Richards v Picco

[2000] NSWCA 35

CITATION:	Richards v Picco [2000] NSWCA 35
FILE NUMBER(S):	CA 40378/98
HEARING DATE(S):	15 February 2000
JUDGMENT DATE:	10 March 2000
PARTIES :	Appellant: Jennifer Richards Respondent: Catherine Picco
JUDGMENT OF:	Mason P at 1; Meagher JA at 2; Heydon JA at 12

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 5336/97
LOWER COURT JUDICIAL OFFICER :	Puckeridge J

COUNSEL:	Appellant: Mr JD Hislop QC, P. O'Conner Respondent: Mr B Murray QC, R Hanrahan
SOLICITORS:	Appellant: McCulloch & Buggy Respondent: Allen, Allen & Hemsley
CATCHWORDS:	Motor vehicle accident - Resulting in death - Negligence contrbutory of deceased - assessment of damages
LEGISLATION CITED:	Suitors' Fund Act
CASES CITED:	Cocks v Sheppard (1978) 25 ALR 325
DECISION:	1. Appeal allowed.; 2. Verdict and judgment for the respondent set aside; 3. Verdict and judgment for the appellant substituted.; 4. Cross-appeal dismissed.; 5. The respondent pay the costs of the appeal and cross-appeal and the costs in the court below, and to have a certifcate under the Suitors' Fund Act if qualified.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40378/98

MASON P
MEAGHER JA
HEYDON JA

10 MARCH 20000

JENNIFER RICHARDS v CATHERINE PICCO

MOTOR VEHICLE ACCIDENT-RESULTING IN DEATH-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE OF DECEASED-ASSESSMENT OF DAMAGES

Facts: The respondent’s husband was killed in a motor vehicle collision. The accident occurred on a country highway outside Coonabarabran, when the deceased’s motorcycle collided with the appellant’s utility. Both parties were travelling in the same direction, and when the appellant attempted a right hand turn, the deceased failed to decelerate fast enough to avoid collision.
The trial judge found in favour of the respondent. Although contributory negligence was assessed at 35% to the deceased, his Honour held that the appellant failed to appreciate the speed with which the motorcycle was approaching and so did not take the necessary precautions to avoid collision.
On appeal there were three issues raised:
1. Whether the appellant was negligent in failing to pay proper attention to the approaching cyclist.
2. Whether the trial judge’s assessment of contributory negligence was inadequate.
3. There was a cross-appeal on damages.

Held: (per Mason P, Heydon JA, Meagher JA dissenting): The circumstances surrounding the accident indicated the cause of death was excessive speed by the deceased, not the appellant’s negligence. The appellant checked the position of the motorcycle several times before she indicated her intention to turn right, and immediately after putting on the indicator. After this time she was entitled to assume the deceased would respond to her indication of intention.

ORDERS

1. Appeal allowed.
2. Verdict and judgment for the respondent set aside.
3. Verdict and judgment for the appellant substituted.
4. Cross-appeal dismissed.
5. Respondent to pay the cost of the appeal and cross-appeal, and costs in the court below, and have a certificate under the Suitors’ Fund Act if qualified.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40378/98

MASON P
MEAGHER JA
HEYDON JA

10 MARCH 2000

JENNIFER RICHARDS v CATHERINE PICCO

JUDGMENT

1   MASON P: I agree with Heydon JA.

2   MEAGHER JA: This is an appeal from a judgment of Puckeridge DCJ in a compensation to relatives action. His Honour had found against the appellant, Mrs Richards, in favour of the respondent, Mrs Picco, the widow of the deceased. The deceased was a Canadian resident holidaying in Australia. He was killed in a road accident when the motorcycle he was riding crashed into a species of motor car called a Sherpa which was being driven by the appellant. They were both travelling in the same direction on the Oxley Highway, going towards Coonabarabran. 3   The appellant, who was droving sheep, came on to the highway from a stock reserve at which point she noticed the motorcycle a long way behind her (about 2 kilometres). Later she observed him when he was 100 metres away. She again saw him, shortly before she commenced her fatal manoeuvre, about 40 metres behind her. 4   The evidence demonstrated that she was driving at a rather slow speed, never (at any relevant stage) at more than 60 kpm, and slowing down before the accident. He, on the other hand, was going at a speed of at least 100kpm, and was almost certainly exceeding the speed limit, although not at such a speed as to create alarm. 5   The accident occurred when the appellant sought to make a right hand turn. The deceased tried to pass her on her right-hand side and braked heavily. However, he could not make it, crashed into her car, and was killed. 6   There was evidence about the cycle’s skid marks, and about his passing another car owned by a Mr Stevens shortly before the accident, but I do not see much relevance in either subject. 7   Limiting oneself to the facts I have recited, there seems to me ample evidence to justify his Honour’s finding.

“Had she, (the appellant) paid proper attention to the near presence and the speed of the cycle, she could have waited before making the right- hand turn and thus allow the deceased to overtake her.”

8   There is no doubt a duty exists to take reasonable care to prevent foreseeable injury to a vehicle travelling behind one (Cocks v Sheppard (1978) 25 ALR 325), and this is an example where the appellant committed a breach of that duty. The appellant made 3 successive sightings of the deceased: one when he was 2 kilometres away, one when he was 100 metres away, one when he was 30 to 40 metres away. It must have been obvious to her that he was catching up to her rapidly, and was almost on her tail at the time she made her right-hand turn. It must have been equally obvious to her , if she thought about the matter at all, that he would pass her on the right side of her car very quickly if she remained stationary for a moment but that a collision might occur if she proceeded to execute a right-hand turn. I would dismiss the appeal with costs. 9 His Honour found the deceased guilty of contributory negligence, and assessed it at 35%. The respondent cross-appeals against this assessment. His Honour found the following factors indicative of contributory negligence (a) he was driving too quickly, (b) he was unfamiliar with Australian driving conditions, (c) he failed to slow down, (d) he failed to sound his horn to indicate his intention to overtake, and (e) he failed to wear a properly secured helmet. Of items (a), (b),(c) and (d) there is, in my view, no doubt. Item (e) is more controversial. His Honour’s explanation of his reasons for item (e) is scarcely satisfactory. He relied on the appellant’s evidence as to her observations of the deceased at the time of the collision, about which she was equivocal. He also relied on what he was pleased to call the evidence of Constable Vincent, who, according to his Honour, “said in evidence that he observed the deceased’s helmet was on the grass verge in front of him”. In fact, Constable Vincent said no such thing; moreover, he arrived at the scene after the ambulance had taken the deceased away. To make matters worse, his Honour did not mention the evidence of Constable Chaffey, who was the first police officer on the scene and who said the deceased had his helmet on when he arrived. His Honour’s misstatements about the evidence on item (e) causes me much doubt, but in view of the undoubted correctness of the findings on items(a), (b), (c) and (d) I would not disturb the findings of 35% 10 The respondent also cross-appealed on damages. To award damages in a compensation to relatives case is notoriously difficult, and mathematical accuracy more elusive that usual. However, the respondent did make some telling criticisms of his Honour’s reasoning. His Honour had before him two financial calculations of the plaintiffs “Loss of Future Financial Benefit” prepared by an accountant Furzer Crestani & Co. Central to them was the payment made annually by the deceased’s Company Davco to the deceased and the plaintiff. One calculation, Scenario 1, dealt with the payments for the year ended 31/12/91; the other calculation, Scenario 2, dealt with the average of the years 1988 to 1991. His Honour applied Scenario 2 up to the date of trial, and Scenario 1 thereafter. There is no apparent logical justification for this approach. Again, his Honour seemed, in some way, to take into account certain post-mortem factual arguments which are wholly irrelevant. However, the financial results of correcting these observations would, on the respondent’s case, do no more than add $40,000 to the verdict of $457,507.00. In all the circumstances I do not think sufficient reason exists to disturb the damages. 11 I therefore propose that both the appeal and the cross-appeal be dismissed with costs. 12 HEYDON JA:

Background

The following facts were found by the trial judge or are uncontroversial.

13   At about 1.40pm on 22 January 1992 the respondent’s husband was riding a motor cycle west along the Oxley Highway. The highway ran east-west. The road surface was of bitumen 8.8 metres wide with gravel shoulders of about a metre. The bitumen surface had dotted white centre markings dividing it into equal parts. The speed limit was 100 kilometres per hour. The weather was fine and dry and the visibility was good. 14   The appellant had been droving sheep in the area. In order to round up stragglers she drove a Sherpa motor vehicle, described as a “utility”, onto the highway, at which time she saw the deceased about one or two kilometres behind her. She proceeded west for 200-300 metres. The vehicle was a manual with four forward gears and was 1.4 metres wide. It was small and about seven years old. She saw the deceased again when he was about 100 metres away. 15   A collision occurred when the motor cycle ran into the Sherpa as the latter executed a right hand turn. The collision occurred wholly within the east bound lane of the highway. 16   The Sherpa had two working sheep dogs in the back. There was a sheep warning sign beside the road at least one kilometre east of the accident. The sign took the form of a large square tin sign, one metre by one metre, with the image of a sheep in black on a yellow background: the image of the sheep took up most of the sign and the word “ahead” was written below the image of the sheep. The sign had been placed there by the appellant. Sheep were to the east of the accident scene and were in and around the adjoining paddocks. 17   The appellant at all times was travelling at speeds well below the speed limit. Her maximum speed was 60 kilometres per hour and prior to the collision she had been decelerating by moving down through the gears without using brakes. 18   She commenced to turn from a position in the westbound traffic lane which was toward the centre of the road. She did not deviate to the left. She made the turn in second gear at a speed of 15 kilometres per hour which was decreasing. 19   The right hand blinker of her Sherpa utility had been activated when the motor cycle was at least 40-50 metres behind and travelling on the correct side of the road. 20   Immediately after she activated the blinker, she looked in her rear vision mirror and saw the deceased 40-50 metres behind her. She continued on for another 30 metres and began to turn. 21   The deceased was travelling at a speed in excess of the speed limit (at least 110-115 kilometres per hour). The deceased did not brake until the last moment whereupon the bike moved on to the incorrect side of the road. There was no evidence that the deceased had given any indication of an intention to overtake the Sherpa utility by blinker signal, flashing lights, sounding of the horn, or otherwise.

Negligence of the Appellant

22   The conclusion of the trial judge as to negligence was expressed as follows:

“I have come to the conclusion that the [appellant] was paying insufficient attention to the near presence of the cycle to her and that she executed the right hand turn across the Oxley Highway, without paying proper attention to the near presence of the motor vehicle and failed to properly take into account the speed at which the cycle was approaching. Had she paid proper attention to the near presence and the speed of the cycle, she could have waited before making the right hand turn and thus allow the deceased to overtake her.”

23   The trial judge did not find, nor was it argued by the respondent, that it was negligent of the appellant:

(a) to slow down from 60 kilometres per hour to 15 kilometres per hour as she went down through the gears preparatory to executing the right hand turn; or

(b) to remain on the left hand side of the road while slowing down; or

(c) to fail to pull over to the left to permit the motor cycle to pass.

Indeed, the respondent’s submission below was “that all that was required of the [appellant was] that she not alter her position on the roadway”.

24   After the accident a skid mark left by the tyres of the motor cycle was observed. It was 27.9 metres in length. It commenced on the left hand side of the road as recorded in Exhibit C. It finished on the right hand side 3.1 metres south of the northern edge of the bitumen road. Since the road was 8.8 metres wide, it follows that the skid finished 1.3 metres over the centre line. The trial judge was correct in being unable to conclude from Exhibit C alone that the deceased “was about to overtake”. The drawing of that conclusion, if the trial judge did intend to draw it, is not strengthened by Mrs Stevens’ evidence that she, a passenger in a car which had just been overtaken by the motor cycle, saw the cycle veer to the right towards the middle of the road. That evidence could not add to Exhibit C which is real evidence of an inherently more reliable character than an observation narrated testimonially six years later. Indeed, not only did Mrs Stevens’ evidence not add to Exhibit C, it was contradicted by it. She said the cycle “veered towards the middle of the road” before impact. The skid mark was straight. Professor Churches, an expert called by the respondent, opined that the skid mark did not evidence any attempt by the deceased to swerve to the right of the utility. The skid mark is at least as consistent with a belated realisation by the deceased that he was closing dangerously fast on the Sherpa vehicle which, because of its small size and low speed was unlikely to be able to accelerate out of trouble, as it is with an inference that the deceased “was about to overtake the vehicle”, let alone that the deceased was in the act of overtaking the vehicle. 25   There was no evidence or finding that the deceased intended to overtake the appellant at the point at which the collision occurred, nor, if the deceased had that intention, that he had communicated it in sufficient time for the appellant to avoid the collision. Without communication of that intention, it is difficult to find a want of care in the appellant in turning right. 26   The appellant submitted that the deceased was “master of the situation”. This submission appears sound in the sense that once one excludes from the possible candidates for negligent conduct the appellant’s failure to move to the left, the circumstances point to the cause of the accident as being the excessive speed of the deceased. The evidence does not support the conclusion that the deceased was in the act of overtaking, nor did the trial judge find this. The deceased, being a cyclist following the Sherpa vehicle, had unbroken opportunities to gauge relative speed and can have had no legitimate expectation that the Sherpa vehicle would move aside to the left. Since the appellant could see the deceased when she came on to the road one or two kilometres away, and saw him on two later occasions, first 100 metres away, and then 40-50 metres away, he must have seen her continuously. He must have perceived, or ought to have perceived, the possibility that she would turn: she had moved on to the road from an adjoining property, there were working dogs in her vehicle, he had passed the sheep warning sign by the side of the road one kilometre before the accident, the area was obviously used for the raising of sheep, and the inference that she might turn off the road to commence some new pastoral task was available. 27   The respondent stressed the variety of activities which the appellant carried out between observing the cycle 40-50 metres behind her and the collision. She glanced to her left at a ramp and remembered a dog which she usually tied up there and which had died earlier that morning. Then she glanced at the sheep to the right hand side of the road which she was intending to muster. Then she checked the crest of the hill ahead for oncoming traffic. The submission suggested both that these activities took some time and that the time should have been spent in a further look at the cyclist. As to the first point, the appellant said that the sideways looks took only the time it took to roll her eyes. As to the second point, she had looked at the cyclist just after putting on the indicator: he ought to have been on notice of the impending turn from that point. 28   The appellant was not found negligent in looking back at the cyclist only just after putting on the right hand indicator as distinct from before. To require the appellant to look back not only just after putting on the indicator but just before actually turning is to require something more than care: she was entitled to assume that the cyclist would respond to her indication of intention. In all the circumstances there was no failure to take care. 29   But, assuming that her failure to check the whereabouts of the cyclist before putting on the right hand indicator was a failure to take care, it was not causative of the accident. Had she checked the whereabouts of the cyclist immediately before putting on the right hand indicator and immediately before turning, she would have seen nothing different from what she had seen earlier save that the cyclist was closer. She would have seen nothing to indicate that the cyclist was about to pass her, for there is no evidence that he was signalling any intention to do so by the use of a turn indicator, the use of the horn, the flashing of his lights, or even the commencement of a change of direction to overtake. His speedy approach was not something which ought to have induced her to “have waited [i.e. stopped] before making the right hand turn and thus allow the deceased to overtake her.”

Contributory Negligence of the Deceased

30   In the circumstances it is not necessary to deal with the arguments in relation to the contributory negligence of the deceased which were put in support of the Notice of Appeal and the Notice of Cross-Appeal respectively.

Damages

31   Nor is it necessary to deal with the respondent’s cross-appeal on damages.

Orders

32   The proposed orders are as follows:

1. Appeal allowed.

2. Verdict and judgment for the respondent set aside.

3. Verdict and judgment for the appellant substituted.

4. Cross-appeal dismissed.

5. The respondent pay the costs of the appeal and cross-appeal and the costs in the court below, and to have a certificate under the Suitors’ Fund Act if qualified.

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