Penrith City Council v East Realisations Pty Limited (in liq)
[2013] NSWCA 64
•04 April 2013
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Penrith City Council v East Realisations Pty Ltd (in liquidation) [2013] NSWCA 64 Hearing dates: 7 March 2013 Decision date: 04 April 2013 Before: McColl JA at [1];
Meagher JA at [15];
Tobias AJA at [16]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 - claim for indemnity under Workers Compensation Act 1987 s 151Z - negligence - near collision between bus and vehicle causing injury to worker as passenger on bus - whether primary judge ought to have drawn an inference that the driver of the car negligently stopped in the intersection - whether incorrectly restricted bus driver's duty of care as limited to avoiding a collision and consequently failed correctly to identify risk of injury - whether failed to give any or sufficient weight to evidence of speed of bus and knowledge of conditions of bus driver - whether primary judge erred in requiring identification of owner and insurer of actual bus and not fleet of buses for purposes of Motor Accidents Compensation Act 1999 (NSW), s 34(1) Legislation Cited: Australian Road Rules
Motor Accidents Compensation Act 1999
Criminal Procedure Act 1986
Road Transport (Safety and Traffic Management) Act 1999
Road Rules 2008
Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999
Workers Compensation Act 1987Cases Cited: Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301
Henwood v Municipal Tramways Trust (SA) [1938] HCA 35; (1938) 60 CLR 438
Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470
John L Pty Ltd v Attorney-General for the State of New South Wales [1987] HCA 42; (1987) 163 CLR 508
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Kollas v Scurrah [2008] NSWCA 17
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Nominal Defendant v Meakes [2012] NSWCA 66
State of New South Wales v Nominal Defendant [2004] NSWCA 328
Sharpe v Gordon [2006] NSWCA 347
Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424Category: Principal judgment Parties: Penrith City Council (Appellant)
East Realisations Pty Ltd (in liquidation) (First Respondent)
Nominal Defendant (Submitting appearance) (Second Respondent)Representation: Counsel:
D Russell SC with P Khandhar (Appellant)
R Cavanagh SC (First Respondent)
J Catsanos (Second Respondent)
Solicitors:
Turks Legal (Appellant)
Vardanega Roberts (First Respondent)
Holman Webb (Second Respondent)
File Number(s): CA104380 of 2012 Decision under appeal
- Citation:
- [2012] NSWDC 18
- Date of Decision:
- 2012-03-07 00:00:00
- Before:
- Levy DCJ
- File Number(s):
- DC336531 of 2009
Judgment
McCOLL JA: Subject to what follows, I agree with Tobias AJA's reasons and the orders his Honour proposes.
I would express my reasons concerning Australian Road Rule 126, which is now incorporated into the Road Rules 2008 (NSW). That Rule provides:
"Keeping a safe distance behind vehicles
A driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle.
Maximum penalty: 20 penalty units."
East Realisations Pty Ltd (in liquidation) ("East")'s duty to its passengers was to use reasonable care to carry them safely. Unless there was a contract to that effect, it did not insure their safety: Henwood v Municipal Tramways Trust (SA) [1938] HCA 35; (1938) 60 CLR 438 ("Henwood") (at 444, 449) per Latham CJ; (at 455 - 456) per Dixon and McTiernan JJ; see also (at 451 - 452) per Starke J.
It is trite law that a person may rely upon failure to comply with a statute or regulations as evidence of negligence. However, breach of a statute or regulation is not conclusive as to the performance of the duty owed to another; the common law duty to act reasonably in all the circumstances is paramount: Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 (at 427). Nevertheless, "contravention [of a statute or regulation] in relevant circumstances would afford evidence of a want of reasonable care and caution on the part of a person who so acted": Henwood (at 453) per Starke J.
Self-evidently, it is necessary to establish that the statute or regulation applies to the plaintiff's circumstances. As Starke J said in Henwood (at 453), "much must depend on the purview of the by-law and the language employed".
The appellant complains that the primary judge misinterpreted Road Rule 126 because he concluded (at [47]) that:
"Whatever had caused the sudden stopping of that vehicle, the driver of the bus certainly avoided a collision with the vehicle in front. In my view the bus driver adequately discharged any duty owed as a result of the requirements of r 126."
The appellant submitted that Rule 126 was directed to safe driving by keeping a sufficient distance to stop safely and did not merely impose an obligation to avoid a collision. Rather, braking and swerving hard to the right so as to throw two passengers out of their seats supported the conclusion, according to the appellant, that the bus was not being driven a sufficient distance behind the car to enable the bus to stop safely in the process of avoiding a collision. East submitted, correctly in my view, that Rule 126 added little to the issue as, effectively, it stated no more than was encompassed by the duty East owed the worker at common law.
In my view it is unnecessary to determine the purview of Rule 126.
First, as Tobias AJA has pointed out, the primary judge concluded (at [49]), that one flaw in the Rule 126 argument was "that there was no evidence as to how close the bus was being driven in relation to the rear of the vehicle in front". The primary judge identified other deficiencies in the evidentiary matrix necessary to examine the issue of breach of duty (at [52] - [53]) before reaching his conclusion (at [57]) that "it ha[d] not been shown that the action of the bus driver in applying the brakes heavily, or in swerving the bus to the right to avoid a collision, involved any departure from the required standard of care."
Secondly, it must be borne in mind that Rule 126 creates an offence. The Court should not interpret it in a manner which might misstate its elements and afford it a broader application than the legislature intended.
The difficulty in identifying the constituent elements of a criminal offence is well recognised. In John L Pty Ltd v Attorney-General for the State of New South Wales [1987] HCA 42; (1987) 163 CLR 508 ("John L Pty Ltd") (at 519), Mason CJ, Deane and Dawson JJ discussed the question whether an information was defective by reason of its failure to identify the "material particular". After accepting that, for the purposes of that case, the "common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence", their Honours said (at 520):
"In De Romanis v Sibraa [1977] 2 NSWLR 264 at p. 291, Mahoney JA correctly pointed out that there was no technical verbal formula which could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence. As his Honour commented at pp. 291 - 292:
'In Johnson v Miller (1937) 59 CLR at p. 486, Dixon J saw the decision in Smith v Moody [1903] 1 KB at pp. 61, 63 as requiring the information to specify 'the time, place, and manner of the defendant's acts or omissions'; McTiernan J at p. 501 referred to 'fair information and reasonable particularity as to the nature of the offence charged'. The rule does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence: Ex parte N Ormsby & Sons Pty Ltd.; Re Mason (1964) 81 WN (Pt 1) (NSW) 286 at pp. 290, 291.'"
McClellan CJ at CL (with whom Sully J agreed) quoted this passage from John L Pty Ltd in Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303 (at [101]), in considering the question whether an indictment failed to state the essential elements of the offence. His Honour then referred (at [102]) to Stanton v Abernathy (1990) 19 NSWLR 656 in which John L Pty Ltd was applied by the Court of Criminal Appeal and added (at [103]):
"[103] However, the difficulty as Gleeson CJ pointed out at 666, 'is that the courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide, in the circumstances of any given case, as to whether the common law has been infringed to such an extent that s 145A [of the Justices Act 1902], operating alone, would be insufficient to save the information.'"
If proceedings were brought against a person alleging a criminal contravention of Rule 126, a description of the offence alleged "in the words [of the Rule], or in similar words, is sufficient in law": s 11, Criminal Procedure Act 1986. While, absent identification of the essential factual ingredients of the actual offence, such a statement may not be a sufficient identification of the offence (see generally the discussion in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 (at [14], [26] - [29])), it would appear to be the minimum requirement. Accordingly, prima facie, the court attendance notice commencing any prosecution would have to refer to the necessity to avoid a collision. Whether the particulars of breach of Rule 126 required that there be a collision which the defendant's driving had failed to avoid is a question which, in my view, does not admit of an easy answer. I can see force in Tobias AJA's tailgating example. However it is difficult to see why the legislature would include the reference to a collision when an offence involving tailgating could be sufficiently encompassed by a requirement that, as the heading to Rule 126 suggests, a driver must keep a safe distance behind a vehicle travelling in front of it.
In my view, the appeal can be disposed of without reaching a final view on the ambit of Rule 126 as, for the reasons the primary judge and Tobias AJA cogently express, the appellant did not establish that East breached its duty to take reasonable care.
MEAGHER JA: I agree with Tobias AJA.
TOBIAS AJA: On 21 July 2003 Angela Nicole Picco (née Blacklow) (the worker), who was an employee of the appellant, Penrith City Council, was injured whilst a passenger on a bus (the bus), having been thrown from her seat as a consequence of the bus driver braking heavily in order to avoid colliding with a motor vehicle (the car) which had come to an abrupt stop at the traffic lights at the intersection of Mount Street and Luxford Road, Mt Druitt. At the time the traffic lights were green in favour of both the car and the bus.
Both vehicles were being driven in a northerly direction on Mount Street upon their approach to the intersection of that street with Luxford Road. However, as will appear, the evidence does not establish for how long and for what distance the bus was travelling behind the car prior to the incident. Since, at the time of the incident, the worker was travelling from her place of employment to her place of residence, she was entitled to compensation in respect of her injuries pursuant to s 10(1) of the Workers Compensation Act 1987 (the WC Act). Accordingly, she claimed compensation and as at the date of trial on 1 March 2012 she had been paid the total sum of $109,764.68. She did not claim damages from either the owner of the bus or the owner of the car.
Pursuant to the indemnity conferred by s 151Z(1)(d) of the WC Act, the appellant's workers compensation insurer sued in its name to recover the compensation paid to the worker. It sued East Realisations Pty Ltd (in liquidation), the first respondent, alleging that it was the owner of the bus at the relevant time. In the event that it was unable to establish that the bus was so owned, it sued the second respondent, the Nominal Defendant. The appellant also sued the second respondent with respect to the car the identity of which, so it asserted, could not be established after due inquiry and search within the meaning of s 34(1) of the Motor Accidents Compensation Act 1999 (the MAC Act).
For the appellant to succeed it needed to establish on the balance of probabilities that the worker's injuries were sustained as a consequence of the negligence of either or both of the driver of the bus or the car. If successful on one or both of those issues, it was required to establish that the first respondent was the owner of the bus and/or that the identity of the car (and, if necessary, the bus) could not be established after due inquiry and search.
The proceedings were heard by Levy SC DCJ who on 7 March 2012 entered a verdict and judgment for the respondents with costs: Penrith City Council v Nominal Defendant & Anor [2012] NSWDC 18. His Honour found first, that the appellant had not established that either the bus driver or the driver of the car was in breach of their duty of care; secondly, that the appellant had not established that the first respondent was the owner of the bus; and thirdly, that it had not satisfied the requirements of s 34(1) of the MAC Act so as to entitle it to recover against the second respondent if the driver of the bus had been negligent. His Honour did not address the issue as to whether, had the driver of the car been negligent, the appellant could have recovered against the second respondent by satisfying the requirements of s 34(1).
The appellant now challenges each of the foregoing findings. However, in my opinion, the challenge to his Honour's finding with respect to negligence fails, with the consequence that the appeal should be dismissed.
The background facts and the worker's evidence
As I have indicated, the appellant was the employer of the worker. Its workers compensation insurer was Allianz Australia Insurance Limited, who instituted the proceedings (pursuant to s 151Z(1)(d) of the WC Act) in the name of the appellant by way of subrogated right. The first respondent, East Realisations Pty Ltd (in liquidation), was in 2003 known as Westbus Proprietary Ltd (Westbus). At the relevant time it operated a large Western Sydney bus business through various corporate entities. The appellant had sought a finding that the bus was a Westbus bus for which the first respondent was responsible, even though it and its driver could not be identified in that there was no evidence as to the registration number of the bus.
It was not disputed that the bus was a Mercedes Benz Model LO812, was yellow in colour and had the name "Westbus" and the company's logo stencilled or painted on its near side.
The only witness called at the hearing was the worker. At [9] of his reasons, his Honour recounted her evidence of the events which occurred, observing that given the lapse of time between the incident and the time she was required to give evidence (some nine years), a good deal of that evidence involved a reconstructed account of those events. Nevertheless, her evidence as to what happened was generally as follows.
The worker caught the bus at the Mt Druitt railway station. At some point the bus travelled along Mount Street towards its intersection with Luxford Road. That intersection was a T-intersection and was controlled by traffic lights. It appears that Mount Street rises to a crest and then falls away to the intersection. Between the crest and the intersection Mount Street has a down slope although there was no evidence as to either the length or the steepness of that slope. There was no photographic evidence and no plan (apart from a photocopy of the relevant page from a street directory) as to the layout of the intersection including the number of lanes in Mount Street at the intersection, although the probabilities are that there were two in each direction, apparently separated by a median strip. At one point Mount Street narrowed into one lane before, apparently, converting back into two lanes but there was no evidence as to the distance between the point where it converted back to two lanes and the intersection.
In any event, as the bus approached the intersection the car, which at some unknown point must have been in front of the bus, stopped suddenly at the intersection, notwithstanding that it had the green light allowing it to proceed into Luxford Road. As a result, the driver of the bus applied or, to use the worker's expression, "slammed" on his brakes and at the same time caused the bus to swerve to the right. In doing so the bus driver was successful in avoiding a collision between the front of the bus and the rear of the car.
However, this manoeuvre caused the worker to be thrown from her seat onto the floor of the aisle of the bus. She quickly regained her feet and resumed her seat for, as she said, she was embarrassed. As she got to her feet the worker noted that the car was a sedan, red or maroon in colour. She was unable otherwise to describe the car in terms of its make or model and did not attempt to ascertain its registration number. However, she observed that its driver was a middle-aged woman, accompanied by a male passenger in the front seat. The driver of the bus abused her, saying "What are you doing? It was a green light." According to the worker, the woman gave the bus driver "a filthy look" and drove off, turning right into Luxford Road from the left lane at the intersection.
The documentary evidence of the worker
The worker made three statements. In her workers compensation claim form dated 21 August 2003 she described the incident as follows:
I was travelling home on a WESTBUS bus from work, when a car stopped suddenly in front of the bus, and the bus driver slammed on his brakes to avoid hitting the car and I got thrown from my seat.
She made a further statement on 24 August 2004, paragraph 12 of which was in the following terms:
On 21 July 2003 I was on my way home from work and travelling on a Westbus bus. We were travelling along Mount Street, Mt Druitt when the bus stopped suddenly due to another car.
Her third statement was made on 26 February 2007 when she was interviewed by an investigator on behalf of the appellant's workers compensation insurer. The relevant paragraphs of that statement were as follows:
7. At approximately 2.50 p.m. I caught a Westbus bus, number 766, which was a Nipper bus, from Mt Druitt bus depot near Mt Druitt station to travel home. That bus travelled around the corner and into Mount Street. I was sitting on the right hand side behind the first seat, facing the front of the bus. It was a two-seater and I was alone in it and was sitting closest to the bus aisle. There were other passengers in the bus but it was not full or crowded. The weather was fine and sunny. The road was dry.
8. The bus was traveling along Mount Street in the left lane, closest to the kerb. I cannot estimate the speed at which the bus was traveling but he was not doing more than 60 klms per hour, which is the speed limit. As it approached the intersection of Mount Street and Luxford Road, the traffic lights at that intersection were green, a car in the same lane in front of the bus, suddenly stopped dead at the lights in the middle of the intersection. The bus driver applied the brakes and swerved to the right, to try and stop and/or not to collide with the car in front of him.
. . .
16. The next day I woke up in agony in my neck and left shoulder I could not go to work. I rang work and reported it. I then rang Westbus at Penrith and spoke to a woman (I cannot recall her name). I reported to her what happened the previous day and the pain I was in. I gave her my name and address and the details on my bus ticket (I have since thrown out that ticket). She said that there had not been any other report by anyone, including the bus driver about the incident.
The oral evidence of the worker
In her evidence in chief the worker, when asked whether she had any view of any kind out of the front window of the bus, stated that she could only see out of one side of the front window but that she was not looking straight ahead at the time of the incident. She could not see out of the right side of that window as the driver's seat blocked her view, she being seated behind him.
She then described Mount Street and the fact that it was hilly in places. Relevantly, as the bus drove along Mount Street it drove up a crest and then down the other side. As it approached the intersection the street sloped down. However, as I have indicated, there was no evidence as to the steepness of that slope.
When asked in which lane the bus was travelling as it was proceeding down the hill, approaching the intersection with Luxford Road, the worker replied that it was getting ready to turn into the left lane, presumably of Mount Street. She acknowledged that she did not notice anything out of the ordinary in relation to other traffic but then she was not paying much attention. The following exchange then occurred:
Q. Now, as the bus drove on, what happened?
A. As it drove on, went to change, there was a maroony-red car in front that slammed on its brakes.
Q. Is this what you saw?
A. Yes. As the bus slammed, like, we looked ahead, of course, and there was a maroony dark red car. It just stopped dead in front of the bus.
...
Q. I understand. As the bus was driving toward the intersection, did you notice anything about the brakes of the bus?
A. He didn't slow down until the car in front stopped. He was going quite quick. Like, he hadn't stopped anywhere along Mount Street, he was just going up and over the crest.
Q. Then did something happen in relation to the brakes to your perception?
A. Yes.
Q. What happened?
A. He began to break heavily.
Q. When you say "heavily", what do you mean?
A. Well enough to throw me. He threw me out of my seat.
It is fairly apparent from the worker's evidence that she did not see the car until she stood up after she had fallen. Her evidence continued in the following exchange:
Q. Where on the road was the red-coloured car?
A. In the right-hand lane. It was stopped - where it comes into a crest of a single lane, it stopped right in front of the - where it changes to two lanes.
Q. Where was that in relation to the position of the bus?
A. Where the bus had stopped, he actually swerved to the right to avoid hitting the car.
The confusion as to which lane the bus was in as it approached the intersection, how many lanes there were at the intersection and, if two lanes, the distance they extended back from the intersection, was also apparent in the following cross-examination of the worker:
Q. I understand you to have said that in your evidence earlier that there were two lanes in Mount Street?
A. Yes.
Q. You believe that the bus was in the right-hand lane?
A. Yes.
Q. He was getting ready to turn into the left-hand lane?
A. It had a pedestrian crest.
Q. You also said, "I wasn't really paying attention at that time"?
A. No, but I know where the pedestrian crest is..(not transcribable).
Q. But to the best of your recollection he was in the right-hand lane getting ready to turn into the left-hand lane?
A. Yes.
Q. Did I understand you to be saying that in some way the lanes were merging at that point?
A. Yes.
Q. So it's two lanes moving into one?
A. Yes.
Again, the worker made it clear that the first time that she saw the car was when she was getting up off the floor of the bus. Her evidence was that it had not entered the intersection into Luxford Road but was still in Mount Street. She said: "It hadn't actually gone into the intersection."
There was further confusion in the following exchange:
Q. Well, I understood you to be saying in your evidence when answering questions from Mr Jenkins that the bus was in the right lane.
A. Because where - look, I'm not clear with my words, I'm sorry, like, this is going back nine years. Please be patient with me. The way the lanes go there's a lane for buses to pull into a bus stop so it makes it two. Then it's got like a pedestrian crest where you can go across without it being a pedestrian like a safe island and it goes from the two sort of thing, it merges to the one lane. That's where he stopped dead before it's gone into the two. So it's actually nearest the curve on the side - to the left-hand side, like, of the road. I'm going back nine years. I don't mean to sound - I'm sorry but -
She then acknowledged that as at 2012 (the time of the hearing) her memory was hazy as to the events which had occurred, particularly whether the bus was in the left lane or in the right lane and this was because she had focussed on her injuries rather than upon the events which had caused them. She further accepted that back in 2007 (when she signed her statement of 26 February 2007), her memory as to precisely what had occurred was also probably hazy. Nevertheless, she confirmed in cross-examination that the traffic lights at the intersection were green at the time the driver of the bus applied his brakes and that he had not slowed down as he approached the lights, although he was not speeding.
Finally, her lack of memory at the time she gave her evidence was further confirmed in the following exchange:
Q. You understand that you observed her vehicle stationary in the left lane. It was after you got up. Remember you said you got up and you saw the red vehicle in front of you?
A. I just remember it being in front of the bus. Like, the bus over to the side, but in front of the bus.
Q. See in paragraph 11 you said back in 2007 that she turned right into Luxford Road from the left lane and drove off. Is that right? Did you-
A. Yes.
Q. So were you suggesting that she, instead of being in the right lane wanting to turn right, she was in the left lane and then--A. I don't know. I can't remember now.
Q. Well, are you able to assist as to what you meant when you said that she turned right into Luxford Road from the left lane?
A. I can just remember - this was the bus - this was the car and the bus was sort of to the side this way and she's just looked - the driver was going off. The bus driver, I'm sorry, was going off. Like, he was yelling and waving his arms around. She's just looked over at him and just continued on her way. I can't tell you now where on the road she was, but I can remember - like, he was quite irate and he was saying, "I'm so sorry." The bus driver was lovely. Like, he wasn't abusive at us, but all the same he was worried for his passengers. I can - he was a really nice bus driver. Like, it wasn't his fault. It was an accident.
That was the extent of the evidence. Significantly, there was no evidence as to the speed of the bus (other than the worker's assertion that it was not exceeding the speed limit); the steepness of the slope of Mount Street leading to the intersection; the distance the bus had travelled behind the car; or importantly, the distance between the bus and the car when the latter stopped suddenly and the former applied its brakes. Further, although the worker suggested that the driver of the bus did not appear to apply his brakes before the intersection, she could not be positive that that was so for the brakes may have been applied lightly in a manner which she would not, as a passenger, have perceived. In any event, at all material times both the car and the bus had a green light permitting each to proceed into the intersection.
The findings of the primary judge with respect to the alleged negligence of the bus driver
At [37] of his reasons, the primary judge, after setting out the various written statements of the worker, concluded that none of the matters contained in those statements supported a finding that the driver of the bus was negligent. He acknowledged (at [38]) that the driver of the bus was duty bound to take reasonable care whilst driving the bus, including by trying to avoid a collision that might occur as a result of the foreseeable actions of other road users. In this respect his Honour accepted (at [39]) that the bus driver ought to have readily foreseen the possibility that the car would stop suddenly and, therefore, should have been in a position to take prompt evasive action in order to avoid a collision by appropriately braking and/or swerving. In his Honour's view there was no evidence upon which it could reasonably be found that the bus driver had either driven or reacted unreasonably, imprudently or negligently. There was no evidence of excessive speed on the part of the bus and no evidence as to what, if anything, might have caused the driver of the car in front of the bus to stop suddenly or whether there were any other factors which may have operated to influence the action of the bus driver in braking heavily and swerving.
As evidence of the bus driver's negligence, the appellant relied at trial (and on the appeal) upon Rule 126 of the Australian Road Rules (the Rules) which as at 21 July 2003 provided as follows:
A driver must drive a sufficient distance behind the vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle.
At [49] of his reasons, the primary judge observed that the argument based on Rule 126 proceeded upon the premise that the bus should not have been driven so close to the car as to require the driver to employ such extreme braking and swerving to avoid a collision as caused the worker to be thrown from her seat. His Honour considered that the argument was flawed given that there was no evidence as to how close the bus was being driven in relation to the rear of the car.
At [51] his Honour noted that the end point of the appellant's argument was that the bus driver had permitted the bus to come dangerously close to the car so that nothing but an unsafe manoeuvre was available in the circumstances in order to avoid a collision. His Honour's finding with respect to this argument was summarised at [52] of his reasons in the following terms:
The difficulty I have with that argument is that there is no description of the distances involved and of the surrounding events. Those events would necessarily include the prior speed of the motor vehicle, the distance it had travelled between the sudden application of the brakes and when it stopped, the speed of the bus before the brakes were heavily applied, whether there was a degree of lighter braking beforehand, which Miss Blacklow may not have perceived, the distance taken to stop the bus from the time the brakes were heavily applied, and any permissible analysis that legitimately emerges from the dynamic interaction of such factors, if known.
The primary judge therefore concluded (at [57]) that it had not been shown that the action of the bus driver, in applying his brakes heavily and in swerving to the right to avoid a collision, involved any departure from the required standard of care.
The appeal with respect to the alleged negligence of the bus driver
The starting point of the appellant's argument on the appeal was his Honour's finding at [39] of his reasons that the bus driver ought to have readily foreseen the possibility of the car stopping suddenly at the intersection and, therefore, should have been in a position to take prompt evasive action in order to avoid a collision. It was submitted that mere avoidance of a collision was an insufficient discharge of the bus driver's duty of care owed to his passengers. There was a want of care on his part in that he failed to regulate the position of the bus in relation to the car in order to permit a more measured response to the car suddenly stopping that did not involve an extreme and dangerous manoeuvre with attendant consequences for his passengers. That manoeuvre in the present case was the driver slamming on his brakes and swerving to the right in order to avoid a back-end collision.
In support of this submission the appellant argued that the bus, being a heavy vehicle, required extra braking time and space, a fact which would, or should, have been within the knowledge of the bus driver. That knowledge emphasised the need to keep a proper lookout and to maintain a safe distance between the bus and any vehicle in front of it. However, in oral argument the appellant conceded that there was no evidence to support these assertions as to the knowledge of the bus driver.
It was further submitted that the bus driver failed to give sufficient consideration to the reasonably foreseeable possibility that the car would stop suddenly albeit with the benefit of a green traffic light. As I have already observed, the difficulty the appellant faced was that there was no evidence as to the distance between the two vehicles when the car suddenly stopped, the speed of the bus or the steepness of the slope of Mount Street as it approached the intersection.
In essence, the appellant's submissions required a finding that it was a breach of the bus driver's duty to take reasonable care for his passengers' safety for him to have to brake heavily in order to avoid a collision with the car when it stopped suddenly and for no apparent reason (at an intersection where it had the benefit of a green traffic light permitting it to proceed into Luxford Road). The standard of reasonable care required of the driver was that he should at all times have kept a sufficient distance between the bus and the car so that if that vehicle suddenly stopped for no apparent reason he would be able gently or lightly to apply his brakes in a manner which would permit the bus to come to a gentle halt without colliding with the stationary car. In other words, the fact that the bus driver needed to brake heavily in the manner which occurred of itself bespoke want of due care.
I have no doubt that there are some cases in which a bus driver may be found to be negligent in failing to leave a sufficient distance between his bus and the vehicle in front of it where it is reasonably foreseeable that that vehicle may suddenly stop. An example would be where a bus was following a vehicle approaching an intersection where the traffic lights were either red or orange. In those circumstances the driver would be aware that the vehicle in front was about to stop in order to obey the traffic lights and that it was therefore necessary for him to be driving at a sufficient distance from that vehicle for it to be unnecessary for him to take any emergency action in order to avoid a collision.
However, the present case in my view is quite different. It was not in contest that both the car and the bus had the benefit of the green traffic light. The appellant accepted that there was no apparent reason, from the perspective of the driver of the bus, for the car to have stopped suddenly at the commencement of the intersection when it had a green light which permitted it to proceed into Luxford Road. The mere fact, as his Honour found, that it was reasonably foreseeable that the car might suddenly stop does not give rise to a finding of want of due care simply because a passenger was injured when the driver took action to avoid a collision which, it would be anticipated, would have had more serious consequences for the driver's passengers as well as for those in the car. Furthermore, even if it was reasonably foreseeable that the car might suddenly stop, in the circumstances that was unlikely: cf Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at [14]. Accordingly, any risk of harm to the worker was low, if not insignificant.
In my view, to find the bus driver negligent in the present case, given the paucity of evidence and context in which to assess the driver's response to the car suddenly stopping at a green traffic light, would impose a higher standard upon the bus driver than the requirement to exercise reasonable care in all the circumstances mandated. Accordingly, in my opinion the appellant has not established error on the part of the primary judge in rejecting its claim that the bus driver was negligent.
However, it is necessary to say something about Rule 126, which I have set out at [42] above. It was submitted that the primary judge was in error in finding that the Rule was complied with if a collision was avoided irrespective of whether, in avoiding a collision, a driver caused injury to other road users or pedestrians. In this context it needs to be remembered, as was acknowledged by Bell JA, with whom Mason P agreed, in Kollas v Scurrah [2008] NSWCA 17 at [76], that the determination of what reasonable care requires in a given case is not resolved by asking whether the relevant conduct is, or is not, prohibited by one of the Rules. Nevertheless, the fact that particular conduct is so prohibited may be one factor pointing to the conclusion that reasonable care was not taken.
A similar sentiment was expressed by Bryson JA, with whom Mason P and Ipp JA agreed, in Sharpe v Gordon [2006] NSWCA 347 at [5] where his Honour observed that the standard of reasonable care imposed by the common law was not necessarily to be equated with a requirement to observe the Road Rules.
The Rules were incorporated into the law of New South Wales by clause 6 of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (the Regulation) which was made pursuant to s 71 of the Road Transport (Safety and Traffic Management) Act 1999. Rule 126 was an offence provision under clause 10 of the Rules. A breach of Rule 126 was an offence which attracted a maximum penalty of 20 penalty units pursuant to clause 37(b) of the Regulation.
The appellant contended that a finding of negligence was supported by a breach by the bus driver of Rule 126. That a breach of that rule occurred was, it was argued, the only available inference given the manner in which the bus stopped, namely, by slamming on its brakes and swerving so as to stop partially on the median strip. Doing so was inconsistent with the obligation imposed by Rule 126 to drive at a sufficient distance behind the car not only to avoid a collision but also to "stop safely".
The parties did not refer the Court to any authorities in which the meaning of Rule 126 has been considered. From my researches it appears that the rule has not been the subject of judicial interpretation. However, its interpretation is informed by two considerations. First, it is clear that the rule is directed towards the prevention of a collision in the event that, for whatever reason, a vehicle stops in front of a driver who is following it too closely. The rule must be read as a whole in the light of that purpose.
Secondly, the word "safely" must be given some operation. A driver would clearly be in breach of Rule 126 if he or she were travelling behind another vehicle at such a distance that the only manner of stopping to avoid a collision would endanger other road users or pedestrians. For instance, it would be a breach of the rule for a driver to follow so closely behind another vehicle that he or she could only stop, if necessary, by braking in a manner which would result in loss of control of the vehicle. Tailgating would be another example. However, the rule should not be read as imposing so high a standard as to render it an offence, without more, to stop suddenly, successfully avoiding a collision, but in doing so causing a passenger in the braking vehicle to be injured. That a driver does so gives rise to no necessary inference, in the absence of evidence of the particular circumstances which gave rise to the necessity to avoid a collision, that there was a breach of Rule 126.
As the first respondent submitted, the appellant's argument based on Rule 126 has as its foundation the proposition that if a person travelling in a bus falls from his or her seat during the process of the bus coming to a sudden halt, then there must be a breach of the rule. Such a proposition is, in my opinion, unsustainable.
The requirement in the rule that a driver must drive a sufficient distance behind the vehicle travelling in front of the driver so that the driver can, if necessary, stop safely to avoid a collision with that vehicle was not necessarily breached by the bus driver simply because, in avoiding such a collision, the driver applied his brakes in a manner which caused the worker to fall from her seat and sustain an injury. Even if it could be established that there was a breach of the rule, it does not automatically follow that that equates with a breach of the driver's duty of reasonable care, although it may be some evidence of such a breach. In the circumstances of the present case, in my view his Honour was correct in finding that there was no such breach.
The findings of the primary judge with respect to the alleged negligence of the driver of the car
At [25] of his reasons, the primary judge observed that all that had been shown by the evidence was that the car had stopped suddenly at the intersection whilst there was a green light that permitted it to proceed into Luxford Road. The action of stopping a vehicle in those circumstances, his Honour concluded, did not of itself, and without more details, necessarily require a finding of negligence on the part of the car driver.
There would be, his Honour considered, many potential reasons for stopping a vehicle albeit at a green traffic light. He indicated a number of them accepting, of course, that there was no evidence that any of those reasons motivated the driver of the car in the present case. His Honour considered that all of the arguments advanced on behalf of the appellant seeking an inferential finding that the driver of the car had been negligent involved unwarranted and impermissible speculation (see Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358; Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470 at 477, 480; Derrick v Cheung at [13]). These authorities establish that where direct proof is not available it is sufficient if the circumstances appearing in evidence give rise to a reasonable and definite inference, but they must do more than give rise to conflicting inferences of an equal degree of probability so that the choice between them is a mere matter of conjecture.
The primary judge noted the argument of the appellant, repeated on the appeal, that the appropriate inference which could legitimately be drawn from the circumstances was that the driver of the car stopped suddenly as she was uncertain as to whether she should turn left or right at the intersection. His Honour rejected this assertion as unsupported speculation.
The appeal with respect to the alleged negligence of the driver of the car
The appellant submitted that the traffic conditions which prevailed at the time exposed a reasonably foreseeable risk of injury to passengers on the bus, including the worker, should the car stop abruptly at the intersection necessitating urgent evasive action on the part of the bus driver. This was particularly so, it was contended, given the presence of only a single lane and a median strip at the intersection, the proximity of the bus to the car and the additional braking space needed by heavy vehicles such as the bus. The presence of the green traffic light carried with it the expectation that the car would drive through the intersection rather than stop, which heightened the need for caution on the part of its driver. The driver, having slammed on her brakes and stopped dead at the intersection without warning, thus created a risk of harm to the passengers in the bus including the worker.
Although it is true that the driver of the car owed a duty of care to other road users, the submission which I have set out above is, in my view, unsustainable. There is simply no evidence as to what knowledge, if any, the driver of the car had of the bus that was apparently following her including whether it contained passengers or not. With reference to the evidence of the worker that the car driver gave the bus driver a filthy look and then turned right into Luxford Road from the left lane and drove off, it was submitted that an inference could be drawn that the car driver was uncertain as to where she wished to go, as a consequence whereof she stopped suddenly and then turned right into Luxford Road from the left hand lane. It was contended that the fact that she was in the left lane and was entitled and able to turn left with the green traffic light but did not do so, instead stopping dead and then turning right, was consistent only with the explanation that the driver was uncertain as to which way she wished to turn.
A further version of the submission was that given the traffic conditions, stopping dead was not a reasonable response on the part of the car driver to being uncertain as to whether she wished to turn left or right into Luxford Road.
In my view, there is no merit in these submissions. No evidentiary basis exists from which, even on the balance of probabilities, a reasonable inference can be drawn of the nature of that contended for. His Honour found that the submission involved pure speculation and conjecture. He thus rejected it and in my view he was correct in so doing. No other basis was advanced to justify a finding that the driver of the car was in breach of her duty of care merely by virtue of the fact that she suddenly stopped at a green traffic light. Of itself, such an action cannot bespeak negligence.
Ownership of the bus
As the primary judge observed, given the findings that neither the bus driver nor the car driver was negligent, the issue which was referred to by him as "the due inquiry and search issue" becomes irrelevant. However, his Honour considered the issue with respect to the bus although he did not consider it with respect to the car.
A subpoena to produce to the Roads and Traffic Authority of NSW (the RTA) identified 13 companies in the Westbus Group including the first respondent (then known as Westbus Proprietary Ltd) and Blue Ribbon Bus Company Pty Ltd (Blue Ribbon). It sought production of registration certificates in respect of all buses registered to any of those 13 companies as at 21 July 2003. The relevant certificates were produced and tendered. They described in relation to each bus the colour, make, model and registration number. In all, 546 buses were identified which were registered to only two of the 13 companies, namely, to Blue Ribbon (as to 133 buses) and to Westbus (as to 413 buses).
The bus identified by the worker as being the one in which she travelled was a yellow Mercedes Benz Model LO812. The RTA certificates identified eight yellow buses of that model all of which were registered to Westbus. The certificates identified Zurich Australia as the CTP insurer of all eight yellow Model LO812 buses. Although the documents produced by the RTA identified the registration numbers of those eight yellow buses there was no evidence as to the registration number of the bus on which the worker was travelling at the time of the incident. In these circumstances it was submitted by the first respondent that it could not be concluded that one of the eight buses of that make, model and colour registered to Westbus as at 21 July 2003 was the precise bus involved in the subject incident.
The primary judge accepted this submission. It was not sufficient, his Honour held, for the appellant to establish that the evidence inculpated a bus belonging to the first respondent. Although such an inference might arise, it nevertheless fell short of being sufficient evidence to enable a finding on the balance of probabilities that a particular bus was involved in the incident, being one of the eight yellow Model LO812 buses registered in the name of Westbus.
The appellant sought relief upon the basis of the following paragraphs of the reasons of Santow JA, with whom Beazley JA and Stein AJA agreed, in State of New South Wales v Nominal Defendant [2004] NSWCA 328:
[64] The respondent's argument continues that once it is established that the bus allegedly involved in the present case was owned by the State Transit Authority, and was insured, then the identity of the insurer is established, there being only one such insurer, and the role for which the Nominal Defendant was created is no longer relevant. Accepting that Ms Peterson suffered bodily injuries as a result of the fault of the bus driver, the compulsory third party policy held by the State Transit Authority will respond. It does not matter for that purpose that the particular bus cannot be "identified" by its registration number.
[71] In those circumstances, I would conclude that the identity of the relevant vehicle did not meet the description of one which "cannot after due enquiry and search be established". Thus, the collision having been caused by the fault of the bus driver, the proceedings should have been brought against the State Transit Authority of New South Wales rather than the Nominal Defendant, it having been established that the bus allegedly involved was owned by the State Transit Authority and was insured, with the identity of the insurer being established. I agree with the submissions of the respondent that in those circumstances the role for which the Nominal Defendant was created is no longer relevant. ...
The primary judge considered that the facts in that case were distinguishable from those in the present case. He concluded that the evidence did not justify a finding on the balance of probabilities that the bus in question was in fact a Westbus vehicle even though there was a significant possibility that it may have been. All that could be said was that it was a Westbus route, the bus was yellow and similar to other known Westbus vehicles. In NSW v Nominal Defendant the bus in question was indisputably a government owned bus, which precluded a finding that its identity could not be established after due inquiry and search.
In NSW v Nominal Defendant, the State Transit Authority, which owned all government buses, was not joined as a defendant. It was accepted in that case that if the bus was a government bus then it must be owned by the government or, more accurately, by the State Transit Authority, which relieved the Nominal Defendant of any potential liability.
In the present case, it was submitted that, notwithstanding Westbus' ownership at the relevant time of eight yellow Mercedes Benz Model LO812 type buses of the kind identified by the worker, one could not exclude the possibility that there were other such buses which were not owned by Westbus Pty Ltd but may have been operated by it, in which event the CTP Insurer would not necessarily have been Zurich Australia.
It is, of course, possible that the bus involved in the present incident was one which was not owned by Westbus Pty Ltd but had been leased to it, or which was otherwise operated by it notwithstanding its lack of ownership of that bus, but such potentialities were very much in the realm of speculation. The present case is concerned with the drawing of inferences on the balance of probabilities from the evidence.
The evidence established that all eight of the relevant buses were owned by Westbus Pty Ltd. There was no evidence that it operated buses of the relevant model, type and colour which it did not own. It obviously operated those buses on its routes including the route involved in the present case. In my view the inference was open on the balance of probabilities that the bus involved in the subject incident was one of the buses registered in the name of Westbus Pty Ltd as disclosed in the documents produced by the RTA. In my opinion, his Honour ought to have drawn that inference and was in error in failing to do so.
Due inquiry and search with respect to the car
The primary judge did not deal with this issue at all. The relevant principles relating to the concept of due inquiry and search were recently expounded in very clear terms by Sackville AJA, with whom McColl JA and Basten JA (on this issue) agreed in Nominal Defendant v Meakes [2012] NSWCA 66 at [30] - [45]; [54] - [55]. Relevantly to the present case, the authorities established first, that in the circumstances of a particular case the requirement of due inquiry and search may be satisfied although no inquiry or search (destined to be futile) has been made. Secondly, it is not necessary for steps to be taken which would amount to no more than an unproductive ritual. Thirdly, the courts have, therefore, not insisted on inquiries that are likely to prove futile or purely ritualistic. Fourthly, the plaintiff must nevertheless show to the appropriate standard that, although there has not been due inquiry and search, such inquiry and search would not have established the identity of the relevant vehicle.
In the present case, it was common ground that all that was known about the car was that it was a sedan, red or maroon in colour. The bus driver did not give evidence and the only evidence, being that of the worker, did not establish its make or model, let alone its registration number. Furthermore, the driver of the car did not remain at the scene after she was abused by the bus driver but drove off.
The issue of establishing the identity of the car did not arise until 2008 when the appellant first made a claim for indemnity under s 151Z(1)(d) of the WC Act. The trail was not merely cold, but frozen, at that point. There had been no collision, with the consequence that the Police had not become involved. The evidence of the worker, recorded in para 16 of her statement to the investigator dated 26 February 2007, which I have reproduced at [30] above, indicates that the bus driver did not file a report with respect to the incident.
The second respondent nevertheless submitted that an inquiry should have been directed to the liquidator of the first respondent for the purpose of ascertaining whether any incident report had been provided or otherwise to ascertain whether there were any documents which may have identified the registration number of the bus on the relevant route on the relevant date from which the identity of the bus driver may have been ascertained which may then have led, through the driver, to the identity of the car. Such inquiry was described as being a viable line of inquiry. With respect I disagree.
In my opinion, the evidence established that as at 2008 there was no inquiry or search which would have established the identity of the relevant car. Further, any such inquiry of the liquidator of the first respondent would have been purely ritualistic and would have proved futile. It follows, in my view, that the requirements of s 34(1) of the MAC Act were satisfied with the consequence that had the appellant established that the driver of the car had been negligent, it would have been entitled to recover from the second respondent.
Conclusion
Although in my view the appellant has succeeded with respect to its challenge to the primary judge's findings as to the ownership of the bus on the one hand and the liability of the second respondent in respect of the car on the other, its challenges to his Honour's findings that neither the bus driver nor the driver of the car was negligent fail, as a result of which the appellant's success on the other two issues becomes academic.
I would therefore propose that the appeal be dismissed with costs.
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Decision last updated: 04 April 2013
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