Tolson v Roncoli

[1993] HCATrans 246

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A3 of 1993

B e t w e e n -

CHRISTINE TOLSON

Applicant

and

LISA MARIE RONCOLI

Respondent

Application for special leave

to appeal

DAWSON J TOOHEY J McHUGH J

TRANSCRIPT OF PROCEEDINGS

Tolson 1 26/8/93

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 26 AUGUST 1993, AT 11.42 AM

Copyright in the High Court of Australia

"

MRS. WALSH, QC: If the Court pleases, I appear with my

learned friend, MR C.H. COCKS, for the applicant.

(instructed by Hume Taylor & Co)

MR D.A. TRIM: If the Court pleases, I appear for the

respondent. (instructed by Ross & McCarthy)

DAWSON J: Yes.

MR WALSH:  If the Court pleases, in this matter the

Full Court of the South Australian Supreme Court

determined that there was no breach of a duty of

care by a driver of a vehicle where the driver was

said to have reacted instinctively to a perceived

emergency situation. And the facts, of course, are

in a sense commonplace: the respondent was driving on a country road; there were four passengers; the car got out of control when the driver reacted to a

noise sounding very much like a blow-out; the

reaction was to inquire, obtain a response and then

to slam on the brakes, so found the judge. The car

overturned and there were injuries.

TOOHEY J:	You say the car got out of control?
MR WALSH:	Yes.
TOOHEY J:	You said that in a sort of chronology that

suggested that preceded the application of the

brakes, is that right?

MR WALSH:	The car got out of control because of the application of the brakes, was the finding.
TOOHEY J: That is a different matter.	I rather thought

this case turned, to a large extent, on whether the
car did get out of control by reason of the

separation of the external surface of the tyre.

MR WALSH:  Yes, well I may have been in error in the way in

which I put my proposition in a preliminary way.

The proposition that we put, and that the learned

trial judge so found, that, in fact, it was the

application of the brakes that caused,

subsequently, the vehicle to go out of control

and -

TOOHEY J: But if the car went out of control, for instance,

because of a blow-out, it would be very difficult

to hold the driver responsible.

MR WALSH:  Yes, Your Honour Justice Toohey is entirely

correct on that point.

TOOHEY J: Depending, I suppose, on the speed at which it

was travelling, and so on. But here I though the

•

Tolson 26/8/93

crux of the case was that it was the application of

the brakes suddenly and firmly that caused the car

to go out of control.

MR WALSH:  Indeed, that is so, Your Honour, and I regret if,

in a preliminary way, I put it other than that way.

But, certainly, that is what the learned trial

judge found and we say, of course, that the learned

trial judge was entirely justified in doing so.

There are three main issues which we say

arise, which may justify special leave to appeal.

Firstly, what place do the concepts previously

adopted by the law play in the determination of a

standard of care, such concepts as agony of the

moment, automatism and, if I may adopt the approach

of the Full Court, instinctive reaction. Is there

any distinction, and we suggest there is not.

Secondly, in what circumstances ought a Court

of Appeal interfere in a determination of the lower

court, in circumstances where there can really be

no substantial dispute, or any dispute on the
findings of fact and, in effect, replace its own

opinion for that, we say, of the learned trial

judge.

And, finally, although the circumstances of

this case are somewhat common, that very fact

illustrates the next point that we make, namely
that this sort of circumstance, in its various
different ways, applies on the roads of Australia
every day of the week, and the decision of the

Full Court, if followed through to other

situations, namely accepting as it were the

instinctive reaction of a particular driver to
particular circumstances and, in a sense, saying

that was placing the driver in the same position as

an automaton, whereby there was no breach of duty

of care, is going to apply to many other decisions
of trial courts, dealing with cases of this kind

and other types of cases of accidents on roads.

In our respectful submission, on the first topic,

what the Full Court did - - -

McHUGH J: But is your difficulty not this: if you go to

page 36 in the judgment, what the judge says at

line 8:

In my judgment, the application of the brakes

was an "instantaneous reaction".

That is a question of fact.

I would not be prepared to find that on the

well-recognised test of the prudent and

reasonably competent driver, that this

Tolson 3 26/8/93

reaction was in all the circumstances of the

case, one where it is possible to draw an

inference of negligence.

That may be right or wrong as a matter of fact, but

that is all it is, is it not? There is no question

of law involved in it.

MR WALSH:  With respect, that was the decision of the

Full Court and the President, His Honour

Justice Legoe, said that. In doing that he

replaced his opinion for that on the facts of the

learned trial judge.

McHUGH J: But he is entitled to do that.

MR WALSH:  In our respectful submission there was no warrant

or justification to do so. Can I put it in this

way, if the Court pleases: if we take other

factual scenarios, such as a person approaching an

intersection and a car moving or appearing to move

and thereby appearing to create a perception of

emergency, is it proper for a driver to slam on the

brakes when it knows, for instance, that a
passenger may not have a seat belt on and a

passenger could fly through the windscreen.

McHUGH J: It is a question of fact.

MR WALSH:  It is indeed, but what has happened in this case

is that given the accepted facts, namely, that the

driver had time to make a decision as to what the

driver ought to do, that the instinctive, or the

so-called instinctive reaction, was an error of

judgment which amounts to carelessness and a breach

of a duty of care.

McHUGH J: But Justice Legoe confined himself in all the

circumstances of the case. It would be different

if he had substituted a test of instantaneous

reaction for the prudent and reasonably competent

driver and said that you were always acting

prudently and reasonably competent if, as a result

of an instantaneous reaction, you lost control of a

car; that would be a different thing altogether.

But that is not what he said.

MR WALSH:  But with respect, Your Honour, to use the words

"in all the circumstances of the case" begs the

question: what are those circumstances?

McHUGH J: Well, they depend on each case and that is why

this case raises no question of general importance.

MR WALSH:  In our respectful submission it raises this issue

of general importance, namely, the appropriate standard of care, the way in which it is to be

Tolson 26/8/93

judged, the way in which it is to be categorized,

if it is to be as in this case, as, in effect the

act of an automaton.

McHUGH J: Could you frame a ratio decidendi for this

Court's judgment in this case which would then be

of general application throughout the nation?

MR WALSH:  In the application of a standard of care to

drivers of vehicles, or people who hold the lives

of others in their hands, the Court ought not to be

confined to hitherto accepted notions of agony of

the moment and also instinctive reactions. What

must be determined is whether in fact there was a

breach of a duty of care in the circumstances of

the case.

If I may then go on and say that in this case,

what we say is that in saying that there was a

standard of perfection, in saying that an

instantaneous reaction or instinctive reaction is a

bar to a finding of negligence is akin to saying

that in all cases where an individual reacts in a

particular way, because that is that individual's

propensity, that there may be no finding of

negligence simply because there was a perceived

emergency.

McHUGH J: It depends on the facts of the case in all the

circumstances.

MR WALSH:  With respect, we say - and I must fall back on

the proposition - that in fact there was no warrant
for the Full Court to interfere with the learned
trial judge's decision on the facts of this case.

If we turn to the decision of the trial judge, it

illustrates the point quite adequately. I would

invite the Court's attention to page 13 of the

appeal book. You will see that in the first new

paragraph, the learned trial judge said this:

The evidence of Mr Hall satisfies me that

the sudden, heavy and violent application of

brakes to a vehicle carrying five persons and
travelling at about 100 kilometres per hour,

is not an action which a reasonably competent

driver would have taken in any event and even

in the absence of a tyre break down, because
such an action would be likely to cause not

only a loss of stability, but a loss of

stability not dissimilar to that which the

defendant experienced -

Then His Honour dealt at the foot with some

personal matters, namely that:

Tolson 26/8/93

The defendant gave evidence that she had

held a driver's licence for a period of

2 1/2 years prior to the incident in question,

and that her driving experiences until that

time had been uneventful. Her counsel

elicited evidence which satisfied me that she

had not been to a driver training school -

and so forth. It seems to us, with respect, and it

is our proposition, that what has happened here is

that there is a clear case of a driver being

confronted with a perceived emergency making a
decision which was quite wrong. That was an error of judgment and it amounted to carelessness on her

part.

McHUGH J: But do you support what the trial judge said at

the bottom of page 14, line 21:

For that reason the law requires all drivers of vehicles not only to exercise a high standard of care when they are engaged in the driving of their vehicles but also to drive "defensively" at all times.

MR WALSH:	Yes indeed, Your Honour.
McHUGH J:	Does that not fly in the face of Cook v Cook?
MR WALSH:	With respect, it does not.  Cook v Cook has

determined that there are certain circumstances

where the relationship between the parties will

alter the standard of care applicable and thereby

the duty of care. But let us look at the

alternative proposition that can be put in relation

to Cook v Cook. Let us assume that it was not the

passenger who had been injured but it had been some third person outside the vehicle. The duty of care

in that case, in our respectful submission, would

be that of an ordinary prudent driver vis-a-vis

that third person. What this case has done is to

assume that in relation to third persons,

instantaneous reactions can result in a finding

that it was just instinctive and thereby no breach

of a duty of care judged objectively.

If we may put the proposition further to

illustrate the point, academic writers often say

that on the whole the law has chosen external

objective standards of conduct. This means that individuals are often held guilty of legal fault for failing to live up to a standard which as a

matter of fact they cannot meet. But that is a

fact because objective standards have to be met.

In this case, if one looks at the objective

standard that had to be met, looked at on the facts

of the case as the learned trial judge did, there

Tolson 6 26/8/93

was a breach of the duty, namely doing what one

might often think is a golden rule of any driving

circumstance, that is that you do not react rashly

to a situation when the very action you may take

will cause catastrophe.

TOOHEY J:  Mr Walsh, was it apparent from the evidence

that this belt edge tread separation of itself did

not cause the car to go out of control?

MR WALSH:  The learned trial judge so found on evidence

before him from the witness, Hall.

TOOHEY J:	Can you just take us to where that finding is?
MR WALSH:	The finding, Your Honour, at page 13, and the

paragraph I just read from in part answers that

question, we say:

The evidence of Mr Hall satisfies me that

the sudden, heavy and violent application of

brakes ..... carrying five persons ..... is not an

action ..... because such an action would be

likely to cause not only a loss of stability,

but a loss of stability not dissimilar to that

which the defendant experienced -

TOOHEY J: Is that the extent of the finding on that issue?

MR WALSH:  No, His Honour found, having regard to some tests

that were performed by Mr Hall, where he actually

tested a vehicle of a similar kind, and with a

weight which was placed on the wheel in order to

simulate what might happen in relation to loss of

tread, and Mr Hall's conclusion was, on the

evidence, and His Honour obviously accepted it,

that there was not an untoward effect in terms of

the direction of the vehicle.

TOOHEY J: Is there a finding to that effect by the trial

judge?

MR WALSH: There was, in effect, at page 9 at the top.

I find that the tyre remained sufficiently inflated and that it retained its structural

stability. I accept that the loss of tread

brought about an out-of-balance situation but

reject all evidence suggesting that the degree

of out-of-balance was such as to cause the

steering of the vehicle to become

uncontrollable. I specifically find to the

contrary.

So, I go back, with respect - and he continued

rather:

Tolson 26/8/93

In my judgment, in the absence of any other intervening features, the nature and extent of the belt edge tread separation which occurred

would not of itself have had any effect upon

the motjon of the vehicle when travelling in a

straight line.

There was evidence that the learned trial judge

could rely upon in reaching that conclusion.	He
did rely upon that evidence.	So what are we left
with?	We are left with an accident which was

caused, on the finding of fact, by a sudden

application of a brake after there had been inquiry by the driver, "What is that?" A response from the

plaintiff in this case, namely the front seat
passenger, "Oh, it sounds like a blow out" and a

breach of the golden rule.

Now, let us assume that in a particular case,

a plaintiff or at least a negligent driver, or

supposedly negligent driver said, "Well look, I

have never been trained to deal with a vehicle in

that situation." We say, with respect, that unless
there is something in the nature of the Cook v Cook

situation, you must judge it and judge the reaction

in accordance with that of the ordinary, reasonable

driver, who will not drive a vehicle at speeds of

100 kilometres per hour without thinking in

advance, "What will I do if I have to meet a number

of common situations, for instance, going out of
control on the gravel verge, approaching an oil

slick in the road, or alternatively, a blow out, or

what sounds like a blow out."

TOOHEY J:  Your real complaint is that there was no

justification for the Full Court interfering with

the verdict below?

MR WALSH:  Indeed, that is a substantial

TOOHEY J: But I am not sure how far that gets you on an

application for special leave.

MR WALSH:	Well, the reason why we say it is important is that if this judgment is to stand, at least in
South Australia, judged in other cases, it would
justify a situation whereby individuals who are
confronted with perceived emergencies, reacting
instinctively, as an individual will always
do - - -

McHUGH J: Well, it should not, because as far as I am

concerned, it lays down no principle of law

whatsoever. It simply applies the ordinary

standard of care in the particular circumstances of

this case. The judgment might be right or wrong on

the facts, but lays down no question of law.

Tolson 26/8/93

MR WALSH: Well, in our respectful submission, it does

affect the application of the law to facts, and

circumstances that are similar. For instance, as I

indicated earlier, a person who has a perceived

emergency distinctively reacts but it is the wrong

reaction, therefore no negligence. And that

happens in many situations in road accidents.

TOOHEY J:  You seem reluctant to appeal to the

administration of justice?

MR WALSH: Well, that is the next matter I was going to rely

upon - - -

TOOHEY J: What, as a fall-back position?

MR WALSH:	as my fall-back position and I - - -
TOOHEY J:	I would have put it at the very forefront.

MR WALSH: Well, I intend now to fall back on that and, in

fact, put it to the forefront, that in this case,

as I said at the opening of my submissions, there

was no warrant for the interference by the learned

trial judge that here we have an injured person who is without an remedy and, we say, improperly so and

others who rely upon it no doubt, other people in
the vehicle, who are left not, true of course, with
a situation of res judicata as against them, or
estoppel, but with a Full Court decision which

bars, in effect, in a practical sense, recovery.

And that is an important and weighty matter we say
with respect to the issues in this case.

And if one then combines it with the notion of

old concepts interfering in the modern concept of
proximity and standard of care, mainly such things
as agony of the moment and the like, that helps to

assist, in our respectful submission, an acceptance

that this may well be an appropriate case for

special leave to appeal. If the Court pleases.

DAWSON J:  Thank you, Mr Walsh. Mr Trim.

MR TRIM: If the Court pleases, it is the respondent's

submission that, indeed, this is a case that was

decided solely on its facts, as has been put in

particular by Your Honour Justice McHugh to my

learned friend, and determined by the application
of properly identified content of the duty of care

to be expected of this respondent driver. On the particular factors of the case, in particular, as identified - - -

McHUGH J: It is a fairly surprising decision, though, of

the Full Court, you would have to concede, would

you not?

Tolson 26/8/93

MR TRIM: With respect, the appeal process was one in which

the court was taken through the particular facts of

this case, at great length, and the end result was

that the Full Court was persuaded that the - as is

labelled by Justice Legoe, the instantaneous

reaction to the respondent was not inappropriate in

the circumstances.

This was a vehicle being driven along a

country road at a speed in the order of

100 kilometres per hour. There was an

instantaneous noise, and an instantaneous reaction,

as found as a matter of fact, by - - -

McHUGH J: It is a different question, is it not, as to

whether a reasonable driver would have

instantaneously reacted by slamming on the brakes

when you are travelling at 100 kilometres an hour?

MR TRIM:	But the factual circumstances that led at the end of the day to the Full Court's conclusion was that
on the facts this was not a blow-out situation. It
was the application of the brakes initially to the
tread separation situation that confronted the
driver that caused the instability. It was not a
situation where the respondent applied and
continued to apply her brakes imprudently throughout a long process of slowing the vehicle
down.  What the evidence disclosed - and it was
common to both experts, and that is identified in
Justice Legoe's judgment - was that as soon as the respondent driver touched, all was lost from her
point of view.
TOOHEY J:	You use the word "touched", Mr Trim, but that is

a bit euphemistic, is it not? I do not know

whether the word "violent" appears, but it was the

sudden and forceful application of brakes that

caused the car to go out of control. Say a

kangaroo has appeared on the road up ahead and the

driver had slammed the brakes on so hard as to lose

control of the vehicle.	Would that not be a clear
case of negligence?

MR TRIM:  I would not accept, with respect, that it would be

a clear case of negligence, Your Honour. I think

one would have to then look at all the facts of the
case, as has been done in this instance. In this

instance, to repeat the expression I used, all was

lost from the respondent's point of view as soon as

she applied her brakes.

TOOHEY J: But why? That is the very point, is it not?

MR TRIM: That is a factual matter. It was common to both

experts that because of the characteristics of the

vehicle induced by the tread separation, as soon as

Tolson 10 26/8/93

the brakes were touched, an instability situation

was created which means that the vehicle was

destined to leave the road and suffer the fate that

it did.

TOOHEY J: If that was the finding, then you would be a long

way home, but I thought the finding was quite to

the contrary. Mr Walsh took us to page 9:

I accept that the loss of tread brought about

an out-of-balance situation but reject all
evidence suggesting that the degree of

out-of-balance was such as to cause the

steering of the vehicle to become

uncontrollable.

MR TRIM: There was no challenge to that finding on appeal,

nor is there now of course.

TOOHEY J:  I thought what you were just putting to us was

almost diametrically opposed to that.

MR TRIM:  No, it is not the tread separation itself that

caused the instability; it was the application of the brakes momentarily after the tread separation

had occurred, and it was common ground between the

experts that the application of the brakes in those

factual circumstances immediately brought about a

situation where instability would cause the vehicle

to leave the road. That is the issue identified at

page 32 in His Honour Justice Legoe's judgment at

line 17 where His Honour says:

The focus of the appeal is upon an issue on

which both were in agreement -

"both" being the experts. That was the issue that

was factually at the centre of the appeal.

McHUGH J: Given, as you say, that this is a case about

fact, why are not the findings of fact of the Full

Court so clearly wrong that the administration of

justice requires that this Court should grant

special leave to correct them?

MR TRIM: With respect, in my submission, they are not

clearly wrong, they are correct. The Full Court

was persuaded, upon being taken through a factual

review of the evidence, that that which confronted

the respondent was a situation in which her

response was not subject to criticism. It was a

reasonable response to that which confronted her.

That was the reason why the Full Court, with

respect, were prepared to intervene in the findings

of the trial judge, and the fundamental reason,
that taking the proper and applying the appropriate

objective test, the criticism made, or the finding

Tolson 11 26/8/93

of negligence made by the trial judge, demanded too

much, as a matter of law, of the respondent.

And for that reason, because that is

essentially, almost solely a matter of fact, for

the reasons that are spelled out in the passages in

Justice Legoe's judgment, that this, in the

respondent's submission, is not an appropriate matter for the grant of special leave. If the

Court pleases.

DAWSON J: We need not trouble you, Mr Walsh. There will be

grant of special leave in this case.

AT 12.06 PM THE MATTER WAS ADJOURNED SINE DIE

Tolson 12 26/8/93