Nominal Defendant v Stephens

[2011] NSWCA 312

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Nominal Defendant v Stephens [2011] NSWCA 312

Hearing dates:

6 September 2011

Decision date:

19 October 2011

Before:

Giles JA at [1]
Whealy JA at [2]
Hall J at [88]

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 - NEGLIGENCE - plaintiff hit by unidentified truck whilst on highway - plaintiff intoxicated at time of accident - whether primary judge dealt adequately with cause of accident - whether primary judge advanced reasons as to what negligent driver should have done to avoid accident - whether evidence available that evasive action could have been taken by driver - whether primary judge gave adequate reasons.

TORTS - CONTRIBUTORY NEGLIGENCE - whether primary judge's apportionment should be overturned.

Legislation Cited:

Motor Accidents Compensation Act 1999 s 138
Law Reform (Miscellaneous Provisions) Act 1965 s 9

Cases Cited:

Mifsud v Campbell (1991) 21 NSWLR 725 at 728
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 431
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 - 279
Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666 - 667
Dobler v Halverson (BHT Kenneth Halverson) [2007] NSWCA 335; 70 NSWLR 151 at [71] per Giles JA
Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 529 at 532 - 533
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 at 379 per Kirby J
Turkmani v Visvalingam & Ors [2009] NSWCA 211; 53 MVR 176 per Beazley JA

Category:

Principal judgment

Parties:

Nominal Defendant (Appellant / Cross Respondent)
Rosalie Ann Stephens (Respondent/Cross Appellant)

Representation:

K Rewell SC / D Wilson (Appellant)
DE Grieve QC / G Radburn (Respondent)
Moray & Agnew (Appellant)
Somerville Laundry Lomax (Respondent)

File Number(s):

CA 2010/400849

Publication restriction:

Nil

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2010-11-05 00:00:00

Before:

Blanch DCJ

File Number(s):

DC 50/09

Judgment

1. GILES JA : I agree with Whealy JA.

1. WHEALY JA :

An overview - a woman is struck by a truck

1. On Friday 3 rd August 2007, Rosalie Stephens (the respondent) went fishing with her partner, John Crisp. They went to the Clarence River near the Harwood Island Bridge, and fished there, without a great deal of success, until about 8pm. The couple then went to the local hotel where the respondent consumed a fair quantity of alcohol. The couple had an argument and the respondent walked off into the night on her own. According to her evidence, she walked along the highway and endeavoured on a number of occasions to hitch a ride back towards her home.

1. The respondent had been walking for an hour or so, but had been unable to secure a lift. She decided to walk back in the direction from which she had come, so she turned around and started to head back south, towards the township. She maintained that she was walking just inside the fog lane when she saw a truck coming across the Serpentine bridge (later evidence was to show that the ultimate collision occurred around 275 metres north of the northern end of the Serpentine Channel Bridge). She maintained that the truck's lights were on high beam. They cast a very bright light and she had to put her hand up to shield her eyes from the brightness of the lights. She saw the truck veer to the middle of the road and then saw the cab and first trailer beside her. She had her hand up as the truck was going past, and, as she turned, she found herself thrown in the air and then hurled to the ground.

1. Fortunately for the respondent, there was an isolated house nearby. One of the residents of that house, Jeffrey Pevey, heard her cries for help. Once again, fortuitously, Mr Pevey knew something about first aid. He comforted the respondent and, more importantly, applied a very effective tourniquet to her leg using his own clothing. She was bleeding rapidly and profusely. Undoubtedly she would have died from loss of blood, were it not for the prompt actions of her rescuer. The respondent suffered terrible injuries to her lower left leg, resulting in its later amputation. She also suffered fractures and injuries to her lower right arm. Mr Pevey remained with her, comforting her, until the ambulance arrived some time later. A police officer, Senior Constable Hindle, arrived a little under two hours later, at which point observations, sketches and photographs were taken of the accident scene. Mr Pevey, in his evidence, said that, while he was attending to the respondent, she told him that she had been hit by a truck. She said, "It had its lights on" and "It hit me".

1. The respondent and her lawyers were unable to locate or identify the truck which had struck her. Accordingly, proceedings were instituted against the Nominal Defendant for damages for the injuries she had sustained in the accident. The Nominal Defendant denied liability and alleged contributory negligence on the part of the respondent. The proceedings were heard in the District Court by his Honour Chief Justice Blanch QC. Prior to the hearing, the parties had been able to reach agreement as to the quantum of damages to which the respondent would be entitled if she succeeded on the issue of liability, subject, of course, to any reduction of the damages for contributory negligence. At the conclusion of the hearing, the primary judge found that the respondent had been injured as a result of the negligence of the driver of the unidentified truck. He found that the appellant was liable to the respondent in damages, but reduced those damages by 55 per cent for contributory negligence. His Honour entered judgment for the respondent in the sum of $405,000 plus costs.

1. The appellant has appealed to this Court on two bases. First, the appellant challenges the finding of the primary judge that the driver of the unidentified truck breached his duty of care to the respondent. Secondly, and in the alternative, the appellant contends that, in any event, the assessment of contributory negligence was manifestly inadequate. Mr Rewell SC (who appeared with Mr Wilson for the appellant) submitted it should be adjusted as high as 80 per cent.

Facts not in dispute

1. At the outset, it is helpful to note that the parties were not seriously in dispute, either at the original hearing or on the appeal, about a number of factual matters. These included the fact that the respondent, a pedestrian, had been struck by an unidentified vehicle travelling northbound along the Pacific Highway near Woodburn. The accident happened, as I have indicated, some 275 metres north of the northern end of the Serpentine Bridge. The total width of the sealed surface of the highway at the accident location is 12.1 metres, comprising (from west to east): a fog lane or sealed road shoulder 1.6 metres wide on the western side of the highway, a northbound traffic lane 3.8 metres wide, a painted median area 1.6 metres wide, a southbound traffic lane 3.3 metres wide, and a fog lane 1.8 metres wide on the eastern side of the highway.

1. There were photos in evidence showing that the accident occurred near the end of a sweeping left hand curve for northbound traffic. The curve did not obstruct visibility for northbound drivers, and there were no other trees or other obstacles near the apex of the curve. The curve was a relatively gentle one and did not require any reduction in speed for northbound vehicles. The highway at the location provided for a single lane of traffic in each direction, separated by a reasonably wide painted median area, designed, no doubt in the absence of physical separation, to keep north and southbound traffic apart. The fog lane was defined by an unbroken white line, which served two purposes. First, it enabled drivers in fog conditions to see the edge of the road. Secondly, it was a marked line beyond which it would, with certain exceptions, be illegal for traffic to cross. Although hardly an ideal haven for pedestrians walking along the highway, it would, in the absence of a footpath, provide a boundary within which a pedestrian might walk. On the western side of the fog line, there was a grass verge.

1. The unidentified vehicle was probably a B-double combination, that is, a vehicle comprising a prime mover, an A-trailer and a B-trailer. It was accepted that the unidentified vehicle was probably travelling at or slightly below the prevailing speed limit of 100kpm. The curve for northbound traffic to which I have referred was structured so that a vehicle travelling at 100kpm would not be required to reduce its speed as it moved safely to the straight stretch of the road continuing in a northbound direction.

1. At the time of the accident the weather was fine and road surface was dry. The accident occurred in darkness and there was little ambient lighting. There were only two houses in the location, and one of those was unoccupied at the time. The second house was occupied by Mr Pevey and his partner. There was a quarter moon elevated above the horizon to about 34 degrees. The area in which the accident occurred was an area where pedestrians were unusual, particularly at night.

1. The respondent was dressed in dark clothing on the evening in question. She was undoubtedly intoxicated, and her probable blood alcohol content at the time of the accident was 0.170. It was accepted that she had probably been struck by the B-trailer of the unidentified vehicle and that a wheel of the B-trailer probably ran over her lower left leg, crushing it and de-gloving it. Photographs of the injured limbs were in evidence.

Factual issues at trial

1. The principal areas of factual dispute at the trial were relatively few in number. They were, first (if it could be identified), the precise point of impact between the B-trailer of the unidentified vehicle and the respondent. Secondly, whether the respondent was standing (or walking) within the northbound traffic lane, or whether she was within the fog lane on the western side of the highway. Thirdly, there was the issue as to where the unidentified truck was at the time of the collision, and, particularly, where its trailer was, relative to the respondent when she was injured. Fourthly, there was an issue as to the mechanism by which the respondent had suffered injuries to both her right arm and left lower leg. Fifthly, there was an issue as to whether the unidentified vehicle had its lights on high beam or low beam. Finally, there was an issue as to the distance from which the respondent should have been first recognisable by the driver of the unidentified vehicle as a person requiring the driver to take evasive action, and whether such action was taken or not.

Reasons of the primary judge

1. On 5 th November 2010, his Honour gave an ex tempore judgment. The decision is quite detailed and covers some 16 pages. I shall briefly summarise the process of reasoning involved in the decision, indicating where necessary the necessary critical findings of fact made by his Honour.

1. The primary judge recited the facts in some considerable detail. There was no dispute about the introductory facts which had led to the respondent being present on the highway after she had crossed the Serpentine Bridge. His Honour said:-

She said she got to a certain point past that bridge and decided to turn back because she was frightened. It was dark and she said she had not taken very many steps when a semi-trailer came over the Serpentine Bridge with its lights on high beam. She put up her hand to shield her eyes, she said she was on the fog line and she stepped back, she felt the cab of the vehicle pass her and she said the truck seemed to be veering towards the centre of the road, that she was off the road on the western side of the fog line. She was hit by the trailer.

1. His Honour noted that a significant question for determination had been the "mechanism of the cause of the injury". His Honour examined the road structure and the precise measurements involved for each of the lanes at the relevant location. He noted that there were no skid marks and no debris. He described the highway from the Serpentine Bridge to the point of impact as having "a wide but gentle bend in it". He described the conditions of the evening, and the fact that it was a relatively dark night. His Honour noted where the legal onus lay in these terms:-

At the end of the day the test in the case still must be that the plaintiff has to prove that the defendant who owed a duty of care has not acted in accordance with reasonable care. The defendant in this case is the Nominal Defendant because the vehicle which caused the accident has never been identified in spite of intensive investigations by the police.

1. His Honour then considered a number of issues relating to the credit of the respondent. He noted the criticisms that had been made of her. They involved the question of whether her evidence was always consistent, particularly in relation to the alcohol she had consumed and its effect upon her. In that regard he noted the report of an expert, Professor Christie, who had expressed the view that the respondent would have been severely impaired at the time of the accident, with a blood alcohol level exceeding 0.170. He noted Professor Christie's cautions about the impact of the respondent's consumption of alcohol upon the cognitive and psycho-motor abilities she would have exhibited at the time.

1. Professor Christie had also said that a high blood alcohol level such as the respondent had at the time would have been likely to impair her memory and, as a consequence, may have compromised her reliability as a witness. His Honour then summarised the submissions that were made concerning aspects of the respondent's evidence which might suggest a degree of unreliability. These included inconsistencies in accounts of the accident that she gave to the police, various doctors, and other health professionals. In particular, his Honour noted the submission that she had not told anyone that she had turned around and started to walk back towards the township. Indeed, she had not told anyone for a considerable time that she had been blinded by headlights, or that she was standing still at the time of the accident. Nor had she mentioned that the truck had been speeding or had cut a corner. His Honour said:-

It is true that in various accounts she gave, many of those matters were not mentioned. Her answer to that was that she knew that she had been hit by a truck, she had not originally described it as a B-double, which is a semi-trailer with two trailers behind it. She said that to her a truck is a truck and she was not asked specifically about that and she said generally as to these matters that I have referred to that they were matters of detail but the broad thrust of her version of what occurred remained reasonably constant. My assessment of her is that she is the sort of person who probably would not have volunteered significant detail without it being drawn out from her. Certainly the police officer, when he was questioning her, said that he was careful not to upset her too much. Then there were some other aspects of criticism that tended to fade a little bit as the case progressed.

1. His Honour next examined an issue of some importance in the trial, although in the end his Honour thought that it was of less significance than it had been at the outset. This was the issue as to whether the truck's lights had been on high beam. In this regard, his Honour thought that it was significant that Mr Pevey, who had come to the rescue of the respondent, had said in his evidence that the respondent had complained about the lights of the truck when he was with her. Mr Pevey in turn was cross-examined about this because he had not mentioned this statement by the respondent in his previous written statements. His Honour identified the importance of the issue:-

Bright lights did become important in the case because a question has arisen as to how far halogen lights on high beam or low beam would illuminate the roadway and that has become a significant matter of debate as to whether or not the person driving the truck could have seen the plaintiff in time to stop.

1. The primary judge had no doubts about the genuineness and reliability of Mr Pevey. He noted that the witness was quite adamant about the respondent having mentioned the bright lights and that she had done so immediately after the accident. He thought that this was a matter of some importance in supporting her evidence that there were bright lights in respect of the vehicle travelling north as it approached. His Honour remarked that he should approach the respondent's evidence "carefully" in a number of respects, but he accepted, in the ultimate, that she had been talking about "the bright lights" from the very beginning, as Mr Pevey had attested. Later, in his reasons, he would return to this point when discussing the conflicting opinions of the experts. His ultimate finding was that the truck driver's lights had been on high beam and that they were probably halogen lights.

1. A second critical question arising from the evidence of the respondent was whether or not she was walking in the traffic lane, or on the western side of the fog line. This was obviously an important matter, and his Honour gave it careful consideration. The respondent herself had maintained that at all times she was either on the fog line or within the fog lane.

1. His Honour then examined the evidence of two local witnesses who had seen the responent walking on the highway that night. He also gave consideration to a number of reports arising from the investigations carried out by the police. They had been trying to find the driver of the unidentified truck which struck the respondent. This material included notes of "discussions" among various truck drivers who had seen a woman on the side of the road that evening.

1. The two witnesses who gave evidence at trial were themselves truck drivers. The first was Mr Wiseman, who had been driving a rigid tipper truck on the night of the accident. He had come from the Harwood Sugar Mill, along the Pacific Highway, driving at 100kph when he saw a movement on the fog line. At that time, his lights were on low beam. He switched to high beam and saw the woman (undoubtedly the respondent) inside the fog lane, about two feet from the fog line itself. Although he was travelling relatively close to the fog line in the northbound lane, he "gave her the benefit of the doubt" and swerved vigorously to the right "to give her extra space". This manoeuvre was satisfactory, and Mr Wiseman's vehicle, it appears, posed no danger to the respondent.

1. The second truck driver was Mr Bransdon. He had been on duty at the Sugar Mill from midnight on the relevant evening. He was driving a semi-trailer at about 80kpm when he saw a person standing on the fog line, just near a local service station which was closed for the night. His lights were on low beam and he said he saw the person about 20 to 30 metres away. He swerved to the right, as he was travelling quite close to the fog line himself.

1. In the case of each of these two truck drivers, his Honour noted that they had been driving on straight stretches of the road when they saw the respondent. He commented that, although the highway leading up to the location of the accident curved, it was "a wide sweeping curve, just prior to where the accident occurred". (I took his Honour to be making this point in answer to a submission. This was that the manoeuvre by each of the two truck drivers who gave evidence provided no comparison for the situation encountered by the unidentified truck driver as he came around the curve).

1. Having considered all the evidence on this point, his Honour said:-

I believe that a review of all the evidence about what she was doing before the accident occurred indicates that she was walking along the side of the road, to the west of the fog line or perhaps on occasions on the fog line.

1. It is clear, therefore, that his Honour accepted the respondent's evidence in this regard, notwithstanding the vigorous attacks that had been made on her credit and reliability. On a fair reading, it seemed to me that the primary judge was satisfied that he could, in general terms, accept the reliability of the respondent's evidence, notwithstanding that she had been intoxicated at the time, and notwithstanding the other matters that were said to reflect adversely upon her. These conclusions were based partly on the respondent's demeanour as exhibited in court, but, as well, on the evidence of other witnesses that gave support to the reliability and credibility of her evidence in relation to the issues in dispute.

1. The primary judge then turned to consider the expert's reports in the case. His Honour said there were "two significant questions" addressed in these reports. The particular matters he focussed on were, first, the issue as to where the precise point of the collision had occurred. Secondly, his Honour addressed the "question of illumination".

1. As to the first, it is necessary to note that Mr Johnston, the expert called on behalf of the respondent, said that he was unable to specify where the accident occurred. He advanced a theory as to how the accident might have occurred, this theory being that the respondent had put out her hand, it had been caught by the side of the second trailer, and that she was then rotated, with her leg ending up under the back wheel of the second trailer. Mr Keramidas, the expert who gave evidence on behalf of the appellant, was much more dogmatic on the location of the impact. In his opinion, the point of collision was able to be precisely ascertained by the location of a small spot of blood and a small piece of flesh, identified by Senior Constable Hindle, who attended the accident scene at about 2:25am on 5 th August 2007. Mr Keramidas concluded that this physical evidence was persuasive that this was the precise point at which the accident occurred. As will be seen, this point was just inside the traffic lane to the east of the fog line. Mr Johnston, as I have said, was not able to agree with this and maintained that he was simply unable to specify where the accident occurred.

1. Before noting the manner in which his Honour dealt with these submissions and the particular piece of physical evidence, it will be convenient to mention the evidence that had been given by Senior Constable Hindle. His evidence, it should be noted, was consistent with the police photographs in evidence.

1. The officer had observed two pools of blood and flesh. One pool had its outer edge approximately 300 centimetres outside the fog lane within the single northbound lane, and the other was approximately 700 centimetres north of the first pool, and approximately 1.2 metres within the fog lane, towards the western edge of the roadway. He said, however, in his report that he had been "unable to form any opinion from his investigation as to the exact location of the respondent just prior to the collision with the unknown motor vehicle". The photos in evidence demonstrate that the pool of blood within the fog lane was a large one, whereas the first "pool" was quite small. It, in fact "traversed the fog line" (Black, 164). By comparison, the second pool was described as "a significant quantity of blood off the western edge of the carriageway". Also located to the west were clothing and a beer bottle, although the clothing appeared to be not that of the respondent. (It had possibly been used as the tourniquet which had been applied by Mr Pevey). As to the smaller "flesh/blood" pool, the witness said (Black, 184):-

It was a white fleshy substance. I didn't have it analysed but what appeared to be in my experience human flesh or a substance similar to human flesh and that was what I saw on the roadway... also the blood was a dark red liquid substance, I don't know how much better I can describe that.

The witness said the flesh appeared to have been "squashed" somewhat into the surface. He confirmed that he had arrived at the scene "some hours afterwards". He also confirmed that, before the first emergency personnel arrived, traffic was still travelling up and down the highway.

1. I return now to his Honour's decision. The primary judge, in due course, examined the issue as to the precise point of the collision. Indeed, he took up the issue with Mr Keramidas during his evidence. Notwithstanding the police officer's opinion, Mr Keramidas had always argued that the "squashed" piece of flesh/blood just to the east of the fog lane gave him the certainty that the collision had occurred at that point, or that at the very least, it was the "limiting" boundary for the point of collision. His Honour pointed out to the witness that he really had "no idea how the blood or tissue got there" and the witness essentially agreed. The judge also secured the expert's agreement to the fact that there had been a number of people around this location before the police came and took the photographs. Finally, his Honour asked whether he was correct in his understanding that "it's not a lot of blood and not a lot of tissue". The witness agreed with that proposition.

1. In his reasons, the primary judge said (referring to the argument advanced by Mr Keramidas):-

I have had some trouble with that because the amount of blood and flesh on the roadway were small, the police officer did not arrive until 2:25am which is almost 2 hours after the accident and in the meantime Mr Pevey and his then-partner had been around the scene and assisting and it seems to me it may have been too readily assumed that that material was put on the roadway as a result of the accident... it appears to me a case where it is simply not possible to specify exactly where the accident occurred. Mr Keramidas would only go so far as to rely on that material on the roadway, but was not prepared to specify where he thought the accident might have otherwise occurred... the mechanics of the accident are very difficult to reconstruct. It appears to me that much of the evidence about that is supposition and it is very difficult to come to a conclusion about how the accident occurred. Obviously the two injuries to her arm and her leg were almost simultaneous although as I have said the speculation is that her arm might have been injured first and she was knocked down under the wheel of the trailer.

1. His Honour then passed to the second matter that appeared to him to be a substantial issue arising from the expert evidence. This was the question of "illumination". First, his Honour briefly set out the difference between the two experts. Mr Keramidas said that even with halogen lights on high beam, the earliest a truck driver would see a person wearing dark clothing in the position of the respondent would be 60 to 70 metres. In essence, his evidence was that a driver travelling at 100kpm, recognising a danger such as this at 60 to 70 metres, would simply not have time to take appropriate evasive action. His actual evidence at Transcript 229 had been:-

The time is sufficient for perception reaction to it and reaction to occur but not to create conditions where an effective evasive manoeuvre could be undertaken.

It will be seen, therefore, that it was Mr Keramidas who himself introduced the contrasting notions of an effective or sufficient evasive manoeuvre and one which was not effective.

1. His Honour noted that, by contrast, the evidence of Mr Johnston was that the recognition of the respondent as a pedestrian, assuming high beam halogen headlights, would begin at 125 metres. This sight distance meant that there would then be sufficient time to safely manoeuvre the vehicle so that it would pass by the pedestrian without striking her. There was thus a stark difference between the position taken by the two experts. The essential difference posed a choice between the time and distance necessary to enable an effective manoeuvre in the circumstances so as to avoid striking the respondent.

1. At the outset of the resolution of this difference between the experts, the primary judge made a determination that, as asserted by the respondent, the truck had been driving with its halogen lights on high beam. His Honour gave adequate reasons for this conclusion.

1. Secondly, his Honour found that Mr Johnston's opinion on the distance point was to be preferred to that of Mr Keramidas. In the context of the respondent's evidence that the driver of the unidentified vehicle had in fact veered to the right (apparently in an attempt to avoid a collision), he said the following:-

The reason the evidence of the plaintiff if accepted means that the illumination question is less important than it would otherwise have appeared is that if accepted, then it would be accepted also that the driver saw her in time to take some action . That would mean that the evidence given by Mr Keramidas could not be accepted as to that point. On the illumination question, I believe that the evidence of Mr Pevey and the evidence of Mr Wiseman about where he saw the plaintiff tend to indicate that there is a broad field of vision that is longer than that given by Mr Keramidas (my emphasis).

1. His Honour then stated that he accepted the evidence of the respondent that the vehicle had moved away from her and that this movement was consistent with someone seeing her and taking action to avoid hitting her. Against the background of the resolution of the two difficult questions raised by the expert evidence, his Honour then made his ultimate primary findings. He said:-

At the end of the day then, I believe that the probabilities are that the plaintiff was standing on or just to the west of the fog line and I believe that the probabilities are that she was hit in some fashion by the second trailer of the vehicle that came by and that was caused by the swinging out by a further 30cm of that second trailer.

1. His Honour next considered whether, on the basis of the primary facts he had found, including those I have last mentioned, he was able to be satisfied that the respondent had established that the driver of the unidentified vehicle had driven without reasonable care and whether that had been causative of the injury to her.

1. At the outset of his discussion, the primary judge said:-

The case is a difficult one in many ways and care has to be taken not to speculate because there are a number of possible explanations but taken overall, accepting the plaintiff's version that the vehicle swung away, I believe that the driver of the vehicle saw her in time to take action. I accepted the probabilities arising from that, there was a swinging out of the back trailer in the direction of where the plaintiff was standing and that is what caused the accident to occur. As I have said, both of the experts give reason as to why it is the back trailer that is the relevant part of the vehicle and it is not difficult to see why that is. The plaintiff did end up thrown backwards as might be expected and when Mr Pevey and his partner came to her assistance, she was lying with half her body on the grass and the other half in the fog lane.

1. His Honour then considered the submissions made by Mr Rewell SC on behalf of the defendant. Senior counsel had argued that a prudent driver of a B-double in the present circumstances could not be expected to see and assess a danger such as this "with sufficient time to react". He pointed to the fact that the respondent had been in an area where ordinary pedestrians would not be. He pointed to the fact that the respondent had been dressed in dark clothing and that the vehicle in question had been travelling within the speed limit. Mr Rewell relied on the evidence about stopping distances and reaction times and the time at which a person on the road would be illumined and recognised. The primary judge responded:-

The reason I cannot agree with that in this case is because I accept that this particular driver did in fact see the plaintiff and did in fact take evasive action but the evasive action was not sufficient. I would expect the reasonable prudent driver of a B-double to be aware of the movement of trailers if a particular manoeuvre of changing of the direction of the prime mover was done.

1. His Honour then turned to consider the issue of contributory negligence. In this regard, he took into account the fact that the respondent was intoxicated, that she was walking along an area where pedestrians do not normally walk and that she was wearing dark clothing. She had been walking close to the fog line and on occasions on the fog line. In relation to the intoxication issue, his Honour accepted the evidence of Professor Christie that the respondent's capacity to make judgments would have been significantly impaired because of the alcohol she had consumed. His Honour perceived that her state of intoxication was a significant contributing factor to the accident. He considered that she did have "ample opportunity" to step back because she saw the truck as it came over the Serpentine Bridge. His Honour thought that she might "quite easily" have retreated back towards the grass verge on the western side of the fog lane so that she was "well and truly away from the roadway". He accepted she may have been mesmerised to some extent by the lights of the truck but her intoxication would have been a factor in her failure to act promptly. His Honour then concluded:-

In my view therefore, her contribution to or responsibility for the accident is more than half of that of the driver of the vehicle. The question is one of apportionment in those circumstances. Mr Rewell has submitted that it should as high as 80 per cent, Mr Wheelahan has submitted that it an appropriate figure is 33 1/3 per cent. In my view, the appropriate figure that she is responsible for 55 per cent of responsibility for the accident.

1. His Honour then entered a verdict in favour of the respondent in the sum I have earlier mentioned.

Grounds of appeal

1. The primary grounds relied upon by the appellant may be distilled from the written and oral arguments as follows:

1) His Honour failed to deal with or give reasons against a theory advanced at trial by the appellant's expert that the respondent, being within the fog lane, had moved forward a step or two and collided with the B-trailer as it passed.

In this regard, the complaint is that the primary judge was bound to find that, without a movement or movements of the kind referred to above, the collision would simply not have occurred.

2) His Honour failed to specify (and hence failed to give reasons) as to what it was the driver could or should have done in taking evasive action to avoid the collision, other than the steps he did take.

In support of this ground, the appellant argued that it was agreed between the experts that application of the brakes would not have brought the vehicle to a stop prior to the point of collision, and that a significantly more severe swerve than that which was executed would have resulted in the vehicle toppling over and/or leaving the roadway altogether.

3) His Honour erred in failing to identify any evidence that could have sustained the nature and existence of other evasive action available beyond that which was taken by the driver. Indeed, it was submitted that there was no evidence capable of meeting that description.

1. There were a number of subsidiary grounds relied upon in support of the primary grounds. These were, for example, that it was not open to the judge to find that the driver had his lights on high beam. Secondly, it was not open to him to find that the point of collision was other than upon the northbound traffic lane or, at the very least, at a point to the south and east of the area where the flesh/blood spotting was located.

1. Overall, the appellant submitted that this was a case of evasive action having been taken by a driver who saw the respondent but that his actions, taken in the agony of the moment, were the only actions reasonably available to him, with the consequence that the driver did not breach his duty of care in all the circumstances.

1. On the issue of contributory negligence, the appellant maintained that the factors identified by the primary judge as relevant to an assessment of the respondent's responsibility for the accident ought to have led him to a much higher assessment of contributory negligence against the respondent. The disparity was such as to warrant appellate intervention.

Analysis and resolution

1. The appellant's first primary contention requires an examination of a hypothesis advanced by Mr Keramidas at the hearing of the proceedings. It appears the precise argument did not present itself to Mr Keramidas until after he heard the respondent give her evidence. Before examining the hypothesis, it is worthwhile to examine the principal argument presented by Mr Keramidas in his written reports.

1. In his initial report, Mr Keramidas had said (on the issue of the likely collision location):-

In either case her expected motion from first impact through to coming to rest on the roadway would have been to move in the direction of travel of the truck and also to be deflected to its side. In other words, her overall direction of travel would be expected to be in a north-westerly direction. The extent to which this would occur would require detailed analysis of the specific parts of the vehicle which came in contact with her, and in assessment of her injuries to establish whether her lower arm injury was consistent with the blow from the front or rear. In the absence of this information, only a general conclusion can be reached as to the likely impact location.

Despite the absence of this "detailed analysis... and assessment", Mr Keramidas went on to say that the eastern-most position on the roadway where blood was observed was 30cm inside the northbound lane. At this point he introduced his first hypothesis:-

It would not have been possible for this blood to end up on the roadway to the east of where the pedestrian was struck, as her dynamics would be expected to have been pushed forward and to the left. Therefore, the point of impact must have been at least 30cm into the traffic lane and most probably some indeterminable distance further east and to the south and to the position of the blood.

1. For this reason, Mr Keramidas concluded that the respondent's position at the time of the collision "was well inside the traffic lane and not within the shoulder area of the roadway".

1. Two points might be made. The first is that there is an element of speculation in this reasoning. Mr Keramidas did not pause to ask himself, for example, whether there might be another explanation for the presence of the small amount of blood 30cm inside the northbound lane. Nor did he give consideration as to whether, given the very extensive injuries sustained to the respondent's leg and the amount of intensive bleeding that immediately followed, the conclusion he drew was reasonably open in any event.

1. The second point, however, is that the respondent made it perfectly clear in her evidence, if she were to be accepted, that she had at all relevant times been either on the fog line or within the fog lane. She gave the following answers to her counsel, Mr Wheelahan QC at Black, 9:-

Question: When you said to his Honour earlier that you were over the fog line, what did you mean by that?

Answer: Well I was on - near the grass verge.

Question: Were you on the northbound carriageway, that is, in the traffic lane?

Answer: I was on the fog line on the western side.

Question: On any stage during that journey that night were you on the northbound traffic lane?

Answer: No.

1. In her cross-examination, she said that as she walked back in a southerly direction, she was not walking on the fog line itself (Black, 12, H - J). In the final part of her cross-examination, the following questions and answers were put (Black, 66, J - S):-

Question: I want to suggest to you that you were on the roadway within the northbound traffic lane not in the fog lane?

Answer: I disagree sir.

Question: I want to suggest to you that you were within the northbound traffic lane by at least 30cm, that is in the old language at least a foot inside the fog line, do you agree or disagree?

Answer: On the roadside?

Question: In the traffic lane?

Answer: No sir.

Question: By at least a foot?

Answer: No sir.

Question: But that you may well have been much more than a foot inside the traffic lane?

Answer: No sir.

1. The respondent insisted that she was not in the traffic lane. She said it was "not accurate" to say that she had simply failed to move off the road as the vehicle approached.

1. For the reasons given by the primary judge in his decision, the respondent's evidence on this point was ultimately accepted. That really put paid to Mr Keramidas' first hypothesis. While Mr Rewell was critical of the manner in which the primary judge approached the issue of the blood/flesh substance east of the fog line, it is clear that from a fair reading of his Honour's decision, he was really saying no more than that the presence of that physical evidence simply did not enable him to say where the point of impact occurred. As I have indicated, his Honour asked questions of Mr Keramidas on this very point. Indeed, he put the same proposition fairly to Mr Rewell SC during argument. His Honour's ultimate view that this piece of physical evidence did not carry the weight suggested by Mr Keramidas on the issue of the point of impact would have taken nobody by surprise. It was his view, one reasonably open to him, that it did not give any reliable indication as to the point of impact or. It could not reliably operate as some type of limiting boundary to the possible point of impact. His Honour's conclusion, that he was unable to find where precisely the point of impact had been, was well open to him.

1. The genesis of Mr Keramidas' second hypothesis is to be found in his Supplementary Report dated 12 th March 2010. By then, he had been provided with the letter of instruction to the respondent's expert dated 30 th April 2009 and the expert's report itself. Mr Keramidas thought that the letter of instructions introduced some new material which he had not previously considered. One part of this material referred to instructions apparently given by the respondent which said, "...then suddenly his cabin was right beside her and the trailer went past her. She described thinking that the semi-trailer was "awfully close" when she realised that there was a second trailer and that it was obviously a B-double." In considering the "collision dynamics", Mr Keramidas said:-

The second way in which the plaintiff and rear trailer of the B-double combination could have come into collision would be that the plaintiff walked into the path of the rear trailer believing initially that it was a standard semi-trailer (single trailer combination) rather than a B-double. Indeed, the plaintiff appears to suggest in her version of events that it was only when the cabin and the first trailer passed her that she realised that the vehicle was a B-double and therefore carrying a second trailer.

1. These remarks, it might be observed, were not based upon any area of expertise possessed or being exercised by Mr Keramidas. The suggestion that the respondent may have walked into the trailer was purely speculative. It smacked of an expert going beyond his proper role. The type of "guesswork" involved in the remarks is not consistent with the task of an expert to arrive at a detached conclusion based on empirical facts.

1. In any event, the respondent as I have earlier indicated, gave evidence that she was virtually standing still at the time the cabin and first trailer went past her. The only questions put to her to suggest that she may have moved forward in the direction of the traffic lane as the first trailer went past were tentatively posed by Mr Rewell (Black, 10, N - T):-

Question: Just perhaps dealing with that last question first Miss Stephens, you said you weren't aware that the truck had two trailers until it was effectively upon you, is that what you say?

Answer: Mm.

Question: And perhaps even the cabin and the first trailer were past you?

Answer: Yes.

Question: Might you have stepped forward or is that forward in the direction of the traffic lane as the first trailer went past you?

Answer: I stood still.

Question: Might you have moved forward thinking that the first trailer was the only trailer?

Answer: No.

There were no further questions asked to challenge the respondent on this point. However, Mr Rewell later endeavoured to obtain some type of estimate from the respondent as to how close she had been to the cabin of the vehicle as it went past her. Given the trauma of the events, and the speed with which everything happened on the evening in question, it might have been reasonably thought that the respondent was scarcely in a position to give any reliable estimate of that situation. The cross-examination will give the flavour of this (Black, 17, D - Z):-

Question: How close was the cabin to you?

Answer: Where I could see it I looked and there he was and he went past because I, I was turned around like this and then I saw the trailer and the beginning of the next trailer and then the other -

Question: Well let's just stick with the cabin for a moment?

Answer: Yeah.

Question: How far away from you was the cabin when it went past you?

Answer: Well it was close enough I could see it.

Question: Well clearly but was it close enough that if you'd reached out with your left hand you might have been able to touch it?

Answer: No.

Question: Was it close to the fog line?

Answer: Yes.

Question: Was it on your side of the fog line?

Answer: No I don't know. I wasn't, I was looking at the truck, I wasn't looking anywhere else.

Question: Was it only do you say a metre or so from you?

Answer: I don't know.

Question: And we're still talking about the cabin remember, just the cabin?

Answer: Yes the cabin and it's gone past and I saw it go past and the next trailer and the next trailer and then that's all I remember. I got hit.

Question: Well may we take it from your indication that the cabin was rather close to you when it went past?

Answer: Fairly close, yes.

Question: Within a metre or so?

Answer: Probably so, I don't know.

1. The cross-examiner then asked the witness to look at a glass partition near her left shoulder and whether she would agree that the distance was "about that range". She answered:-

Yeah, yeah, just about that range a bit, pretty close.

She added:

Well I only stood still when I saw him coming and I moved and then I stopped. Still when it looked like the lights were straight on me and I had my hand up and I had this leg forward position and it was, I stopped there in my tracks, I was scared... I had my hand shielding my eyes from the light when it was coming straight at me and then as it went past, I turned my body and, saw the cab and saw the trailer and the beginning of the second trailer and I've turned and next thing I'm up in the air and on the ground.

The witness was queried once again on the distance in relation to the glass partition near where she was standing in the witness box:-

Question: Again the distance of the glass partition or perhaps a little further?

Answer: Yeah something like that sir.

Question: Or was it closer than the cabin?

Answer: I was looking up sir so -

Question: Well by now you must have been looking right into the side of the first trailer?

Answer: Well I saw him go past and as I turned I saw the second one and as I said to you... it hit me and I was on the ground...

1. Later in the cross-examination (Black, 43, H - M), she said on two occasions, describing the proximity of herself and the front of the truck, that "he was right up against the side of me" and "he's right beside me".

1. Finally, the following passage appears in the cross-examination on the next day (Black 62, Q - W):-

Question: Would you agree that the distance of the cabin was away from you, the truck as it initially passed, the cabin was within the traffic lane, whether or not the trailer was, the cabin was within the -

Answer: I don't know sir.

Question: But it was more than a metre by your judgment yesterday to your left -

Answer: Yes sir.

Question: Or closer to the centre of the road than you were, more than a metre is that right?

Answer: The truck? Yes sir.

Question: But do you say you don't know whether it was on its correct side or incorrect side of -

Answer: I don't know.

Question: And we're talking about the cabin, you say you don't know whether the cabin was on its correct side or incorrect side of the fog line?

Answer: I was looking up at it as it went past, I couldn't - wasn't looking at - anything else.

1. Taking this evidence in its totality, it could not be said with any confidence that the respondent had given any reliable precision to the distance between herself and the cabin of the truck. In his written submissions, Mr Rewell maintained that "the respondent was adamant" that the separation between herself and the cabin of the unidentified vehicle was much more than 30cm". I do not accept that this is a fair characterisation of the extremely vague and imprecise evidence she gave. It was equally open to read the evidence as saying that she simply did not know with any precision what that distance was; but that her overall impression was that the vehicle was "right beside" her. The demonstration of the distance in the courtroom during the cross-examination did not enlarge the overall impact of her evidence on the point.

1. However, this demonstration became the foundation for Mr Keramidas' alternative hypothesis. It was first advanced by the witness at Black, 229, during his evidence in chief:-

Question: Now you heard the plaintiff's evidence as to her recollection of the cabin of the vehicle approaching her, the distance between herself and the cabin when the cabin passed, and likewise with the first trailer, you heard her evidence and saw her demonstration of the position of her right hand over her eyes, she said shielding the glare, and you've heard Mr Johnston in that context maintain that it remains one possibility that she could have been run over in terms of her left leg being run over by a wheel of the B-trailer without her moving. What do you say about that in the light of the evidence the plaintiff's given which you heard?

Answer: In my opinion that would be impossible.

It might be observed that this question was inappropriate. Mr Keramidas should have been asked to make a series of precise assumptions and then required to express an opinion based on those assumptions.

In any event, Mr Keramidas gave his reason for the opinion he expressed at Black, 232. He referred to the evidence that appeared to be generally agreed between himself and Mr Johnson that the B-trailer could not, in practical terms, swing a metre or so towards the respondent in an evasive manoeuvre. Had it done so, the manoeuvre would have resulted in the truck running off the roadway on the eastern side. The likely anticipated movement, had it been executed safely, would be a distance of about 30 - 35cm. Mr Keramidas argued that if the cabin were, in fact, a metre away from the respondent as it passed her, the B-trailer would not have moved that distance so as to hit her while she was standing within the fog lane. Consequently, his point was that the respondent must have moved forward to meet the trailer.

1. Mr Wheelahan's cross-examination ridiculed the proposition that the respondent had the capacity or ability to move so rapidly as to cover the suggested distance between herself and the second trailer, as the vehicle moved past her at 100kph. Secondly, senior counsel secured Mr Keramidas' agreement to the proposition that "the estimates of times and distances given by lay people in relation to an event that has occurred after dark in one of the most traumatic situations imaginable" would be "notoriously inaccurate and unhelpful". Mr Keramidas agreed to this without demur.

1. On the hearing of the appeal, Mr Rewell argued that, on the basis of his expert's opinion, the defendant should have succeeded. This was because, without her movement forward a step or two, the vehicle would have missed her. Alternatively, he argued that it was impossible for the judge to make a finding of negligence, because the accident could not have happened if she were more than a metre away from the truck. Both these arguments were emphatically based upon the distance involved in the light of the demonstration made by the witness in the courtroom. They ignore, however, all the other evidence given by the respondent and the contents of her instructions to her solicitor.

1. Although he did not do so in terms, the primary judge, in my opinion, must be taken to have rejected this alternative hypothesis. This is clear from his ultimate findings. Those findings should be fairly read. It will be recalled his Honour said (Red, 25, N - Q):-

... I believe that the probabilities are that the plaintiff was standing on or just to the west of the fog line and I believe that the probabilities are that she was hit in some fashion by the second trailer of the vehicle that came by and that was caused by the swinging out by a further 30cm of that second trailer.

1. These findings make it clear that the trial judge was satisfied that the respondent had been much closer to the trailer than the metre distance postulated by Mr Keramidas, based on the demonstration in the courtroom. Secondly, the findings accepted that the trailer moved out by only 30 centimetres. The earlier findings make it clear where his Honour determined the respondent had been standing. Thus, her proximity to the trailer was sufficient for it to have struck her in that situation, without her moving towards it. Moreover, the findings make it clear that it was the movement of the trailer that struck her rather than any movement on her part in stepping forward. She did not move into the trailer. Rather, it swung into her. In my opinion, there is no substance in the first ground of appeal.

1. I shall next turn to the remaining two grounds of appeal. There is arguably more force in Mr Rewell's submissions on this point. This is because it must be accepted that his Honour did not, in terms, specify in his judgment what it was the driver could or should have done in taking sufficient evasive action.

1. The precise complaint is that the trial judge did not explain what evasive action the truck driver could or should have taken. For example, Mr Rewell argued, he did not make it clear whether he was saying that the respondent should have been visible at an earlier time and hence seen by the truck driver. He did not make it clear whether evasive action should have been taken sooner than it was. Finally, the primary judge, it was submitted, did not explain why it was not reasonable for the truck driver to swerve, as he undoubtedly did.

1. There is no doubt that the primary judge was obliged to give reasons for the conclusions he reached. The extent and scope of a trial judge's duty to give reasons depends, however, upon the circumstances of the individual case ( Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed). The critical question in the present matter is whether the reasons given by the primary judge were adequate ( Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 431 per Mason P; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 - 279 per McHugh JA). This question must be answered against the background of an important principle. This is that the proper administration of justice requires that reasons be given in a form, firstly, that will enable the losing party to understand the grounds upon which the case was lost, and secondly, that will not frustrate the losing party's right of appeal ( Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666 - 667). However, it is, as always, necessary to read the primary judge's decision fairly. It is important not to read passages in isolation. It is important not to read the decision selectively ( Dobler v Halverson (BHT Kenneth Halverson) [2007] NSWCA 335; 70 NSWLR 151 at [71] per Giles JA (with whom Ipp and Basten JJA agreed). This was a lengthy decision, so it is not appropriate, in my view, to seize on a sentence or two and suggest thereby that there has been a failure to give adequate reasons. In my opinion, when one has regard to the way in which the issues unfolded in the present matter; to the way in which they were argued at the conclusion of evidence, and to the detailed findings and analysis his Honour made, the complaints of the appellant cannot succeed. When regard is had to the decision as a whole, it is clear in my view that the asserted failures in the structure of the reasons have not been established.

1. It was accepted on both sides that the driver of the truck in question could not, by applying his brakes, have successfully brought the vehicle to a stop before it reached the respondent. There was simply not enough time for a vehicle travelling at 100kph or thereabouts to do so, given the sighting distances involved. However, in relation to taking evasive action of the kind that had been carried out by the other two truck drivers prior to the accident, the situation was different. Each of those drivers, although driving a different type of vehicle than that of the unidentified truck, had managed to take evasive action in sufficient time to avoid hitting the respondent. In that regard, the primary judge focussed his attention critically on the possibility that the unidentified driver could have safely avoided the respondent.

1. It is necessary to recall, however, that there was a significant difference between the experts as to their respective estimates of the point at which an attentive driver of a B-double in the present location would have effectively first sighted the respondent as she walked north along or adjacent to the fog line but within the fog lane. The resolution of this difference was highly significant. This was because a conclusion as to the first actual sighting point impacted critically upon the ability of a truck driver to take effective evasive action. Mr Keramidas thought the likely sighting distance, even on high beam, was no greater than about 60 or 70 metres. That being so, he thought that a driver acting reasonably would not have been able to take "effective evasive" action in that time.

1. He said (Black, 229):-

The time is sufficient for perception reaction to it and reaction to occur but not to create conditions where an effective evasive manoeuvre could be undertaken.

1. In other words, in this passage, Mr Keramidas appeared to be saying that the driver, with an effective sighting distance of 60 to 70 metres, might be able to cause the vehicle to veer to the right. But he could not safely guarantee in that situation that some part of the vehicle, including the rear trailer, would not collide with the pedestrian. Admittedly, there was some ambiguity in the expert's statement. I will return to that possibility shortly.

1. The primary judge expressly rejected Mr Keramidas' estimate of a distance of 60 to 70 metres and, by clear implication, accepted the assessment made by Mr Johnson. This was the distance mentioned by his Honour (at Red, 21, X), namely an effectively sighting distance of 125 metres, nearly double the distance relied on by the appellant's expert. It was Mr Johnston's evidence, that had the truck driver sighted the respondent at this distance (and necessarily he would have if he were keeping a proper lookout) this would have enabled him to swerve quickly but safely, so that both the cabin and the trailers would pass the respondent without striking her. If the swerving manoeuvre were instigated promptly, the resultant swinging out of the back trailer would not have endangered the respondent. That was the clear opinion of Mr Johnson and it was plainly accepted by the primary judge.

1. In his oral submissions before the primary judge, Mr Rewell fully embraced his own expert's opinion. On one view, however, the opinion expressed by Mr Keramidas did not entirely make it clear whether he was saying that there would be no time to take any evasive action; or whether some action could be taken, but it would not allow sufficient time for the swerving vehicle to pass the respondent without some part of it striking her. This element of ambiguity was reflected in the expert's statement that a professional truck driver would simply keep driving because, in order to veer away from, for example, animals, there would be a risk of overturning the vehicle.

1. As I have said, Mr Rewell embraced his expert's opinion. He argued that the truck driver would not have had time, after sighting her, to avoid hitting her. It was necessary therefore for the primary judge to deal with this argument. He did so in two ways. First, as I have said, he rejected Mr Keramidas' estimate of the sighting distance and accepted Mr Johnson's opinion. Secondly, he found that the truck driver did see the respondent. But he only saw her in time to take " some action". It was not, his Honour said, sufficient evasive action. In reaching this conclusion, the primary judge explicitly rejected the proposition that the truck driver simply had no time to take any action at all. Indeed, the thrust of his Honour's remarks, as I have indicated, was that the driver had sufficient time to move his vehicle out of the respondent's way, but that he did not do so in time to avoid hitting her.

1. The primary judge accepted that the cabin of the truck was moving away to the right as it passed the respondent, but that this manoeuvre was insufficient to avoid the trailer swinging back towards the respondent and striking her. This is clear from the ultimate findings he made (Red, 25, N - Q). It must follow from his Honour's reasoning that this was because the truck driver did not keep a proper lookout and, for that reason, failed to commence evasive action until it was too late to do so successfully. As his Honour said in the argument during oral submissions, the truck driver, having left it too late to take proper evasive action, could have simply driven straight on. This, of course, would have meant that the truck and trailers would have passed very close to the respondent, but they would not have struck her. It was the last-second swerve that caused the accident. I take his Honour to be saying (Red, 26, R - T) that a reasonable and prudent driver of a B-double truck would have realised that, by taking that action at the last second or so before reaching the respondent, this would lead to the rear trailer moving further in her direction, thus raising the risk of collision with the respondent as the vehicle passed. This was, as his ultimate findings demonstrated, precisely what happened. The driver was either inattentive to the respondent's presence when he should have first seen her or he was simply too slow in reacting when he did see her.

1. The reasons given by the primary judge in this case, when read as a whole, were sufficient, in my opinion, to satisfy the criteria identified in Public Service Board v Osmond . Fairly read, they enable this court to scrutinise the decision below and determine whether error has occurred. Despite protestations to the contrary, the appellant could not really be in any doubt as to the reasons for the liability finding made against it. I accept that his Honour could well have added one or two more sentences to make it abundantly clear what it was he meant when he used the expression "sufficient evasive action". But it must be recalled that this was an ex tempore decision, and appropriate allowance should be made for that circumstance. Fairly read, it satisfies the judicial obligation to give reasons. In my opinion, no error has been demonstrated.

Contributory negligence

1. The appellant accepts that the primary judge identified each of the relevant circumstances that impinged upon an appropriate assessment of the level of the respondent's contributory negligence. It is not suggested that his Honour was incorrect in relation to any of these matters, or that he overlooked other matters of possible relevance.

1. Mr Rewell submitted, however, that, if any alternative action had been available to the driver, the driver's departure from the standard of care required was "slight", particularly when considered in the light of the circumstances with which he or she was suddenly confronted. For that reason, senior counsel submitted that the appropriate assessment of contributory negligence must be at least as high as 80 per cent. The difference between this percentage and that found by the primary judge was sufficient to warrant appellate intervention.

1. The statutory provisions relevant to the issue of contributory negligence are section 138 of the Motor Accidents Compensation Act 1999 and section 9 of the Law Reform (Miscellaneous Provisions) Act 1965 . There is no dispute that the primary judge recognised that the respondent's damages recoverable in respect of the present motor accident were to be reduced by the percentage the court considered "just and equitable in the circumstances of the case". The 1965 Act required that damages might be reduced "to such extent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage". Mr Rewell did not suggest that the primary judge had overlooked these provisions. Senior counsel also accepted that the authorities require that an appellant court be mindful of the need for restraint in disturbance of decisions about contributory negligence. As long ago as 1985, the High Court in Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 529 at 532 - 533 said:-

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.

1. Their Honours had preceded this comment with the observation that:-

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": British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.

The principle that intermediate and ultimate appellate courts must show restraint in reviewing a primary judge's apportionment of contributory negligence remains steadfastly the position today (see Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 at 379 per Kirby J; Turkmani v Visvalingam & Ors [2009] NSWCA 211; 53 MVR 176 per Beazley JA).

1. I am not prepared to find that his Honour fell into error in his assessment of the respondent's share in the responsibility for the injuries she suffered. Moreover, I do not consider that, fairly read, his Honour's conclusions about the role the unidentified truck driver played in the accident amounted to negligence of a kind that could be described as "slight". The driver was on a public highway travelling at a considerable speed in a large vehicle that was capable of causing serious injury to a person who might be standing near the edge of the roadway. His Honour's findings made it clear that the respondent was not on the roadway itself. The sighting distances were sufficient to have enabled the driver to have taken evasive action (as other drivers had done that evening) to ensure that no part of his vehicle came into contact with the respondent. As I have said earlier, the unidentified driver must have been inattentive to the respondent's presence at the time when he should have first seen her; or he was simply too slow in reacting when he did see her. His evasive last-second manoeuvre posed the risk that eventuated, namely that she was hit by the swinging out of the trailer.

1. On the other hand, the respondent had the major responsibility for the accident, and his Honour recognised this in the apportionment he made.

1. Bearing in mind the restraint that should properly be exercised, I am not persuaded that it has been demonstrated that this court should intervene. In my opinion, the apportionment should stand.

1. The appeal should be dismissed with costs.

1. HALL J : I agree with Whealy JA.

Decision last updated: 19 October 2011