

...

(c) He chose not to slow down as much as possible.

(d) He over-corrected to the right because there were parked cars to his left.

2. Her Honour erred in relation to determining contributory negligence when, having correctly recited the principles in Podrebersek v Australian Iron & Steel Pty Ltd, she then failed to undertake the comparison required with respect to the acts and omissions of each party to determine the degree of departure from the standard of care of the reasonable man of each of them, and the relative importance of those acts or omissions in causing the damage, and in particular, she failed to make any comparison at all of the position that the appellant found himself in as a result of the correct findings of negligence she had made concerning the conduct of the third [sic, second] respondent.

3. Her Honour erred in law when she failed to give reasons, or adequate reasons, for making the findings that she did regarding the contributory negligence of the appellant."

Submissions

1. The appellant submits that the primary judge's conclusion that "[i]t was the overall effect of Mr Mikaera's evidence that none of the parked vehicles to his left or right protruded into the through road" was central to her Honour's finding of contributory negligence, as it was the basis of her Honour's view that the appellant over-corrected to the right. He argued that her Honour reached this conclusion despite his evidence the semi-trailers on the left encroached onto the road and in the absence of any evidence that the appellant over-corrected. He contended that if the primary judge had considered the evidence properly, her Honour would have concluded that he was required to travel to the right because of the semi-trailers encroaching on the left hand side.

1. The respondents submitted that her Honour's finding was consistent with the evidence. They contended that the through road was available for vehicles to pass through if driving at an appropriate speech and staying within the white lines on either side of the road. They also argued that this finding was open to the primary judge based upon the appellant's evidence that he saw the vehicles on the left side of the road, but was able to drive past them and it was only the over-correction to the right that caused the incident.

1. As to the primary judge's finding that he chose not to slow down as much as possible the appellant conceded that he tried to slow down without making much noise, however he emphasised that he also had to be careful not to lock up and jack knife the semi-trailer which was braking on a curve. He never agreed that he was not slowing down as much as possible. He also argued that it was never suggested at trial that reducing speed more rapidly would have prevented the accident and enabled him to stop his semi-trailer before colliding with Mr Collins' semi-trailer.

1. The respondents submitted that her Honour's finding reflected the appellant's "conceded misjudgement" and was open to her on the evidence that the appellant knew that he was driving through an area which was designated for slow travel (a rest area), that he chose not to bring his semi-trailer to as low a speed as possible, but, rather to continue to drive through, albeit at a reduced speed, and that he was travelling at an excessive speed in a parking area considering the weight and dimensions of his semi-trailer.

1. The appellant submitted that there was no evidence that he over-corrected because there were semi-trailers to the left. He reiterated his submission that the semi-trailers on the left side of the road forced him to the right. He pointed to Mr Collins' concession that if he was parked in the chevroned area his vehicle would have caused an impediment to vehicles coming into the parking area and that it would be an even more serious impediment if there were also vehicles parking down the left side.

1. The respondents submitted that whether or not the appellant's driving was described as an over-correction or an error of judgment the simple fact was that had he not taken his semi-trailer so far to the right, the accident would not have occurred.

1. As to the second and third grounds of appeal, the appellant submitted that the primary judge's task as described in Podrebersek was to consider the respective negligence of each party, by analysing the respective degree of departure from the standard of care and the relative importance of the acts in causing the damage. He contended that after setting out the correct principles, the primary judge did not apply them, or, if she did, did not give reasons that explained how the principles had been applied.

1. The appellant complained that the primary judge did not consider whether his actions amounted to liability under s 5B - D of the Civil Liability Act and did not take into account that the second respondent made a deliberate decision to park on the chevroned area, whereas he had had to react on instinct when confronted with a dangerous situation with little time to react and no opportunity to avoid the collision. He also complained, in effect, that the speed at which he was travelling was an irrelevant consideration when there was no evidence that he could have brought the semi-trailer to a complete stop if travelling at a normal speed.

1. The appellant contended that had the primary judge carried out the proper task of comparing the relative negligence of the parties, she could not have reached the conclusion that his driving was the primary cause of the accident. Rather, he contended that the primary cause of the accident was the actions of the second respondent parking the vehicle where it prevented the passage of vehicles through the parking bay.

Consideration

1. At the outset, it should be pointed out that the Divisions 1 - 4 and 8 of Part 1A (Negligence) of the Civil Liability Act applied to this accident: s 3B(2)(a), Civil Liability Act. In an unedifying exchange, counsel for the appellant at trial informed the primary judge to the contrary, while counsel for the respondents at trial agreed with her Honour's statement that "the liability sections apply", but said he had forgotten the name of the authority. Neither counsels' statement indicated an adequate knowledge of the legislation whose operation has been central to most common law cases conducted in this State since 2002, let alone provided the assistance the primary judge was entitled to expect from them: cf rule 31(c), New South Wales Barristers' Rules.

1. Counsel should also have drawn the primary judge's attention to s 138 of the Motor Accidents Compensation Act 1999, which provides that, except as provided by that section, the common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident (s 138(1)), and, relevantly, that the damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case (s 138(3)) and that the court must state its reasons for determining the particular percentage (s 138(4)). The enacted law of contributory negligence includes s 5R of the Civil Liability Act: Nominal Defendant v Meakes [2012] NSWCA 66; (2012) 60 MVR 380 (at [79]) per Sackville AJA (McColl JA agreeing); see also Basten JA (at [9]).

1. Section 5R of the Civil Liability Act provides:

"5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."

1. Section 5R(2)(a) reflects the position under the common law as stated by McHugh J in Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 (at [32] - [33]): Smith v Zhang [2012] NSWCA 142; (2012) 60 MVR 525 (at [22]) per Meagher JA (Tobias AJA agreeing). The correct legal question in determining the issue of contributory negligence in accordance with s 5R is "whether a reasonable person in the position of the respondents, i.e. having the knowledge which the respondents had or ought to have had, was negligent": Origin Energy LPG Ltd v BestCare Foods Ltd [2012] NSWCA 407 (at [217]) per Hoeben JA (Macfarlan and Ward JJA agreeing); see also Council of the City of Greater Taree v Wells [2010] NSWCA 147; (2010) 174 LGERA 208 (at [107] - [108]) per Basten JA.

1. In Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Reports ¶81-731, I summarised the principles concerning the review of a finding of contributory negligence as follows:

"[44] A finding of contributory negligence is no different to a finding of negligence and may be reviewed on appeal. While an appeal court must pay appropriate deference to the advantages the trial judge enjoyed in deciding whether or not a person was guilty of contributory negligence, it must not shirk its statutory obligation to conduct a rehearing and, where error is found, must substitute its own conclusion on the issue: s 75A(5) Supreme Court Act 1970 (NSW), see Fox v Percy [2003] HCA 22; (2003) 77 ALJR 989 at 993-994, esp at [27], [29] per Gleeson CJ, Gummow and Kirby JJ; Callinan J at 1015-1017 [145] - [148]. As was said in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 552 per Gibbs ACJ, Jacobs and Murphy JJ, '[T]here is ... no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge': see also Fox v Percy at 1005 [87] per McHugh J.

[45] Appellate review of a trial judge's apportionment of liability as between respectively culpable parties, however, is governed by the stringent tests which limit appellate review of discretionary decisions.

[46] In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493 - 494 Gibbs CJ, Mason, Wilson, Brennan and Deane JJ in their joint judgment said: '[a] finding on the issue of apportionment is a finding upon a 'question, not of principle or of positive findings of fact, or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds' ... such a finding, if made by a judge, is not lightly reviewed.'

[47] This Court has frequently reminded itself of the necessity to exercise restraint in reviewing a trial judge's decision on apportionment. As Sheller JA (with whom Powell and Heydon JJA agreed) said in Mousa v Marsh [2001] NSWCA 317 at [12]:

It is well established that since a court's apportionment of the degree of liability due to the plaintiff's contributory negligence is a question not of principle or of positive findings of fact or law but of proportion, of balance and relative emphasis and of weighing different considerations all of which involve an individual choice or discretion as to which there may well be differences of opinion by different minds (see British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201), such a finding, if made by a judge, is not lightly reviewed.

[48] To set aside an apportionment of liability it must be shown that the failure to exercise the discretion involved in the apportionment exercise properly was unreasonable or plainly unjust: Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd (2001) 53 NSWLR 626 at 637 [60] per Stein JA with whom Davies A-JA agreed (655 at [189]). Fitzgerald A-JA was of the view that an appeal court was not entitled to interfere 'if the trial judge's apportionment was reasonably open.' (653 at [172]). Rolls Royce was appealed to the High Court as Amaca Pty Ltd v State of New South Wales [2003] HCA 44; (2003) 77 ALJR 1509. As Tobias JA (with whom Sheller and Foster AJA agreed) recently observed, the appeal was allowed on an issue which did not affect the correctness of Stein JA's statement of principle: Rexstraw v Johnson [2003] NSWCA 287."

1. I would add to the observations from Ghunaim v Bart (at [48]) a reference to Basten JA's recent statement in Nominal Defendant v Green [2013] NSWCA 219; (2013) 64 MVR 354 (at [48]) recognising the importance of the principle of restraint, but emphasising that its operation may vary depending on the circumstances. As his Honour also said, where an apportionment finding "is outside an appropriate range, this Court, on an appeal governed by s 75A of the Supreme Court Act 1970 (NSW), should usually intervene."

1. The appellant concedes that the primary judge did not err in concluding that he had been guilty of contributory negligence but, in essence, argues that the apportionment exercise miscarried, both because of errors in the fact-finding process which underpinned the primary judge's decision and because her Honour failed to apply the correct analytical process to found facts.

1. Thus, the appellant contends that the fact-finding process miscarried because her Honour erred in finding that the overall effect of the appellant's evidence was that none of the parked vehicles to his left or right protruded into the through road, that he chose not to slow down as much as possible and that he over-corrected to the right because there were parked cars to his left.

1. The second alleged error is that her Honour erred in failing to undertake the comparison required in determining the issue of contributory negligence to determine the degree of departure from the standard of care of the reasonable person of each culpable party, and the relative importance of their acts or omissions in causing the damage.

1. The thrust of the complaint in ground 1(a) is that the appellant's evidence was that the trucks on the left obscured his vision. There is no doubt the appellant complained frequently in his evidence about the trucks which were parked on the left as he entered the parking bay. He complained they obscured his vision into the parking bay itself, meant that he had to "come across to the right hand side a bit more" and "force[d] [him] out a bit further". He also said that the semi-trailers on the left hand side were "straddling the white line that goes into the parking bay", were "out on the lane as well" and "pretty much took most of the roadway going in there". However when read in context, in my view, the overall effect of it, as the primary judge effectively held, was that those trucks were straddling the line, rather than protruding into the through road.

1. In any event, the exercise in which the primary judge had to engage was to determine the relative culpability of the appellant and the second respondent. The drivers/owners of the trucks on the left were not parties to the proceedings - their culpability for the accident, if any, was not in issue. Insofar as the second respondent is concerned, the appellant said that his vehicle did not protrude from the area where it was parked into the lane in which he was driving. This evidence accords with the second respondent's evidence that after he parked his semi-trailer on the right hand side, he got out of the cabin, walked around it to make sure it was in the right position and "clear enough to go through", then went to bed. He was not cross-examined to suggest that his vehicle was parked in the through road.

1. The primary judge's finding that the appellant chose not to slow down as much as possible was consistent with the evidence. The appellant said that he tried to slow his vehicle down "without making much noise because there was people sleeping in their trucks". He tried to bring the speed down without having to "screech [his] brakes or lock it up", the latter being a reference to the danger of the brakes locking up and the trailer jack-knifing. When he saw the respondents' semi-trailer, he put the brakes on "even harder". The appellant was travelling at about 70 kilometres per hour when he struck the rear of the respondents' vehicle, a speed which was manifestly excessive in an area where it could be expected that there would be parked vehicles on either side of the through road, and through which a large vehicle such as the appellant's would have to navigate carefully.

1. Finally I turn to the challenge to her Honour's finding that the appellant over-corrected to the right. I have already set out the relevant evidence concerning the effect on the appellant's steering of the vehicles on the left. On the unchallenged evidence, the respondents' vehicle while in the chevroned area was not protruding into the through road. It was the trucks on his left which made the appellant move to his right. It is apparent that he moved too far to the right, that is to say, off the through road, because he collided with the rear of the respondents' vehicle. Whether it is described as an over-correction, or steering onto the chevroned area, it led to the appellant travelling at high speed on an area not indicated for travel, and, failing to see the respondents' vehicle in sufficient time to stop.

1. I turn then to the appellant's contention that the primary judge erred in failing correctly to compare the liability of the appellant and the respondents. The appellant does not challenge her Honour's reference in this context to Podrebersek. While s 5R of the Civil Liability Act required the primary judge to apply ss 5B - 5E of the same Act in determining whether the appellant had been guilty of contributory negligence, the question of how the apportionment exercise is to be undertaken requires the court to determine what is just and equitable in the circumstances of the case, as was the position when Podrebersek was decided.

1. The primary judge analysed Mr Collins' breach of his duty of care immediately prior to considering the issue of contributory negligence. In that passage of her reasons her Honour referred to Mr Collins' concession that there was a real risk in parking on the chevroned area, that the purpose of that area was to warn people not to park there and that as the through road swung slightly to the left there was some risk of semi-trailers going a bit wider than the path of the through road so that parking there was a dangerous thing to do. Her Honour then turned to the issue of apportionment and the appellant's culpability in the circumstances. In that context her Honour concluded that the appellant's driving was the "primary cause of the accident". Her Honour then summarised the matters to which she had already referred in making findings earlier in her reasons, namely the fact that the appellant was distracted as he approached the fork in the road and drove into the truck parking bay by mistake, even so did not slow down as much as he could have in the circumstances and then steered to the right onto the marked chevron area where the second respondent had parked.

1. In the light of those findings, it was, in my view, inevitable that the appellant's conduct would be found to be the primary cause of the accident. It cannot, in my view, be said that the primary judge's determination, in those circumstances, that the appellant's contributory negligence should be assessed at 66 percent was "unreasonable or plainly unjust", or outside an appropriate range.

1. The complaint in the notice of appeal that the primary judge erred in law when she failed to give reasons, or adequate reasons, for making the contributory negligence findings was not supported by more than a bare assertion of that proposition in the written submissions. As I have said, s 138(4) of the Motor Accidents Compensation Act requires the court to state its reasons for determining the particular percentage by which the damages recoverable in respect of the motor accident are to be reduced. I do not understand that provision to impose any greater obligation upon the primary judge than to give reasons which explain why a point critical to the contest between the parties is resolved, do justice to the issues posed by the parties' cases and are adequate for the exercise of the facility of appeal: see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (at [56] - [59]) per McColl JA (Ipp JA and Bryson AJA agreeing). In my view the primary judge's apportionment reasons complied with that obligation.

1. I would dismiss the appeal with costs.

1. BASTEN JA: I agree that the appeal in this matter must be dismissed with costs, for the reasons given by McColl JA and those which follow.

1. There are two significant factors which bear on the responsibility of the appellant, which were not adequately emphasised below. The first is that the appellant's mistake in driving onto the side road was not the result of a momentary lapse in concentration. The appellant must have missed a "REST AREA 2km" sign, a "REST AREA 500m ON LEFT" sign, four arrows on the roadway indicating that the left lane merged right and a "Form 1 lane" sign shortly before the entry to the rest area. Assuming that the appellant was travelling at a steady 90kmh, as he was when he entered the rest area slip road, his failure to concentrate on the roadway must have extended over a period in excess of one minute.

1. Secondly, his evidence indicated that when he realised his mistake he had an opportunity to return to the main highway. While he may not have been negligent in keeping to the slip road, the fact that he still had a choice indicates that he had a reasonable distance to slow down before entering the rest area, which he knew he was approaching. (Although the submissions made much of the point that he did not have time to "stop", it was not necessary for him to stop.)

1. The other issue which received little attention either at the trial or in this Court, was the precise characterisation of the respondent's negligence. No doubt Mr Collins should not have parked where he did. However, the real risk associated with his conduct arose from the presence of trucks parked against the curb on the left hand side of the slip road. It was those trucks which caused the appellant to deviate to his right and collide with the respondent's vehicle. It was accepted that Mr Collins walked around his vehicle after stopping to see that it was safe. He did not say there were any vehicles parked on the left hand side of the slip road at that time, nor was he asked in cross-examination whether there were trucks on the other side of the road. On any view, it was the trucks on the left hand side of the road that were as much to blame as Mr Collins. If they were not there when he parked his vehicle and if he should not reasonably have expected later arrivals to park where they did, his conduct would not have warranted a significant level of contributory negligence. Because the appellant could not prove those two elements as against the respondents, he could not establish a significant level of negligence on the part of the respondents.

1. In these circumstances, it is apparent that the trial judge's attribution of 34% of the responsibility to the respondents was not only within a legitimate range, but was at the high end of the range. On the known facts, the appeal was misconceived.

1. MACFARLAN JA: I agree with McColl JA.

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Decision last updated: 06 February 2014