Smith v Walker
[2023] VSCA 61
•28 March 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2022 0046 |
| DAVID SMITH | Applicant |
| v | |
| PETER WALKER | Respondent |
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| JUDGES: | BEACH, KENNEDY JJA and J FORREST AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 February 2023 |
| DATE OF JUDGMENT: | 28 March 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 61 |
| JUDGMENT APPEALED FROM: | [2022] VSC 188 (Forbes J) |
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TORTS – Negligence – Causation – Motor vehicle accident – Where pedestrian struck by driver at night – Where judge made factual findings as to the location and circumstances of the accident – Where judge found that the driver was negligent for failing to keep a proper lookout – Where judge apportioned negligence of the driver at 30 per cent and contributory negligence of the pedestrian at 70 per cent – Whether judge erred in finding the driver negligent for failing to keep a proper lookout (negligence finding) – Whether judge erred in finding that the collision could have been avoided had the driver kept a proper lookout (causation finding) – Judge’s findings as to negligence and causation findings correct – Leave to appeal refused.
Simmonds-Thatcher v Kamari [2021] VSCA 133; Dungan v Chan [2013] NSWCA 182; Amaca Pty Ltd (under NSW administered winding up) v Booth [2011] HCA 53; Wensink v Marshall [2010] WASCA 117; Mobbs v Kain [2009] NSWCA 301; Norris v Blake [1996] NSWCA 402; March v Stramare(E and MH) Pty Ltd [1991] HCA 12 considered.
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| Counsel | |||
| Applicant: | Mr J Ruskin KC and Mr R Kumar | ||
| Respondent: | Mr N Murdoch KC and Ms C Spitaleri | ||
Solicitors | |||
| Applicant: | Solicitors to the TAC | ||
| Respondent: | Slater and Gordon | ||
TABLE OF CONTENTS
Background to the accident
The scene of the accident
The trial
The evidence of Mr Walker
The evidence of Mr Smith
The view
Other evidence
The findings of the trial judge
The proposed grounds of appeal
Consideration
The first proposed ground of appeal — the judge’s finding that Mr Smith was in the eastbound laneway and not on the edge of the laneway
The second proposed ground of appeal — that the judge erred in finding that Mr Smith was not keeping a proper lookout (breach of duty of care)
Third proposed ground of appeal — the judge erred in finding that had the applicant kept a proper lookout it was probable that the collision could have been avoided (causation)
Conclusion
BEACH JA
KENNEDY JA
J FORREST AJA:
On the evening of 14 July 2017 at about 7:30 pm on Station Street, Rushworth, the respondent, Mr Peter Walker, a pedestrian, was struck by a motor vehicle driven by Mr David Smith, the applicant.
As a result of the collision, Mr Walker sustained serious injuries.
In February 2021, Mr Walker issued a proceeding in the Trial Division of this Court against Mr Smith seeking damages for the injuries sustained in the accident which he alleged were caused by Mr Smith’s negligence. Mr Smith, in turn, argued that Mr Walker was contributorily negligent.
The trial before Forbes J in late March 2022 ran for three days. The parties agreed on quantum of damages in the amount of $600,000 plus retention of benefits paid pursuant to the Transport Accident Act1986. Mr Smith and Mr Walker gave viva voce evidence. On the second day, the Court conducted a view at the scene of the accident.
The judge held that Mr Smith was negligent in the driving of his vehicle and that Mr Walker was contributorily negligent.[1] Her Honour assessed the contributory negligence of Mr Walker at 70 per cent. Judgment for Mr Walker was entered in the sum of $180,000.[2]
[1]Walker v Smith [2022] VSC 188 (‘Reasons’) delivered 14 April 2022.
[2]Orders of Forbes J dated 19 April 2022, [1].
Mr Smith now appeals her Honour’s finding that he was negligent and, if so, that his negligence was a cause of Mr Walker’s injuries. For the reasons below, we have concluded that her Honour’s decision was correct and leave to appeal must be refused.
Background to the accident
Mr Walker is now 42 years of age and lives in Rushworth. At the time of the accident, he was employed by JN & R Engineering in Kyabram. Mr Walker had been at the Criterion Hotel, ‘the top pub’, in Rushworth for several hours prior to the accident.
He had, during the late afternoon and early evening, drunk the equivalent of about 16 pots of beer. His blood alcohol reading, taken at 10:30 pm, three hours after the accident, was 0.228 per cent. He was making his way to his home in Station Street (in the town) when he was struck by Mr Smith’s vehicle.
Mr Smith is a farm manager and at the time of the accident lived in Murtoa and worked at Marnoo in the Wimmera. On the day of the accident he was driving a 2009 Toyota HiLux Ute on his way from Marnoo to Sydney.
The scene of the accident
Station Street is a continuation of the main street of Rushworth (the C345). It has a bitumen surface carriageway and is approximately 7.2 metres wide. It runs generally west to east through the town. Its centre is marked by a continuous dotted line. At the point where the accident occurred there is no footpath but a wide gravel edge.
Street lighting is affixed to the power poles situated on the northern side of the road.
There are residential houses located on the northern side of the road. Although there was a dispute as to the location of the accident, with Mr Walker asserting that it occurred about 100 metres west of the point at which Mr Smith asserted the accident happened, it was agreed that the accident happened within a 60 km/h zone and that a 60 km/h speed sign confronted motorists travelling east towards the point of the accident (wherever it might have been).
The photographs below (taken at the view) show the scene of the point of collision as found by the judge. The first photograph (photo 9), taken facing east (the direction of travel of the HiLux), shows Mr Smith standing at the point where he said (and the judge accepted) that the accident occurred. The second photograph (photo 17) is also taken looking east — the accident occurred adjacent to the point where the bins are shown.
Photo 9
Photo 17
The diagram below, tendered at the trial, is a printout of Station Street as depicted by Google Maps, and shows, via handwritten annotations, the position of the light poles and measurements between the poles.
Diagram
The trial
The questions to be resolved by the judge were whether Mr Smith was negligent in the driving of his vehicle and, if that was established, whether there was any contributory negligence on the part of Mr Walker.
As mentioned, the only witnesses called were Mr Smith and Mr Walker. Both gave viva voce evidence via video link. There were no other witnesses to the accident.
The evidence of Mr Walker
Mr Walker said that he had left the hotel at 7:30 pm on Friday night and that it was his habit to walk on the edge of the bitumen surface of Station Street. He had walked across High Street, then along Wigg Street and crossed onto Station Street to proceed east towards his home.
He maintained that he was on the edge of the road surface ‘where the bitumen starts’ and denied that he was on the road surface of the eastbound carriageway (that is, the part of the road intended for vehicle, rather than pedestrian use).
As to the location of the accident, Mr Walker said both in evidence-in-chief and cross-examination that the point of impact was approximately seven metres past what was described as the second light pole and he was ‘more [on] the bitumen road surface’ next to a ‘pothole’; that is about 100 metres west of the point where Mr Smith said the accident occurred.
Mr Walker said that he did not see any lights prior to being struck by the vehicle which, in effect, clipped him. He could not recall what he was wearing.
In both examination-in-chief and cross-examination, he said that at the time he was struck he had no warning as to the approach of the vehicle. He said that he heard no car approaching and did not hear any application of brakes nor any car skidding. He denied seeing any headlights, but could not say whether Mr Smith’s vehicle had its headlights on or off.
Mr Walker denied that his recollection was affected by his consumption of alcohol and maintained that he was on the edge of the road. He was adamant that the accident did not occur at the point identified by Mr Smith.
He said that he was struck on the right arm and his body swung around and his ankle ‘blew out on [him]’.
The evidence of Mr Smith
Mr Smith, in evidence-in-chief, said that he was ‘just doing 60ks, and roughly 100 metres or so past [the] sign… and I just seen a figure arrive on the road…’.
He said that ‘it was about 3 feet almost in the middle of my lane as I was heading out of town’.
He said the ‘front left-hand side of the bull bars clipped the person’ — although at that time he did not know whether he had struck a person or an animal. He said that he ‘just automatically swerved to the right’, but could not say whether he applied his brakes straight away.
In cross-examination, he said that his lights were on high beam and that they illuminated the road about 70 metres in front of his vehicle.
He agreed that he had sworn answers to interrogatories in which he said that he could not recall if he had applied his brakes.
Mr Smith said that he had been driving for approximately two and a half hours since leaving home on his way to Sydney but had stopped for a meal in St Arnaud. He said that when he saw Mr Walker, he was not moving:
COUNSEL: And he was walking when you saw him?
SMITH: Ah, no. Just standing there.
COUNSEL: Okay, not moving?
SMITH: No.
He then gave the following answers:
COUNSEL:I’m asking you whether this is correct: that he was suddenly in front of your vehicle, and you swerved to your right to try and miss him?
SMITH:Yes.
COUNSEL:And what I want to suggest to you is that you saw him, quite obviously, at the last minute?
SMITH:As in, what do you mean, last minute?
COUNSEL:I mean, at the last possible time, so that you could not avoid hitting him?
SMITH:He arrived on the road, and I swerved to miss him.
COUNSEL:That’s right. He was standing on the road and you swerved but there was not enough time for you to miss him; you clipped him?
SMITH:That’s right, I clipped him.
COUNSEL:And the lights on your vehicle, you say, would illuminate about 70 metres ahead?
SMITH:Yes.
Mr Smith denied that he did not see Mr Walker until he was ‘nearly on top of him’ and said that he did try to avoid him but ended up clipping him. He also gave the following answers:
COUNSEL:And you agree with the proposition that you suddenly saw a very dark figure ahead of you, in your lane?
SMITH: Yes.
COUNSEL:And, that at that point, you instinctively swerved to the right to try and miss him?
SMITH: Yes.
And:
COUNSEL:…What I’m suggesting to you – you tell me if you agree with it – that you were so late in observing him - - -
SMITH: No.
COUNSEL:- - - that you couldn’t avoid hitting him. Do you agree with that?
SMITH: Yes.
COUNSEL:You see, at 60 km/h, with lights on high beam, if you were paying attention, you should have seen him well back; 50 metres away from him?
SMITH: That’s what I said.
COUNSEL:Well, do you now say you were about 50 metres away and you saw him?
SMITH: Yes.
Counsel continued and asked the following questions:
COUNSEL:Well, why didn’t you drive around him? He’s standing still?
SMITH:I did try to drive around him.
COUNSEL:Well, you say you instinctively swerved to the right to try and miss him?
SMITH:Yeah.
The view
As mentioned, a view of the scene of the accident was held. Many photographs of the area were tendered, including a number taken at the view.
Additionally, measurements between the first, second, third and fourth light poles relevant to the point where the accident occurred were taken as set out in the diagram at [14] above.
Other evidence
Professor Edward Ogden provided a medical report (tendered by Mr Smith) which confirmed the testing of the blood alcohol sample at 0.228 per cent. He estimated that Mr Walker’s blood alcohol concentration at the time of collision as ‘in the range [of] 0.250 per cent to 0.296 per cent, probably about 0.275 per cent’. He opined that with this level of alcohol in the bloodstream, a person would be slower to recognise the presence, speed and proximity of a vehicle and slower to decide on and implement a response.[3]
[3]Reasons, [27].
The findings of the trial judge
The judge described the landscape of the road and accepted that the accident occurred at approximately 7:30 pm; it was dark, and the moon had not risen.[4]
[4]Reasons, [6], [18], [47].
The judge made the following findings which were not in issue on this application:
(a)That the accident occurred at the point described by Mr Smith, ‘just past the third light pole’.[5] This point is shown in the first photograph above at [13]. In other words, about 100 metres to the east of the point where Mr Walker said it occurred – near the second light pole. Her Honour rejected Mr Walker’s account;[6]
(b)That the streetlights were ineffective in lighting the roadway and that there was no other source of light along the stretch of the road other than the headlights of Mr Smith’s vehicle;[7]
(c)That at the time Mr Smith saw Mr Walker, his vehicle was travelling at 60 km/h and that it was appropriate to do so given that there was no other or competing distractions to which a driver needed to respond;[8]
(d)That Mr Walker was wearing black or at least very dark clothing and could not be observed unless illuminated by headlights;[9]
(e)That Mr Walker’s judgment, hazard perception and ability to react to an emergency situation were impaired by alcohol;[10]
(f)That Mr Smith’s evidence that the high beam headlights of the HiLux illuminated 70 metres of the roadway ahead of the vehicle was of doubtful reliability (no doubt considering that it was too low).[11] However, beyond Mr Smith’s evidence, there was no other estimate given at trial as to ‘what an accurate estimate might be’.[12]
[5]Reasons, [48]–[49].
[6]Reasons, [49].
[7]Reasons, [47], [49].
[8]Reasons, [47].
[9]Reasons, [49].
[10]Reasons, [52].
[11]Reasons, [54].
[12]Reasons, [54].
Her Honour considered that Mr Walker was walking home, as was his usual fashion, ‘on the bitumen and in the eastbound laneway, not on the edge of the laneway’, although her Honour could not say how far onto the bitumen he was.[13] Mr Smith disputes (in the first proposed ground of appeal) this finding as to the location of Mr Walker in relation to the roadway at the time of the accident.[14]
[13]Reasons, [50].
[14]See below at [47].
The judge then considered whether there was evidence of breach of duty on the part of Mr Smith (a finding which is disputed in the second proposed ground of appeal).
Her Honour found that Mr Smith’s evidence as to when he first saw Mr Walker (approximately 50 metres from the point where the accident occurred) was of doubtful accuracy. She thought this was an excessive estimate, and that in reality Mr Walker was only observed for a very short time by Mr Smith prior to the accident, consistent with his vehicle’s last moment swerve. She noted that Mr Smith gave evidence that he was able to brake and pull up within 20 to 30 metres after impact.[15] The judge also noted that Mr Smith’s description that, when first observed, Mr Walker seemed to be standing still, was consistent with Mr Smith having only the ‘briefest of glimpses’ of him prior to impact.[16]
[15]Reasons, [53]–[56].
[16]Reasons, [56].
Having made some rudimentary calculations, the judge concluded that there was at least a three-second window for Mr Smith to react to an unexpected hazard — having hesitantly accepted that the HiLux lights on high beam illuminated at least 70 metres of roadway,[17] and assuming the vehicle was traveling at 60 km/h and that a pedestrian should have been observed 50 metres ahead.[18]
[17]Reasons, [54]–[57].
[18]Reasons, [57].
The judge then made the following finding in relation to Mr Smith’s alleged breach of duty:
The fact that the defendant described the pedestrian’s appearance as ‘sudden’ and the fact that he commenced to swerve but had insufficient time to brake suggests observation for a period of less than 3 seconds and really not much more than a fraction of a second. It leads me to infer that the defendant was not keeping a proper lookout as to the road ahead immediately prior to the collision. Had he done so, he would have had opportunity to slow and swerve. There was no other traffic to be considered. While I accept that the actual presence of a pedestrian was unexpected, the reduction in speed limit due to the built up nature of the town through which the road was passing did indicate that there was a higher incidence of potential hazards than might be found on the open road.[19]
[19]Reasons, [58].
Her Honour then addressed the question of causation (a conclusion which is disputed in the third proposed ground of appeal) as follows:
Given that the plaintiff was struck a glancing blow by the vehicle as it passed, the swerve initiated by the defendant very nearly did manage to avoid the collision. In those circumstances I am able to infer that had the defendant kept a proper lookout, and observed the hazard at a distance of approximately 50 metres, while travelling at a speed of 60 km/h, it was probable that the collision could have been avoided.[20]
[20]Reasons, [59].
Accordingly, the judge found that Mr Smith was negligent and that this was a cause of the injuries sustained by Mr Walker. Although not relevant to the determination of this application, in relation to the allegations of contributory negligence made by Mr Smith the judge held:
(a)There was no doubt that Mr Walker’s actions in walking on the bitumen in the dark with his back to traffic constituted contributory negligence;[21]
(b)Mr Walker’s level of intoxication was the only explanation for his failure to hear or see the applicant’s vehicle and ‘thereby failed to have regard for his own safety’;[22]
(c)Mr Walker’s contributorily negligent behaviour was ‘substantial and significant’ and of greater comparative significance than Mr Smith’s lapse in attention.[23]
[21]Reasons, [60].
[22]Reasons, [60].
[23]Reasons, [61].
Her Honour apportioned negligence of the part of Mr Smith at 30 per cent, with contributory negligence of Mr Walker at 70 per cent,[24] and on 19 April 2022, judgment was entered in favour of Mr Walker in the sum of $180,000.[25]
[24]Reasons, [62].
[25]Orders of Forbes J dated 19 April 2022, [1].
The proposed grounds of appeal
The three proposed grounds of appeal are as follows:
Ground 1:The primary judge erred in finding that the respondent was ‘walking home on the bitumen and in the eastbound laneway not on the edge of the laneway’;[26]
Ground 2:The primary judge erred in holding that the applicant was negligent by inferring that the applicant ‘was not keeping a proper lookout as to the road ahead immediately prior to the collision’;[27]
Ground 3:The primary judge erred in finding that had the applicant ‘kept a proper lookout…that the collision could have been avoided’.[28]
[26]In reference to [50] of the Reasons.
[27]In reference to [58] of the Reasons.
[28]In reference to [59] of the Reasons.
Consideration
Before we go to the individual proposed grounds of appeal, it is helpful to reproduce the topography of Main Road at the time of the accident — and particularly the view of Mr Smith of the area ahead of him as his vehicle approached the point where Mr Walker was walking.
As mentioned earlier, Mr Smith was driving, generally, east into Rushworth along the Bendigo Murchison Road (the C345). He had passed through the main shopping area and was, in effect, departing the town (on Station Street, a continuation of the C345). The first photograph below shows the topography of the road and its surround looking east from the vicinity of the intersection of Station Street with the Beechworth-Tatura Road (which runs to the left, or north).
Station Street. Facing east. Near intersection with Old Tatura Road.
The next photograph is taken just after crossing the intersection of Station Street and Old Tatura Road (to the east of the Beechworth-Tatura Road intersection). It shows a closer view of the topography and surrounds of Station Street. The point where the accident occurred, as found by the judge, is roughly adjacent to the rubbish bin with the red lid.
Photo 13
The distance from that intersection to the point of impact is 245 metres, as shown in the annotated diagram above at [14]:
Several observations can be made about the roadway and the view of Mr Smith as his vehicle departed the town: it being accepted that this accident occurred at night with little or no street lighting but with illumination of the roadway provided by the HiLux with its headlights on full beam, and remembering that Mr Walker was wearing dark clothing.
First, there is no obstruction or restriction of any sort to the view of a motorist travelling east along this section of the roadway. For over two hundred metres Station Street is a straight piece of roadway with a wide gravel verge. There was no oncoming traffic. Second, there is no footpath adjacent to the roadway despite the area, at least on the north side, being built up, in the sense that there is contiguous residential housing. Third, there is nothing to suggest that the lights of a HiLux on full beam would not illuminate the whole of the roadway and the gravel verge as it travelled east towards the scene of the accident.
Those factors, it seems to us, bear directly upon consideration of each of the proposed grounds of appeal, and most particularly the second ground.
The first proposed ground of appeal — the judge’s finding that Mr Smith was in the eastbound laneway and not on the edge of the laneway
It can be assumed that the reference to the ‘laneway’ in her Honour’s Reasons[29] and in this proposed ground refers to the eastbound carriageway of Station Street.
[29]Reasons, [50].
The judge’s findings on this point are set out at [39] above. In Mr Smith’s written case it is contended that there was ‘no basis for the primary judge to reach such a conclusion’. Counsel went on to argue that her Honour should have made findings:
…as to by what route and – more significantly – when he moved in front of the vehicle. These findings were critical; they necessarily informed what the reasonable actions of a driver in the position of the applicant would take and, if taken, whether the collision could reasonably have been avoided. There was, however, both a hiatus in the evidence and the findings of the primary judge in respect of these matters.
The submission then goes on to refer to the evidence of Professor Ogden as to the effect of intoxication on a pedestrian, although it was not explained how that could be relevant to an analysis of Mr Walker’s position on or about the roadway.
It was then argued that there were three different hypotheses as to Mr Walker’s position at the time of the accident:
(a)He was standing in the middle of the road;
(b)He was walking in the eastbound laneway;
(c)He was on the edge of the road either on the bitumen or the gravel shoulder and moved into the path of Mr Smith’s vehicle.
It was contended that in choosing the second of the ‘hypotheses’, her Honour was in error.
We reject these submissions.
Mr Walker was on his way home to feed his cat. To do so he had to walk in an easterly direction along Station Street. This was the route he usually followed when coming home from the pub. There was no footpath adjacent to the roadway and, given the nature of the gravel edge and the poor lighting, it was inevitable that he would walk either close to the edge or on the bitumen surface at the point where the accident occurred. Any other suggestion (as seems to be made in Mr Smith’s third scenario) is speculative.
Mr Smith, in his evidence-in-chief, described Mr Walker’s position on the roadway when first seen by him as being ‘on the edge of the, ah, road. The bitumen bit there’. Her Honour accepted this portion of Mr Smith’s account.
Contrary to the submissions of Mr Smith, it was clearly open to her Honour (and indeed it made eminent common sense) to conclude that when the evidence of Mr Smith and Mr Walker was synthesised, it was likely that Mr Walker was walking on the bitumen surface in an easterly direction.
The suggestion that her Honour was obliged to make findings as to Mr Walker’s path and course for some distance prior to when he came within the view (actual or hypothetical) of Mr Smith is unsound. Such a finding was unnecessary given that it was apparent that Mr Walker was making his way home along Station Street in an easterly direction as was his usual custom — and this was unchallenged by Mr Smith’s counsel at trial. Moreover, as pointed out in Mr Walker’s written submissions, there is no challenge on this application to the adequacy of her Honour’s Reasons.
In any event, this ground goes nowhere in terms of the attack by Mr Smith upon the findings of the judge in respect of breach of duty or causation (proposed grounds two and three). Whether the judge was right or wrong as to Mr Walker’s exact position, the reality is that he was on or about the roadway and importantly, and notwithstanding his dark clothing, was there to be seen by a driver travelling in an easterly direction with their vehicle’s lights on high beam. Whether he was on the edge of the bitumen surface or actually on it ultimately is neither here nor there.
We reject this proposed ground.
The second proposed ground of appeal — that the judge erred in finding that Mr Smith was not keeping a proper lookout (breach of duty of care)
It was accepted that the driver of a motor vehicle on a public road, such as Mr Smith, is under a duty to other persons on and in the vicinity of the road to exercise reasonable skill and care so as to avoid causing injury to those persons.[30] The level of care exercised by a driver ought to take into account the fact that the injury and damage that might be done to a pedestrian is great and that must be factored into a driver’s response to a potential risk.[31] The duty requires a driver to take into account the possibility of inadvertent or negligent conduct on the part of others,[32] and it may be breached if the driver was ‘put on notice’ by conduct they saw (or should have seen) that a pedestrian may act in a careless manner or otherwise in such a way that the pedestrian puts themself in danger.[33] The roadway is not the exclusive domain of any one type of road user — particularly in regional Australia where, even in some residential areas, there is an absence of footpaths. Accordingly, motorists must be cognisant of the potential presence of others on or about the roadway — be they pedestrians, motorcyclists, cyclists or horse riders. The ultimate question, of course, is whether the driver has exercised reasonable care in the circumstances that prevail at the time of the accident.[34]
[30]Simmonds-Thatcher v Kamari (2021) 96 MVR 117; [2021] VSCA 133, [35] (Kyrou, Emerton and Osborn JJA) (‘Simmonds-Thatcher’), citing Mobbs v Kain (2009) 54 MVR 179, [2009] NSWCA 301.
[31]Dungan v Chan (2013) 64 MVR 249, [2013] NSWCA 182, 254 [16] (Emmett JA, Ward and Gleeson JJA agreeing at [1] and [25]) (‘Dungan’).
[32]Ibid at 250, 254 [15]–[17], cited with apparent approval in Simmonds-Thatcher (2021) 96 MVR 117; [2021] VSCA 133 [41] (Kyrou, Emerton and Osborn JJA).
[33]Dungan (2013) 64 MVR 249, [2013] NSWCA 182, 255 [17] (Emmett JA, Ward and Gleeson JJA agreeing at [1] and [25]).
[34]Teubner v Humble (1963) 108 CLR 491, 504 (Windeyer J, McTiernan J agreeing at 499); [1963] HCA 11; Manley v Alexander (2005) 223 ALR 228; [2005] HCA 79, 231 [12] (Gummow, Kirby and Hayne JJ).
The judge’s finding on this issue is set out at paras [40]–[43] above.
In Mr Smith’s written case it was argued that there were three errors in her Honour’s analysis. First, there was no evidence as to what an accurate estimate might be as to when Mr Walker first saw Mr Smith. Second, that there was no expert or other evidence about reaction times and that her Honour’s estimates were, essentially, guesswork. And third, that there was no evidence of any ‘lapse in attention’ on the part of Mr Smith and that he must have been keeping a proper lookout.[35]
[35]Reasons, [57].
Mr Walker, in his written case, defended the judge’s conclusion saying that it was grounded in the application of common sense to the evidence. There was no obstruction to Mr Smith’s view, and it was patent that he should have seen Mr Walker well before the accident. The finding by the judge of a last moment observation by Mr Smith of Mr Walker was based on Mr Smith’s evidence and constituted a breach of the duty of care he owed Mr Walker.
Mr Walker’s submissions should be accepted.
As with the first proposed ground of appeal, Mr Smith’s submission endeavours to elevate to an unnecessary and detailed forensic level what is a relevantly simple exercise for a tribunal of fact (be it judge or jury): whether Mr Smith was keeping a proper lookout as the HiLux approached Mr Walker, who was present on the roadway and illuminated by the vehicle’s full beam headlights.
It is apparent that her Honour felt bound to accept Mr Smith’s estimate that the HiLux’s headlights on full beam only illuminated 70 metres of the Station Street roadway ahead of his vehicle. It is surprising that this estimate was not challenged in the course of the trial either in cross-examination or by the leading of other evidence.
It seems to us, and we suspect, to most road users who have travelled on country roads, that such a vehicle with its lights on high beam would have far greater illumination of the roadway than a mere 70 metres ahead of the vehicle. For instance, in the New South Wales case of Norris v Blake,[36] both parties called expert evidence at trial concerning the distance at which a stationary motor vehicle was illuminated by high beam headlights. One expert opined that the other motor vehicle ‘should have been clearly recognisable as an obstruction by the driver of a vehicle with the headlights on high beam at a distance of close to 200 m’,[37] with the other suggesting 120 metres. The trial judge accepted the evidence of the former and concluded that the visibility of the driver was closer to 200 metres than 120 metres.[38]
[36](1996) 24 MVR 315; [1996] NSWCA 402 (‘Norris’).
[37]Ibid, at 320.
[38]Ibid, at 318.
In the Court of Appeal, Clarke JA (with whom the other members of the Court agreed) did not disturb the judge’s conclusion.[39] Whilst much will depend upon the topography of a particular area, the roadway described in Norris was not dissimilar to that in the present case.
[39]Ibid, at 321.
However, as her Honour noted, there was no other evidence available apart from Mr Smith’s dubious estimate. Whether her Honour could have taken judicial notice of the distance that would be illuminated by high beam lights on this country road was not debated at the trial. Accordingly, it was necessary for her Honour, and it is necessary for this Court, to proceed on a very doubtful basis on an important point. Nevertheless, it is that estimate that must be applied.
Accepting that Mr Smith’s vision was limited to a distance of 70 metres ahead of his vehicle, there was nothing to obstruct or impede his view of the roadway ahead and the presence of Mr Walker (as the photographs above demonstrate). As we mentioned in relation to the first proposed ground of appeal, whether Mr Walker was slightly on the roadway or on the edge of the roadway is not to the point. What is relevant is that he was there to be seen on an open and unimpeded view of the approaching driver.
Mr Smith should have seen Mr Walker as soon as his presence was illuminated by the headlights of his vehicle. Once Mr Walker’s presence on the roadway was apparent, by the illumination of the HiLux’s headlights, he was there to be seen and a driver keeping a proper lookout should have observed his presence, as her Honour found at a point approximately 50 metres from the point of the accident — which, on our assessment of the evidence, is particularly conservative.
Her Honour was correct in making the other relevant finding set out at [43] above: that Mr Smith, notwithstanding his clear and uninterrupted view of the roadway for 50 metres, did not see Mr Walker until the very last moment: ‘a fraction of a second’.[40] This finding was properly founded on Mr Smith’s own evidence as to his observations of Mr Walker: He was ‘just standing there’. This in turn caused Mr Smith, at the last moment, to swerve his vehicle, resulting in him ‘clipping’ Mr Walker.
[40]Reasons, [17].
Once this finding was made, his failure to take evasive action until the last moment bespeaks a lack of reasonable care on the part of Mr Smith — as her Honour correctly found.
Senior counsel for Mr Smith, in oral submissions, placed considerable reliance on a recent decision of this Court in Simmonds-Thatcher.[41] That case also involved a collision between a motor vehicle and a pedestrian, although in circumstances considerably different to those in the present case. Whilst the decision was relied upon by Mr Smith more so in relation to causation (the third proposed ground) rather than breach of duty, it is relevant to this issue as well.
[41][2021] VSCA 133.
In short compass, in that case, a pedestrian plaintiff alighted from a taxi onto a nature strip on the left-hand side of a suburban street. She then disappeared from the view of motorists and attempted to cross the roadway. She had crossed the centre line when she was struck by the defendant’s vehicle travelling in the opposite direction to that in which her taxi had travelled and parked.
The trial judge held that the defendant should have reduced speed when the plaintiff alighted from the taxi onto the nature strip.[42] This Court rejected that finding, but nevertheless found that the defendant should have seen the plaintiff when she stepped onto the roadway from behind the taxi and crossed a substantial part of the roadway before being struck by the defendant’s vehicle.[43]
[42]Simmonds-Thatcher (2021) 96 MVR 117; [2021] VSCA 133, [49] (Kyrou, Emerton and Osborn JJA).
[43]Ibid, [61].
Exactly the same proposition holds good in this case — if a pedestrian is there to be seen on, or immediately adjacent to, a roadway, then a driver should, absent a reasonable explanation, be expected to discern the presence of that person and, if necessary, adjust their driving accordingly.
It was not obligatory, as Mr Smith’s counsel submitted, for expert evidence as to reaction times to be called on this question. The exercise of determining whether a driver has kept a proper lookout and reacted appropriately has been undertaken by juries and judges in this State for over 100 years applying their common sense and experience as road users (both pedestrians and drivers).
Contrary to the applicant’s argument set out at [68] above, the judge identified the evidence and the inferences which could be drawn from it in concluding that Mr Smith failed to keep a proper look out. Her Honour’s reasoning is set out at [41]–[43] above.[44] There is no error in that analysis.
[44]Reasons, [57]–[58], [61].
Her Honour’s reference to Mr Smith ‘keeping a proper lookout’[45] (relied upon by the applicant in his written case) needs to be read in context. The judge considered that Mr Smith was entitled to travel at or about the 60 km/h speed limit applicable to his vehicle. He had an unobstructed and clear view from the cabin of the HiLux of a straight piece of road and there were no other vehicles (oncoming or entering Station Street) which might reasonably have impeded Mr Smith’s observation and concentration on the roadway ahead of him.
[45]Reasons, [57].
There is one final matter: Mr Walker’s intoxication was relevant to his failure to take reasonable care for his own safety. But that fact (i.e. his intoxication) does not negate or reduce Mr Smith’s duty to take reasonable care — particularly when Mr Walker, like Mr Smith, was using the roadway as he was lawfully entitled to.
Her Honour’s decision that Mr Smith failed to keep a proper lookout was well justified and, indeed, is the conclusion that we would have reached should we have been required to do so. The failure of Mr Smith to observe Mr Walker until the last moment was a breach of the duty he owed to Mr Walker.
This proposed ground fails.
Third proposed ground of appeal — the judge erred in finding that had the applicant kept a proper lookout it was probable that the collision could have been avoided (causation)
It was, of course, accepted that Mr Walker was required to establish, on the balance of probabilities, that if reasonable care had been exercised by Mr Smith, then the accident would have been avoided.
As with the other two proposed grounds, Mr Smith’s submission proceeded on an elaborate technical analysis, propounding that it was necessary for there to be findings as to:
(a)the position of Mr Walker on the roadway;
(b)the movements of Mr Walker in the lead up to the accident;
(c)when the applicant keeping a proper lookout should have perceived the presence of Mr Walker;
(d)what actions Mr Smith should have taken and when such actions should have been taken — in particular, there had to be time for the applicant to perceive the presence of the respondent on the roadway and react to such presence and then for the applicant to take steps to avoid collision; and
(e)whether, in the circumstances, a reasonable driver could have avoided colliding with Mr Walker.
On this issue, senior counsel for Mr Smith in oral submissions placed considerable emphasis on the statement of the Court of Appeal in Simmonds-Thatcher that there had to be time for Mr Smith ‘to perceive the presence of the respondent on the roadway and react to such presence and then for the applicant to take steps to avoid a collision’.[46]
[46]Ibid, [68].
In Simmonds-Thatcher, the Court said:
On any view, the applicant’s opportunity to react to the presence of the respondent on the roadway was very brief. If the collision was to be avoided, it was necessary first for the respondent to step out into the applicant’s view (say half a metre), then for the applicant to perceive the presence of the respondent on the roadway and react to such presence, and then for the applicant to apply the brakes to his motor vehicle sufficiently to bring the vehicle to a stop.[47]
[47]Ibid.
Indeed, this statement was treated by counsel for Mr Smith as though it was, in some way, an essential three step pathway to Mr Walker establishing that Mr Smith’s breach of duty was a cause of Mr Walker’s injury. To the point where one might think that each identified step occurred over a lengthy period and required elaborate consideration by a driver of when to take the next step. Fortunately, in a case such as this, the application of common sense to the facts is essential in determining whether causation in fact is established. Even more so when it involves a common everyday task carried out by many Australians — driving a motor vehicle on a country road and coming upon an unexpected situation.
March v Stramare (E and MH) Pty Ltd[48] involved a collision between a motor vehicle and a parked truck. It is not necessary to rehearse the facts of this well-known case. Rather, it is the statements of principle which remain apposite. Mason CJ (with whom Toohey and Gaudron JJ agreed) said as follows:
The common law tradition is that what was the cause of a particular occurrence is a question of fact which ‘must be determined by applying common sense to the facts of each particular case’, in the words of Lord Reid: Stapley, at p 681. That proposition is supported by a long line of authority in the United Kingdom: Leyland Shipping Company, at pp 363, 369-370; Admiralty Commissioners v SS Volute (1922) 1 AC 129, at p 144; Yorkshire Dale Steamship Co., at p 706; Alphacell Ltd v Woodward (1972) AC 824, at p 847; McGhee v National Coal Board, at pp 5, 11; pp 1011, 1017 of All ER It is supported also by this Court’s decision in Fitzgerald v Penn (1954) 91 CLR 268.
It is beyond question that in many situations the question whether Y is a consequence of X is a question of fact. And, prior to the introduction of the legislation providing for apportionment of liability, the need to identify what was the ‘effective cause’ of the relevant damage reinforced the notion that a question of causation was one of fact and, as such, to be resolved by the application of common sense.[49]
[48](1991) 171 CLR 506; [1991] HCA 12 (‘March’).
[49]Ibid, [17]–[18] (Mason CJ, Toohey and Gaudron JJ agreeing).
As the High Court noted in Amaca Pty Ltd (under NSW administered winding up) v Booth[50] some of the force of this statement of principle may have been lost with the decline in many jurisdictions of trial by jury in civil actions and the removal of contributory negligence as an absolute defence. It can also be readily accepted that there are cases where questions of causation lie outside the realm of common knowledge and experience,[51] however, in a road traffic case such as this, the determination of causation remains one which is well within the realm of common knowledge and experience.[52]
[50]Amaca Pty Ltd (under NSW administered winding up) v Booth (2011) 246 CLR 36; [2011] HCA 53 (‘Booth’) [65]–[67] (Gummow, Hayne and Crennan JJ).
[51]Ibid, 61 [67] (Gummow, Hayne and Crennan JJ); See also Roche v Kigetzis (2015) 72 MVR 67; [2015] VSCA 207 [22], [36] (Osborn JA, Kyrou JA and Garde AJA agreeing at [52]–[53]); Cotton On Group Services Pty Ltd v Golowka [2022] VSCA 279, [123]–[138] (T Forrest JA and J Forrest AJA, McLeish JA agreeing at [1]).
[52]Booth (2011) 246 CLR 36; [2011] HCA 53.
The presence of Mr Walker on the roadway was obvious from a point of at least 50 metres away. As the judge concluded, there was nothing to stop a reasonable driver in the position of Mr Smith, upon observing Mr Walker, from slowing the vehicle and moving his vehicle to his right so as to avoid him — it was a wide carriageway and there were no oncoming cars or hazards which would have impeded such a manoeuvre. Indeed, when Mr Smith did see Mr Walker, at the last moment, he tried to swerve and only just avoided missing Mr Walker, ‘clipping’ him.
That reaction demonstrates that, as all drivers know, a combination of observation, reaction and evasion can take place rapidly — indeed in a split second. In fact (and contrary to the way in which counsel for Mr Smith propounded the three stage process), Mr Smith, by instinctively attempting to swerve, did what any motorist would do intuitively when confronted by a sudden hazard (whether it should or should not have been seen earlier), nearly avoiding striking Mr Walker. The application of common sense to the evidence dictates that if Mr Smith had altered direction earlier (i.e. at the time that he should have appreciated Mr Walker’s presence on the roadway), then it can be readily inferred that the accident would have been avoided.
These observations deal with most of the complaints made by Mr Smith in relation to her Honour’s findings.
There is one remaining matter. Mr Smith challenged the judge’s estimate as to the time in which he had to react and take evasive action: three seconds. Her Honour’s calculation as to that period of time not only relied upon the figures submitted by Mr Smith’s counsel at trial but was a replica of the exercise adopted by the Court of Appeal in Simmonds-Thatcher in determining whether causation was established in that case.[53]
[53]See Simmonds-Thatcher (2021) 96 MVR 117; [2021] VSCA 133, [64] (Kyrou, Emerton and Osborn JJA).
Indeed, the facts in Simmonds-Thatcher are to be contrasted to those in the present case. There, the period of observation was ‘very brief’ and involved a pedestrian moving from behind a parked vehicle across the path of an oncoming car on a suburban street. A far cry from an unobscured and observable person on a roadway travelling in the same direction as the approaching motor vehicle.
The judge’s findings on this issue were simple and correct. A reasonable driver, in Mr Smith’s position, should have seen Mr Walker at least 50 metres prior to the accident. Over that distance, Mr Smith had (based on Mr Smith’s counsel’s calculations) three seconds in which to take evasive action. It is entirely reasonable to infer that within that time span he would have been able to change direction and pass by Mr Walker safely.
We would respectfully disagree with the observations in Wensink v Marshall as to the necessity to establish, by empirical evidence, the existence of all alternative outcomes.[54] We repeat that juries and judges in this State have, for many decades, applied their common sense to the evidence presented at the trial in determining whether a driver has driven negligently and whether that negligence was a cause of a collision or accident.[55]
[54][2010] WASCA 117; 56 MVR 20 [73] (Kenneth Martin J).
[55]That is not to say that expert or other evidence relevant to issues of breach of duty and causation cannot be adduced in such a case. As mentioned, evidence as to the extent of illumination of the roadway given by high beam headlights of a HiLux may well have been of assistance to the judge.
The judge’s conclusion on the question of causation was patently correct.
This proposed ground fails.
Conclusion
None of the proposed grounds of appeal are made out. Leave to appeal should be refused.
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