Proudlove v Burridge

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PROUDLOVE -v- BURRIDGE [2017] WASCA 6

CORAM: MARTIN CJ
NEWNES JA
MITCHELL JA

HEARD: 20 JUNE 2016

DELIVERED : 17 JANUARY 2017

FILE NO/S: CACV 153 of 2014

BETWEEN: WARRICK TYLER PROUDLOVE by his next friends KEVIN LESLIE PROUDLOVE and PATRICIA PROUDLOVE
Appellant
AND
HARLEY MICHAEL BURRIDGE
First Respondent
PETER GAVIN O'NEILL
Second Respondent
NATALIE PATRICIA O'NEILL
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KEEN DCJ
Citation  :PROUDLOVE by his next friends KEVIN LESLEY PROUDLOVE and PATRICIA PROUDLOVE -v- BURRIDGE [2014] WADC 156
File No  :CIV 1169 of 2012

Catchwords:

Negligence - Motor vehicle accident - Collision with horse on country road at night - Appellant/passenger in vehicle seriously injured - Whether primary judge erred in dismissing appellant's claim against respondent/driver - Whether respondent negligent in failing to see person on roadway waving to warn of horse - Whether collision could have been avoided - Principles to be applied on appeal on findings of fact

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Ms P E Cahill SC & Ms F Vernon
First Respondent           :     Ms G Archer SC & Mr T J Hammond
Second Respondent      :     Mr A B Lu
Third Respondent          :     Mr A B Lu

Solicitors:

Appellant:     Bradley Bayly Legal
First Respondent           :     Tottle Partners
Second Respondent      :     Jarman McKenna
Third Respondent          :     Jarman McKenna

Case(s) referred to in judgment(s):

Doyle (WA) Pty Ltd v ING Real Estate Joondalup BV [2014] WASCA 215
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
H v P [2011] WASCA 78
Jones v Darkan Hotel [2014] WASCA 133
Leeder v The State of Western Australia [2008] WASCA 192
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Miller & Associates Insurance Broking Pty Ltd v BMWAustralia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Proudlove by his next friends Kevin Lesley Proudlove and Patricia Proudlove v Burridge [2014] WADC 156
Robinson Helicopter Company Incorporated v McDermott [2016] HCA; (2016) 331 ALR 550
S v D [2014] WASCA 224
Saunders v The Public Trustee [2015] WASCA 203
Warren v Coombes (1979) 142 CLR 531
Williams v Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255
TABLE OF CONTENTS

MARTIN CJ:............................................................................................................................. 5

Summary
The decision at first instance

Causation
Causation - the trial judge's reasons
Summary with respect to the trial judge's reasons
Can the conclusion that causation was not established be sustained for reasons other than those given by the trial judge?

The sources of warning of hazard
At what point would a reasonable driver have identified Ms Tremayne?
The appropriate response of a driver alerted to a warning
The distance between the point at which a reasonable driver would have observed Ms Tremayne and the point of impact
Would the appropriate response of a driver observing Ms Tremayne have resulted in the vehicle stopping prior to the point of impact or slowing to the point at which it could have been manoeuvred so as to avoid either any or any significant impact with the horse?

The grounds of appeal and cross‑appeal

Conclusion

NEWNES & MITCHELL JJA::............................................................................................. 38

Background
The reasons for decision of the primary judge
The grounds of appeal
The disposition of the appeal
Challenges to findings of primary fact

Distance between Ms Tremayne and the horses at the time of impact
Distance at which Ms Tremayne was visible

The appellant's submissions
Dr Chew's test runs
First respondent's submissions
Visibility distance
Facts found by the primary judge

Conclusion as to challenges to primary findings of fact

Challenge to finding about negligence
Challenge to finding about causation
Cross‑appeal

Conclusion

MARTIN CJ:

Summary

The appellant, Mr Warwick Proudlove, suffered catastrophic injuries when a vehicle in which he was a passenger and which was driven by the respondent, Mr Harley Burridge, collided with a horse. The vehicle was travelling south on Albany Highway approximately 10 km north of Mt Barker. The horse had escaped from a nearby property. The horse, and another horse which had also escaped, had earlier been seen on the road by another driver, Ms Tremayne, who was driving north on Albany Highway. She had alighted from her vehicle in order to attempt to herd the horses off the road. As the car driven by Mr Burridge approached, she stood at or near the middle of the road waving her arms in order to warn him of the hazard. The horses were some distance behind her. Despite her warning, the vehicle driven by Mr Burridge collided with one of the horses.
The trial judge found that Mr Burridge had breached the duty of care owed to Mr Proudlove by failing to drive the vehicle with due care and attention, and in particular by failing to observe and react appropriately to the warning provided by Ms Tremayne's actions. However, he also concluded that Mr Burridge's breach of duty had not caused or materially contributed to Mr Proudlove's injuries because a reasonable person driving with due care and attention responding appropriately to the warning provided by Ms Tremayne would not have been able to avoid the collision with the horse. He dismissed Mr Proudlove's claim for damages for that reason.
For the reasons which follow, the reasons[1] given by the trial judge for concluding that Mr Proudlove had failed to establish that Mr Burridge's negligence caused or materially contributed to his injuries are erroneous. On the findings of fact which should be made based on inferences drawn from the primary facts established at trial, Mr Proudlove discharged the burden of proving that Mr Burridge's negligence caused or materially contributed to his injuries. The appeal should be allowed, the decision of the trial judge set aside, and judgment entered in favour of Mr Proudlove.
[1] Proudlove by his next friends Kevin Lesley Proudlove and Patricia Proudlove v Burridge [2014] WADC 156 (primary reasons).

The decision at first instance

I have had the advantage of reading the joint reasons to be given by the other members of the court (the joint reasons). Those reasons provide a convenient summary of the findings of fact made by the trial judge, and of his reasons for concluding that although Mr Burridge had breached the duty of care which he owed to Mr Proudlove by driving the vehicle negligently, Mr Burridge's negligent driving had not caused Mr Proudlove's injuries because the collision with the horse was unavoidable or inevitable even if the vehicle had been driven in accordance with an appropriate standard of care. It is therefore unnecessary to provide a summary of the findings made and reasons given by the judge at first instance in these reasons. It is nevertheless desirable to set the scene for a consideration of the critical issue of causation with a succinct summary of the findings of fact which led the trial judge to conclude that Mr Burridge was negligent.
The collision occurred on a straight stretch of the sealed highway connecting Albany and Perth at a point where the highway passes through rural land. Although it had been raining, and the road was wet, it was not raining at the time of the collision or immediately before the collision. Although it was night-time and the area was unlit, there were no restrictions upon visibility. In the direction which Mr Burridge and Mr Proudlove were travelling the road was flat approximately 200 m north of the point of impact with the horse, with a very slight downward gradient between that point and the point of impact.[2] North of the flat section there was also a downward gradient, creating a crest.
[2] The gradient of the road was measured by an expert witness, Dr Chew, and reported in the report which was exhibit 12 at trial at page 18 (GB 78). Over the 50 m prior to the point of impact the downward gradient was 1 degree, over the preceding 50 m 0.4 degree and over the preceding 50 m 0.2 degree.
Ms Tremayne had parked the Yaris vehicle in which she was travelling on the verge adjacent to the northbound section of the highway at a point somewhere south of the point of impact, after she saw the horses on the road. She removed her black jacket in order to expose the white long‑sleeved T‑shirt she was wearing and left her vehicle in order to attempt to herd the horses off the road. She left the headlights of her vehicle on (on low beam), and activated the hazard warning lights. When she saw the lights of the vehicle driven by Mr Burridge coming over the crest towards her, she moved towards the approaching vehicle and waved her arms (or perhaps one arm) in order to attract attention. As the car approached, she was between the horses and the oncoming vehicle. The trial judge made inconsistent findings as to the precise point at which Ms Tremayne was standing on the roadway,[3] but it is clear that she was standing in the northbound lane somewhere near the centre of the roadway.
[3] At primary reasons [373] he said 'I think it unlikely that she would have put herself in the dangerous position of standing on or very close to the white lines …' but at [485] he found that she was standing 'probably close to but not on the white lines'.
The lights of the vehicle Mr Burridge was driving were on high beam and according to Ms Tremayne were not dipped at any point. However, according to Mr Burridge the lights were dipped immediately prior to the collision and the trial judge reconciled that evidence by concluding that the lights were dipped by Mr Burridge at some point at or after the vehicle passed Ms Tremayne. The evidence of Mr Burridge was that he did not see Ms Tremayne, the Yaris vehicle or the horses, although it is clear that something caused him to dip the lights and to brake hard 20 m prior to the point of impact, leaving skid marks over that distance of the roadway. There is no evidence to the effect that brakes were applied in any way prior to that point, nor was there any evidence to the effect that Mr Burridge reduced the speed of the vehicle in any way prior to that point. This is consistent with his evidence to the effect that he did not see any of the things that might have caused him to reduce the speed at which the vehicle was travelling.
Having found these facts,[4] the trial judge inevitably concluded that Mr Burridge had breached the duty of care which he owed to Mr Proudlove by failing to detect and therefore respond appropriately to the various warning signs which he should have detected if he had been driving with due care and attention.
[4] It will be necessary to deal with the cross‑appeal relating to these findings in due course.

Causation

In the absence of other evidence, the findings of fact which led the trial judge to conclude that breach of the duty of care had been made out would also lead to the conclusion that the breach of duty had caused or materially contributed to the collision, and therefore had caused or materially contributed to Mr Proudlove's injuries, as a matter of common sense.[5] As a matter of common experience, failure to keep a proper lookout or to pay due care and attention resulting in a failure to identify and respond appropriately to a risk or hazard on the roadway is a frequent cause of motor vehicle collisions. So, in the absence of other evidence, it is reasonable to infer and to conclude that Mr Burridge's failure to identify and therefore respond to any of the warnings of hazard with which he was confronted by reducing the speed of the vehicle caused or materially contributed to the vehicle's collision with the horse and therefore to Mr Proudlove's injuries. However, in order to avoid the conclusion of causation which would be drawn from common sense and experience, on behalf of Mr Burridge it was contended, and the trial judge accepted, that Mr Burridge's breach of duty did not cause or materially contribute to Mr Proudlove's injuries because the collision of the vehicle with the horse was unavoidable and inevitable even if the vehicle had been driven with all due care and attention, and even if a reasonable driver had responded appropriately to the sight of Ms Tremayne.
[5] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506.
This is a startling proposition. It is to the effect that a vehicle fitted with appropriate brakes driven at or within the speed limit on a straight, relatively flat sealed section of unlit highway at night cannot be slowed to the point at which impact can be avoided with an obstacle situated some distance beyond[6] a large, light‑coloured clearly visible warning situated at or near the middle of the roadway, when the warning is identified within the range of the vehicle's lights on high beam. If that proposition is correct, it would compel the conclusion that either:
(a)speed limits on unlit country roads should be reduced below 110 kph at night; or
(b)lighting systems on contemporary vehicles must be improved; or
(c)braking systems on contemporary vehicles must be improved; or
(d)motorists should be warned that if they drive at or within the speed limit at night on an unlit road, they will be unable to avoid collision with any risk or hazard identified within the field of vision illuminated by the lights of their vehicle on high beam.
In my view, it is of some significance that none of the experts giving evidence in the case suggested or addressed the obvious conclusions which would be drawn from acceptance of the proposition that, in the circumstances of this case, collision with the horse was unavoidable and inevitable.[7]
[6] The distance between Ms Tremayne and the point of impact is dealt with later in these reasons.
[7] Although, as I note below, there is a passage in a document referred to by some of the expert witnesses relating to the design of roads which suggests that vehicle lighting is such that only large or light‑coloured objects will be perceived in time for reasonable evasive action to be taken on unlit roads.

Causation - the trial judge's reasons

The joint reasons do not address the reasons given by the trial judge for his conclusion that the collision with the horse was unavoidable or inevitable. Rather, reasons quite different to those of the trial judge are provided for arriving at that conclusion. I will first address the reasons given by the trial judge for his conclusion that causation had not been established before assessing whether that conclusion can be sustained for reasons other than those given by the trial judge including those given in the joint reasons. Consideration of the grounds of appeal relating to the findings of primary fact made by the trial judge is a necessary component of the latter course.
The trial judge found that Ms Tremayne should have been visible to Mr Burridge at a distance somewhere between 143 m from her and the point at which he passed her, without making any specific finding as to the point within that range at which Ms Tremayne should have been identified. Further, the trial judge found that Ms Tremayne was between the horses and the vehicle driven by Mr Burridge, but made no finding as to the distance between Ms Tremayne and the point of impact. In light of those findings, the trial judge addressed the question of whether the collision with the horse could have been avoided in these terms:[8]
[8] Primary reasons [493] ‑ [508].
The one constant which I find to be the case is that the defendant was travelling at 110 km per hour and even if he had braked at the last second it seems he collided with the horse at or about that speed. Again the case was run on that basis.
Bearing that in mind what can I draw from these conclusions and tables? Taking the optimum distance from which Ms Tremayne could be seen as 143 m and applying the stopping distance tables most favourable to the plaintiff, that is to say using a two-second reaction time and a coefficient of braking of 0.50 and utilising a speed of 110 km per hour, the defendant would have travelled 61.12 m during his reaction period before applying his brakes. That would leave a balance of 81.88 m for braking purposes before reaching Ms Tremayne plus whatever the distance was from her to the horse.
Utilising the table, the braking distance most comparable with 81.88 m is between rows 4 and 5 (for a four or five-second reaction time) where the braking distance is 97.76 and 67.20 m respectively. On that basis with the coefficient of braking at 0.50 it is postulated that the motor vehicle would have either stopped by the time it reached Ms Tremayne or passed her still travelling at somewhere under 60 km per hour (59.66 km per hour in row 5).
Using that same method of analysis and seeking to calculate where the motor vehicle could have stopped – row 4 (four-second reaction time) – up to a further 30 m (97.76 – 67.20) stopping distance would be required from Ms Tremayne.
On that analysis and basis the total maximum distance to stop from seeing Ms Tremayne at 143 m would be up to 173 m (143 m + 30 m).
The defendant argues that the court should adopt a coefficient of braking of 0.40 given that there is no evidence to demonstrate the maximum capability of the defendant's vehicle and Dr Chew had said that somewhere between 0.4 and 0.5 was a reasonable figure.
The Austroads Guide adopted a coefficient of deceleration of 0.36 for cars as 'about a 90th percentile value for braking on wet sealed roads' for the purposes of a design domain.
Given the damage to the defendant's vehicle, it is perhaps understandable that no tests were carried out on the vehicle to try to establish the maximum braking capacity of the vehicle. In his statement to the police, the defendant had said that it was in good mechanical order and had no faults. The vehicle examination report (exhibit 10) prepared by the police found no faults detected. All tyres had serviceable tread depths and, whilst the car could not be road tested due to crash damage, the wheels locked on application of the brake pedal and a firm pedal was maintained. All brake parts were in a serviceable condition.
Despite argument to the contrary from the defendant, I am prepared to accept that his motor vehicle had at least an average braking capacity in the conditions that prevailed of somewhere in the region of 0.36 to 0.40.
On that basis, using Dr Chew's table, the defendant would have passed Ms Tremayne at a speed of between 46.48 and 72.59 km per hour. Using the same methodology to calculate where the motor vehicle could have stopped (row 3) the figure would be up to 61.12 m (row 3, 128.32 - row 5, 67.20).
On that basis the maximum distance to stop on seeing Ms Tremayne would be up to 204 m (143+ 61).
If one were to use a scenario more favourable to the defendant, (but not adopting the highest reaction time of seven seconds in the table) using a four-second reaction time and with a coefficient of braking of 0.40, different results are achieved. However, before proceeding further, Austroads, for the purpose of road design, postulates the absolute minimum value of reaction time for higher speed roads with unalerted driving conditions as 2.5 seconds.
With a four-second reaction time 122.24 m of the available distance is covered before [braking] occurs. This would leave a distance to Ms Tremayne of only 20.76 m (143 - 122.24). That braking distance is found between rows 6 and 7 in the table, i.e., 36.64 m and 6.08 m respectively. On that table that would result in a speed on reaching Ms Tremayne of between 91.53 km per hour and 107.17 km per hour respectively for a motor vehicle with a coefficient of braking of 0.40.
Apply the formula used by Dr Chew, the likely speed at that point – that is of reaching Ms Tremayne – would be about 99 km per hour. Beyond this I am unable to calculate what the stopping distance would be for a motor vehicle passing Ms Tremayne at that speed given that the reaction distance has already elapsed and the driver would be in braking mode.
Before leaving this part of the analysis I repeat that my finding was that Ms Tremayne would have become visible at between 0 and 143 m to someone travelling at slow speed and I have adopted the maximum distance. Further, as noted by the defendant, none of the calculations by Dr Chew, and it follows my adoption thereof, take account of any increase in stopping distance to allow for travelling on a downward gradient. It follows that the calculations I have made are illustrative only and express results most favourable to the plaintiff and the actual outcome may be more favourable to the defendant but I am unable to determine.
In the circumstances, leaving aside any ability to swerve, I cannot determine whether the defendant could have avoided a collision with the horse by stopping.

The table to which the trial judge refers was provided by Dr Chew[9] and was set out earlier in the trial judge's reasons:[10]
[9] At page 29 of his report dated 8 January 2013 which became exhibit 12 (GB 89).
[10] Primary reasons [290].

T (s)	S1 (m)	S-S1 (m)	v (f=0.34) in kph	v (f=0.40) in kph	v (f=0.50) in kph
2.0	61.12	158.88	Stopped	Stopped	Stopped
3.0	91.68	128.32	31.78	Stopped	Stopped
4.0	122.24	97.76	60.43	46.48	Stopped
5.0	152.80	67.20	79.33	72.59	59.66
6.0	183.36	36.64	94.53	91.53	86.29
7.0	213.92	6.08	107.60	107.17	106.44

As the trial judge noted at that point of his reasons, the purpose of the table is to present calculations of the vehicle's speed at the point of impact on the assumption that a driver travelling at 110 kph perceived a hazard 220 m from the point of impact on the basis of six different assumed reaction times and three different braking coefficients. The assumed reaction times ranged between two and seven seconds, and are depicted in the left‑hand column of the table. The assumed braking coefficients ranged between 0.34 and 0.50, and are depicted in the three columns to the right of the table. The second and third columns headed S1 and S‑S1 are simply the mathematical product of the assumed reaction time and the assumed speed (of 110 kph or 30.56 m/s) to produce the figure in the column headed S1, which is then deducted from 220 m (S) to produce the figure in the column headed S-S1. Of course it follows that the figures in these two columns always combine to equal 220 m. It also follows that the difference between a figure in either of these columns and the figure immediately above or below it is always 30.56 m, being the distance travelled during one second at 110 kph.
With respect, it is clear from the reasons given by the trial judge that he has fundamentally misunderstood and misapplied this table in the critical portion of the reasons set out above which led him to dismiss Mr Proudlove's claim. The trial judge commences by assuming that Ms Tremayne was identified by Mr Burridge when he was 143 m from her, and reacted two seconds later, when he was 81.88 m from her. He has then taken that distance, and found that it falls somewhere between the distance in the column headed S-S1 on the assumption of a four second reaction time (97.76 m) and the distance in the same column on the assumption of a five second reaction time (67.20 m). The reasoning process is logically flawed because the trial judge has assumed a reaction time of two seconds and then applied the distance calculated using that assumption to figures calculated on the basis of other assumptions - namely, reaction times of four and five seconds respectively.
Another flaw in the analysis undertaken by the trial judge is his use of the table as a surrogate for evidence of the distance required to bring the vehicle to a halt on the basis of different assumed braking coefficients, when the table does not specify those distances, but only whether the vehicle could have been brought to a halt prior to the assumed point of impact and, if not, the speed at which it would have arrived at the point of impact. Adopting a braking coefficient of 0.50, and because the distance of 81.88 m which he calculated falls between the distances in the column headed S‑S1 which show that the vehicle would have come to a stop with a four second reaction time when a hazard was identified 220 m from the point of impact, and would still have been travelling at just under 60 kph on the assumption of a five second reaction time, he has concluded that the distance travelled during one second at 110 kph, if added to his assumed visibility distance of 143 m, would result in the difference between the vehicle stopping prior to Ms Tremayne and the vehicle passing Ms Tremayne at just under 60 kph.
One of the flaws in this process of reasoning is illustrated by the observation that in each of the three right‑hand columns relating to different assumed braking coefficients, the difference between stopping and not stopping is always one second of assumed reaction time.[11] It happens that the distance calculated by the trial judge falls between an assumed reaction time at which the vehicle would have stopped (four seconds at a braking coefficient of 0.5) and a time when it would not have stopped (five seconds) when the hazard was identified 220 m from the point of impact, leading the judge to conclude that one second longer in visibility distance or one second less in reaction time would have made the difference between stopping and not stopping within 143 m of the point at which a hazard was identified.
[11] This characteristic is inherent in the way in which the table has been prepared.
Dr Chew did not give any evidence to the effect that his table could be used in the manner in which the trial judge has used it. Further, to the extent that it is possible to draw inferences from the table in the absence of evidence, the process of reasoning utilised by the trial judge could only be permissible (perhaps) if the rate of deceleration under braking was constant for each assumed braking coefficient.[12] There is no evidence to that effect, nor can any inference to that effect be drawn from the table itself, or from the formula used to calculate the values in the table.[13]
[12] Put another way, if the graph plotting deceleration over distance and time is a straight line.
[13] The differences between the speeds shown in the table are neither constant nor linear, and the formula has geometric components including squares and square roots which suggest that deceleration would not be constant and that the graph plotting deceleration would not be a straight line.
The next step taken by the trial judge in his process of reasoning involved the application of a braking coefficient of 0.4 to the assumptions he had previously made. Because his calculated figure of 81.88 m fell between the distance remaining after assumed reaction times of four and five seconds respectively, and the distance of 220 m, he concluded that the vehicle would have passed Ms Tremayne at a speed of between 46.48 kph and 72.59 kph if she had been identified from a distance of 143 m. Because the vehicle depicted in Dr Chew's table would have stopped if one second less reaction time is assumed, the judge then added the distance travelled during one more second to the distance he had already added to the distance at which Ms Tremayne would have to have been visible in order for Mr Burridge to have stopped before reaching her. In actual fact, however, all the trial judge has done is add initially the distance travelled during one second, and then the distance travelled during two seconds, to the distance of 143 m to arrive at his calculated distances of 173 m and 204 m respectively, based on his flawed analysis of Dr Chew's table.
The next step taken by the trial judge was to alter his assumption by using a four second reaction time, resulting in 122.24 m of the distance between the furthest point at which he considered Ms Tremayne could be seen (143 m) being crossed before braking commenced, leaving a distance of 20.76 m between the vehicle and Ms Tremayne when braking commenced. It is not at all clear why he assumed a reaction time of four seconds, as neither party contended that a prudent driver would take that long to react to an observed hazard. Repeating the flawed methodology earlier used, because the distance of 20.76 m falls between the distances in the column headed S-S1 in respect of assumed reaction times of six and seven seconds respectively, the trial judge has assumed that if the vehicle had a braking coefficient of 0.4, it would have been travelling between 91.53 kph and 107.17 kph as it passed Ms Tremayne.
Another problem with this analysis is implicitly recognised by the trial judge in the terminology he used, as he only assesses whether the vehicle could be brought to a stop before it reached Ms Tremayne, and not whether the vehicle could have been brought to a stop before the point of impact. Put another way, the analysis undertaken by the trial judge makes no allowance for the distance between Ms Tremayne and the point of impact.
After referring to various authorities on the topic of causation, the trial judge applied the analysis to which I have referred to support conclusions he expressed in the following terms:[14]
The theoretical analysis carried out by me was on the optimum basis favourable to the plaintiff. As I have noted, it seems to me, and I find, that the defendant should have been able to see Ms Tremayne and be able to react to her between a distance of 0 m and 143 m.
I have not been able to establish on the evidence the position of the horse vis‑a‑vis Ms Tremayne and therefore I have no reference point to be able to say whether the defendant could have stopped and thus avoided the collision. As I have noted, to be able to come to a stop would have required up to a distance of 173 m on the best scenario favourable to the plaintiff and 204 m on one more favourable to the defendant adopting a coefficient of braking of 0.40. The fact is that the distance from when the defendant should have seen Ms Tremayne and reacted to the horse may well have been far less.
In relation to the allegation of failing to brake so as to avoid the collision, the plaintiff has failed to produce evidence which satisfies me that the defendant could have braked sufficiently to stop so as to avoid the collision. It is far too speculative to so find. The same applies to the allegation of failing to stop in response to Ms Tremayne's warning – that is to say, relatively, to stop in time to avoid the collision.
[14] Primary reasons [542] ‑ [544].
However, the trial judge went on to consider the proposition that if the vehicle had been driven with due care and attention, and brakes applied when they should have been applied, the speed of the vehicle might have been reduced to the point at which it could have been manoeuvred so as to avoid impact with the horse, or alternatively so as to only strike the horse a glancing blow. In that context, the trial judge observed:[15]
[15] Primary reasons [548] ‑ [557].
Even if the defendant could not have stopped on reaching Ms Tremayne, by that point, at least, he should have been braking. Further, the closer he got to her to see her waving the more the warning signs should have been apparent and the harder the braking.
As I have noted, by that point he would, had he reacted, have been in the braking mode – the reaction distance having elapsed – so from a point at least level with Ms Tremayne and probably more, he should have been braking firmly.
Whilst I have no evidence by way of calculations as to the effect of that braking, it seems to me, as a matter of common sense, that the motor vehicle would then have been slowing and possibly slowing appreciably as it approached the horse at some point south of Ms Tremayne.
Ms Stevenson was travelling slower (about 100 km per hour) and was alerted by a passenger and managed to swerve to avoid something on the side of the road. Ms Bradley, who was sitting in the back of the car, saw a horse on the side of the road just before Ms Stevenson swerved.
Even whilst under braking, avoiding action was able to be taken by Ms Stevenson to avoid a live horse. On my finding it is likely that the defendant, had he reacted to Ms Tremayne, would or should have been braking and thus travelling slower than Ms Stevenson.
Ms Kenny was travelling at 80 to 90 km per hour and saw the dead horse [on] the road and tried to swerve around it. She did not swerve drastically as she did not want to upset the stability of her car.
All of this demonstrates that others did have the opportunity of taking some avoiding action even at speeds likely to be greater than that of the defendant had he reacted to Ms Tremayne and braked.
Given my finding that the defendant ought to have seen Ms Tremayne and reacted by braking, in my view, he, like the others, may have been able to swerve or manoeuvre his motor vehicle so as to have avoided the impact with the horse. Alternatively, given my finding that he should have been slowing, that coupled with swerving, there is the possibility that any impact would not have been head on but perhaps more a glancing blow and thus may not have had the catastrophic result that ensued.
The effect of the head on impact is graphically shown in the photographs of the vehicle and it is clear that the roof has caved in on the passenger side. The defendant notes that the damage appears to be to the roof pillars with them being crushed rearwards. That would appear to be consistent with the mechanics of a head-on collision (more to the left) whereas with a glancing blow one might think that the damage would be more likely to be even more to the left or even to the side with the horse being thrown to the side rather than on to the top of the vehicle. Indeed the defendant argues that the horse was to the left side of the vehicle at the time of collision and so swerving to the right is likely to have that effect.
The evidence of Dr Chew was to the effect that the higher the energy (speed) the more damage will be caused on impact with a stationary object. It is not possible to calculate the speed at which the defendant's motor vehicle would have struck the horse had the defendant braked but I am satisfied that it would have been reduced.
The general tenor of this portion of the trial judge's reasons is clearly to the effect that, viewed from the perspective of common sense and in the context of all the evidence he had received, he was inclined to infer that, if Mr Burridge had identified Ms Tremayne closer to the distance of 143 m from her than at the other end of the range of distances left open by his findings, and reacted within two seconds, applying his vehicle's brakes with a braking coefficient of 0.4, he would have been able to reduce the speed of the vehicle to the point at which he could either have manoeuvred around the horse or manoeuvred so as to strike it only a glancing blow, thereby averting Mr Proudlove's injuries. That process of reasoning is, with respect, entirely consistent with the application of common sense and experience to the facts found by the trial judge.
However, the trial judge did not apply that process of reasoning for the following reasons:[16]
[16] Primary reasons [560] ‑ [567].
According to Mr Martin the algorithm propounded by Hyzer and Hyzer (2001), to which I have referred earlier, for calculating the effect of expectation on test observations was endorsed by Olson, Dewar and Faber as 'a simple and effective means for approximating the range of visibilities to be expected from representative drivers in a real world encounter with an unexpected hazard'.
The algorithm is expressed as follows:
• First, multiply the observed distance by 0.67 to approximate the distance that would be expected of a median subject in a structured test;
• Second, multiply the result by 0.5 to account for expectancy;
• Third, identify the likely range as +/- 0.33 of this distance.
Mr Martin described it as a 'rule of thumb' – as a way of conceptually transferring from an experimental set-up to a real life situation. He was not challenged on this aspect of his evidence. The study was not put to Dr Chew. This is not surprising given his acceptance of lack of expertise in such matters.
The upshot of applying this 'simple and effective means' to the optimum finding of Dr Chew of 143 m results in a perception distance under high beam illumination of between 32 and 64 m (143 x 0.67 x 0.5 = 48; 48 x 0.33 = 16; so the range is 32 (48 – 16) to 64 (48 + 16)).
It is possible that this may be further reduced because, having regard to the evidence of Mr Cook, driving at a slow speed (as in Dr Chew's test run 5) is not the same as driving at 110 km per hour. Dr Chew did not dispute the proposition that perception distances decrease with increasing speed.
As expressed, as an approximation, this provides a range for representative drivers in a 'real world encounter' and there is no other evidence which would undermine that approach.
In this case a great deal of weight has been accorded to the works of Olson and Sivak and later Olson, Dewar and Faber, albeit with cautionary comments relative to results obtained from alerted drivers. On that basis, in a case such as the present where it is impossible to accurately reconstruct events and where there are so many imponderables, there is no reason not to adopt that cautionary approach to such findings as can be made.
This does not alter my finding that the defendant should have seen Ms Tremayne and commenced his braking. What it does mean is that he was likely to have observed her at a much closer distance than Dr Chew (143 m.). Accordingly, his passing speed would have been higher. Whilst there is evidence of braking from Senior Constable Gregorini, there is no evidence to show it resulted in any appreciable slowing of the vehicle before impact. This is highlighted by the fact that after colliding with the horse the vehicle crossed the gravel verge, climbed the embankment, proceeded along and down the embankment and across Jutland Road before coming to rest against the tree – a not inconsiderable distance.
The appellant has challenged this process of reasoning in ground 6 of the appeal and seeks leave to amend that ground and adduce additional evidence in its support. For the reasons which follow, I would allow each of those applications and uphold the ground of appeal.
The trial judge relied upon a section of a report produced by Mr Jacob Martin.[17] The purpose of the report was to provide a response to the literature to which Dr Chew referred in his first two reports.[18] The report is concerned with the research breaking down the time between perception and reaction into various components, described by Mr Martin as detection, identification, decision and response. In that context, the report considers the impact which the expectations of a participant in research studies might have upon their reaction times. In that context, Mr Martin referred to a work by Olson, Dewar and Farber (2010), which cites Hyzer and Hyzer (2001), as 'describing a method for calculating the effect of expectation on test observations'. That purpose is clear from the algorithm itself, as outlined by the trial judge in the excerpt above, which involves the application of factors which have the effect of discounting the distances that would be observed by multiple participants in a structured test. So, the first adjustment is made to provide a surrogate assessment of the median subject in the multiple participants in a clinical test or trial, and involves reducing the perceived distance by about one‑third. That distance is then reduced by half to account for the expectancy which would be attributed to participants in a clinical test or trial. Finally, a range of distances is produced by adding and subtracting one‑third from the calculated figure.
[17] Exhibit 20 (GB 143).
[18] Exhibits 12 and 13 (GB 146).
There are a number of reasons why the trial judge was wrong to apply this methodology to deflect him from the conclusion he would otherwise have reached based on common sense and experience. The first and most obvious is that the methodology is entirely concerned with a very different issue to that which confronted the trial judge. The issue addressed by the methodology is that of converting clinical tests or trials with multiple participants into results which have practical application. The only trial to which the judge applied the algorithm was the single trial conducted by Dr Chew and accordingly there is no reason to discount the distance identified in that trial by one‑third to produce a 'median subject'.

Second, the issue which the trial judge was addressing was the extent to which the evidence of Dr Chew as to the distance at which he could observe his assistant in the trial which he conducted should be diminished because of the fact that Dr Chew was expecting to see his assistant at that point. On that subject, the so‑called 'Hyzer and Hyzer' method simply proposes that the observed distance be divided in half to allow for expectancy (that is, reduced in this case from 96 m[19] to 48 m). The method advances no reasoning in support of this methodology which is, on its face, entirely arbitrary, as is the deduction of one‑third to arrive at a distance at which a 'median subject' would observe the item.
[19] 143 m x 0.67 = 96 m.
Third, the methodology defies common sense and experience. According to common sense and experience, the extent to which observations of the kind made by Dr Chew might be influenced by the expectation of the observer will depend on many and varied factors including the size and nature of the thing observed, the distance from the observer to that which is being observed, the degree of illumination, the speed at which the observer is travelling, the time the observer has been driving, the age and visual acuity of the observer, the extent to which the visual scene confronting the observer contains other distractions and so on. The proposition that all these variable factors can be accommodated in a single algorithm which deducts a third of the observed distance and then divides the remaining distance in half beggars belief.
Fourth, Mr Martin did not assert, either in his report or in his oral evidence, that Mr Burridge should not be expected to have seen Ms Tremayne until he was between 64 m and 32 m from her. Rather, his evidence was limited to a reference to the literature and the application of the algorithm identified in the literature to the observation made by Dr Chew. Put another way, the methodology identified by Mr Martin was not used by him as the basis for the expression of an opinion which he presented as evidence to the court. Nor did Mr Martin express any opinion in his report or his evidence to the effect that the method attributed to Hyzer and Hyzer was valid, reliable, or recognised as an acceptable or recognised methodology within a recognised profession, discipline, or branch of learning. There was therefore no admissible evidence of the so‑called 'Hyzer and Hyzer' method before the trial judge.
Nor was the text by Olson, Dewar and Farber, to which Mr Martin referred, tendered in evidence or discovered or produced for inspection. The relevant portion of the text has been provided to this court and is the subject of the appellant's application to adduce additional evidence. It is clear from that portion of the text that the so‑called 'Hyzer and Hyzer' method derives from a proposition embodied in correspondence from Messrs Hyzer and Hyzer to the authors of the text. There is nothing in the text which would suggest that the proposition contained in that correspondence has obtained professional recognition or acceptance within a recognised discipline or branch of learning to an extent which would render it admissible in evidence. It is also clear from the text that the methodology is precisely what it purports to be - namely, a statistical method which can be used in an attempt to convert distances observed by multiple participants in clinical trials into observations which might be made in 'a real world encounter'.
For these various reasons, the trial judge was wrong to use the so‑called 'Hyzer and Hyzer' method to conclude that Mr Burridge was likely to observe Ms Tremayne at 'a much closer distance'[20] than the distance over which Dr Chew observed his assistant. It follows that the trial judge was also wrong to use this methodology to deflect him from the application of common sense and experience to the facts which he had found, as enunciated in the portion of his reasons which immediately precede his consideration of the Hyzer and Hyzer algorithm. It also follows that leave should be granted to amend ground 6 of the appeal and to adduce additional evidence in support, and that ground 6 should be upheld.
[20] Primary reasons [567].

Summary with respect to the trial judge's reasons

For these reasons, in my respectful view, the reasons given by the trial judge for concluding that Mr Burridge's breach of the duty of care did not cause or materially contribute to Mr Proudlove's injuries are vitiated by error in the various respects which I have described. That gives rise to the question of whether that conclusion, which I have described as startling and contrary to common sense and experience, can be sustained for reasons other than those given by the trial judge.[21]

Can the conclusion that causation was not established be sustained for reasons other than those given by the trial judge?

[21] The terminology I am using should not be seen as any departure from the proposition that Mr Proudlove carried the burden of proving that Mr Burridge's breach of duty caused or materially contributed to his injuries. Rather, the language I am using reflects my view that the burden was discharged by the application of common sense and experience to the facts found by the trial judge, unless there was evidence which would displace the conclusions to be drawn from common sense and experience.

In the circumstances of this case, the issue of causation turns upon the question of whether a reasonable person driving the vehicle driven by Mr Burridge with an appropriate standard of care would have either stopped the vehicle before it collided with the horse or reduced its speed to the point at which the vehicle could have been manoeuvred so as to avoid significant impact with the horse. Resolution of that issue requires findings of fact to be made with respect to:
(a)the sources of warning of hazard which were presented to a reasonable driver in Mr Burridge's position;
(b)the point at which a reasonable driver would have identified one or more of those warnings of hazard;
(c)the appropriate response of a reasonable driver to the warning or warnings observed;
(d)the distance between the point at which a reasonable driver would have observed a warning of hazard and the point of impact;
(e)whether the appropriate response of a reasonable driver observing the warning or warnings of hazard would have resulted in the vehicle being brought to a stop before the point of impact, or the speed of the vehicle being reduced to the point at which the driver could have manoeuvred the vehicle so as to avoid either any, or any significant, impact with the horse.
I will deal with each of these factual issues in turn. As the various grounds of appeal to which I have not yet referred and the cross‑appeal are all concerned with matters falling within the scope of these issues, they will all be traversed by the course which I propose to follow.

The sources of warning of hazard

There were three potential sources of warning available to a driver in the position of Mr Burridge as the vehicle came over the crest and approached the area where the accident occurred, namely:
(a)Ms Tremayne;
(b)the horses; and
(c)Ms Tremayne's vehicle.
The evidence establishes that these potential sources of warning were approached by the vehicle in that order.
The latter two potential sources of warning are of limited significance to the issue of causation. Although the horses were substantial objects situated on the roadway, the evidence of Ms Tremayne, Mr Burridge and of the other drivers who came upon the scene after the collision with the first horse was generally to the effect that they were difficult to see in the dark. Ms Tremayne's evidence was to the effect that the horses were very hard to see, as both horses had dark‑coloured rugs on them and, to the best of her recollection, neither had any white markings. She only saw them when she was right beside them and if they had been in the carriageway in which she was travelling, she believes she may have collided with them.[22]
[22] ts 74.
Mr Burridge's evidence was to the effect that he never saw the horses at all,[23] although it is clear from the objective evidence of the skid marks found on the road immediately prior to the point of impact that he must have applied very hard braking shortly before impact, causing those skid marks. As Ms Tremayne's Yaris vehicle was parked off the road, on the verge adjacent to the northbound carriageway, it is most unlikely that observation of that vehicle would have caused Mr Burridge to brake so hard as to cause skid marks. It follows that observation of a horse or horses is very likely to have been the stimulus which caused Mr Burridge to brake so hard as to cause the skid marks observed on the road. However, given the difficulty of observing the horses from any greater distance, their significance to the issue of causation is limited to the explanation which they provide for the skid marks found on the road.
[23] ts 437.
Turning now to the vehicle parked by Ms Tremayne on the verge of the road, although the evidence does not establish precisely where that vehicle was in relation to either Ms Tremayne or the point of impact, it is clear that the vehicle was some distance south of Ms Tremayne - perhaps 100 m or more from Ms Tremayne.[24] The vehicle's lights were on low beam, and although the hazard warning lights were activated, because of its situation some significant distance south of Ms Tremayne it is very likely that the driver of a vehicle approaching from the north would have seen Ms Tremayne before seeing her vehicle.
[24] Ms Tremayne indicated to Dr Chew that the position where she parked her vehicle was approximately 127 m south of the point at which she attempted to wave down the approaching vehicle - exhibit 12, page 10 (GB 70).
This is not to say that the presence of Ms Tremayne's vehicle is irrelevant to the issues to be addressed in relation to causation. The evidence of Mr Burridge, which the trial judge accepted, was to the effect that he flicked his headlights from high beam to low beam on seeing what he thought was a car ahead. During cross‑examination he affirmed a statement he had given to police to the effect that he thought that what he saw was tail lights. However, it seems most likely that what Mr Burridge saw was either the hazard warning lights of the Yaris or the head lights (on low beam), and that caused him to flick his lights from high beam to low beam. The trial judge made no finding as to whether it was Mr Burridge's observation of Ms Tremayne, or the horse, or the Yaris vehicle which caused him to change the lights on his vehicle from high beam to low beam.[25] However, with respect, there is no reason to doubt Mr Burridge's evidence to the effect that it was his observation of another vehicle which caused him to alter the light settings on his vehicle. Such an alteration is a natural and instinctive response to the observation of a vehicle ahead. Reducing the level of lighting available would be an entirely unnatural response to the observation of an obstacle on the roadway, such as either Ms Tremayne or a horse. For these reasons it should be concluded that Mr Burridge reduced the setting of the lights on his vehicle from high to low beam because he saw the lights on Ms Tremayne's vehicle ahead of him.
[25] Primary reasons [415].
The evidence of Ms Tremayne, which the trial judge accepted, was to the effect that the setting of the lights on the vehicle which approached her did not change. The trial judge reconciled this evidence with the evidence given by Mr Burridge by finding that Mr Burridge altered the setting of the lights on his vehicle either at or after the time at which he passed Ms Tremayne.[26] That finding is consistent with the evidence and should be accepted.
[26] Primary reasons [414].
It follows from these observations that the most significant source of a warning of hazard to a reasonable driver in Mr Burridge's position was Ms Tremayne. It is clear on the evidence that she was wearing a white long‑sleeved T‑shirt and dark trousers. However, there were issues at trial which have been pursued by the grounds of appeal and cross‑appeal with respect to precisely where on the roadway she was standing, and as to whether she was waving one arm or two as the vehicle approached her.
I have already noted that the trial judge made inconsistent findings with respect to the precise position of Ms Tremayne on the roadway as the vehicle approached - at one point finding that she was standing in the northbound lane but unable to find precisely where in that lane she was, whereas at another point finding that she was 'probably close to but not on the white lines'.[27] The latter finding is consistent with Ms Tremayne's evidence[28] and should be preferred.
[27] Compare primary reasons at [373] and [485].
[28] ts 67, ts 76.
Ms Tremayne's evidence was consistently to the effect that she was waving both arms as the vehicle driven by Mr Burridge approached her. In cross‑examination it was put to her that she must have had one hand near her ear during at least some of this period, because she was talking to Mr Stein on her mobile telephone. However, although Ms Tremayne accepted that her telephone connection with Mr Stein continued during this period, she did not accept that she raised her hand to her ear or face in order to converse with Mr Stein as the vehicle driven by Mr Burridge approached.[29] There is no reason to doubt her evidence to the effect that she was waving both arms during this period, although it is difficult to see that there would be any great difference in her visibility to an approaching driver whether she was waving one arm or two. The fact of movement would in itself be likely to attract a driver's attention and the waving of either one arm or two would convey a warning of a potential hazard to a reasonable driver.

At what point would a reasonable driver have identified Ms Tremayne?

[29] ts 90 ‑ 91.

The evidence relating to the point at which a reasonable driver would have identified Ms Tremayne can be separated into two categories, namely:
(a)the evidence of the observations made by Dr Chew; and
(b)expert evidence with respect to visibility under headlight illumination.
Dealing with the evidence of Dr Chew, it should first be observed that the evidence which he gave with respect to the point at which he observed his assistant standing in the centre of the roadway in conditions similar to those on the night of the accident (save that the road was dry, not wet) was not opinion evidence, but evidence of observed facts. Nor was Dr Chew, as a mechanical engineer, qualified to give opinion evidence on the subject of human perception.
The trial judge accepted that Dr Chew's evidence was the best evidence of the point at which Ms Tremayne should have been observed by a reasonable driver in Mr Burridge's position. However, he discounted the distance at which Dr Chew observed his assistant for two reasons, namely:
(a)he considered that 143 m was the distance at which Dr Chew detected his assistant, rather than identified him, so in accordance with Mr Martin's evidence, the distance at which the assistant was identified as such would have been somewhat less;
(b)because Dr Chew was expecting to see his assistant, the trial judge discounted the distance of 143 m using the so‑called 'Hyzer and Hyzer' method in the manner I have described.
In relation to the discount for the difference between detection and identification, with respect to the trial judge,[30] the evidence of Dr Chew was not to the effect that he detected an unidentified object from a distance of 143 m. In his report, he described the distance which he measured as the distance between his assistant and the point at which he 'saw the assistant (who was waving his arms above his head)',[31] and later in the report as the point at which the assistant was 'visible'.[32] Dr Chew's oral evidence on this subject was unequivocal. He rejected the proposition that what he saw was a 'grey blob' and described the point which he measured as the point at which 'I could see him, I could see him in his white top … and waving his arms above his head.'[33]
[30] And to the authors of the joint reasons who proceed on a similar basis.
[31] Exhibit 12, page 26 (GB 86).
[32] Exhibit 12, page 33 (GB 93).
[33] ts 247.
Two conclusions follow. First, because Dr Chew's measurement was of the point at which he identified his assistant as a person waving his arms, that distance should not be discounted for the distinction drawn between detection of an object and identification of what the object is. Second, because the measurement of reaction time is customarily taken from the point of detection rather than the point of identification and includes the time taken for the brain to process the images received and identify what is being seen, the application of standard reaction times to the distance at which Dr Chew identified his assistant will overstate the time which would be taken by a reasonable driver in Mr Burridge's position to react to a recognised observation of a person standing at or near the centre of the road waving his or her arms.
Turning now to the question of whether Dr Chew's measurement should be discounted for the fact that he was expecting to see his assistant, I have already addressed the approach taken by the trial judge to this question utilising the so‑called 'Hyzer and Hyzer' method, which I consider to be erroneous. Beyond establishing the uncontentious proposition that a person looking out for and expecting to see something might well observe that thing before somebody who was not looking out for it or expecting to see it, the evidence does not establish what allowance should be made for this factor when assessing the observation made by Dr Chew.
The second category of evidence, namely the expert evidence with respect to the visibility of objects under headlight illumination, was generally consistent with the evidence of Dr Chew's observation. The evidence of Mr Martin, drawing upon published expert literature, was to the effect that headlights would generally illuminate an object in the centre of the roadway at a distance of approximately 165 m.[34] The 'Guide to Road Design' published by Austroads Inc (Austroads Guide) was received in evidence.[35] In that publication car stopping sight distance is calculated by reference to a stationary object 0.2 m high situated on the road. The height of 0.2 m represents a hazard that cannot be driven over and hence requires the vehicle to stop to avoid a collision.[36]
[34] Exhibit 20, page 3 (GB 148).
[35] Exhibit 22.
[36] Exhibit 22, page 106 (GB 192).
On the subject of headlight illumination, the guide provides:[37]
On unlit roadways, sight distance is confined to the range of a vehicle's headlight beam. The limitations of headlights on high beam of modern vehicles restrict the sight distance that can be safely assumed for visibility of an object on the roadway, to about 120-150 m. This corresponds to a satisfactory stopping distance for 80 km/h to 90 km/h, and a manoeuvre time of about 5 seconds at 100 km/h. Beyond this, it is only large or light‑coloured objects that will be perceived in time for reasonable evasive action to be taken on unlit roads.
[37] Exhibit 22, page 120 (GB 206).
Two observations arise from this passage. First, because the passage is concerned with visibility, rather than reaction times, it is clearly referring to the distance at which the lighting is sufficient to enable an observer to identify what he or she is seeing. So, the distance of which the guide speaks corresponds to the distance at which Dr Chew identified his assistant, rather than the distance at which an unidentified object might have been detected.

Second, in a context in which the standard of measurement is an object with a height of 0.2 m, the reference to 'large or light‑coloured objects' being perceived at distances beyond the range of 120 ‑ 150 m should be construed as applying to Ms Tremayne.
So, the expert evidence with respect to the distance at which Ms Tremayne would have been visible under the illumination provided by the vehicle's lights on high beam is to the effect that such a distance would likely have been a little greater than the distance measured by Dr Chew, perhaps between 150 m and 165 m. In subsequent tests undertaken by Dr Chew,[38] he was able to identify his assistant at significantly greater distances than the distance of 143 m measured during his first test. However, those differences are likely to be explained by the fact that Dr Chew used a different vehicle for the second series of tests (a Commodore sedan as opposed to a Commodore utility), and by the fact that the Yaris vehicle was not present during the second series of tests, as the backlighting provided by that vehicle during the first test may have influenced visibility.
[38] See exhibit 15.
The respondent also contends that the observation made by Dr Chew should be discounted by the fact that the road was dry at the time of that observation, whereas the road was wet on the night in question. However, beyond establishing the proposition that glare from a wet road can adversely affect visibility, the evidence does not establish whether glare would in fact have affected visibility on the night in question, and if so, to what extent.
In summary, having regard to the evidence in its entirety, Dr Chew's observation provides reliable evidence of the distance at which a reasonable driver could have observed and identified Ms Tremayne as a person standing in the centre of the road waving her arms. The fact that this is evidence of the distance at which identification (as opposed to detection) was made is a factor which must be taken into account when applying assumed reaction times to that distance. Allowance should also be made for the fact that Dr Chew was expecting to see his assistant in that position and was therefore alerted to that prospect. However, the evidence does not establish the likely impact of that expectancy. With respect to the contrary view expressed by others, I do not think the evidence justifies an inference that a person not expecting to see something on the road would have identified Ms Tremayne at a much closer distance than the point at which the assistant became visible to Dr Chew. To the contrary, I would infer that while such a person may not have identified Ms Tremayne from 143 m away, identification would likely have taken place at some point not too distant from the point identified by Dr Chew.

The appropriate response of a driver alerted to a warning

The appropriate response of a reasonable driver alerted to the presence of a person standing in the middle of a country road at night waving their arms is not a matter for evidence, but rather a matter for assessment having regard to common sense and experience. A reasonable driver confronted with such a sight would and should infer that he or she was being warned of the existence of a hazard, or at the very least some reason to stop at or near the person making the signal. The appropriate response to such a warning would be to immediately cease any acceleration of the vehicle and at the same time apply the brakes, initially firmly, although not so firmly as to risk losing control of the vehicle on the wet road, but then with greater force as the vehicle approached the person continuing to make the warning sign in order that the vehicle might be brought to a halt before encountering the hazard of which warning was being provided, or at least to a speed at which the vehicle could be safely manoeuvred around any hazard or the person standing at or near the middle of the road.

The distance between the point at which a reasonable driver would have observed Ms Tremayne and the point of impact

The distance between the point at which the warning of hazard presented by Ms Tremayne should have been observed and the point of impact is made up of two components - namely, the distance between the point at which the warning of hazard should have been observed and Ms Tremayne, and the distance between Ms Tremayne and the point of impact. I have addressed the former component of that distance and concluded that it would likely be in the vicinity of, but less than, 143 m. It is now necessary to turn to the second component which is the distance between Ms Tremayne and the point of impact.
There are essentially two sources of evidence bearing upon this question. The first is the evidence given by Ms Tremayne, and the second is the inferences or conclusions to be drawn from other facts, such as the skid marks and the dipping of the lights from high to low beam.
Ms Tremayne's evidence was to the effect that when she saw lights coming up over the crest of the hill, she 'proceeded to move quickly up the road, waving [her] arms and yelling, "slow down".'[39] In re‑examination she described the pace at which she moved towards the oncoming vehicle in these terms:[40]
Well I'm a reasonably quick walker anyway, so for me it would have been a normal pace. When I saw the … lights coming up over the crest of the hill … I didn't actually run, but it was quicker, trying to get to where I needed to be to try and just get them to slow down.
[39] ts 67.
[40] ts 105.
During cross‑examination Ms Tremayne accepted the proposition that the distance between her and the point of impact was 'a slight distance'.[41] She accepted that she could not have moved very far ahead of the horses by the time of the crash.[42] However, she also accepted that once she saw the lights of the approaching vehicle, her focus was on the car coming towards her and she was not looking behind her to see what the horses were doing.[43]
[41] ts 81, 82.
[42] ts 82.
[43] ts 83.
Turning now to the other general category of evidence, in my view the evidence of skid marks on the road over a distance of 20 m immediately prior to the point of impact is of considerable significance to this issue. Its significance lies in the fact that Ms Tremayne's evidence was consistently to the effect that she did not detect any braking of the vehicle either as it passed her or at all. As a matter of common experience, a vehicle braking with sufficient force to leave a skid mark on a road makes a significant and readily recognisable noise associated with the skidding. If, as seems clear, Ms Tremayne neither heard nor saw the vehicle skidding, the skidding must have commenced some distance from her. That distance must be added to the 20 m of skid marks leading up to the point of impact. With respect to the contrary view expressed by others, I think it most unlikely that Ms Tremayne would have failed to perceive or recall a vehicle braking with sufficient force to cause skid marks to be left on the road if that braking occurred at or before the time the vehicle passed her. In my view, her evidence, which was generally accepted by the trial judge, is only consistent with the skid marks being caused by the vehicle a not insignificant time and distance after the vehicle passed her.
On behalf of the appellant, significant emphasis is placed upon the trial judge's finding that Mr Burridge dipped his lights from high to low beam after passing Ms Tremayne. It is submitted that he would not have dipped his lights if he had seen the horse, from which it follows that he could not have seen the horse at the time he passed Ms Tremayne. Allowing a reaction time of one and a half seconds after he saw the horse before he applied the brakes with sufficient force to cause the skid marks gives rise to the submission that the vehicle must have travelled at least 45 m after passing Ms Tremayne before the brakes were applied, with the result that the minimum distance between Ms Tremayne and the point of impact is said to be 65 m.[44]
[44] Appellant's submissions [20] (WB 14).
I do not accept this submission essentially because I do not accept that there is any connection between Mr Burridge dipping his headlights and his identification of the horse or horses. For the reasons I have given, I think it much more likely that Mr Burridge dipped his headlights in response to his observation of the Yaris vehicle. He may well have observed that vehicle before passing Ms Tremayne, and put in train the process of dipping the lights as a natural response to that observation, with the result that the lights were dipped shortly after he passed Ms Tremayne, as the trial judge found. It is therefore possible that Mr Burridge may have observed the Yaris vehicle and put in train the process of dipping the lights before he observed the horse or horses and reacted by braking firmly, and equally possible that the time following his reaction to the latter stimulus may have included the time at which he passed Ms Tremayne. Nevertheless, there is force in the general proposition that the vehicle must have passed Ms Tremayne for a sufficient time and a sufficient distance for both the lights to be dipped and the brakes applied so hard as to cause skidding without either of these things being noticed by Ms Tremayne.
Ms Tremayne was cross‑examined on the basis that there was only a couple of seconds between the time at which she observed the lights of the approaching vehicle and the impact. However, according to Dr Chew's measurements of gradient, the crest of the hill was approximately 200 m from the point of impact, and Ms Tremayne was clearly between the crest of the hill and the point of impact, and closer to the point of impact. A vehicle travelling at 110 kph would travel 150 m in about five seconds. However, Ms Tremayne would have had longer than that period to respond to the approaching vehicle because, according to her evidence, she was responding to 'the lights coming up over the crest of the hill'.[45] Ms Tremayne would therefore have had a period of greater than five seconds in which to move quickly north, away from the horses and towards the approaching vehicle. Given the urgency of the circumstances, it seems likely that Ms Tremayne would have covered a not insignificant distance during this time.
[45] ts 67.
Her evidence to the effect that she was looking northwards towards the approaching vehicle during this time, and therefore could not see what the horses were doing, is of considerable significance in this context. In light of that evidence, analysis of this issue cannot be undertaken on the assumption that the horses remained standing exactly where they were during the period of more than five seconds over which Ms Tremayne responded to the lights coming up over the crest of the hill by walking quickly towards the oncoming vehicle. The evidence is incapable of excluding the distinct possibility that either the horse which was struck by the vehicle, or both horses, moved southwards while Ms Tremayne walked quickly northwards and, of course, a horse can cover ground much quicker than a human. Not only can such a possibility not be excluded, but given that the horses were in the carriageway in which a vehicle was approaching them at 110 kph with its lights on high beam, the prospect that the horse or horses may have moved southwards away from the approaching vehicle seems very real, and I would infer, more likely than not.
In summary, the evidence establishes that Ms Tremayne was to the north of the horses when she detected the lights of the vehicle coming over the crest of the hill. She moved at a quick walking pace towards the oncoming vehicle for a period likely to be in excess of five seconds. During the same period, the prospect of one or both horses moving southwards at an unknown pace cannot be excluded, and is more likely than not. Given my conclusion that Ms Tremayne must have been sufficiently distant from the point at which the skidding of the vehicle commenced to not hear or see that skidding, and the fact that the skid marks are 20 m in length, I would conclude that Ms Tremayne was at least 40 m and probably more than 50 m and perhaps 60 m or more north of the point of impact when it occurred. That conclusion is consistent with her evidence as to her position and movements, and with the likelihood that the horse or horses moved southwards after Ms Tremayne turned her back on them.
Returning to the two components of the distance between the point at which a reasonable driver would have observed Ms Tremayne and the point of impact, for the reasons I have given, the distance between Ms Tremayne and the point of impact was more likely than not 50 m or more, and may have been greater, and the distance between Ms Tremayne and the point at which a reasonable driver would have identified her is something less than 143 m to account for the distance attributable to Dr Chew being alerted and expecting to see his assistant. The combination of these two components gives a distance of something less than 193 m between the point at which a reasonable driver would have observed Ms Tremayne and the point of impact. The distance less than 193 m is the distance to be allowed for Dr Chew's expectation that he would see his assistant.

Would the appropriate response of a driver observing Ms Tremayne have resulted in the vehicle stopping prior to the point of impact or slowing to the point at which it could have been manoeuvred so as to avoid either any or any significant impact with the horse?

There are a number of different ways in which the assessment of the question of whether a reasonable driver responding appropriately to the warning of hazard presented by Ms Tremayne would or should have brought the vehicle to a halt before the point of impact, or reduced its speed to the point at which it could be manoeuvred so as to avoid any or any significant impact with the horse, may be approached.
The first possible approach involves the application of common sense and experience to the facts found. Driving on country roads at night and emergency braking in a potentially hazardous situation are all common experiences with which most drivers will be familiar. Applying that experience and common sense to the circumstances of this case, it is of particular significance that the point of impact was, for the reasons I have given, on the balance of probabilities more than 50 m beyond Ms Tremayne who was providing the warning. On that basis the question is not whether a reasonable driver on a wet sealed road observing a hazard could have brought the vehicle to a halt or to such a speed as to manoeuvre around the hazard before reaching it. Rather, in the circumstances of this case, the question is whether a reasonable driver could have achieved those things within 50 m beyond a warning of hazard he or she observed. Having regard to my conclusion that a reasonable driver would apprehend that he or she was being warned of a hazard and would respond to that signal by braking firmly at first and later braking hard, I think it is more likely than not that such a driver would have either been able to bring the vehicle to a halt within 50 m beyond Ms Tremayne, or reduce its speed to the point at which he or she could manoeuvre so as to avoid any or any significant impact with the horse. I note that the trial judge expressed a similar view in the portion of his reasons which I have set out above, before erroneously applying the algorithm which he took from the so-called 'Hyzer and Hyzer' method.
Another way of approaching the question is by reference to the test conducted by Dr Chew which he described as Test Run 4 in his first report. As he observed in that report, the objective of that test was to:[46]
… test the effect of firm (but not hard) braking on the speed of the test ute, and whether the ute could be stopped by firm braking prior to reaching the 'impact point'.
[46] Exhibit 12, page 25 (GB 85).
During the test Dr Chew drove the vehicle at 110 kph with the headlights on high beam. Approximately two seconds after he first saw his assistant he applied firm foot pressure on the brake pedal. He observed that the utility stopped approximately 20 m to the north of what he described as the impact point, which Dr Chew had assumed was 77 m south of Ms Tremayne.[47] Put another way, in this test, after allowing a reaction time of two seconds, and applying 'firm (but not hard)' braking, Dr Chew brought the test utility to a halt 57 m beyond his assistant. This is around the distance which I have concluded Ms Tremayne was north of the point of impact, on the balance of probabilities. It follows that if a reasonable driver had behaved in the manner simulated by Dr Chew, the vehicle would have been brought to a stop at or about the point of impact.
[47] Exhibit 12, page 10 (GB 70).
Dr Chew was expecting to see the assistant at the point where he was observed, which reduces the comparability of this test to the situation which would have been experienced by a reasonable driver in Mr Burridge's position. However, for the reasons I have given, it is clear that Dr Chew has used the point of identification rather than the point of detection throughout his various tests. Applying a reaction time of two seconds from the point of identification, rather than the point of detection, extends the reaction time beyond that to which reference was made by the various experts and in the literature tendered in evidence.
It may be that this difference in reaction times does not fully account for the difference between an expectant Dr Chew, and an unexpectant reasonable driver. However, if, in Dr Chew's simulation, the vehicle could be brought to a stop at or about the point of impact, it is reasonable to infer, and I do infer, that even if greater allowance is made for the consequence of lack of expectation on the part of the reasonable driver, the speed of the vehicle could and would have been reduced over the distance travelled up to the point of impact to the point at which a reasonable driver could manoeuvre the vehicle around the horse so as to avoid any or any significant impact.
Further, Dr Chew calculated the braking coefficient applied during his test at 0.34 on a horizontal road, and 0.36 with an angle of downslope of one degree. He went on to observe:[48]
In my experience, the average braking coefficient for serviceable motorcar tyres on wet bitumen road surface is 0.4 to 0.5, depending on the texture of the road surface.
[48] Exhibit 12, page 28 (GB 88).
In other words, the braking coefficient applied in the test undertaken by Dr Chew was somewhat less than the average braking coefficient in his experience, consistently with him applying firm but not hard braking throughout the test. As I have found that a reasonable driver responding to the stimulus presented to him or her would have initially applied firm braking, and later hard braking, the test undertaken by Dr Chew tends to overstate the distance which I consider a reasonable driver would have needed in order to bring the utility to a stop.
The test simulation undertaken by Dr Chew and to which I have referred strongly confirms the conclusion which I would draw from the application of common sense and experience to the facts which I consider ought to have been found by the trial judge, being the conclusion that Mr Proudlove succeeded in discharging the burden of proving that Mr Burridge's breach of duty caused or materially contributed to the collision of the vehicle with the horse and therefore to his injuries.
Another way of approaching the same issue is by utilising the methodology adopted by the trial judge. However, for the reasons I have already given and with respect, I consider that methodology to be flawed.
Another possible approach is that taken in the joint reasons, utilising a formula for calculating 'stopping sight distance' provided in the Austroads Guide, to which I have already referred. With great respect, I consider that there are great dangers in the court itself applying a methodology provided in a guide designed for road engineers to use when designing roads in a manner not endorsed by any expert who gave evidence in the case, using different values chosen and applied by the court rather than those chosen and applied by any expert. Those dangers are illustrated by the methodologically flawed approach taken by the trial judge. Although the parties were provided with the opportunity to comment in writing upon the methodology proposed to be used subsequent to the hearing of the appeal, the court lacks the advantage of the views of any expert on the question of the validity of the methodology which has been applied, or with respect to the integrity of the values selected by the court and utilised in the relevant formula.

We accept the submission that 143 m was the maximum distance at which Ms Tremayne would have been visible to a reasonable person in the position of the first respondent. It appears from Dr Chew's report that his assistant was standing almost on the double white lines dividing the lanes.[61] The primary judge's finding was that Ms Tremayne was unlikely to be standing on or very close to the double white lines [373]. It is probable that Dr Chew's assistant was standing closer to the centre of the road than Ms Tremayne, and so would have been illuminated at a greater distance.[62] Further, Dr Chew was driving on a dry road which would have reduced the impact of glare.[63]
[61] The position of the assistant is depicted on photos 6 (GB 71) and 26 - 28 (GB 84) of exhibit 12; see ts 229.
[62] See the headlight luminance graphs at page 3 of Mr Martin's report (exhibit 20) (GB 148), which will be mirrored for an Australian vehicle.
[63] Page 8 of the report of Mr Cook (exhibit 28) (GB 258); ts 571 – 572.
However, for the following reasons, we do not accept that the following other factors to which counsel referred would affect the point at which Ms Tremayne was visible to the first respondent.
Mr Martin, a traffic and transport engineer called by the first respondent, explained that there were four separate periods in a driver's response to a hazard:
1.Detection, being the point where the driver can see something that may or may not ultimately become a hazard.
2.Identification, being the point where the driver can identify what that object is and whether it is a hazard.
3.Decision, which is the time and distance during which the driver determines an appropriate action to respond to the identified hazard.
4.Response, which is the time taken for the driver's brain to provoke a response, and the driver to put a foot on the brake and begin to brake.
These four components comprise the 'perception-reaction time' between the first awareness of an obstacle and driver response initiation (in this case braking).[64] We understand the perception-reaction time described by Mr Martin to be the same as the 'reaction time' in the Austroads Guide to Road Design (exhibit 22), to which we will return.[65]
[64] Exhibit 20, page 2 (GB 147); see ts 309.
[65] See ts 567 - 568 and page 103 of the Austroads Guide to Road Design (exhibit 22).
We accept that factors such as the speed at which the vehicle is travelling, the expectancy of the driver and the familiarity of the driver with the road will affect the point at which a person standing on the road is identified. The distance travelled by Dr Chew between detection and identification of his assistant was likely to be much shorter than for a hypothetical driver in the position of the first respondent at the time of the accident. The primary judge's finding, with which we agree, was that, in Dr Chew's test, detection and identification appear to come together [463].
However, the point at which a person standing in the road becomes visible (ie detectable) should not be different. It is the point of detection which is most critical as that is commencement of the perception-reaction time, or reaction time, dealt with in the evidence.
Therefore we do not accept that the lower speed at which Dr Chew was travelling, the fact that he was expecting to see his assistant or the fact that he had repeated the exercise a number of times would have significantly affected the point at which the assistant became visible (ie detectable as opposed to identifiable, using Mr Martin's classifications).

Visibility distance

Overall, the evidence of Dr Chew supports a conclusion, on the balance of probabilities, that Ms Tremayne became visible to the first respondent from less than 143 m away, although the evidence does not enable a finding to be made about precisely how much shorter that distance would have been.

Facts found by the primary judge

The primary judge saw Dr Chew's test as demonstrating that:
… a person such as Ms Tremayne, dressed as she was, would become visible to a driver driving at slow speed on high beam at a point somewhere between 0 m and 143 m [464].
Later he found that:
… Ms Tremayne should have become visible to the [first respondent] at some point between 143 m away and reaching her [467].
Strictly, these findings are not incorrect. However, the primary judge is speaking of when Ms Tremayne would have become visible. The limited factors which would have affected the point at which she would have been visible, as compared to the assistant in Dr Chew's tests, are discussed above. Given those factors, we would infer that the distance at which Ms Tremayne would have been visible (ie detectable but not necessarily identifiable, using Mr Martin's classification) would be much closer to 143 m than 0 m.
The primary judge also found that the first respondent should have been able 'to see Ms Tremayne and be able to react to her' from a distance of between 0 m and 143 m [542]. Here the primary judge is concerned with a later (closer) point. Using Mr Martin's classification, the primary judge is accounting for at least the distance travelled during identification, and possibly the whole reaction time. On that basis, we agree with his conclusion.
The primary judge also said that the first respondent was likely to have 'observed' Ms Tremayne at a much closer distance than Dr Chew [567]. This appears to refer to the identification of Ms Tremayne (using Mr Martin's classification) rather than when she became visible. On that basis, and leaving aside the primary judge's reference to evidence about a 'rule of thumb' [558] ‑ [563] on which we would not rely, we agree with the primary judge's conclusion. We would infer that a person driving at 110 km per hour not expecting to see anything would identify a person standing on the road at a much closer distance than the point at which the person became visible to Dr Chew.

Conclusion as to challenges to primary findings of fact

For the above reasons, the appellant's challenges to the primary judge's findings of primary fact concerning the location of Ms Tremayne and the distance from which she could be identified by a person keeping a proper lookout must fail. The primary judge's findings are not demonstrated to be wrong by incontrovertible facts or uncontested testimony, and are not glaringly improbable or contrary to compelling inferences.
In our view, a reasonable person in the position of the first respondent would have had no more than about 143 m, and perhaps less, in which to identify Ms Tremayne, brake and avoid a high impact collision with the horse. The inference which we would draw from our review of the evidence is that Ms Tremayne was only slightly to the north of the impact point at the time of the collision, as she would have been near the horses when attempting to shoo them off the road and would not have had time to move far after seeing the headlights of the first respondent's vehicle. We have concluded that Ms Tremayne would be visible to a person in the first respondent's circumstances from less than 143 m to the north. Allowing for Ms Tremayne being slightly to the north of the horses and the distance from which she was visible something less than 143 m, we would infer that the total distance between the impact point and the point at which Ms Tremayne became visible was probably about 143 m, and may well have been less.

Challenge to finding about negligence

By ground of appeal 1, the appellant contends that the primary judge erred in failing to find that the first respondent was negligent in not braking firmly when Ms Tremayne would first have been visible to him, if he had been keeping a proper lookout. The appellant contends that the first respondent should have braked firmly with the object of being able to stop or manoeuver at or about the position where Ms Tremayne was standing, and that a reasonable person would have been capable of doing so. We will deal with the question of what a reasonable person would have been capable of doing when considering the question of causation.
It is evident that both at trial and on the appeal the appellant's case was put on the basis that the first respondent should have applied hard or maximum braking, as for an emergency stop, and that ground 1 is to be understood in that way. That is, it was the appellant's case that a reasonable person's response to seeing Ms Tremayne waving her arms in the northbound lane would have been to brake hard as if to avoid a hazard in an emergency.
We do not accept the submission. Hard braking on a wet rural road at night is itself hazardous, involving the risk of losing control of the vehicle. A person waving their arms may be doing so for a number of reasons, including trying to ask for assistance. The driver would not perceive braking to be necessary to avoid a collision with Ms Tremayne, as she was not standing in the southbound lane in which the first respondent's vehicle was travelling. A reasonable driver would appreciate the risk that braking for an emergency on a wet road might result in loss of control of the vehicle and a collision with the pedestrian ahead.
We agree with the primary judge's assessment that a reasonable driver's reaction to seeing Ms Tremayne would be to brake or slow down [486]. The primary judge did not find that the reasonable person would have immediately attempted an emergency stop before reaching Ms Tremayne's position, which would be significantly less than 143 m away when she was first identified. We are not satisfied that the primary judge's findings in that regard were in error. Ground of appeal 1 is not made out.

Challenge to finding about causation

The primary judge's conclusion that the first respondent's established negligence did not cause the appellant's injuries is challenged by ground of appeal 1, so far as it contends that a reasonable person would have been capable of stopping before reaching Ms Tremayne's position, and grounds 2 - 4 and 7.
Section 5C(1)(a) of the Civil Liability Act 2002 (WA) requires, in the circumstances of the present case, that the first respondent's negligence be a necessary condition of the occurrence of the harm to the appellant.[66] Section 5D of the Civil Liability Act provides for the appellant to bear the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
[66] On the appeal, the parties did not contend that this was an 'appropriate case' for the purposes of s 5C(2) of the Civil Liability Act.
In the present circumstances, it was necessary for the appellant to prove on the balance of probabilities that the collision and the appellant's consequent injuries would have been avoided if the first respondent had taken reasonable care. The critical issue is whether a hypothetical reasonable person in the position of the first respondent, who was keeping a proper lookout and reacted appropriately to seeing Ms Tremayne, would have avoided the collision.
Senior counsel for the appellant accepted that the appellant's case at trial was run on the basis that a reasonable person would have avoided the collision, rather than that a reasonable person would have reduced the speed at which the collision occurred so that less damage would result (appeal ts 24, 27). There was no evidence led at trial that a collision at lower speed as a result of earlier braking would have resulted in a less severe injury.[67] In these circumstances, the appellant's case depends on establishing that a person taking reasonable care would have avoided the collision (either by stopping or slowing sufficiently to be able to manoeuvre around the horses), rather than merely reduced the speed of the vehicle at impact. Of course, that is subject to the qualification that if a person exercising reasonable care would have avoided all but a very low speed collision the court could readily infer that the appellant would not have sustained his catastrophic injuries.
[67] Dr Chew was asked about the issue in cross-examination at ts 218. He said that, without having done a calculation, he could say only that at 50 km/h the impact between the utility and the horse would still be reasonably significant but not as significant as at a higher speed. Later he observed that the kinetic energy of a vehicle would quadruple if its speed doubled (ts 291 ‑ 292).
The expert evidence adduced by the parties at trial did not directly address the distance in which a reasonable person could bring a vehicle travelling at 110 km per hour to a stop. However, senior counsel for the appellant referred the court to Part 3 of Austroads Guide to Road Design (exhibit 22). The appellant contends, and the first respondent's expert witnesses accepted,[68] that the Austroads Guide is a well-recognised and respected publication which is used by road designers on a daily basis.
[68] ts 349, 376, 567.
Part 3 of the Austroads Guide contains a formula for calculating 'stopping sight distance', which is the distance required to enable a normally alert driver, travelling at the design speed on wet pavement, to perceive, react and brake to a stop before reaching a hazard on the road ahead. The formula is as follows:[69]
SSD     =     RтV     +            V ²
3.6         254(d + 0.01a)
Rт        =     reaction time (sec)
V         =     operating speed (km/h)
d         =     coefficient of deceleration (longitudinal friction factor)
a         =     longitudinal grade (%, + for upgrades and − for downgrades)
[69] Exhibit 22, p 106 (GB 192).
The appellant submitted that these contents of the Austroads Guide, accepted by the first respondent's expert witnesses as authoritative, can be used for this purpose. We accept that submission and reject the contrary position of the first respondent that the Austroads Guide can only be referred to and used to the extent necessary to understand the evidence of the first respondent's experts.
The appellant contends that the appropriate reaction time is two seconds being that designated in the Austroads Guide for 'alerted driving situations in rural areas'.[70] For the purpose of these reasons we will assume, in the appellant's favour, that the reaction time of a reasonable person keeping a proper lookout would be only two seconds.
[70] Exhibit 22, table 5.2 (GB 190). In fact, the reaction time of 2.5 seconds designated for 'unalerted driving conditions' would appear to be more appropriate.
Dr Chew's evidence was that the maximum braking coefficient for serviceable motorcar tyres on wet bitumen surface is 0.4 to 0.5, depending on the texture of the road surface.[71] The Austroads Guide identifies a coefficient of deceleration of 0.46 to reflect the mean value for braking on wet sealed roads for a hazard, and 0.36 as reflecting about a 90^th percentile value for braking on wet sealed roads.
[71] Exhibit 12, p 28 (GB 88); ts 225.
In the circumstances, it is reasonable to allow for a braking coefficient of 0.4 in assessing how quickly the first respondent could probably have stopped if he braked hard as soon as he should have identified Ms Tremayne. The stopping sight distance calculation on a 1.7% downgrade[72] is then:
SSD = (2 × 110 ÷ 3.6) + 110²÷ (254 × (0.4 ‑ 0.017))
≈ 185
[72] The grade of a roadway is expressed by stating the vertical or fall as a percentage of the horizontal distance. A 1.7% downgrade is the equivalent of the 1° angle of declination described in Dr Chew's report: exhibit 12, page 18 (GB 78).
This indicates that the first respondent's vehicle required 185 m to stop from a speed of 110 km per hour, braking hard after a two second reaction time. That assumes that a reasonable person's response on identifying Ms Tremayne waving her arms in the northbound lane would have been to brake for a hazard. For reasons explained in dealing with the challenge to the negligence finding, we do not consider that would have been a reasonable person's response. That suggests that a braking coefficient of 0.26, identified by the Austroads Guide as reflecting comfortable deceleration on sealed roads, may be more appropriate. At a braking coefficient of 0.26, the stopping sight distance calculated in accordance with the above formula is 257 m.
In written submissions following the hearing of the appeal, the appellant argued that the gradient only applied to the 50 m north of the point of impact, so that the average angle of declination was 0.4 degrees. When the above calculation, using a braking coefficient of 0.4, is done on that basis, the stopping distance is about 182 m. With a braking coefficient of 0.26, it is about 249 m.
On the basis of the gradient figure proposed by the appellant, a reasonable person reacting to Ms Tremayne two seconds after she became visible would have required somewhere between 182 m and 249 m to stop the vehicle. That is significantly more than the distance between the impact point and the point where Ms Tremayne was visible, which we infer to be approximately 143 m, and quite possibly less.
Dr Chew calculated the speed at which the first respondent's vehicle would have been travelling at the impact point for different reaction times and braking coefficients, assuming that Ms Tremayne was visible 220 m before the impact point.[73] The table is reproduced at [290] of the primary judgment. The table is not directly applicable once it is found that the distance was about 143 m.
[73] Exhibit 12, pages 28 ‑ 29 (GB 88 ‑ 89).
However, Dr Chew's report provides the formula which may be used to calculate the velocity of the ute after it has travelled 143 m, assuming certain reaction times.[74] The formula is:
[74] Exhibit 12, pages 28 - 29 (GB 88 ‑ 89).
v     =   √(u²- 2a(S - S1))
where:
v     =   final velocity
u     =   initial velocity of ute = 110 km per hour = 30.56 m/second
a     =   braking coefficient × gravitational constant (9.8 m/s²)
S1=   distance covered during reaction time = 61.12 m for a 2 s reaction time
S     =   available distance = 143 m.
Assuming a two second reaction time, an initial speed of 30.56 m per second, a braking distance of 143 m and a braking coefficient of 0.4, the speed at the impact point would be calculated as follows:
v     =   √(30.56² - 2 × 0.4 × 9.8 (143 - 61.12))
=   17 m/s
=   61 km/h
Assuming a braking coefficient of 0.26, and the other factors remaining constant, the speed at the impact point would be calculated as follows:
v     =   √(30.56² - 2 × 0.26 × 9.8 (143 - 61.12))
=   22.7 m/s
=   82 km/h
These calculations would underestimate the speed at the impact point because, as Dr Chew acknowledged in his evidence, a slightly higher braking coefficient is required to achieve the same deceleration on a downgrade.[75]
[75] Exhibit 12, page 28 (GAB 88); ts 175
This leads us to infer that a reasonable person reacting to Ms Tremayne two seconds after she became visible by braking (but not necessarily for an emergency) would have been travelling at between 61 and 82 km per hour at the impact point if the road had been flat. The velocity at the point of impact would have been higher when allowance is made for the declination of the road at that point.
The overall effect of this analysis is that a distance of about 143 m between Ms Tremayne becoming visible and the impact point would not be sufficient to allow a reasonable person in the position of the first respondent to avoid reaching the impact point at speed. That is, the appellant did not establish that the collision and therefore (in the way in which the case was argued below) that his injuries were caused by the first respondent's failure to exercise reasonable care. It was open to the primary judge to conclude that the appellant had not established the collision with the horse to be avoidable by the exercise of reasonable care. In our view, for the reasons we have explained, that conclusion was correct on the primary facts which the primary judge found.

For the above reasons, none of the appellant's grounds 1 - 5 or 7 have been made out.
Ground 6 asserts that the primary judge erred in having regard to what was described in evidence as the 'Hyzer and Hyzer method' and in giving weight to allegedly hearsay evidence about articles dealing with human behaviour that were not tendered. We have concluded that the primary judge's ultimate conclusion, that the first respondent's negligence did not cause the collision and appellant's consequent injuries, was correct without reference to the 'Hyzer and Hyzer method' or the articles referred to. Therefore, success on ground 6 alone would not justify allowing the appeal. In those circumstances, it is unnecessary to deal with ground 6 and we would refuse leave to amend the grounds of appeal to add grounds 6(a) and (b). We would also, for the same reason, dismiss the appellant's application to adduce additional evidence on the appeal, that evidence being directed to ground 6.

Cross‑appeal

The first respondent has purportedly cross-appealed against the primary judge's decision. The first respondent's ground of cross-appeal is that the primary judge erred in fact in finding that the first respondent ought to have seen Ms Tremayne.
The grounds and submissions advanced in support indicate that what is advanced is a notice of contention rather than a cross-appeal, as the first respondent does not seek to set aside, vary or add to any of the primary court's orders. Given the failure of the appeal, success on the 'cross‑appeal' would not lead this court to interfere with the primary court's orders.
In these circumstances, it is sufficient to say that we do not consider the first respondent has demonstrated the finding that the first respondent ought to have seen Ms Tremayne before he reached her position to be wrong by incontrovertible facts or uncontested testimony, or to be glaringly improbable or contrary to compelling inferences. We agree with the primary judge's conclusion that a driver keeping a proper lookout would have identified Ms Tremayne standing somewhere on the northbound land, in a white T-shirt and waving an arm or arms, at some time before reaching her when travelling at 110 km per hour with the headlights on high beam.

Conclusion

We would:
1.dismiss the appellant's application to amend the grounds of appeal;
2.dismiss the appellant's application to adduce additional evidence on the appeal; and
3.dismiss the appeal and the cross-appeal.

[2017] WASCA 6

17 JANUARY 2017

Key Legal Topics

Areas of Law

Tort Law

Legal Concepts

Negligence

Causation

Compensatory Damages

Appeal