O'Halloran v Roth

Case [2008] NSWCA 65

NEW SOUTH WALES COURT OF APPEAL

CITATION:
O'Halloran v Roth  [2008] NSWCA 65

FILE NUMBER(S):
40198/07

HEARING DATE(S):
4 April 2008

JUDGMENT DATE:
15 April 2008

PARTIES:
Michael Thomas O’HALLORAN  (Appellant) 
Maria ROTH  (Respondent) 

JUDGMENT OF:
Giles JA Hodgson JA Young CJ in Eq   

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
SC 20256/05

LOWER COURT JUDICIAL OFFICER:
Hall J

LOWER COURT DATE OF DECISION:
9 March 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
Roth v RTA & Ors [2007] NSWSC 128

COUNSEL:
C E ADAMSON SC/ B A P KELLEHER  (Appellant)
B M J TOOMEY QC/ M L HOLZ  (Respondent) 

SOLICITORS:
Hunt & Hunt  (Appellant) 
Allenson Benn Law Practice  (Respondent) 

CATCHWORDS:
TORT – Negligence – Appeal – Whether decision of primary judge materially affected by reference to parts of experts’ reports not admitted into evidence – Whether findings of fact glaringly improbable – Whether apportionment of responsibility for accident appealably wrong. 

LEGISLATION CITED:
UCPR 51.53

CATEGORY:
Principal judgment

CASES CITED:
Blatch v Archer (1774) 1 Cowp 63 at 64, 98 ER at 970
Hughes v Kirby NSWCA 27/9/91 
Jones v Dunkel (1959) 101 CLR 298
King v Collins [2007] NSWCA 122
Mastronardi v State of New South Wales [2007] NSWCA 54

TEXTS CITED:

DECISION:
(1)  Leave granted to appeal and to cross-appeal. 
(2)  Notice of appeal and notice of cross-appeal to be filed within 14 days. 
(3)  Appeal and cross-appeal dismissed. 
(4)  Defendant to pay three-quarters of the plaintiff’s costs of the appeal and cross-appeal. 

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40198/07
SC 20256/05

GILES JA
HODGSON JA
YOUNG CJ in Eq

15 APRIL 2008

Michael Thomas O’HALLORAN v Maria ROTH

Judgment

  1. GILES JA:  Save that I doubt that I would have assessed the plaintiff's responsibility as higher than the assessment by the primary judge, I agree with the reasons of Hodgson JA and with the orders he proposes. 

  2. HODGSON JA:  On 9 March 2007, Hall J in the Common Law Division determined the question of liability in proceedings in which the opponent (the plaintiff) had sued the claimant (the defendant) for damages for personal injury arising out of a motor accident involving motor vehicles driven respectively by the plaintiff and the defendant.  In those proceedings, the plaintiff had also sued the Road Traffic Authority of New South Wales and the Wollondilly Shire Council, and there had been various cross-claims; but those matters were resolved prior to the determination by the primary judge, which concerned only the claim by the plaintiff against the defendant. 

  3. The determination made by the primary judge was that the defendant was in breach of his duty of care to the plaintiff, and that the respective responsibilities for the accident were 60 per cent to the plaintiff and 40 per cent to the defendant. 

  4. The defendant seeks leave to appeal from that decision, and the plaintiff seeks leave to cross-appeal against the apportionment. 

    Uncontested Facts 

  5. It is convenient first to set out facts…

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Details
AGLC
O'Halloran v Roth [2008] NSWCA 65
Case
[2008] NSWCA 65
Decision Date

CaseChat Overview and Summary

The case of *O'Halloran v Roth* involved an appeal and cross-appeal concerning a motor vehicle accident that resulted in serious injury and fatality. The plaintiff, driving downhill, was overtaking a utility vehicle when she collided with the defendant, who was driving uphill. The primary judge found the defendant liable for negligence but also found the plaintiff contributorily negligent, apportioning responsibility at 60% to the plaintiff and 40% to the defendant. The defendant sought leave to appeal the primary judge's decision, and the plaintiff sought leave to cross-appeal the apportionment of responsibility.

The legal issues before the appellate court included whether the primary judge's decision was materially affected by reference to parts of expert reports not admitted into evidence, whether the findings of fact were glaringly improbable, and whether the apportionment of responsibility for the accident was appealably wrong. Specifically, the defendant argued that the primary judge erred in imposing a duty of "heightened vigilance" and in preferring certain evidence from a witness, Mr Proud, which the defendant contended was inconsistent with physical evidence and other parts of Mr Proud's own testimony.

The appellate court, comprising Giles JA, Hodgson JA, and Young CJ in Eq, considered the evidence and the primary judge's findings. The court ultimately dismissed both the appeal and the cross-appeal. The reasoning involved a careful review of the evidence, including the road rules governing overtaking and lane usage, and the primary judge's assessment of witness testimony and physical evidence. The court found no reversible error in the primary judge's findings of fact or legal reasoning.

Consequently, the court ordered that leave to appeal and cross-appeal be granted, but that the appeal and cross-appeal themselves be dismissed. The defendant was ordered to pay three-quarters of the plaintiff's costs of the appeal and cross-appeal.

Orders

Orders of the court

(1) Leave granted to appeal and to cross-appeal. (2) Notice of appeal and notice of cross-appeal to be filed within 14 days. (3) Appeal and cross-appeal dismissed. (4) Defendant to pay three-quarters of the plaintiff's costs of the appeal and cross-appeal.

Background

Background to the litigation

The defendant seeks leave to appeal from that decision, and the plaintiff seeks leave to cross-appeal against the apportionment. Uncontested Facts It is convenient first to set out facts concerning the accident that are clearly established and/or not the subject of any dispute. The accident occurred at about 2.40 pm on 20 April 2000 on Burragorang Road, The Oaks. The weather was fine and the road dry. The road at that point had three lanes, two for uphill traffic travelling southwards and one for downhill traffic travelling northwards. The road markings between the two uphill lanes and the downhill lane were an unbroken line on the side of the uphill traffic, and broken lines on the side of the downhill traffic (so that it was not prohibited for downhill traffic to go into the middle of the three lanes in order to overtake, if it was safe to do so). The uphill lanes were signposted “Keep Left Unless Overtaking”. The hill on which the accident occurred was a rise (about 10.5 per cent) of some hundreds of metres, with a very gradual curve to the left for uphill traffic and to the right for downhill traffic. At relevant parts of the road there was a clear view in both directions for upwards of 400 metres. The applicable speed limit was 100 kms per hour. The point of impact between the cars was in the vicinity of the centre of the uphill lanes on the eastern side of Burragorang Road, near an unnamed road entering on that side. From a scale map in evidence (identified as Appendix C) the point of impact was about 280 metres from the bottom of the hill (shown by a culvert). The widening of the portion of the road for southbound (uphill) traffic commences at this culvert, and the width of two full lanes is reached after about 100 metres. Thus the point of impact was about 180 metres further on from this. Prior to the accident, the plaintiff was driving downhill in a Holden car, and the defendant was driving uphill in a Subaru car. The plaintiff was in the process of overtaking a utility vehicle, towing a trailer, driven by a Mr Proud. The defendant had overtaken a slower moving vehicle. The vehicles of both the plaintiff and the defendant approached each other in the middle of the three lanes. There were tyre burn marks from the plaintiff’s vehicle extending about 11 metres to the point of impact, and a tyre skid mark from the defendant’s vehicle extending about 9 metres to the point of impact. These marks indicated that the plaintiff’s vehicle had moved to its right just before impact, and that the defendant’s vehicle had moved to its left just before impact. The cars were very extensively damaged, indicating a high impact collision. The plaintiff (then aged 23) was seriously injured and has no recollection of the accident. Also in her car was her 11 year old brother, who was killed in the accident, her seven year old sister who was injured, and her nine month old baby who was substantially uninjured. The defendant (then aged 49) was also injured in the accident. Road Rules

Evidence

Evidence Before The Court

The relevant road rules were set out as follows in the primary judge’s judgement: [37]Rule 130 of the Australian Road Rules provides that where a driver is travelling on a road (or a section of road as is the case here) which has been sign-posted “Keep Left Unless Overtaking” the driver (in this case the defendant) must not drive in the right lane unless one of the circumstances specified in subrule 130(2) applies. In this case, subrule 130(2)(b) (“the driver is overtaking”) is the only category of exception or “excuse”, as it were, available to the defendant to justify his driving in the right lane instead of in the left lane.[38]A “Keep Left Unless Overtaking” sign applies to that section of road between the point at the side of the road where the sign has been erected and continues to apply until the nearest of either a sign at the side of the road or markings on the road indicating that the overtaking lane will end and traffic should move to the right lane: subrule 130(3).[39]A driver is permitted to use a lane which is not the left lane but essentially the “other side of the road” for the purposes of overtaking a slower-moving vehicle travelling in the driver’s left lane: rule 134. However, a driver is permitted this manoeuvre only where there is a broken dividing line (between “vehicles travelling in opposite directions”: rule 4) or the nearest of two dividing lines is a broken line: subrule 134(2). In this case, the nearest of the two dividing lines to the plaintiff was a broken line. The plaintiff was therefore permitted to use the other side of the road for the purposes of overtaking, subject to the conditions specified in rule 140.[40]Rule 140 provides that a driver is not permitted an overtaking manoeuvre unless two preconditions are met:(a) that the driver has a clear view of any approaching traffic, and(b) that the driver can safely overtake the vehicle.[41]The term “approaching” is defined in the dictionary to the Rules from the point of view of each driver as “approaching [traffic] from any direction”: rule 4. “Overtake” is defined (rule 4) as the action of or a manoeuvre comprising the following actions:‘Overtake’, for a driver, means the action of:(a)approaching from behind another driver travelling in the same marked lane or line of traffic, and (b)moving into an adjacent marked lane or line of traffic (whether or not the lane or line of traffic is for drivers travelling in the same direction), and (c)passing the other driver while travelling in the adjacent marked lane or line of traffic.[42]Both the plaintiff and the defendant were bound by rules as to overtaking and the use of adjacent marked lanes. Both parties were bound, under the road rules, to assess their proposed overtaking manoeuvre in terms of r 140. Therefore, both parties were required to consider whether they had a clear view of any approaching traffic (rule 140(a)) and whether it was safe to overtake another slower-moving vehicle (rule 140(b)).Evidence

Decision

Reasons for decision

YOUNG CJ
In his oral evidence, Mr Proud was asked how far the Subaru was from the Holden when he first saw the Holden, to which he replied “I’ve got no idea. Probably 150, 200 metres. I don’t know. How far down the hill are we?” Mr Proud also said that the plaintiff, after she commenced to overtake him, had attempted to stop and did not actually overtake him. Decision of Primary Judge The primary judge very carefully reviewed the evidence and the submissions of the parties. He noted that the essential issue between them was whether the plaintiff and the defendant were in the centre lane for a length of time sufficient for the defendant to see the plaintiff and return to his left-hand lane (as contended by the plaintiff) or whether the plaintiff appeared in the centre lane when her vehicle was close to the defendant’s vehicle, so as to give him insufficient time to avoid the collision. The primary judge substantially accepted the evidence of Mr Proud, to the effect that it was about a third of the way down the big hill that the plaintiff commenced to overtake; that it was when he was about level with the double telegraph poles that he observed the plaintiff’s car pulling out to overtake; and that there was a distance of between 200 and 300 metres between the plaintiff’s car and the defendant’s car when the defendant was overtaking the other southbound vehicle. The primary judge referred to the principles in Blatch v Archer (1774) 1 Cowp 63 at 64, 98 ER at 970 and Jones v Dunkel (1959) 101 CLR 298 at 308 and 312; and he accepted Mr Proud’s evidence as establishing that the defendant could and should have first detected the plaintiff’s vehicle when it was more than 50 to 100 metres ahead of him. The primary judge held that, had the defendant done so, he could and should have gone back to the lane to his left. Accordingly, the primary judge found the defendant liable. On the question of contributory negligence, the primary judge found that it was incumbent on the plaintiff not to cross into the southbound carriageway unless there was no southbound traffic at all in the lane within at least 400 metres; and that it was her action which precipitated the circumstances that required the defendant to have acted urgently. He considered the plaintiff’s breach more significant in terms of the relative importance of the acts of the parties in causing the damage, and held that the respective responsibilities were 60 per cent to the plaintiff and 40 per cent to the defendant. Issues on Appeal The defendant seeks leave to rely on the following grounds of appeal: 1.The Court below erred in having regard to material that was not in evidence. 2.The Court below erred in formulating the duty owed by the Appellant to the Respondent by imposing a duty of "heightened vigilance", rather than by determining the proceedings on the basis of the admitted duty to take reasonable care that was owed by the Appellant to the Respondent. 3.The Court below erred in preferring a part of the evidence of Mr Proud as to his relative position on the roadway when he first observed the Respondent's vehicle (that he was level with the double telegraph pole), when such evidence: (a) was inconsistent with the incontrovertible physical evidence of; (i)the point of impact (indicated by gouge marks); (ii)the evasive action taken by the Appellant and the Respondent respectively (indicated by tyre marks on the roadway); (iii)the relative speeds of the Appellant and the Respondent; and (iv)the derived distances, based on accepted ranges of perception reactions times. (b) was inconsistent with the balance of Mr Proud's evidence that: (i)the accident was a high speed collision that happened very quickly; (ii)he was not paying particular attention to his position relative to fixed objects; (iii)when he first became aware of the Respondent's vehicle, the Appellant's vehicle was 100-150 metres ahead of him in the oncoming lane; (iv)as soon as the Respondent pulled along side his vehicle, she commenced evasive action to avoid a collision with the Appellant; and (c) was inherently unreliable, having been procured from Mr Proud four years after the accident by an investigator retained by an insurer (unrelated either to the Appellant or the Respondent) as a result of a positive suggestion made to him with which he concurred. 4.The Court below erred in finding that the Appellant breached his duty of care. 5.Further, and in the alternative, the discretion exercised by the Court below to determine contributory negligence of the Opponent miscarried.

Ratio Decidendi

Legal Principle Established

Established by: YOUNG CJ

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