Pritchard v Evans

[1996] HCATrans 328

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P20 of 1996

B e t w e e n -

HELEN CHRISTINE PRITCHARD by her next friend FLORENCE VERONICA JUNE PRITCHARD

Applicant

and

IAN EVANS

Respondent

Application for special leave to appeal

DAWSON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON MONDAY, 4 NOVEMBER 1996, AT 12.58 PM

Copyright in the High Court of Australia

MR R.I. VINER, QC:   May it please the Court, I appear with my learned friend, MR K.H. WONG, for the applicant.  (instructed by D’Angelo & Partners)

MR G.P. MILLER, QC:   May it please the Court, I appear with my learned friend, MR D.W. WILLIAMS, for the respondent.  (instructed by Phillips Fox)

DAWSON J:   Yes, Mr Viner.

MR VINER:   If it please the Court, the two questions of law which are sought to be raised by this application are firstly as to the extent of the duty of care of a driver who is aware of pedestrians wishing to cross the road in front of the oncoming vehicles in circumstances where the pedestrian, in seeking to cross the road, may place themselves in a position of danger.
The second appealable point is as to the place of causation in that context and, in particular, in the context of allegations of contributory negligence and the application of apportionment legislation in Western Australia, the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947.

The facts that are set out in the applicant’s summary of argument are not disputed.  They show the accident occurring outside the entrance to the Karrakatta Cemetery in Perth on a long, straight stretch of road, a line of traffic approaching a group of teenage pedestrians seeking to leave Karrakatta Cemetery and cross the road in front of that line of traffic.  Some of those pedestrians, of whom the applicant was one, had moved from a central median strip, that is a concrete island, on to the broken white lines dividing the part of the road upon which the driver was travelling.  Some of those teenage pedestrians were seeking to wave down the traffic, obviously to allow them to cross the road, but as if to ask the traffic to stop and allow them to pass.  As the respondent driver approached that line of pedestrians, about half a dozen, one of them, the applicant, ran out from the broken white lines seeking to cross between the passing traffic.

She was just caught by the left-hand front of the van and, as the learned trial judge found, another step and the van would have missed her.  The learned trial judge found that her conduct - her actions were the sole cause of the accident.  The Full Court, by Justices Pidgeon and Anderson, who gave reasons, Mr Justice Ipp, who agreed with Mr Justice Anderson found, or upheld the trial judge’s decision.  Now, this application is brought to the Court in the context of the decisions of the Court in March v Stramare as to the place of causation and the test of causation.

It is our contention that the learned trial judge, and the members of the Full Court, looked at causation first, and not at the nature of the duty of care and the extent of the duty of care in these particular circumstances.  Looking at causation first, they held that the applicant’s conduct was the cause of the accident, and it is our contention that, in effect, by the back door the learned trial judge and the Full Court applied the “but for” or “last chance” or “last opportunity” tests of causation; whereas, if they had, and each of the trial judge and the Full Court failed to direct themselves as to the duty of care, then they would have judged the conduct of the driver against that duty of care in these particular circumstances.

It is our contention that if the trial judge and the Full Court had done that, they would have unquestionably found that there had been some negligence on the part of the driver.

McHUGH J:   What was the negligence, Mr Viner?

MR VINER:   Failure to lower the speed further than the driver did.  On the agreed facts, all that the driver did was to ease his foot off the accelerator and drop his speed from about the limit of 60 kilometres per hour to about 50 kilometres per hour.  And, in keeping his foot on the accelerator, he did not have it ready on or by the brake, as it is our submission that he should have, because he had become aware of these pedestrians some 50 to 60 metres back from them. 

And had he kept them under acute observation, as it was our submission that he should, then he should not have simply eased back his speed by deceleration, or kept his foot on the accelerator, but taken elementary, precautionary and defensive driving action to be alert to the possibility - and in this case, the distinct possibility - that one of the pedestrians would seek to pass between the oncoming traffic and place themselves in a position of danger; whether it be by inadvertence, or negligence, or otherwise described as carelessness.

It is our submission that the appealable point is that neither the learned trial judge, nor the members of the Full Bench directed themselves as to the duty of care which was owed in the circumstances to the applicant pedestrian.  Having failed to direct themselves properly in that way, they each went to the question of causation, and causation, it is our submission ‑ ‑ ‑

McHUGH J:   I am not sure that that is correct, is it?  They held, on the standard of care that was required of him, that the accident could not have been avoided.  If you look at page 13 of the book on liability, the judge says:

it was not possible for the defendant to avoid this accident.  He was entitled to conclude that the pedestrians wishing to cross the road had ample view of the fact that traffic was travelling in the kerbside lane ‑

and so on.

MR VINER:   But if, with respect, one turns to page 14, the learned trial judge said that:

Whilst it is apparent that there were a large number of people milling around, there is no suggestion that there were any children (supervised or otherwise) in the immediate vicinity.  The cause of the accident was solely the fact that the plaintiff failed to take any care for her own safety.

It is my submission that the duty to take care with respect to a pedestrian of whom a driver is aware who might, by neglect or inadvertence or carelessness, seek to cross in front of the oncoming traffic is not limited to children, but applies generally to all pedestrians.

The clear implication from what his Honour the trial judge said here is that he only thought that that kind of duty extended to the presence of children.  Now, he goes on to say:

Whilst one is appreciative of the fact that the care to be exercised by the driver of a vehicle can be considered to be greater than that to be exercised by a pedestrian, the pedestrians must take some steps to care for their own safety.

That is a rather trite and obviously correct observation.  He goes on to say, however:

In a situation where the driver of a vehicle has been given tacit, if reluctant, right of way, he cannot be expected to stop his progress because of the possibility of outlandish action on the part of the pedestrian.

It is our submission that the duty of care of a driver does extend to the possibility of what may be described as “outlandish action” when the driver has the pedestrians under view and, in these particular circumstances, is clearly aware that those pedestrians, by their actions, are seeking to have the traffic stopped or to allow them to cross the road.  It is quite a distinct factual situation from the one where a child or an adult runs from behind a bus or from stationary traffic.  A central fact here was that the driver was aware at all times of the pedestrians so close to his oncoming vehicle and he was aware of what they were seeking to do.

Now, at the Full Court his Honour Mr Justice Pidgeon went some way to acknowledging this duty of care when he said, at page 31 at line 15:

There is always a prospect that pedestrians in the position of the appellant may attempt to cross, but it is less likely that they would do so between the last one or two vehicles.

That, in my respectful submission, displays an absence of awareness of the extent of the duty that ought to apply in this particular circumstance, namely that the duty of care extends to a pedestrian who may place themselves in a position of danger by seeking to cross the path of oncoming vehicles.  Now then, at page 40 of the application book, his Honour Mr Justice Anderson, in the opening paragraph on that page, his Honour having previously quoted the learned trial judge’s statement that the applicant was “but one step from safety” when she was struck, and he says:

On the contrary, the evidence points overwhelmingly to the conclusion that she was in a group of people waiting for traffic, including the respondent’s vehicle, to pass and she deliberately ran across in front of him, believing, not that his vehicle was not there, but that she could get across in time.

The clear implication being that the applicant by misjudgment thought that she had time to cross when in fact she did not.

Now, his Honour then, in considering the evidence as to negligence by the driver, failed to conceive of the duty, as I submit that it is, that the duty of care extended, in this particular case, to the possibility, and it is a distinct possibility that one of the pedestrians, clearly seeking to cross the road, would run between the oncoming traffic.  Now, it is my submission that had the members of the Full Court properly directed themselves in this way, then they would have judged the driver’s conduct accordingly and, in my submission, unquestionably found that by slowing more than the driver did by merely decelerating, or by having his foot on or by the brake ready for an untoward movement on the part of the pedestrians, he would have fulfilled his duty, but by doing neither of those things, at the very minimum elementary precautions, the driver failed to discharge his duty and, further, that, in the circumstances where he saw the pedestrians doing what they were doing, and by his own admission, seeking to cross between the traffic, a more acute look out than he apparently took was necessary.

Now, his Honour Mr Justice Anderson, having failed to direct himself properly, in my respectful submission, then judges the conduct of the driver in a causative context rather than a breach of the duty of care, that is, the degree to which the driver, in the circumstances, fell short of the standard of care expected of him.  That appears, in my submission, at the bottom of page 40, where his Honour says:

It is trite to say that the onus was upon the appellant to establish on the balance of probabilities that there was a want of due care and attention on the part of the respondent. 

And he then quotes from Justice Walters in Chan v Fong, as to whether:

a proper co‑ordination of speed and braking with an adequate look‑out would have averted the collision.

Now, directing one’s attention to whether the collision would have been averted or not, is directing one’s attention to a causative notion and not to whether or not the driver in the particular circumstances fell short of the standard of care expected of him.  Hence, in my respectful submission, both the learned trial judge and the Full Court fell into error.

Now, your Honours, I have referred to the decision of the Court in March v Stramare and, in particular, to the passage by his Honour Mr Justice Deane, at page 524, where his Honour, having discussed the concept of causation in the common law, said this:

It is true that, in the context of apportionment legislation which gives the latitude necessary to enable the relief to be fairly adjusted to fit the circumstances, the courts will be unlikely to deny causation in any case where the fault of a defendant contributed to an accident.  Nonetheless, the question whether conduct is a “cause” of injury remains to be determined by a value judgment.....

The other further matter is that it should be apparent that nothing in what is written above should be read as indicating a view that a plaintiff is entitled to recover compensation under apportionment legislation in circumstances where his or her own negligence was, as a matter of ordinary common sense, the sole real cause of the accident.  Even under apportionment legislation, it is an element of the tort of negligence that the injury sustained by the plaintiff be caused by the defendant’s breach of duty.  In a case where, as a matter of ordinary common sense, the “sole” cause of the plaintiff’s injury was his or her own negligence, that element of the tort will be lacking.

Later down that page, his Honour Justice Toohey said:

In the present case, once the majority in the Full Court held, as they did, that the respondents were in breach of a duty of care which they owed to road users, including the appellant, a finding of liability against the respondents was, in the circumstances, inevitable.

And I refer your Honours to the passage in the decision by his Honour the then Chief Justice Mason at page 512, where his Honour said:

Notwithstanding these statements -

as to effective and sole cause -

the courts are no longer as constrained as they were to find a single cause for a consequence and to adopt the “effective cause” formula.  These days courts readily recognize that there are concurrent and successive causes of damage on the footing that liability will be apportioned as between the wrongdoers.

It is my respectful submission that the learned trial judge in this case and the members of the Full Court failed to direct themselves properly as to the nature and extent of the duty of care owed by the driver and, therefore, had they properly directed themselves and applied that direction to the facts of this case, the kind of statement that was made by his Honour Justice Toohey would have applied that, inevitably, some of the negligence, or all of the negligence, caused or contributed to the accident which injured the applicant, and to the extent to which she was at fault by her own carelessness, inadvertence, or even negligence, then an apportionment situation applied.

So it is my submission that the appealable point here is to have the High Court clarify and develop those statements in March v Stramare in the context of negligence, contributory negligence and apportionment legislation.  In this respect, it will be stating the law of considerable public importance and a general application in the context of earlier decisions of this Court in Pennington v Norris and Tuebner v Humble.  May it please the Court.

DAWSON J:   Thank you, Mr Viner.  Mr Miller, the Court need not trouble you.

MR MILLER:   May it please the Court.

DAWSON J:   We do not think that any appeal in this matter would enjoy sufficient prospect of success to warrant granting special leave to appeal.  Special leave is accordingly refused.

MR MILLER:   If the Court please, I move for an order for costs.

DAWSON J:   Can you say anything about that, Mr Viner?

MR VINER:   I have in the statement as to - in support of the appeal.  This application is effectively brought pro bono in the interests of the person injured, your Honour, and otherwise, there is no reason why costs ought not to be ordered.

DAWSON J:   The application is refused with costs.

AT 1.19 PM THE MATTER WAS CONCLUDED