Stig v Finch and ANOR

[2007] NSWCA 242

New South Wales

Court of Appeal

CITATION:	STIG v FINCH & ANOR [2007] NSWCA 242
HEARING DATE(S):	21 June 2007
JUDGMENT DATE:	14 September 2007
JUDGMENT OF:	Santow JA at 1; McClellan CJ at CL at 2; Handley AJA at 3
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	Negligence – running down case – no question of principle.
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Ahmedi v Ahmedi (1991) 23 NSWLR 288 Jones v Dunkel (1959) 101 CLR 298
PARTIES:	David Leslie Stig - Appellant Gary Norman Finch - First Respondent Stephen David Wrigley - Second Respondent
FILE NUMBER(S):	CA 40728/2006
COUNSEL:	D. Kennedy SC and G.J. Smith - Appellant S. Norton SC and D.M. Wilson - Respondents
SOLICITORS:	Bale Boshev Lawyers - Appellant Moray & Agnew - Respondents
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20117/2004
LOWER COURT JUDICIAL OFFICER:	Cooper AJ
LOWER COURT DATE OF DECISION:	17 October 2006

CA40728/06

SANTOW JA
MCCLELLAN CJ AT CL
HANDLEY AJA

14 SEPTEMBER 2007

DAVID LESLIE STIG & ANOR v GARY NORMAN FINCH & ANOR

CATCHWORDS

Negligence – running down case – no question of principle.

HEADNOTE

The plaintiff who had been lying on his stomach in the middle of the Pacific Highway rolled over and got to his feet when vehicles travelling in opposite directions were very close. He was struck by the northbound vehicle and seriously injured. The only eyewitness evidence was given by the occupants of the southbound vehicle. The trial judge was not persuaded that the driver of the northbound vehicle had failed to keep a proper lookout or that he could have stopped or swerved in time to avoid the accident. The plaintiff appealed. HELD: On the findings of the trial judge which could not be disturbed and the objective evidence the Court could not infer that the driver had failed to keep a proper lookout and accordingly the principles in Jones v Dunkel could not assist the plaintiff.

CA40728/06

SANTOW JA
MCCLELLAN CJ AT CL
HANDLEY AJA

14 SEPTEMBER 2007

DAVID LESLIE STIG & ANOR v GARY NORMAN FINCH & ANOR

Judgment

1 SANTOW JA: I agree with Handley AJA.

2 McCLELLAN CJ at CL: I agree with Handley AJA

3 HANDLEY AJA: This is an appeal by the plaintiff from the decision of Cooper AJ who found a verdict for the defendant in a running down case. The accident occurred at 9:45 p.m. on Friday 15 February 2002 a short distance north of the Karuah River Bridge on the Pacific Highway when the plaintiff was struck by the defendant's vehicle which was travelling north. The Pacific Highway is not the main northbound road at this point having been displaced by a Freeway further inland.

4 The plaintiff had left the hotel in Karuah and walked north across the bridge in the direction of his home which was located on a side road off the eastern side of the Highway about 60 m north of the bridge. The only footpath on the bridge is on its western side. The plaintiff’s way home was along a dirt path past a guardrail then to the edge of the bitumen and across the Highway to the eastern side. The bitumen surface was about 140 mm or 6 inches above the path.

5 The plaintiff was observed by the occupants of a southbound vehicle to be lying on his stomach across the painted centre line of the Highway with his head in the southbound lane and his feet in the northbound. At this point the road pavement was 6.85 m wide, 3.45 m in the northbound lane, and 3.4 m in the southbound (Blue 2/168).

6 The occupants of the southbound car saw the plaintiff roll over onto his back and then use his hands to push himself to his feet. When he got up he was facing south and he then stepped to his right immediately in front of the defendant's vehicle. The point of impact was 60 cm or approximately 2 feet from the off side corner of the vehicle.

7 There was no street lighting and the night was pitch black with the only illumination coming from the headlights of the two vehicles. The off side headlight on the defendant's vehicle reached 25 m ahead on a straight road, the nearside 48 m.

8 The defendant had stopped to go to the public toilet in the park just south of the bridge and then driven across the bridge. At the moment of impact he was travelling at a moderate speed found to be not less than 30 kph. The speed limit identified by a sign near the northern end of the bridge was 60 kph. He did not attempt to brake or swerve before the impact, and his breath test was negative.

9 There were no signs to alert northbound vehicles to the possibility of pedestrian traffic in the area and the Judge found that lights in the nearby houses to the east were not visible from the Highway.

10 The plaintiff stood up when the southbound vehicle was only about a car's length away and was struck by the defendant's vehicle when its front was in line with the front of the southbound vehicle. The Judge found that the probabilities were that the plaintiff stood up when the defendant's vehicle was only a car's length away. At a speed of 30 kph it would be travelling at 8.3 m a second.

11 The above facts were either common ground at the trial, or were the subject of findings which are no longer in dispute. Other facts were in dispute at the trial and the Judge's findings are challenged. These include the place of impact which the Judge found was between 25 and 30 metres north of the bridge. He also found that the plaintiff was wearing dark clothing with a low reflectivity of less than 10% and that the left hand bend in the Highway would not enable the defendant to see the plaintiff more than 25 m ahead.

12 The plaintiff suffered brain damage and could not give evidence about the accident. Evidence of this was given by the driver of the southbound vehicle and two other occupants. The defendant was not called but his statement to the police and the ‘COPS’ report were in evidence. He relevantly said in his statement:

“A short distance past the Bridge I collided with somebody. I did not see them (sic) until they (sic) were about 2 feet in front of my truck. They (sic) collided with my truck towards the front on the driver's side. I don't know how he came to be there. I don't know if he was crossing the road or if he jumped up from lying on the road. I ran straight over to see what it was or whether it was a person or what. I saw that it was a person."

13 The plaintiff's case at the trial, and on appeal, was that the defendant was not keeping a proper lookout, and that he could and should have seen the plaintiff before he did. If he had been keeping a proper lookout he could either have stopped or at least braked or swerved to avoid the plaintiff. There was a faint suggestion that he could have sounded his horn but the plaintiff must already have been alerted by the headlights of the approaching vehicles and there is no reason to think that the sound of the defendant’s horn would have told him anything more.

14 The Judge found that the defendant was travelling with his lights on low beam and this finding, although challenged, cannot be disturbed. The lights should have been on low beam because of the approach of the southbound vehicle, and neither the driver nor the other occupants said that the lights were on high beam. Indeed, although they were called by the plaintiff, they were not asked this question.

15 The plaintiff relied heavily on the defendant's failure to give evidence and the principles in Jones v Dunkel (1959) 101 CLR 298 which this was said to attract. However the question in this and every case where those principles are invoked is whether the evidence enables the Court to draw an inference of negligence. If such an inference is otherwise available the defendant's failure to give another explanation enables the Court to draw that inference and find that there was negligence. The question is whether the evidence enables such an inference to be drawn.

16 The plaintiff’s principal challenges to the Judge's findings were:

1. The point of impact. This was said to be 50 to 60 m north of the bridge in or close to the break of the double white lines which permit northbound vehicles to turn right into the side street which leads to the plaintiff's home.

2. The colour of the clothing worn by the plaintiff. The plaintiff contended that the Judge should have found that he was wearing a white or off-white shirt. If that was the case he would have been visible to the defendant from a substantially greater distance than the Judge found was the case.

3. The acceptance of the evidence of Mr Keramidas, the defendant's expert, that the left-hand curve in the Highway would not have increased the distance at which the plaintiff would be illuminated by the defendant’s nearside headlight.

4. The defendant’s probable reaction time. The Judge found that this was 3.5 seconds but the plaintiff asserts that the proper finding was 2.5 seconds.

The point of impact.

17 The Judge's finding on this issue was based on his acceptance of the oral evidence of Mr Benson, the driver of the southbound vehicle, and his passengers Miss Dickinson and Mrs Lawrence. It was not possible to identify the point of impact from physical signs on the road surface. Mr Benson said that the object in the middle of the road when first seen was about halfway along the guardrail leading from the bridge on the eastern side (Black 1/176). Miss Dickinson said that their car was next to the guardrail when the driver braked and swerved (1/191) and Mrs Lawrence said that the object was about halfway along the guard rail (1/205).

18 Mr Kennedy SC for the plaintiff, who also appeared at the trial, criticised these references to the eastern guardrail as a recent invention or add-on because none of the witnesses had mentioned this in their statements to the police. This is correct as far as it goes. He also relied on the fact that the representatives of the defendant's insurer had contacted Mr Benson 20 times or more (1/182), and on the fact that the defendant's expert, Mr Keramidas, had been invited to assume in his report that the point of impact was further north. None of these matters are particularly compelling.

19 Mr Kennedy also relied on the improbability of the plaintiff attempting to cross the Highway at the point identified by the Judge. This would have committed him either to a diagonal route which would increase the time he would be on the road, or to a walk of about 23 m along the eastern guardrail where there was no space for pedestrians. However arguments such as these have little weight because of the plaintiff's high blood alcohol level, and the inference that he had tripped on the raised edge of the bitumen.

20 The decisive answer is that the Judge’s finding is supported by other material in the witnesses’ statements to the police. Mr Benson stated that he was 50 to 60 m from the bridge when he noticed something in the middle of the road on the double white lines (Blue 1/19). Miss Dickinson said that she noticed something on the road when "we were about 50-60 m from the bridge" (1/1). Lisa Dickinson (later Mrs Lawrence) said that she noticed a man "lying in the middle of the road across the dividing line" (1/21).

21 There were no dividing lines opposite the side road which led to the plaintiff's home. Mr Kennedy's submission that this is where the impact occurred is contrary to the contemporary statements of eyewitnesses who saw the plaintiff lying across the centre lines. It is also contrary to their estimates of their distance from the northern end of the bridge when they first noticed the plaintiff. The Judge’s finding on this point cannot be disturbed.

The plaintiff's clothing.

22 There was a substantial body of conflicting evidence on this issue, which would have supported a finding either way. The Judge preferred the evidence of senior Constable McCarthy, and that of the occupants of the southbound vehicle, which was supported by the contemporary statements of Mr Benson (1/20), and Constable McCarthy (1/27). Both were entirely independent witnesses. Mr Kennedy relied on various matters which were said to make the evidence of the eyewitnesses improbable but he did not point to anything that this Court could possibly accept as decisive on this question. He also relied on the comment of the Judge during the closing address of Mr Gleeson SC for the defendant that the evidence of Mr Reece who saw the plaintiff's clothing in a plastic bag at the hospital (Black 2/422) had "the ring of truth" (Black 3/776).

23 Mr Kennedy complained that the Judge did not explain in his reasons for judgment why he had later decided to reject Mr Reece's evidence on this point. The Judge was not bound to do this but in any event he had added at this point during Mr Gleeson's address:

“I appreciate what you say. That is just an impression I gained. I will have to consider it in more detail. It may well be I come to the conclusion that that impression was wrong."

24 This finding was based on the Judge's assessment of contested oral evidence. It was not inconsistent with facts that had been incontrovertibly established, nor was it glaringly improbable. Moreover it was supported by the contemporary statements of two of the independent witnesses the Judge accepted. This finding cannot be disturbed.

The effect of a curve in the road.

25 It was common ground that the defendant’s nearside headlight would illuminate the surface 48 m ahead, while the offside would do this for only 25 m. Mr Kennedy argued that the curve in the road to the left which commenced north of the bridge would have brought the plaintiff lying in the middle of the road into the defendant’s nearside headlight. This would have substantially increased the time and distance available to the defendant to react to what he saw and brake or swerve to avoid the plaintiff.

26 The plaintiff's expert Mr Schnerring said that the curve started to develop at the end of the western guardrail 25 m north of the bridge (2/391) but he did not provide any firm figures for the extent of the curve or the increased visibility that might result. Mr Keramidas said that the road was straight for the first 25 m north of the bridge (Blue 2/168) and although the curve started there for some distance the road was as good as straight (Black 3/696). In his view the curve did not become appreciable until the break in the double white lines (3/696).

27 It is not clear that there was any disagreement between the experts on this issue but, if there was, the Judge was entitled to prefer Mr Keramidas. The Abalos principle can also protect findings based on the disputed oral evidence of experts: Ahmedi v Ahmedi (1991) 23 NSWLR 288 at 299. Since the point of impact was between 25 and 30 m north of the bridge the effect of any curve must have been insignificant in any event. This finding cannot be disturbed.

The appropriate reaction time.

28 The experts agreed that the normal perception and reaction time in rural areas is in the order of 2.5 seconds and the plaintiff submitted that this was the relevant figure in this case. The Judge however found (judgment para 197) that in view of the unique circumstances of the case, particularly the fact that the plaintiff was lying down until the defendant was very close, the appropriate perception and reaction time was 3.5 seconds. This finding, although at the upper end of the range, was supported by Mr Schnerring's evidence (Blue 1/58; Black 2/396, 476, 482, 486) and by that of Mr Keramidas (3/650-1).

29 The headlight visibility figures of 25 m and 48 m were based on the plaintiff's body having a 10% reflectivity factor but the experts agreed that the dark clothing on the dark road surface would give a reduced reflectivity factor (judgment para 173), and the plaintiff’s face with a high degree of reflectivity was on the eastern carriageway (judgment para 177). In any event the result in a case such as this cannot sensibly depend on a difference of one second, but even if it could the Judge’s finding of a reaction time of 3.5 seconds cannot be disturbed.

Jones v Dunkel.

30 At a speed of 30 kph a vehicle travels at 8.3 m a second. The plaintiff was found to be lying on the road between 25 and 30 m north of the bridge. The defendant’s reaction time was found to be 3.5 seconds. On these findings the defendant could not be expected to start applying his brakes until he had travelled 29 m. Mr Kennedy submitted that the reaction time for swerving was less than for braking but Mr Schnerring ultimately agreed that the reaction times were about the same (Black 2/467). The defendant’s braking distance at a speed of 30 kph was 5.4 m. On the Judge's findings the defendant had no reasonable chance of avoiding the accident. His speed would have continued undiminished for 29 m before braking would start to have any effect.

31 Mr Kennedy relied strongly on the defendant’s statement that he did not see the plaintiff until he was 2 or 3 feet away. In my judgment it would not be reasonable for the Court to take this statement and others like it as a reliable estimate of the distance involved. The statement must be weighed with the evidence of the occupants of the southbound car that when the plaintiff got to his feet he stepped in front of the defendant's car. He got up in a hurry and if he was unsteady on his feet he may have taken the step to regain his balance.

32 A finding of negligence in this case must depend on an inference that the defendant was not keeping a proper lookout. He was travelling alone and there was no evidence of anything that could have distracted his attention from the road ahead. He had just returned to his vehicle after using the toilet facilities at the southern end of the bridge. He must also have seen the lights of the approaching southbound vehicle. The absence of any evidence that he attempted to brake or swerve is consistent with the plaintiff's movements commencing within the reaction time of 3.5 seconds.

33 Another available inference from the failure to brake or swerve is that the defendant was travelling at more than 30 kph but still within the speed limit. This would increase the distance travelled in the reaction time, and the braking distance.

34 In my judgment the fact of the collision without more does not, in this case, support an inference that the defendant was failing to keep a proper lookout. In these circumstances the Jones v Dunkel principle does not

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assist the plaintiff. In my judgment the appeal fails and should be dismissed with costs.

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