Sheldrick v State of New South Wales - [2007] NSWCA 105

NEW SOUTH WALES COURT OF APPEAL

CITATION: Sheldrick v State of New South Wales [2007] NSWCA 105
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40329/06

HEARING DATE(S): 24/4/07

JUDGMENT DATE: 7 May 2007

PARTIES:
Neil Sheldrick (Appellant)
State of New South Wales (Respondent)

JUDGMENT OF: McColl JA Bell J Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 4606/04

LOWER COURT JUDICIAL OFFICER: Johnstone DCJ

COUNSEL:
Mr D Kennedy SC / Mr C Evans (Appellant)
Mr M Lynch (Respondent)

SOLICITORS:
Lyons & Lyons (Appellant)
Hicksons (Respondent)

CATCHWORDS:
Child plaintiff - contributory negligence

LEGISLATION CITED:

CASES CITED:
Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1
McLean v Tedman (1984) 56 ALR 359
Podrebersek -v- Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Sungravure Pty Ltd v Meani (1964) 110 CLR 24

DECISION:
1. Dismiss the appeal
2. The appellant is to pay the respondent’s costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40329/06
DC 4606/04
McCOLL JA
BELL J
HOEBEN J
Monday 7 May 2007

Neil Sheldrick v State of New South Wales

Judgment

McCOLL JA: I agree with Bell J.
BELL J: The appellant suffered severe injury when the pushbike that he was riding was struck by a car. He was a 14 year-old schoolboy participating in a school recreational cycling excursion at the time. He brought proceedings in negligence against the driver of the car and the respondent, the State of New South Wales, as being vicariously liable for the conduct of the teachers who were responsible for the excursion.
The trial Judge found that the appellant had cycled through a give-way sign without pausing and into the path of the oncoming vehicle. His Honour found that the driver of the car was not negligent and entered a verdict in her favour. There is no appeal from the judgment in this respect. His Honour found that the teachers responsible for the excursion were negligent in their failure to supervise the excursion and that this failure was a direct cause of the appellant’s injuries. A verdict was entered in favour of the appellant. Damages were agreed in an amount of $600,000. His Honour found the appellant was guilty of contributory negligence, which he apportioned at 40 per cent. Judgment was entered for the appellant against the respondent in the amount of $360,000.
The appellant appeals against the finding of contributory negligence and the apportionment.
The facts
The Judge found the following facts.
The accident occurred on 22 February 1996. The appellant was aged 14 years. He was living with his family in Lavington, a northern suburb of Albury. He was in Year 9 at the Murray High School. He was a bright student, who had come first or second in his year. He was not particularly athletic, but he did enjoy bike riding. He used to ride around the quieter streets in the suburb of Lavington. He was of average build and strength.
The appellant had been on one, possibly two, previous excursions with the school cycling group before the accident. He had received only minimal instruction from the teachers supervising the activity. There had been no orientation session, no instruction on group formation, speed or the road rules. No inquiry had been made as to the experience or capability of the participants in riding bicycles. The appellant's only recollection of any instruction was that he should always brake first, using the back brakes to avoid going over the handlebars.
The appellant was not experienced in cycling on busy city streets and he had never cycled to Wodonga. He rode to school each day, but this was on a route that only required him to cross one busy street. He was able to negotiate this street using a patrolled level crossing. He had never been on a bike trip lasting more than one hour.
On the day of the accident the group left the school gates at about 1.30 pm. There were two teachers accompanying the group. Neither gave evidence at the trial. It was not clear how many boys there were in the group, but there were more than five.
The group rode south, through the city of Albury to the Murray River. Some parts of the journey involved cycling on streets and other parts made use of bicycle tracks, in particular the cycle way along the Lincoln Causeway. The group crossed the river and cycled into Wodonga, where they visited a bike shop. The ride to Wodonga covered a distance in excess of 16 kilometres and took about an hour. The time spent at the bike shop was variously estimated as between five and 15 minutes. The group then set out on the return journey. At the bridge near the river the teachers told the group that they were dismissed and could go home. One group of boys, including the appellant, set out for North Albury together. Among the members of this group was a boy named Bernard Wassman, who was a friend of the appellant. This group rode north through the busy streets of Albury, towards Lavington. At first they all kept together. One of them wanted to visit a motorbike shop and to this end they made a brief stop at Buzz’s Motorbike Shop.
By the time the group reached the Albury High School the appellant was tired, puffed and thirsty. He was planning to stop for a drink before going home.
The accident occurred at the intersection of Alma Street and North Street, Albury. Alma Street runs generally north. North Street runs in an east west direction. As the group approached Alma Street heading north the appellant dropped behind the others. It was not clear whether this was because he was getting tired or because he had been delayed at the roundabout just before Alma Street. In any event, as the group cycled along Alma Street the appellant was about 15 to 20 metres behind the other boys.
There was a give-way sign at the intersection of Alma Street and North Street. The other four boys reached the intersection and the appellant saw them riding into it. At this point he was about 30 metres from the intersection. The appellant had no recollection of the events which occurred thereafter.
The appellant had given evidence in the District Court on an earlier occasion. He acknowledged that on that occasion he had said that he had seen the give-way sign and that he had noticed a van, which was stationary at the intersection, giving way to traffic in North Street. The appellant was aware of the obligation on traffic in Alma Street to give way to traffic on North Street.
At the time of the accident there was a queue of cars which were stationary at the give-way sign in Alma Street. A white van was closest to the intersection. The driver of the white van did not stop after the accident and was not identified.
There were differing accounts both of the circumstances in which the four boys cycled through the intersection and of the appellant’s conduct in the period immediately before the accident. Bernard Wassman was the last of the four boys to turn into North Street and after doing so he slowed down looked back towards the appellant.
Bernard Wassman’s account was that as he and the other boys turned right into North Street they were cycling beside a car. Mrs Beveridge, the driver of the car that collided with the appellant, gave evidence that the cyclists had travelled through the intersection alone. Two of the other members of the group, Blake Watson and Dallan Yeo, gave evidence that they had cycled through the intersection alone. The Judge considered the preponderance of the evidence supported the conclusion that the four boys rode out alone, passing the waiting stationary cars.
Bernard Wassman said that he saw the appellant reach the intersection, slow down, nearly stop and look to his right for traffic. He looked for about two seconds. Mr Wassman said that he had looked forward again and saw a car drive past him approaching the intersection from the east. This was Ms Beveridge’s car. Five to 10 seconds later Mr Wassman said that he heard screeching tyres and saw the appellant in mid-air with his bike spinning around, hitting the front left door of Mrs Beveridge’s vehicle.
Mrs Beveridge gave evidence that she was driving west on North Street at 50 kilometres per hour. She saw a vehicle in Alma Street waiting at the give-way sign. She had taken her foot off the accelerator as she neared the intersection because she knew it was a dangerous intersection and one could never be sure if cars would emerge contrary to the give-way sign. The first awareness she had of the appellant was of seeing something to the left in her peripheral field of vision. Next she heard a bang and saw the appellant.
Mr Hartley, was a passenger in the left front seat of a car being driven north along Alma Street at the time of the accident. The car in which he was travelling was about 20 to 30 metres from the intersection when he saw the appellant ride his bike up the left hand side of the cars waiting at the give-way sign. The appellant continued riding at a constant speed up to the intersection, out past the first vehicle and into the intersection, where he was struck by a car coming west on North Street. Mr Hartley said that his attention had been drawn to the appellant because he had not slowed down at the intersection. Mr Harley’s memory of the collision “was a quick blur” but he recalled seeing the appellant flying through the air.
The Judge preferred Mr Hartley’s version of the appellant’s conduct in the lead up to the accident to the version given by Bernard Wassman. His Honour found the appellant rode through the give-way sign without pausing, out into North Street, past the line of cars, including the waiting white panel van at the head of the queue, into the path of the oncoming vehicle driven by Mrs Beveridge.
The grounds of challenge
By his amended notice of appeal, which was filed in Court on the hearing of the appeal, the appellant challenged the Judge’s finding that he rode straight through the intersection without slowing down and attempting to give-way (ground 6). It is convenient to deal first with this challenge to the facts found by the Judge.
His Honour’s finding was based on his acceptance of the evidence of Mr Hartley in preference to the evidence of Bernard Wassman. His Honour gave reasons for this conclusion. Mr Hartley was an independent observer. His version of events had not been seriously challenged in cross-examination and it was consistent with the version of events given by Mrs Beveridge.
Senior counsel for the appellant submitted that Mr Hartley had not been well-placed to make his observations. In particular, he submitted that from his position in Alma Street Mr Hartley would not have been able to observe things such as whether the appellant had looked to his left up the hill to see if cars were travelling east in North Street. In Counsel’s submission, this would have been a natural thing for him to do. There was no evidence that the appellant did look to his left to see if traffic was coming down the hill.
The propositions that senior counsel put on the hearing of the appeal concerning the limitations on Mr Hartley’s ability to see the incident were not put to Mr Hartley.
It was also submitted that his Honour erred in describing Mr Hartley’s account as being consistent with the version of events given by Mrs Beveridge, since she had not seen the appellant prior to the collision.
The Judge’s observation that Mr Hartley’s evidence was consistent with the version of events given by Mrs Beveridge makes sense when his Honour’s reasons are read in context. Mrs Beveridge was travelling at 50 kilometres per hour west on North Street. The evidence of Bernard Wassman was that when he turned and looked back to the appellant:
He was at the intersection looking for traffic basically giving way (CB.H-I).
Mr Wassman described the appellant looking towards the eastern end of North Street for traffic for a period that he estimated to be about two seconds (CB.89.M-P). This version of events did not explain why the appellant had not seen Mrs Beveridge’s vehicle approaching the intersection at about 50 kph from the east. Mr Hartley’s account, namely that the appellant cycled straight into the intersection without looking, did fit with his acceptance of Mrs Beveridge’s evidence.
There is no basis for disturbing the Judge’s factual finding. Ground 6 is wholly lacking merit.
Grounds 1 and 2 challenge the sufficiency of the Judge’s reasons for his findings that the appellant was guilty of contributory negligence and on apportionment.
The Judge’s decision was delivered ex tempore. His Honour made the following finding concerning the appellant’s conduct in the lead up to the accident (RB 38.P-T):
[47] It follows that I accept that the plaintiff rode through the give-way sign without pausing, out into North Street, past the line of cars, including the waiting white panel van at the head of the queue, into the path of the oncoming vehicle of the first defendant, Mrs Beveridge.
His Honour set out his reasons for determining that the appellant was guilty of contributory negligence at [72] (RB 44.G-Q):
[72] In my view this plaintiff was guilty of contributory negligence to a substantial degree. Clearly it was he who went through the give-way sign contrary to the requirements of the traffic rules. He knew he was required to give-way to traffic in North Street but failed to do so. In this regard the evidence is, as I have found it, that he did not change his speed, and emerged from beside the white van into the pathway of the oncoming vehicle of the first defendant. He clearly did not take sufficient care to pause or stop and adequately observe whether or not the path was clear. He should have been alerted to the danger by the fact that the other vehicles remained stationary at the give-way sign.
In written submissions senior counsel for the appellant referred to the obligation to give proper reasons explained in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 per Kirby P (as his Honour then was) at 257 and 259. At 259 his Honour said:
This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged.
I see no warrant for the contention that the Judge failed to adequately state his reasons for concluding the appellant was guilty of contributory negligence. There was a critical factual issue, which his Honour resolved against the appellant by his acceptance of the evidence of Mr Hartley. His Honour set out, in the passage that I have extracted above, a concise statement of the matters that he took into account in holding that the respondent had established that the appellant did not take the reasonable care for his own safety that was to be expected of a boy of his age.
The Judge found that the appellant’s contributory negligence was “substantial”. His Honour dealt with the question of apportionment as follows (RB 44.R-RB 45.F):
[73] The question then becomes, to what extent is it just and equitable to reduce his damages? In considering this issue I take into account the relative culpability of the defendant in comparison to that of the plaintiff: Barisic v Devenport [1978] 2 NSWLR 111.
[74] In this regard I must compare the respective degrees by which the conduct of the plaintiff and the defendant has diverged from the standard of care of a reasonable person: Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 529 at 532-3.
[75] I take into account the plaintiff’s age, the fact that he was fatigued, thirsty and most probably anxious that he had fallen behind his fellow cyclists.
[76] I assess the contributory negligence of the plaintiff at 40 per cent.
I do not consider the challenge to the sufficiency of reasons with respect to the issue of apportionment has merit. His Honour correctly stated the principles to be applied. The judgment is a discretionary one. His Honour recorded his assessment that the appellant’s contributory negligence was substantial.
In ground 3 of his amended notice of appeal the appellant contends that the Judge erred in his evaluative conclusion that the appellant was guilty of contributory negligence. Counsel for the respondent submitted that the appellant should not be permitted to challenge the finding of contributory negligence in light of the concession made by trial counsel. The appellant’s counsel submitted before the Judge (at CB 145.O-X):
I’m not arguing that you should not make any finding of contributory negligence because I don’t think the law in that respect goes that high but given that this is a situation of momentary lapse of judgment, your Honour’s finding in respect to culpability ought to reflect that. In my submission it is a lot less than 25 per cent in the circumstances of this case, and when it comes to that, of course one factor I haven’t mentioned is that you’ve got to judge not just the culpability against the driver, but the culpability against the school as well.
Now you have to look at the totality of the conduct of the two defendants together, not just the driver. Now arguably there is no contributory negligence against this school because this accident, the mechanism of this accident is exactly what the system, the school’s policy and the government’s policy was designed to prevent, that is to have children supervised in a closed file system, a military system where there’s a leader supervisor at the front and one at the back, the one at the front controls the pace, the one at the back controls the stragglers, and the two supervisors communicate with each other.
When regard is had to the whole of the passage set out above, it seems to me that the concession was made in the context of the case brought against Mrs Beveridge.
The submission put at trial - as to the absence of contributory negligence in the context of the claim against the respondent - was the one pressed on appeal: the risk that had eventuated was the very one that the respondent was under a duty to protect the appellant from.
In Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 Gleeson CJ, McHugh, Gummow and Hayne JJ at 14 [29] said:
There is no rule that apportionment legislation does not operate in respect of the contributory negligence of a plaintiff where the defendant, in breach of its duty, has failed to protect the plaintiff from damage in respect of the very event which gave rise to the defendant's employment. A plaintiff may be guilty of contributory negligence, therefore, even if the “very purpose” of the duty owed by the defendant is to protect the plaintiff's property. Thus, a plaintiff who carelessly leaves valuables lying about may be guilty of contributory negligence, calling for apportionment of loss, even if the defendant was employed to protect the plaintiff's valuables.
The principle explained by their Honours in the joint reasons in Astley is of general application and extends to cases involving a failure to take reasonable care for one’s own person. In determining whether the respondent had established that the appellant was guilty of contributory negligence it was necessary for his Honour to be satisfied that the appellant contributed to his injury by failing to take the reasonable care for his own safety that is to be expected of a 14 year-old youth. In my opinion, it was well open to his Honour to find that the appellant had contributed to his own injury in light of the factual findings that I have set out at [20] above.

Ground 4 challenges the determination of apportionment. It was submitted that the Judge failed to accord appropriate weight to a number of facts and circumstances in assessing the respective share in the responsibility for the injury between the respondent and the appellant. These are particularised in ground 4 of his amended notice of appeal as follows:
(a) The appellant’s age and lack of riding experience on busy public roads;
(b) that the appellant had been taking part compulsorily in school sports;
(c) the long distance that the appellant had been made to cycle;
(d) that the appellant was fatigued, thirst, lagging behind his friends and in all probability trying to catch up to them;
(e) the conduct of the teachers in dismissing the student contrary to the school and Department of Education sport policy and at a busy time of day and in a busy part of town;
(f) that the teachers had not provided the students with any adequate instruction;
(g) the aim and purpose of the school’s policy of closed rank/file cycling, that being to avoid exactly the type of situation that occurred arising;
(h) the failure by the respondent to make any inquiry of the appellant or his mother to ascertain what level of experience the appellant had in riding on a public road and particularly a busy public road;
(i) failure to consider the fact that the appellant had observed his companions to have safely negotiated the intersection just before he proceeded out;
(j) allowing the appellant to ride on a busy public road when he had no experience of riding through give-way intersections and in particular no experience of the give-way intersection that was the site of the accident;
(k) failure to consider that the intersection was busy, confusing and dangerous and which the driver of the vehicle in her experience concluded that some people who are not familiar with the intersection do not give way;
(l) failure to have regard to the fact that the appellant’s view would have likely been obscured by the windowless van and also by the fence at the intersection.
The Judge referred to each of the matters in (a), (b), (c), (d), (e), (f) in his reasons. There is no basis for concluding that he did not give them appropriate weight.
His Honour did not refer to the respondent’s failure to make an inquiry of the appellant’s mother to ascertain his level of experience in riding on busy public roads. His Honour did find that no inquiry had been made as to the experience or capability of any of the participants in the recreational cycling activity. It is unclear how any failure to make an inquiry of the appellant’s mother may be thought to have added weight to this consideration.
The matters addressed by particulars (g), (h) and (j) are each directed to the negligence of the teachers in the conduct of the activity, which the Judge found. For the reasons earlier given, the respondent’s negligence does not defeat the defence of contributory negligence. There is no basis for concluding that the Judge did not give appropriate weight to the matters that bore on the extent to which the teachers departed from the standard of care that they owed to the appellant.
Particular (i) is obscure. The Judge found that the appellant was 30 metres from the intersection when he saw his companions cycle through it. They may have been careless for their own safety or it may have been safe for them to proceed through the intersection in the way that they did. In either case the circumstance that they had negotiated the intersection successfully does not bear relevantly on the assessment of the appellant’s failure to take care for his own safety in cycling through a give-way sign.
Turning to particular (j), the Judge found that the appellant was aware of his obligation to give way to traffic in North Street at the intersection with Alma Street. The appellant acknowledged that he had given evidence on the previous occasion that he had seen the give-way sign at the intersection. In cross-examination the appellant agreed that he had knowledge of road direction signs and that he knew he had to give way at a give-way sign (CB 48.E-G). It is not apparent that the appellant’s lack of experience of the intersection of Alma and North Streets had any bearing on the assessment of the extent to which he had departed from the standard of care of a reasonable 14 year-old.
Particular (l) addresses factual matters that may be thought to underline the reasons why reasonable care (including the reasonable care to be expected of a 14 year-old) required caution in proceeding through the intersection.
The Judge was mindful that, in Ms Beveridge’s opinion, the intersection was a dangerous one. His Honour commented on this at [40] (RB 37.O).
In Podrebersek (1985) 59 ALR 529 the High Court said (at 532):
A finding on a question of apportionment is a finding upon a “question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be a difference of opinion by different minds”: British Fame (Owners) v Macgregor (Owners) (1943) AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.
No relevant facts or circumstances were identified by counsel in written or oral submissions, which were not referred to by the Judge. The Judge correctly stated the principles that are to be applied in determining the extent to which the appellant’s damages were to be reduced by reason of his own negligence. Many of the factors addressed in the lengthy submissions filed in support of the appeal overlap with particulars (a) – (l) of ground 4 of the amended notice of appeal and were variously relied upon in support of the submission that it was an error to find that the appellant was guilty of contributory negligence, as well as that his Honour’s discretion miscarried in the order for apportionment. Both challenges are without merit. It was open to the Judge to conclude that the contributory negligence was substantial and to determine that the appellant’s damages should be reduced by 40 per cent.
Ground 5 of the amended notice of appeal the appellant contends that the trial Judge erred in his determination of apportionment by failing to draw the inference that the appellant’s failure to give way was dictated by momentary inadvertence or lapse of concentration, rather than as the result of a conscious and deliberate decision to act.
The submission, that the Judge should have drawn the inference that the appellant’s failure to give way was the result of momentary inadvertence, was also advanced in support of the submission of error in the finding of contributory negligence.
As the written submissions acknowledged, the cases on which reliance was placed relating to momentary inadvertence were employment cases involving the failure to provide a safe system of work: McLean v Tedman (1984) 56 ALR 359 at 362-4 and Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37. I accept the respondent’s submission that the analogy between the employment cases and the present is not apt. In the employment context it is recognised that in considering contributory negligence it is open to the tribunal of fact to have regard to “inattention bred of familiarity and repetition, the urgency of the task, the man’s preoccupation with the matter in hand, and other prevailing conditions” (per Windeyer J in Sungravure at 37. In that case Kitto, Menzies and Owen JJ said at 33:
An inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for or consideration of the consequences that may follow from the doing of it, and whether it is so or not is a matter for the consideration and determination of the tribunal of fact.
The Judge found the appellant cycled into North Street, failing to slow down or stop at the give-way sign. His Honour accepted that the appellant was fatigued. There was no basis for his Honour finding that the appellant’s conduct was not conscious and deliberate, albeit that it may have been thoughtless.
For these reasons the orders that I propose are as follows:
1. Dismiss the appeal;
2. The appellant is to pay the respondent’s costs.
HOEBEN J: I agree with Bell J.

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AMENDMENTS:

08/05/2007 - Coversheet number amended - Paragraph(s) [0]

LAST UPDATED: 8 May 2007