Ning v McGrath
[2015] ACTSC 163
•2 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ning v McGrath |
Citation: | [2015] ACTSC 163 |
Hearing Date(s): | 18 June 2015 |
DecisionDate: | 2 July 2015 |
Before: | Murrell CJ |
Decision: | Appeal allowed. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – Motor vehicle accident – delay in delivering judgment – motorcycle poorly illuminated – failure to keep proper lookout – contributory negligence |
Legislation Cited: | Evidence Act 2011 (ACT) s 54 Magistrates Court Act 1930 (ACT) pt 4.5 |
Cases Cited: | Fox v Percy (2003) 214 CLR 118 Goreski v de Costa [2014] ACTSC 233 Sibley v Kais (1967) 118 CLR 424 |
Parties: | Stephen Ning (Appellant) Aaron James McGrath (Respondent) |
Representation: | Counsel Mr I Roberts SC (Appellant) Mr S Whybrow (Respondent) |
| Solicitors Sparke Helmore Lawyers (Appellant) Maurice Blackburn Lawyers (Respondent) | |
File Number(s): | SCA 77 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Dingwall Date of Decision: 19 August 2014 Case Title: McGrath v Ning Court File Number(s): CS 997 of 2012 |
MURRELL CJ:
Background
At 6:24 pm (after dark) on 15 May 2008, the respondent was injured when his motorcycle collided with the appellant’s motor vehicle. The accident occurred as the appellant was making a right hand turn into a T-intersection at Barraclough Crescent. The respondent was approaching the intersection along Barraclough Crescent, from the appellant’s right side.
The respondent brought proceedings in the Magistrates Court. At the hearing, the respondent contended that the appellant had breached his duty of care by failing to keep a proper lookout and failing to give way. The appellant accepted that, when making the right turn, he had a duty to give way to traffic proceeding along Barraclough Crescent. However, he argued that he had discharged his duty of care to the respondent; he had looked to the right before turning into Barraclough Crescent. He said that he had failed to see the respondent because the respondent had been wearing dark clothing and riding a motorcycle with a poorly illuminated headlight. Alternatively, the appellant contended that the respondent was guilty of contributory negligence.
The primary judge received evidence in February and April 2013. In April 2013, the primary judge viewed the scene of the collision in circumstances that were not materially different to those that prevailed at the time of the accident. Written submissions were provided by 20 June 2013. The primary judge reserved his decision until 19 August 2014, when his Honour found that the appellant had breached his duty of care, and there had been no contributory negligence by the respondent. His Honour gave judgment for the respondent in the sum of $193,150.45.
The appellant appealed against the findings on primary liability and contributory negligence. There was no appeal against the assessment of damages.
Grounds of appeal
In the Amended Notice of Appeal, the appellant raised grounds that can be summarised as follows:
(a)The primary judge made conflicting findings of fact concerning whether the appellant discharged his duty of care by looking to his right (in the direction of the respondent) before proceeding into the intersection and erred in rejecting the appellant’s evidence that he did look to his right (Grounds 4.4, 4.5, 4.8).
(b)The primary judge should have found that the respondent was guilty of contributory negligence because the respondent contributed to his invisibility by dressing in dark clothing and riding a motorcycle which had a defective front headlight (Grounds 4.6, 4.7).
(c)The primary judge failed to consider whether the respondent was guilty of contributory negligence because he failed to take appropriate evasive action; the respondent had given evidence that he had seen the appellant’s vehicle about to make a right-hand turn but had failed to bring his motorcycle to a halt (Grounds 4.10, 4.11).
(d)The primary judge erred in rejecting the expert opinion of Dr Watson and preferring the evidence of Mr Jamieson. In particular, the primary judge failed to elucidate his reasons for rejecting Dr Watson’s evidence about the lack of contrast between the poorly illuminated motorcycle and the road surface and his evidence that the respondent was not silhouetted (Grounds 4.13, 4.14).
The appellant raised a separate ground of appeal concerning unfairness associated with the decision being reserved for 14 months from the close of written submissions, but at the hearing of the appeal the appellant confined himself to the submission that the adequacy of the primary judge’s reasons should be assessed in the context of the long delay in delivering the decision.
Decision of the Magistrates Court
Exhibit 1 on the appeal illustrates the location of the accident.
The uncontroversial evidence and findings of the primary judge included the following:
(a)The appellant was obliged to give way to traffic coming from the direction from which the respondent was coming.
(b)The appellant had a clear line of sight towards the respondent.
(c)Barraclough Crescent was well illuminated by street lighting.
(d)The respondent was wearing dark clothing.
(e)The headlight bulb on the respondent’s motorcycle was a 12 volt bulb in a 6 volt system. It provided poor illumination. The degree of brightness varied (depending on the revolutions produced by the engine), but the light barely lit the road in front of the motorcycle.
(f)The appellant stopped to give way to a car travelling in front of the respondent and waited a few seconds before moving into the intersection.
(g)The respondent slowed to 30 km/h (8 m/s) as he approached the intersection.
(h)When the respondent was about 25 metres from the point of collision, he observed that the appellant was stationary at the intersection and was looking towards him. The respondent concluded that the appellant had seen him and it was safe for him to proceed into the intersection. Approximately three seconds later, the accident occurred.
(i)The appellant did not see the respondent’s motorcycle before the collision.
The primary judge noted at [11] that, in the ordinary course, the appellant would be found to be negligent because he had failed to give way to the respondent.
In relation to breach of duty, the primary judge found at [27]:
Ultimately, after considering the evidence of Mr Jamieson, Dr Watson and my own impressions of the scene at the time of the view, I am satisfied, on the balance of probabilities, that, had the ... [appellant] properly and carefully checked Barraclough Crescent to his right after he had given way to the vehicle which was travelling ahead of the ... [respondent], he would have had no significant difficulty seeing the ... [respondent] approaching close to Kneeshaw Street.
Nature of appeal
An appeal under pt 4.5 of the Magistrates Court Act 1930 (ACT) is by way of rehearing on the evidence, with a power to receive new evidence. The appellate court must conduct a real review, weighing conflicting evidence, and drawing its own inferences and conclusions, but bearing in mind the advantages of the primary judge in relation to fact finding: Fox v Percy (2003) 214 CLR 118 at 127-8 per Gleeson CJ, Gummow and Kirby JJ; Goreski v de Costa [2014] ACTSC 233 at [7] per Murrell CJ.
Findings concerning the appellant looking to the right
The appellant contended that the primary judge made contradictory findings about whether the appellant did look to his right before making a right-hand turn, and should have found that the appellant did look.
There was no dispute that, before commencing a right hand turn into Barraclough Crescent, the appellant stopped at the intersection to give way to a vehicle that was travelling ahead of the respondent’s motorcycle and in the same direction as the motorcycle.
At [8], the primary judge noted with apparent acceptance the appellant’s evidence that, after that vehicle passed, he looked to the right but did not see the respondent’s motorcycle. At [27], the primary judge noted the appellant’s evidence that, when he commenced the turn into Barraclough Crescent, his attention was not on the road to his right (where the respondent was located) but on the opposite side of the road. At [9] and [10], the primary judge accepted the evidence of the respondent that, as he approached the intersection, he slowed and “was cautious in case the ... [appellant] had not seen him” but, when he was about 25 metres from the intersection, he saw the appellant looking towards him and he proceeded into the intersection because he “thought that the ... [appellant] had seen him”.
In relation to the making of conflicting findings, the appellant referred to [32] of the primary judge’s reasons, where his Honour said:
The ... [appellant] simply did not look or, if he did look it was only very briefly, such that it was not long enough to see a motorcyclist only some 25 metres away.
The primary judge’s comment at [32] that “the ... [appellant] simply did not look or, if he did look it was only very briefly” must be seen in the context that both parties gave evidence that the appellant did look in the direction of the respondent. When the terms of [32] are read in context, it is plain that the primary judge found that, although the appellant did look to his right (in accordance with his duty to keep a lookout), he failed to see the respondent because he looked for an insufficient period and/or with insufficient attention (and thereby failed to satisfy the duty to keep a proper lookout).
The appellant has not established that the primary judge made contradictory or wrong findings about whether the appellant looked to his right.
Expert opinion about visibility and delay in judgment
The evidence of the experts, Mr Jamieson (for the respondent) and Dr Watson (for the appellant), was important in relation to the issue of whether, on the balance of probabilities, the appellant had failed to see the respondent because he had failed to keep a proper lookout (rather than because the respondent was barely visible).
The appellant contended that the primary judge erred in rejecting the opinion of Dr Watson and preferring the opinion of Mr Jamieson. In particular, the primary judge failed to elucidate his reasons for rejecting Dr Watson’s evidence about the lack of contrast between the poorly illuminated motorcycle and the road surface, and his evidence that the respondent was not silhouetted, when both matters significantly impacted on the respondent’s visibility.
In this context, the appellant noted the delay in the delivery of reasons for decision.
A long delay in delivering reasons for decision is material to a determination of the adequacy of the reasons. In the case of a long delay, reasons may need to be cogent in order to be adequate, particularly where witness credit is important to the decision or, for another reason, one witness is preferred over another. In Klobucar v The Queen [2014] ACTCA 6 (Klobucar), the appellant argued that a delay of 16 months between trial and judgment in a judge alone criminal trial had caused a miscarriage of justice because the judge’s recollection and assessment of witnesses had been comprised. The Court of Appeal was not persuaded that the delay had impacted upon the quality of the judgment, and noted that the reliability of the trial witnesses had not been significantly disputed and the judgment did not depend on the judge’s observations of the demeanour of the witnesses, or on a preference for the evidence of one witness over that of another. In reaching this conclusion, the Court of Appeal applied Monie v Commonwealth of Australia (2005) 63 NSWLR 729 (Monie), a case involving a 17 month delay in delivering a civil judgment. In Monie at [43], Hunt AJA (with whom Bryson JA agreed) set out the correct approach. In Klobucar at [25], the relevant Monie principles were summarised as follows:
(a)The trial judge’s advantage of having seen and heard the witnesses give their evidence weakens with time and, where there is a significant delay between seeing and hearing witnesses and the delivery of judgement, “the trial judge is obliged to give specific reasons for accepting or rejecting the evidence of those witnesses whose evidence plays an important part in the factual findings made”, for example by reference to contemporaneous notes that record the judge’s impression of witnesses.
(b)If a judge fails to give specific and satisfactory reasons for accepting or rejecting important evidence and the transcript does not clearly explain the judge’s findings, the appellate court should give careful scrutiny to the findings.
(c)The consequences of a delay in giving judgement extend beyond the diminution of the judge’s capacity to properly assess witnesses. The stress that a judge feels when he or she has a long-delayed judgement may cause the judge to deliver a rushed decision that does not thoroughly deal with significant issues. Further, a long delay may cause the losing party to form a belief that the judge has been unable to grapple with the issues and, in the end, has resorted to the easiest decision.
In this case, the primary judge’s reasons for decision do not suggest that the decision was rushed. The reasons are clearly expressed and thorough. The primary judge dealt with the fact that the experts expressed different ultimate conclusions about the respondent’s visibility: at [20], his Honour noted the disagreement. His Honour accepted that Dr Watson was more qualified than Mr Jamieson in the field of lighting, but nevertheless found that Dr Watson’s ultimate appraisal of visibility was “not compelling”: at [26]. The primary judge provided reasons: Dr Watson’s opinion was based on a static recreation of a fluid event; the event involved the unknown variable of the degree of headlight illumination (which depended upon varying engine revolutions per minute); and Dr Watson did not take into account the respondent’s continuous movement, which would have tended to attract visual attention.
Although the matter is not expressly noted in the decision, when Dr Watson described the appellant’s observation of the respondent as a “difficult visual task”, he was making a comparative statement rather than an absolute statement, i.e. the task was difficult when compared to the hypothetical situation of full illumination. Dr Watson did not assert that the respondent was absolutely invisible; he agreed that the street lighting had enabled the appellant to visualise a reasonably high degree of detail in the direction of the respondent.
This is not a case in which the primary judge rejected the opinion of Dr Watson in an outright fashion. I infer neither that the primary judge rejected Dr Watson’s evidence about the lack of contrast between the poorly illuminated motorcycle and the road surface, nor that his Honour rejected Dr Watson’s evidence about the lack of silhouette visibility. Both considerations supported Dr Watson’s opinion that, given the poor illumination of the motorcycle, observation of the respondent was a comparatively difficult task. Rather, his Honour assessed Dr Watson’s evidence in the context of the above qualifications, Mr Jamieson’s opinion and his Honour’s own observations on the view: at [27].
In this case, the primary judge gave clear, persuasive and reasonably detailed reasons for the way in which he approached the expert evidence. The case did not require the determination of a direct conflict between two experts but invited an approach that reconciled apparent differences, and the primary judge took that approach.
The appellant has not established that, in the context of the delay in delivering the judgment, the primary judge erred in rejecting the opinion of Dr Watson and preferring that of Mr Jamieson and, in particular, the primary judge failed to elucidate his reasons for rejecting two matters supporting Dr Watson’s evidence about the respondent’s visibility.
Primary liability
Pursuant to s 54 of the Evidence Act 2011 (ACT), his Honour was entitled to draw any reasonable inference from the view. It is plain from his Honour’s reasons that he found the view to be of considerable assistance. On the basis of the evidence of both experts, the other evidence (including the evidence about good street lighting) and the view, it was well open to the primary judge to find that primary liability was established.
In any event, it is only common sense that, despite the poor illumination of the motorcycle, from a distance of 25 metres and in a well lit street, the appellant would have seen it if he had devoted more attention to the task.
Contributory negligence
The appellant submitted that the primary judge should have found that the respondent was guilty of contributory negligence on two bases:
(a)When the respondent saw the appellant proceeding into the intersection, the respondent should have brought his motorcycle to a halt but failed to do so.
(b)The respondent drove at night, knowing that it was difficult for other drivers to see him because his headlight was malfunctioning and he was wearing dark clothing.
At [29] the primary judge referred to Sibley v Kais (1967) 118 CLR 424 (Sibley), in which the High Court observed that, generally speaking, a driver approaching an intersection must have his or her vehicle sufficiently under control that he or she can bring it to a halt or otherwise avoid an impact should a collision be threatened. Relying on Sibley, his Honour also noted the absence of any general rule to the effect that a driver is entitled to rely upon other drivers to perform their statutory or common law duties.
The primary judge found that there was no contributory negligence because the respondent’s reduced visibility had played “no role” in the appellant’s failure to see him.
The primary judge did not deal expressly with the facts said to evidence the first particular of contributory negligence (failure to bring the motorcycle to a halt when the respondent observed that the appellant was proceeding into the intersection). However, this is a rehearing and I can deal with the matter on the available evidence, which is not contentious.
A failure “in the agony of the moment” to adopt a course of action that, with the benefit of hindsight, would have been the best course of action does not necessarily constitute negligence: Leishman v Thomas (1957) 75 WN (NSW) 173 at 175 per Street CJ with whom Owen and Maguire JJ agreed.
In this case, the respondent was proceeding cautiously until he observed the appellant looking towards him when the respondent was 25 metres from the intersection, i.e. three seconds away from impact. At that time, the respondent concluded that the appellant had seen him and he proceeded through the intersection rather than stopping or slowing his motorcycle.
On one view, the fact that the respondent jumped to the wrong conclusion and therefore failed to take appropriate evasive action was a contributor to the accident. Had the respondent realised that he had not been seen, he could have stopped and avoided the accident. However, had the respondent been clearly visible, it would have been reasonable for him to infer that, having looked in his direction, the appellant had seen him. The real problem was that the respondent was not clearly visible.
There was a related contention that, when the respondent observed the appellant moving into the intersection, he should have halted his motorcycle rather than attempting to steer around the appellant’s vehicle.
Perhaps, with the benefit of hindsight, it would have been better if the respondent had brought his motorcycle to a halt, but his decision to try to steer around the appellant’s vehicle was taken “in the agony of the moment”.
The first particular of contributory negligence is not established on the balance of probabilities.
The essential reason for the accident was that, although he looked in the right direction, the appellant did not see the respondent. However, in relation to the second particular of contributory negligence (riding a motorcycle at night when poorly visible), the primary judge found that the respondent had exercised reasonable care for his own safety. At [32], his Honour said:
In my view, the fact that he was wearing dark clothing and that his motorcycle had a faulty headlight played no role in the defendant’s failure to see him.
The appellant relied upon the following evidence to establish that the respondent was guilty of contributory negligence by riding his motorcycle at night in circumstances where he was not reasonably visible to other road users:
(a)The evidence that the respondent’s headlight was not functioning properly and threw minimal light, and the respondent did not otherwise draw attention to himself, e.g. by wearing high visibility clothing.
(b)The respondent’s admission that, driving the motorcycle at night when its headlight was barely illuminating the road ahead, might result in an accident.
(c)The expert evidence about reduced visibility.
The primary judge had a considerable advantage in relation to fact finding, particularly as he attended a view in conditions which reflected those at the time of the accident. However, I cannot accept that the respondent’s reduced visibility played no part in the accident. There was no dispute that the appellant looked in the direction of the respondent. If the respondent’s headlight had been fully functional then, from a distance of 25 metres and with good street lighting, I have little doubt that the motorcycle would have been clearly visible to the appellant when the appellant looked towards the respondent.
I find that the primary judge erred in failing to find the respondent guilty of contributory negligence.
Attribution of responsibility
In Podrebersek v Australian Iron and Steel (1985) 59 ALR 529 at 532–3, the High Court unanimously held:
A finding on a question 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.
...
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, ie of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. 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. (citations omitted)
The respondent emphasised that, when dealing with the question of primary liability, at [27] the primary judge said:
had the ... [appellant] properly and carefully checked Barraclough Crescent to his right after he had given way to the vehicle which was travelling ahead of the ... [respondent], he would have had no significant difficulty seeing the ... [respondent] approaching close to Kneeshaw Street. (emphasis added)
Based on this passage, the respondent submitted that, had the appellant kept a proper lookout, there would have been no significant difficulty in seeing the respondent; conversely, the reduced visibility of the respondent attributable to the faulty headlight and dark clothing was not a significant operative reason for the accident.
However, while the ease with which the appellant could have seen the respondent may inform both the relative importance of the omission to keep a proper lookout in causing the damage and the assessment of the appellant’s degree of departure from the standard of care, it is determinative of neither.
The appellant had the primary obligation to give way to the respondent. He looked to the right (had a lookout) but he did not exercise due care when doing so (did not have a proper lookout). Had there been a proper lookout, the appellant would have seen the respondent (as there was no significant difficulty in doing so) and he would not have proceeded into the intersection. There was a significant departure from the requisite standard of care, but it was not an extreme departure; the appellant did stop and look to his right.
The respondent referred to the finding that, as he proceeded into the intersection, the appellant was looking straight ahead towards the opposite side of Barraclough Crescent rather than to his right (in the direction of the respondent). I consider this finding to be of little moment; as he proceeded forward, it was reasonable for the appellant to look in the direction in which he was headed.
The respondent was negligent in that he embarked upon the risky enterprise of riding a motorcycle at night with a defective headlight that diminished his visibility to other road users. This was a significant departure from the required standard of care.
The breaches of both parties were important contributors to the collision. However, it was the appellant who had the primary responsibility to give way.
I attribute two thirds of the responsibility to the appellant and one third to the respondent.
Orders
I make the following orders:
(1) The appeal is allowed.
(2) The judgment of the Magistrates Court is set aside.
(3) I direct that the parties bring in short minutes that give effect to the above reasons.
(4) If no other order is sought within seven days, I will order that the respondent pay the appellant’s costs of the appeal.
(5) If the parties wish to be heard on costs, they are to submit a timetable for the filing of submissions as part of the short minutes, indicating whether they wish to make oral submissions or are content for the matter to be determined on the basis of written submissions.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 2 July 2015 |
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