TREVOR VIDEAN SENTON BY HIS LITIGATION GUARDIAN THE PUBLIC ADVOCATE OF THE AUSTRALIAN CAPITAL TERRITORY v FRANCIS JAMES STEEN - [2012] ACTSC 127

TREVOR VIDEAN SENTON BY HIS LITIGATION GUARDIAN THE PUBLIC ADVOCATE OF THE AUSTRALIAN CAPITAL TERRITORY
v
FRANCIS JAMES STEEN

[2012] ACTSC 127 (3 August 2012)

NEGLIGENCE – motor vehicle collision – collision between motor vehicle and pedestrian – contributory negligence – collision in New South Wales – statutory law of New South Wales to be applied – negligence of driver admitted – whether pedestrian guilty of contributory negligence – appropriate percentage apportionment.

Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9
Motor Accidents Compensation Act 1999 (NSW), s 138

Mackenzie v The Nominal Defendant (2005) 43 MVR 315; [2005] NSWCA 180
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Pennington v Norris (1956) 96 CLR 10
Anikin v Sierra (2004) 211 ALR 621: [2004] HCA 64

No. SC 802 of 2006

Judge: Master Harper
Supreme Court of the ACT

Date: 3 August 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 802 of 2006
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:TREVOR VIDEAN SENTON BY HIS LITIGATION GUARDIAN THE PUBLIC ADVOCATE OF THE AUSTRALIAN CAPITAL TERRITORY
Plaintiff

AND:FRANCIS JAMES STEEN
Defendant

ORDER

Judge:  Master Harper
Date:  3 August 2012
Place:  Canberra

THE COURT ORDERS THAT:

judgment be entered for the plaintiff against the defendant for damages to be assessed.

the plaintiff’s damages be reduced by 30% for contributory negligence.

the further hearing of the action be stood over for the assessment of damages.

This is an action for damages for personal injury arising out of a collision between a motor vehicle and a pedestrian. The collision occurred at about 6.30 pm on Thursday 24 June 2004 in Kendal Street, Cowra, New South Wales, a short distance west of its intersection with Brisbane Street. Negligence on the part of the defendant driver is admitted. The defendant asserts that the plaintiff pedestrian was guilty of contributory negligence. These reasons are limited to the issue of whether or not the plaintiff was guilty of contributory negligence, and if so, how liability should be apportioned between the parties. I have not yet heard evidence about the plaintiff’s damages. The plaintiff suffered a severe head injury causing brain damage and it is expected that the damages will be substantial.
Kendal Street, Cowra forms part of the Mid-Western Highway of New South Wales. It is a major road and, where the collision occurred, the main street of Cowra. Cowra is a country town with a population of some 10,000 on the Lachlan River about 300 km west of Sydney and 200 km north of Canberra. The plaintiff lives in Canberra and was airlifted to the Canberra Hospital shortly after the collision. There is no issue that this court is the appropriate court to hear and determine the action, but the law of New South Wales is to be applied to the determination of the liability issues (and also, in due course, to the assessment of damages).

The pleadings

The action was commenced in February 2007. The Statement of Claim asserted that at about 6.30 pm on 24 June 2004 the plaintiff was a pedestrian on Kendal Street, Cowra and was struck by a motor vehicle owned and driven by the defendant. The Statement of Claim asserted that the plaintiff’s injuries were caused by the negligence of the defendant. Particulars of negligence were pleaded as follows:
a)Failed to keep a proper lookout.
b)Drove at a speed excessive in the circumstances.
c)Drove in a fashion whereby he was inattentive.
d)Failed to observe the plaintiff on the roadway.
e)Failed to brake his vehicle so as to avoid collision with the plaintiff.
f)Failed to steer his vehicle so as to avoid collision with the plaintiff.
g)Failed to eliminate [sic] the roadway in front of him even though it was dark.
h)Drove into the plaintiff who was upon the roadway.
In May 2008 the defendant filed a defence admitting the facts pleaded in the Statement of Claim as to the circumstances of the collision, though not as to damages. This had the effect of admitting the particulars of negligence. The defence also pleaded contributory negligence on the part of the plaintiff, particulars being:
a)The plaintiff was crossing Kendal Street, Cowra, at a point on the roadway where it was unsafe to do so at night.
b)The plaintiff failed to keep a proper or any lookout when crossing Kendal Street, Cowra.
c)The plaintiff failed to cross Kendal Street, Cowra, by the shortest safe route.
d)The plaintiff failed to cross Kendal Street, Cowra, at the pedestrian lights at the intersection of Kendal Street and Brisbane Street Cowra.
e)The plaintiff caused a traffic hazard by moving into the path of the defendant’s vehicle on a dark, moonless night while wearing dark clothing.
Neither the Statement of Claim nor the Defence pleaded any breach of any provision of the Australian Road Rules or of any other legislation.
On the first day of the hearing in July 2011, the plaintiff, with the defendant’s consent, amended the Statement of Claim to substitute for the word ‘eliminate’ in particular (g) the word ‘illuminate’ and to add further particulars of negligence:
i)Failing to illuminate the headlights on his motor vehicle.
j)Drove his motor vehicle without turning on his headlights.
The defendant, without objection, filed an Amended Defence the following day, effectively withdrawing the admission of the particulars of negligence pleaded, whilst leaving in place the admission that the plaintiff’s injuries were caused by his negligence. As to the paragraph of the Statement of Claim setting out particulars of negligence, the defendant in the Amended Defence said that he admitted breach of duty of care but denied particulars (b), (d), (g), (i) and (j) set out above. The effect of this was that the trial proceeded on the basis of an admission by the defendant of negligence generally, and specifically of failure to keep a proper lookout, failure to see the plaintiff, failure to brake or steer so as to avoid colliding with the plaintiff, and driving into the plaintiff on the roadway.

The hearing

Regrettably, the hearing took a great deal longer than expected. The solicitors for the parties completed a certificate of readiness in March 2010 in which they gave the estimated length of hearing as three days. The estimate was extended to five days at a listing hearing before the then Deputy Registrar at which the trial was fixed for a date in February 2011. That date had to be vacated because of factors associated with the court rather than with the parties, and was changed to 18 July 2011, the estimate remaining at five days. Notwithstanding the estimate, the action was listed for hearing before me on 18 July with only four days available in that week. By the end of those four days it was clear that the estimate had been optimistic. Counsel agreed that a further two days would be needed to complete the matter. The further hearing was fixed for 11 October 2011. On the morning of that day, counsel tendered reports by experts in accident reconstruction, which took me two hours to read. After submissions from counsel, I directed the two expert witnesses to meet to discuss and identify the matters they agreed about and the matters they disagreed about, and to attempt to resolve any disagreement. The court was adjourned for a further two hours while the two experts attempted this process independently of solicitors and counsel. They were able to reach agreement about some matters but remained in disagreement on others, most notably the point or area on the defendant’s vehicle which first came into contact with the plaintiff. They were also unable to agree on the speed of the defendant’s vehicle at the moment of impact. Their expertise did not enable them to arrive at an opinion about whether the defendant’s car had its headlights on immediately before impact.
The hearing was unable to proceed further at that time: the plaintiff’s solicitors had obtained a third report from their expert witness only the previous day, and I accepted that counsel for the defendant was not in a position to cross-examine the expert adequately on that report at such short notice.
The hearing resumed on 25 June 2012, which I accept was the next date when the court was able to allocate enough time to complete the hearing. The hearing occupied a further four days, that is nine days in all. It is regrettable but was in the circumstances I think unavoidable that the hearing was fragmented in that manner and to that degree.
Because negligence was admitted, I directed with the agreement of counsel that the defendant’s case should be put first. Evidence was given in the defendant’s case by the defendant himself; one of the attending police officers, Sergeant Julie Coulter; and an eyewitness, Mr Marc McLeish. The plaintiff then gave evidence, and evidence was also given in the plaintiff’s case by Mr and Mrs Burgin, who arrived on the scene shortly after the collision. The only other oral evidence was given by the two experts, Mr Glen Urquhart for the defendant and Mr Mark George for the plaintiff.
There was a considerable amount of documentary evidence, including statements taken by the police and by private investigators; photographs of the general area of the collision; photographs of the defendant’s vehicle in its damaged condition; scale plans of the area; a repair quotation and account for the damage to the defendant’s vehicle; and ambulance and hospital records relating to the plaintiff’s injuries. Additionally I had the benefit of the reports by the two experts. I also accepted into evidence the background material which had been provided to the experts, limiting the use of that material to comprehending the reports, so that it was not to be evidence of the truth of the material provided. This has created some difficulty, in that the experts were provided with statements by other potential witnesses who in the event were not called to give oral evidence and whose statements were not otherwise admitted into evidence. A risk with this course is that the experts may have taken into account in forming their opinions factual matter which has not been established in evidence. It was not submitted by either side that this shortcoming affected the admissibility of the evidence of either of the experts, but it creates difficulties for the court in evaluating their opinion evidence.
As to factual matters, it is necessary to take account of the fact that the witnesses were giving evidence about events of seven years earlier. It is well recognised that memories fade over time, and that even for truthful witnesses with reasonably good memories, statements they made at or shortly after the event are likely to be more reliable than their recollection seven years later.

The contemporaneous records

At the time of the accident the plaintiff was aged sixty-three, living in Canberra and working as a freelance travelling salesman. By the time he gave his evidence he was seventy and retired. His work involved extensive travel in his own motor vehicle. He was on his way home from a typical run on the day of the accident, to Dubbo and back via Boorowa, Cowra, Canowindra, Eugowra, Cudal, Molong and Wellington. He dealt in giftware, greeting cards and the like, visiting retail outlets in the various country towns. He would typically leave Canberra on Monday morning and return on Thursday night. He would usually stop in Cowra to relieve himself and sometimes to get something to eat. By the time of the trial he had no recollection of the accident or of being in the town centre of Cowra on the night. His last recollection was of passing Cowra cemetery, which is about 4 km from the site of the collision, on the road in to Cowra from Canowindra.
The plaintiff made a statement to police in September 2004, which I have read as part of the background material provided to the reconstruction experts but which is not in evidence. It does not seem to me that there is anything in that report which would have borne on the issues I am required to determine.
The defendant lives in Cowra. At the time of the accident, he and his wife had recently sold a shop business, and he was not working. He was fifty-four at the time of the accident, and sixty-one when he gave evidence. By that time he was no longer working but caring for his wife.
Sergeant Coulter spoke to the defendant on the night of the accident, and made the following note of what he said:
Approx speed. Very slow – coming to a stop. 1 veh waiting to turn right and 1 in veh waiting to go straight ahead. Had indicator on. Heard the bang. Glass from windscreen fell onto the driver. Vehicle stopped where hit pedestrian.
On 18 July 2004, almost four weeks after the collision, the defendant provided a handwritten statement to the police, with a diagram showing where his car stopped and where the pedestrian was lying on the road after the impact.
Senior counsel for the plaintiff sought unsuccessfully to obtain a concession from the defendant that he had avoided gong to the police immediately after the accident to make a statement, and had done so only after obtaining legal advice. The defendant agreed that he had seen a solicitor but maintained that he had not done so until after providing the statement to the police.
His statement to the police was as follows:
I was working in the backyard and at approximately 5.00 pm I came inside – had a shower and got changed and left approximately 5.15 pm to go and buy groceries.
I parked behind BiLo in the car park and went inside and got my groceries. While inside I said hello to a number of familiar faces and spoke to Col Rankin and Leanor Smith for a few minutes.
I then went to Woolworths supermarket and purchased more groceries that they had on special (Nescafe coffee, block of chocolate and Maggi stir-fry sauces).
While in Bi Lo I had purchased a hot cooked chicken so I then went to the Golden Key Cafe to purchase some hot chips so we could have chicken and chips for dinner.
The car was parked on the left hand side of Kendal Street (as you go down the street) opposite Clint’s Warehouse.
I got into the car after purchasing the chips, put on my seatbelt, started the car, turned on the lights and moved about two feet forward and waited until the road was clear.
I waited for two sedan cars, one Pajero type four wheel drive and a semi-trailer with a white trailer coming down the street and two sedans going up the street.
I remember definitely turning on my lights as while I was waiting for the road to clear, my lights were shining at a bloke parked in a four wheel drive Hilux across the road and I remember thinking “sorry mate”.
I proceeded right – up Kendal Street and I didn’t see any pedestrians crossing the road at any time. There were no cars behind me. The lights were red. There was a car stopped at the lights in the right hand lane and another car (both sedans) moving into the middle lane ahead of me. I was moving left to go into the left lane to turn the corner - left up Brisbane Street to go home. I was slowing to stop at the red light and was not going quickly.
I saw a movement on the right hand side of the vehicle. Next instant there was a loud bang and the windscreen in front of me was shattered and I had shattered glass all over my lap.
I immediately remember thinking “oh shit what was that”. I stopped – turned off the engine and lights got out of the car and saw a man lying on the road, face down, about two metres away. He was wearing dark pants and a grey tweed jacket.
Once the ambulance had come and taken him to hospital I looked at my ute in the dark and the only damage appeared to be a broken windscreen and it looked like he had been eating a hamburger.
I do not know where he came from and I was not doing anything stupid or anything that I wasn’t supposed to be doing.
The sketch diagram attached to the statement did not purport to be to scale and did not contain measurements but appears to me to be generally consistent with the photographs and scale plans in evidence, both as to the layout of the approach in Kendal Street to the intersection with Brisbane Street, and, broadly, the vehicle and pedestrian positions marked on the road by police soon after the collision.
In November 2004 the defendant was interviewed by an investigator acting on instructions from the authorised insurer of his vehicle. This statement was much longer, running to seven pages of typing. The evidence does not assist as to whether the defendant or the investigator had the benefit of the earlier police statement when it was prepared.
The defendant said in the November statement that the accident had occurred at about 6.40 pm. He said that he had owned the vehicle he was driving at the time, a 2000 Holden Commodore utility, for about seven months, and that it was in good order and condition, with no mechanical or other problems. It had been serviced about a month before the accident and had not been damaged in any way since he had bought it from a used-car dealer in Cowra.
He said that immediately before the accident it was very dark. He had his headlights on low beam. The windscreen was clear and visibility was otherwise good, although the street lighting was poor in the area. He was travelling slowly on Kendal Street, watching the traffic lights at the intersection of Brisbane Street. There were three eastbound lanes at the traffic lights, a left-turn lane, a centre lane and a right-turn lane. There was a vehicle stopped at the lights in the right-turn lane, and a vehicle ahead of him moving in the centre lane towards the lights. The lights were red. The defendant was moving into the left lane, intending to turn left into Brisbane Street at the lights. He was travelling up what he described as a significant incline to the lights, the crest being some distance on the other side of the Brisbane Street intersection. Until about fifty metres from the lights, Kendal Street had only one eastbound lane, but divided into three lanes in the approach to the lights. He said that the accident occurred in the area where the road starts to divide.
The defendant went with the investigator to the scene and indicated a point of impact on the road, which the investigator marked with chalk and measured as 5 metres north of the centre line of Kendal Street and 47.1 metres west of the centre line of Brisbane Street.
The defendant said that it was not raining at the time of the accident and the road was dry. There was nothing on the road which might have contributed to the accident.
There was overhead street lighting, described in the statement as sodium vapour lights. He said that there was a street light on the northern side of Kendal Street in the area of the collision, “but because of a massive tree that encompasses this light, the light is ineffective”. There was another street light on the southwest corner of the intersection of Brisbane Street, but the defendant says that the area was not well lit. The area was built up with commercial buildings. The speed limit in Kendal Street was 50 km/h. The defendant had grown up in Cowra and been familiar with Kendal Street all his life. He had been living in Cowra, after a move away, for the previous thirteen years, and drove on Kendal Street almost every day.
As the defendant approached the traffic lights he did not see anybody crossing the road, nor did he see anyone on the footpath on either side, apart from Marc McLeish who he recalled was cleaning windows in an arcade near a chemist shop on the southern side of the street.
His description of what happened was as follows:
I was entering the divided area and I was well over to the left. There was a movement on my right hand side which I caught out of the corner of my eye. The next thing the windscreen shattered and scared the hell out of me. I had no idea what it was that smashed the windscreen. I immediately stopped and turned off the engine and the headlights. I have no idea why I turned off the headlights. In regard to the force of impact, the windscreen just shattered. There was a loud bang. I could not see and there was glass on my lap which cut my hand slightly. I don’t know where the pedestrian came from. The impact did not move the vehicle. After the impact I applied the brakes and brought the car to a stop almost immediately. There was no skidding of brakes and my vehicle did not leave any skid marks. My vehicle only went forward for a couple of metres after I applied the brakes. There would have been some reaction time.
I got out of my vehicle after switching off the engine and the lights and I saw a man lying on the roadway beside my vehicle. He was lying on his face and his head was about 1 metre past the rear of my vehicle. He was about 1 metre away from the side of my vehicle on the southern side of it and he was lying with his head to the west and his feet to the east. He was lying on his face about parallel to the vehicle.
I didn’t know what to do. Marc McLeish who had been cleaning windows came over. Marc took off his jacket and put it under the man’s head. We waited for the ambulance to come which was not very long at all. Apparently Marc had rung the police before he came over to me on the road. Marc tried to speak to the fellow on the road but he seemed out of it. When the ambulance arrived the guy on the road started to come around. The person on the road was wearing dark clothes.

The defendant went on to say that after the ambulance left he was told by police that he could go home. The police impounded his vehicle. It was towed to a police yard. It was driveable. The only damage was the smashed windscreen, and two very small dents, one in the roof of the utility and the other in the bonnet.
The defendant’s recollection was that it had been a very dark night with no moon.
The witness Marc McLeish was interviewed by Sergeant Coulter on the evening of the collision. She handwrote a statement in her notebook which he signed. The statement was as follows:
I own a contract cleaning business in Cowra. I came to work about 5.30 pm this afternoon. I am responsible for cleaning the two big arcades in Kendal Street. I commenced cleaning in the Logan Court building as soon as I came to work. While I was using my blower vac in the arcade, I was near the front doors, I saw a male pedestrian directly outside the arcade. He was walking up Kendal Street but he stopped outside the arcade. He was eating a hamburger. He was well attired, almost business like, wearing long pants and a tweed style jacket. He had sort of a blank expression on his face and my initial thoughts were that he looked like an odd sort of a fella. He didn’t make any great attempt to get out of my way. He stood there for a few seconds. Nothing was said between us. He then kept walking up Kendal Street.
I then continued outside Logan Court and commenced blowing all the dust off the path. I was walking up Kendal Street behind the gentleman but kept my distance because I did not want to blow any dust on to him. The gentleman actually stopped a couple of times walking up the street but he was still eating so I didn’t think that was odd. I continued blowing which is a noisy unit so it’s hard to hear other sounds. I got up past the Calare Building which I would estimate was about 60 metres from the set of lights at the intersection of Kendal Street and Brisbane Street. By this stage, the gentleman had stepped out from the footpath on the southern side of Kendal Street onto the roadway. I think at this stage he was definitely in the parking bay area but was walking towards the road. Again, I would estimate that I was about 15 metres from this gentleman. Once he was off the footpath I continued blowing. I kept walking up to the Hippity Hop Kids Shop. I was blowing onto the roadway. I didn’t hear any screeching or other noise apart from the blower but I looked up and I saw the gentleman come into contact with a white Holden ute which was travelling in an easterly direction. The gentleman seemed to come over the front of the vehicle from the driver’s side. He seemed to go very high into the air and he then hit the ground hard, his upper body connecting with the road first. The ute stopped straight away. He remained on the ground, he didn’t move. I dropped my blower vac and got on my mobile and rang 000. I was on my way over to him to assist him. Chris Burgin also helped me. The driver of the ute got out of the car. I recognised him as Mr Steen. His first name is Frank. He appeared a bit shaken. The gentleman that had been hit was almost in a recovery position. He was face down. He was breathing regularly but heavily. I tried to talk to him but I got no response. He then started to moan. Chris and I put him in the recovery position. The ambulance then arrived and I moved away so they could assist him.
I had a clear view of the accident. The gentleman hit the vehicle on the front driver’s side. He came over the vehicle from the front of the vehicle and ended up on the driver’s side of the vehicle.
Sergeant Coulter entered details of the collision on the police computer system later on the same evening. In addition to a facility for the entry of a descriptive summary, the system provides a number of cues for entry of brief information, for example intersection type, road alignment, road gradient, weather, surface and street lighting. There are also cues relating to vehicles involved in a collision such as vehicle type, make, model, body type, year and vehicle colour. These cues include one for vehicle lights, which Sergeant Coulter completed by entering a Y (for yes) which she explained in evidence meant that she had been told by the defendant on the night that he had his lights on at the time of the collision.
Sergeant Coulter also recorded as witnesses Christopher Burgin, Megan Carter and Jason Dunn but she did not record statements in her notebook from those witnesses at the time.
Mr McLeish was interviewed by Mr Collins, the same insurance investigator as interviewed the defendant. Mr Collins obtained a statement from Mr McLeish on the same day as the statement of the defendant, 25 November 2004. His statement was generally consistent with the statement he had given to the police on the evening of the accident. He added that the plaintiff had walked in front of him while he was blowing debris and rubbish out of the arcade. He appeared to be eating a hamburger. He “stood there looking” as Mr McLeish was blowing rubbish. Mr McLeish stopped because the rubbish would have blown all over the plaintiff, who stood there for some time, so long that Mr McLeish wondered whether he was going to move on. The plaintiff eventually did so, walking up the street in an easterly direction. Mr McLeish followed him. The plaintiff stopped a couple of times, apparently eating the hamburger. Mr McLeish wondered whether he might have been drinking (all of the evidence is to the contrary). The witness recalled talking to himself under his breath, urging the plaintiff to hurry up so that he could finish his work. He watched the plaintiff until he got to about level with the chemist shop, just past the area Mr McLeish was cleaning. The plaintiff stopped and turned left to cross the road. Mr McLeish waited until the plaintiff had moved off before he continued blowing the area. He turned his attention away for a short time, and turned back just in time to see the accident happen. When he looked back, the plaintiff had passed the centre of Kendal Street and was just north of the double centre lines, walking at an angle in a north-easterly direction. He was walking at a slow to normal pace, and did not appear to be in a hurry. He appeared to be looking more towards the east (his right) than the west. It was a very dark night. There was an overhead street light in the area where the collision occurred but it was partially obscured by a large tree, the effect being that the area of impact was poorly lit. Mr McLeish said in his statement:
It all happened very quickly, the car hit him and he was thrown over the right hand mudguard and then on to the road beside the car. It looked like his head hit the road. I did not see his head hit the windscreen.
He crossed the road to assist the plaintiff, ringing the ambulance on his mobile phone as he did so. He said “that was when he nearly got struck by another car”. He explained that there was traffic coming up Kendal Street going east, and that the cars were, in his words, trying to go round the defendant’s car. He said that in one of these cars was Mr Burgin who stopped and helped at the scene by directing traffic.
Mr McLeish also said that the defendant’s car “stopped in a very short space of time after the impact”. He added “I cannot say that I saw the car prior to the impact but I would say it had its lights on at the time of the accident”.
It is apparent from the reports of the accident reconstruction expert witnesses that they were furnished with additional statements not in evidence. The reports refer to police statements made by Mr Burgin and Ms Carter on 27 June 2004 and Mr Dunn on 29 June 2004, and also to statements taken by the insurance investigator, Mr Collins, from Mr Burgin and Ms Carter in November 2004. Those latter statements are in evidence as part of the material provided to the experts, but on the basis that they are not evidence of the truth of their contents. The additional police statements are not in evidence, except that extracts from them are set out in one of the expert reports. The extracts are subject to the same evidentiary limitation. Mr Burgin and Ms Carter (by the time of trial Mrs Burgin) gave oral evidence, but Mr Dunn did not.
This has the unfortunate consequence that the court is deprived of the benefit of statements made by Mr and Mrs Burgin within three days of the collision, as well as more detailed statements made to the insurance investigator about five months later, and has only their oral evidence given more than seven years after the accident. It need hardly be said that Mr and Mrs Burgin’s recollection would have been far more reliable three days after the accident than seven years later.
A further difficulty to which I alluded earlier is that the experts have had the benefit of the 2004 statements of Mr and Mrs Burgin and also of Mr Dunn, and it is to be expected that they took account of the contents of those statements as part of the factual assumptions for their subsequent opinion evidence. It appears from the extract of Mr Dunn’s police statement that he was an eyewitness to the collision or at least that he saw the plaintiff in the air before he hit the road. There is no evidence that Mr Dunn was unavailable as a witness to either party, and I can only assume that both sides took a forensic decision not to call him. The available inference is that his evidence would not have assisted the plaintiff’s case, and additionally that his evidence would not have assisted the defendant’s case. These inferences do not necessarily cancel each other out. I must bear in mind that the defendant admitted his negligence, so that there was no onus on the plaintiff in that regard. The hearing was limited to the issues of whether the plaintiff was guilty of contributory negligence, and if so, by what percentage his damages should be reduced on that account. It is accordingly the defendant who would have been expected to call eyewitness evidence of the collision.
Senior counsel for the plaintiff sought to rely on documentary evidence as to the damage to the defendant’s motor vehicle, being the repair quotation, adjustments made to the quotation by an insurance loss assessor, and the assessor’s report. The documents include a diagram of a motor vehicle from above, with markings made by the assessor to show damage. The cost of repairs to the vehicle was $1,856.86. The repair account provided for “repair” items related to the bonnet, the right hand front guard and the turret, with corresponding “paint” items. The account also contained a number of “remove and replace” items. It is generally understood that in repairing a damaged motor vehicle, it is necessary to remove undamaged parts of the car, and to replace them later, in order to get access to, and repair, the damaged areas. The fact that an item is listed for removal and replacement does not mean that it was itself damaged.
The diagram of the car has what appear to be two crosses on the right side of the bonnet, a short distance in front of the windscreen, and there seems to be damage marked on the roof, just behind the top of the windscreen and above the driver’s head.
The assessor also took two photographs of the vehicle, but the prints in evidence are of poor quality. No damage to the bonnet or turret is visible, but one would hardly expect to see such minor damage having regard to the quality of the prints.
The repair account and assessor’s report make no mention of any damage to the front of the car, including the bumper bar, headlight assembly and plastic headlight guard. There are no markings on the diagram suggestive of any damage to the driver’s side front mudguard or quarter panel (these terms seem to be interchangeable).
There are a number of police photographs of the defendant’s vehicle in evidence, and some of these have been digitally enlarged, but in none of them can any damage to the turret or the bonnet be seen. There was no opportunity for the vehicle to be examined by an expert on behalf of either party before it was repaired.
Counsel for the defendant tendered the ambulance report and a bundle of copies of hospital records and medical reports, going solely to the issue of what part of the plaintiff’s body came into first contact with the defendant’s vehicle. The material is not particularly helpful in this regard, bearing in mind that the plaintiff’s body came into contact with the windscreen after the initial impact, and subsequently with the road surface. The ambulance report records a head injury with lacerations to the nose and forehead, and bruising and abrasions to the right knee, right ankle, left shin and left knee. The Cowra Hospital admission record shows abrasions over both knees. The Canberra Hospital record includes a diagram showing an abrasion to the left knee, and abrasion and swelling of the right ankle, with no fracture to either leg.
Problems with the right knee emerged as time went by, and x-rays eventually revealed a fracture to the right patella and a fracture to the head of the right fibula, which the plaintiff’s treating orthopaedic surgeon suspected had occurred at the time of the accident. The knee was subsequently treated by arthroscopic surgery. There is no evidence as to whether the knee was struck by the front of the defendant’s vehicle or some other part of the vehicle, or whether the fractures occurred when the plaintiff’s body struck the road surface.

The oral factual evidence

The plaintiff confirmed in oral evidence that he had no recollection of the collision.
The defendant gave evidence generally in accordance with his statement to the police and the investigator. He said that just before the windscreen shattered he saw a movement on his right side. There was immediately a loud bang and the windscreen shattered. He did not know what had happened. He braked and stopped immediately. He said with apparently unconscious alliteration that he did not know whether the impact had been with a bird, a brick or a baseball bat. He sat in the car for a moment, reluctant to get out in case he had been attacked, for example by someone with a baseball bat. He turned off the engine and the lights, and got out. He saw the plaintiff lying on the road. He estimated that he stopped within one vehicle length following impact. His vehicle remained in that position until the police took it away.
As to damage to his utility, the defendant said that there was a very small indentation on the roof, more or less above the driver’s seat. He did not mention any damage to the bonnet.
The defendant said that the police kept his car for about five months. At some point he took a solar battery charger to the police yard and asked a man there to plug it into the cigarette lighter to try to keep the battery charged.
In cross-examination, the defendant specifically denied any damage to the bonnet of his vehicle and could not remember any damage to the front of the vehicle.
He was asked in cross-examination to indicate precisely where he had seen the movement on his right before the impact. He indicated that the movement had been slightly above his eye level and slightly in front and to his right. I take account of the fact that he had not been asked to describe with any particular precision where he had seen this movement until his oral evidence more than seven years after the event, and I am not persuaded that I should treat that evidence as having any great accuracy. He made it clear that all he saw was a movement, which was immediately followed by the impact and the shattering of his windscreen.
The defendant mentioned in cross-examination that an off-duty policeman from Lithgow had stopped at the scene and directed traffic. He had told the defendant and Mr McLeish to separate and not to talk to each other.
The plaintiff adhered under cross-examination to his evidence that when he saw Mr McLeish before the accident on the other side of the road, he was washing shop windows. The defendant’s recollection in this regard was clearly incorrect, although the mistake was an understandable one.
He was definite in his evidence that he did not see a tall man wearing a tweed jacket anywhere near Mr McLeish, or on the footpath at all.
The defendant’s evidence was that his speed after pulling out from his parked position outside the Golden Key Cafe to the point of impact probably reached a maximum of 40 km/h. He estimated his speed on impact at 5-10 km/h. It does not appear that he had been asked to give estimates of his speed prior to giving evidence, and I would not have a great deal of faith in his recollection in that regard seven years after the collision.
Senior counsel for the plaintiff put to the defendant that he had not had his headlights on as he drove up Kendal Street, and that his evidence to the contrary, and in particular his evidence that he remembered turning his lights off before he got out of the car, was fabricated. He put to the defendant that his motivation was to avoid “trouble” because he realised that the pedestrian he had struck had been very badly injured. The defendant denied this and maintained his earlier evidence that he remembered turning his lights on before pulling out from the kerb and turning them off before getting out of the vehicle. He also denied that he had had legal assistance or other help with his handwritten statement to the police three weeks after the accident. He said that he had written down the facts as he remembered them.
In the course of the cross-examination I asked the defendant whether it had been suggested to him at any time prior to the hearing that he had not had his lights on at the time of impact. He said that this had never previously been suggested to him by anyone.
Sergeant Julie Coulter gave oral evidence. She had been stationed at Cowra since 1998, and was transferred to Ulladulla late in September 2004, three months after the accident. She said that she did not take a formal statement from the defendant on the night of the accident because he was visibly distraught. He was very quiet and shaking.
A police forensic investigator attended later on the evening and marked on the roadway the resting position of the defendant’s car and of the plaintiff’s body. The marks are visible in some of the police photographs in evidence.
Sergeant Coulter did not see any damage to the defendant’s vehicle other than the broken windscreen. She confirmed that whilst the Kendal Street shopping area was generally well lit, the street lighting was obscured by a large tree overhanging the road at about the point of impact. She had no specific recollection of asking the defendant whether he had his headlights on but said that this was a standard question and she could be confident from her entry on the computer record that she had asked the question and the defendant had answered in the affirmative. Her recollection was that she made the computer entry relatively soon after attending the accident.
Marc McLeish was called by counsel for the defendant. He was asked in chief to describe what he saw shortly prior to and at the moment of impact. He said there was “a large sound” and he saw the plaintiff “hurling back from the car onto the main street”. His memory was that the plaintiff hit the windscreen area and came over the right front quarter panel, or mudguard. He was asked to mark the point of impact on a plan. He was unable to be sufficiently precise as to do so with a cross, and marked an oval on the plan. The oval encompassed the point identified earlier by the defendant on a copy of the same plan.
Mr McLeish’s evidence was that he ran to the scene and assisted the plaintiff. He rang an ambulance. He could not say how long it was before the ambulance arrived, because “the world was pretty much spinning at that stage”. He was asked if he could recall others attending at the scene. His answer was that the only person he could safely say he remembered at the scene was Mr Burgin, whom he knew through sporting connections.

Mr McLeish was cross-examined about his statement to the police, and confirmed his recollection that the plaintiff’s body seemed to go high into the air, at least higher than the level of the vehicle. He could not say that the plaintiff came over the body of the vehicle, and preferred to describe him as coming over the driver’s side quarter panel. He adhered to what he had said in earlier statements to the effect that he had seen the plaintiff hit the windscreen but could not be sure what part of his body made contact, and in particular could not be sure that the plaintiff’s head hit the windscreen.
The evidence of Christopher Burgin was that he had been driving west on Kendal Street with his then partner Megan, now his wife. His recollection is that they were driving from their home to Woolworths, which would have required him to turn right at Brisbane Street. He thought he recalled vehicles ahead of him at the traffic lights. He suddenly saw a person on the road, and braked sharply to avoid running over the person. He turned on his hazard lights and got out of the car to assist. He thought that as well as braking, he turned or pulled to the right at the last moment. He could not remember precisely where on the road his vehicle came to a halt. He said that Marc McLeish, whom he knew, was already there by the time he got out of the car. He assisted Mr McLeish to turn the plaintiff into the recovery position and to put a jacket under his head until the ambulance arrived. Mr Burgin at that time had a first aid certificate and thus some training in what to do in an emergency.
Mr Burgin saw the defendant on the footpath nearby. He recognised him as the owner of a corner shop but did not know him personally. Mr Burgin went and directed traffic while the police and ambulance officers looked after the plaintiff and cleared the scene.
Mr Burgin was asked whether he saw a stationary vehicle near the scene of the accident. He said that he did, and that it was “over to the left”. The vehicle was near where the defendant was standing on the footpath but he did not see the defendant get out of the vehicle. The vehicle lights were off when he saw it.
Mr Burgin confirmed that the street lighting was very poor in the area, particularly because of the very large tree near the gutter. In cross-examination, he said that Mr McLeish was already there when he first got to Mr Senton, but that they were “virtually on the scene at the same time”.
Mr Burgin recalled an off-duty policeman coming up and taking over the directing of traffic at some point.
Mrs Megan Burgin confirmed her husband’s evidence. She was asked whether she saw something before her husband brought his vehicle to a halt. She said that she saw “a car and a gentleman laying on the road beside the car”. She thought that the car had been a white Commodore utility. Her recollection was that she and her husband both got out of the car. She thought that he went to help, while she ran to the police station to report the accident.

The expert evidence

The plaintiff’s solicitors qualified as an accident reconstruction expert Mr Mark George, who prepared reports dated 26 November 2008, 11 May 2011 and 10 October 2011. The solicitors for the defendant qualified Mr Glen Urquhart, whose reports are dated February 2010, 22 June 2011 and 14 December 2011. Both experts prepared a brief joint report dated 17 May 2012. All of these reports are in evidence, and both experts gave oral evidence.
Mr George has been involved in accident investigation as a private consultant since 1991, prior to which he had spent fourteen years in the Australian Army Military Police and in the New South Wales Police Service. He had been a Warrant Officer in the Australian Army, and at the time of his resignation from the police force he had been officer in charge of the South Region Accident Investigation Squad. He was a former president of the Australasian and South Pacific Association of Collision Investigators, and edited the quarterly journal of that organisation for some six years. He held appointments within the Australasian College of Road Safety, and had published and lectured extensively in the field, in addition to attending numerous conferences and seminars.
Mr Urquhart has a Bachelor of Engineering degree from Monash University, in which he majored in structural engineering and traffic studies. He was at the time he prepared his reports and gave evidence a Detective Senior Constable with the Victoria Police, holding an appointment as team leader and senior collision reconstruction investigator with the Major Collision Investigation Unit of that force. He has attended numerous courses and conferences in the area of motor vehicle collision reconstruction, and has attended some hundreds of collision scenes for the purpose of analysis, report and giving evidence. In addition to his police work, and with the knowledge and approval of Victoria Police, Mr Urquhart works part time with a private firm, William Keramidas and Associates, as a forensic engineer and collision analyst.
Both witnesses have prepared numerous reports and given evidence in court on many occasions. Their expertise was not challenged by opposing counsel on either side.
Each separately attended the scene of the collision to take photographs and measurements.
Mr George and Mr Urquhart were in court for all of the oral evidence. Each gave evidence independently in the witness box, and, following a direction by the court, met, produced a joint report, and gave evidence together, in what has become known as the “hot tub” mode.
Ultimately the experts reached agreement on a number of matters. They agreed that the defendant’s vehicle came to rest in the position marked in the police photographs, and reached the same agreement about the position of the plaintiff after impact. Neither was able to express a definite opinion about the initial point of impact (on the road) between the defendant’s vehicle and the plaintiff. They agreed on a reaction time of 1-1.5 seconds. They agreed that had the defendant’s headlights been on, his vehicle would have been readily visible to the plaintiff. They agreed that if the defendant’s headlights had been off, the defendant’s vehicle would have been “less conspicuous to the plaintiff”.
Mr George in his first report arrived at a hypothesis which required a vehicle speed between 30 and 38 km/h with the front bumper bar of the vehicle striking the defendant’s legs, causing the plaintiff’s body to wrap over the bonnet and his head to strike the windscreen, leading to what is described in the academic literature as a roof vault propelling the plaintiff’s body, head down, into the air and over the back of the vehicle on to the road behind it. An analysis of the literature leads to an expectation that the body of a pedestrian following a roof vault would come to rest on the road with the feet away from the vehicle and the head towards it, that is with the body facing the same direction as the vehicle.
Mr George regarded this hypothesis as supported by the position of the windscreen damage, the indentations on the bonnet and roof of the vehicle, and some discolouration which he identified from the police photographs, in a horizontal indentation which runs the width of the bumper bar, just below the offside front headlight. The bumper bar was of a synthetic material and Mr George conceded that there was no damage apparent from the photographs to that portion of the bumper bar which he postulated had first struck the plaintiff.
Mr Urquhart in his first report came to the opinion that the likely impact speed of the defendant’s speed was between 14 and 25 km/h, and that the plaintiff had walked into the front off-side corner of the vehicle, rather than being struck by the front of the vehicle. The plaintiff’s body had then come into contact with the bonnet, windscreen and turret before falling to the roadway, to the offside of the vehicle. This hypothesis was consistent with the plaintiff’s head being to the west and his feet to the east, and his rest position being parallel with but overlapping the position of the vehicle.
Mr Urquhart’s opinion was that the damage to the windscreen as shown in the police photographs was not consistent with a single concentrated impact, but rather two distinct contacts. Two points from which the fracturing of the glass radiated could be identified, one a few centimetres above and two or three centimetres to the side of the other. He thought that this was inconsistent with a head strike and more consistent with a strike by other parts of the body, perhaps a shoulder and elbow.
Mr Urquhart conceded in cross-examination that there had been no damage apparent to the wing mirror (located at the front lower corner of the window which forms part of the driver’s door). He explained that the mirror is kept in place by a stiff spring, and may have been struck by the plaintiff’s body but sprung back into its open position.
Mr Urquhart would have expected to have seen damage to the bumper bar and to the bonnet if the plaintiff had been struck by the front of the car rather than the front corner or quarter panel. He would in addition have expected the clear plastic headlight guard to have been fractured if not completely broken off from the vehicle.
Mr George’s oral evidence was that if the impact between the plaintiff and the vehicle had been a side impact as postulated by Mr Urquhart, his body would have struck the wing mirror and shattered it.
Mr George’s evidence was that the mark he identified on the bumper bar was consistent with there having been an impact with the bumper bar in the same general area which slightly bent or deformed the plastic in the indentation or groove along the bar, causing a difference in colour. Mr Urquhart agreed that bending or deforming plastic of that kind could have caused a change in colour but pointed out that there was no corresponding damage to the leading edge of the bumper bar, and no other evidence as to when the discolouration had been caused. I note in that regard that if it was damage caused by the impact, it was not picked up by the panel beater or loss assessor. Indeed, it was noticed by Mr George (and later Mr Urquhart when his attention was drawn to it) only from the photograph. There is no evidence that anyone ever noticed it on the car itself. The defendant was not asked when he gave his evidence whether he still had the vehicle. Despite the period of almost twelve months between his oral evidence and the completion of the expert oral evidence, such opportunity as may have existed for the experts to examine the bumper bar itself during that period was not taken. At all events, Mr Urquhart would have expected damage to the bumper bar itself and the clear plastic protector and probably also the headlight housing if the plaintiff had been struck by the bumper bar in the general area of the discolouration.
Mr George also identified two dark marks at the medial end of the discolouration line, but neither expert could cast any real light on what these were or what had caused them. I found them difficult to make out on the photographs: they may have been clearer on a physical inspection of the bumper bar itself but that is mere speculation.
Mr Urquhart favoured the side rather than front impact theory but was unable to be specific about where on the side of the car the first contact was likely to have been. He thought it more likely to have been at or near the front corner, probably forward of the offside front wheel but to the rear of the headlight assembly. He agreed that the distance between his probable point of contact on the vehicle and the point Mr George thought more likely was a difference of no more than one pace by the pedestrian plaintiff. He said that the apparent lack of damage to the wing mirror did not exclude his side impact theory. He regarded it as a neutral factor in choosing between the two hypotheses.
Mr George in cross-examination ultimately conceded that the windscreen damage might not have been from a head strike and could have been from a shoulder or an elbow. He agreed that his original hypothesis had been based on the impact being a head strike, being the most common mechanism of a front-end collision with a pedestrian. He agreed, however, that a head strike was unlikely below an impact speed of 25 km/h, with the likely range being 30-38 km/h. He agreed by the conclusion of his evidence that the likely impact speed was between 11 and 16 km/h, making the head strike theory highly unlikely. It followed that a roof vault was unlikely to have occurred.
Mr Urquhart thought that small dents to the bonnet and the turret of the vehicle could have been caused by some part of the plaintiff’s body, perhaps a hand, flailing and coming into contact with the body of the vehicle as his body rotated.
One of the assumptions that Mr George had been asked to make was that the injuries set out in the plaintiff’s statement of particulars were accurate. These included, as well as a fractured right patella, a fracture to the left femur. There is evidence of a fracture to the right patella, picked up a long time after the accident and after it had united, but, I accept, no evidence of a fracture to the left femur.
There were two other matters raised in the expert reports and oral evidence with reference to the visibility available to the plaintiff at the time of the accident. One was glare and the other was inattentional blindness.
Glare was raised by Mr George in his third report in October 2011. He explained that discomfort glare occurred when there was a bright light source in the observer’s field of vision, with little or no effect in short-term visual performance. At night drivers and pedestrians are often subject to discomfort glare from numerous light sources, including headlights, tail lights, indicators, lights within a vehicle and reflections from the road surface. Disability glare happens when the intensity of the light source is such that it produces scattering of light within the eye to the extent that the eye suffers a loss of contrast sensitivity, affecting visual performance. This can happen with a sudden increase or reduction of a bright light source.
In the same report Mr George raised the possible relevance of inattentional blindness, which he described as a well-known phenomenon experienced when a person’s attention is focused on a particular event or task to such an extent that the person fails consciously to perceive another event which should be clearly within the person’s field of view and thus clearly visible.
Mr George thought that the plaintiff’s vision of the defendant’s approaching vehicle might have been affected by glare as he looked to his left, particularly if the defendant’s lights were off and there were other following vehicles with their headlights on. On the same assumption, he thought that the plaintiff might have been affected by inattentional blindness and might not have consciously perceived the defendant’s vehicle.
Mr Urquhart accepted that the plaintiff might have been affected by glare but made the point that he attended the scene when it was dark and crossed the road many times while conducting a site survey without experiencing any disability glare or even discomfort glare. He noted that Mr George did not suggest that he had been affected by glare when he had visited the scene for the same purpose.
Mr Urquhart had not previously come across the phenomenon of inattentional blindness but had the opportunity to conduct research into it before expressing an opinion about it, and returning to court to give evidence.
A paper by Dr Marc Green was tendered in the plaintiff’s case. Dr Green is clearly an expert in the area. He gives some familiar examples, and makes the following point:
All of these real accidents and a large number of others occur under strikingly similar circumstances: someone performing a task simply fails to see what should have been plainly visible. Afterwards, the person cannot explain the lapse.
The person making the error is likely to be held negligent. While assigning blame and deeming someone as stupid or careless might provide emotional catharsis, it does little to explain why such accidents are so commonplace. Why do intelligent, diligent and thorough people fail to see the obvious?
The answer lies in inattentional blindness, a condition that all people exhibit periodically. As the name implies, it is the failure to see an object because attention is not focused on it. Although the phenomenon has long been known, recent evidence shows that it is much more pervasive than anyone had imagined and it is one of the major causes of accidents and human error.
Dr Green explains that most human perceptual processing occurs without conscious awareness. Human minds are not capable of processing fully all of the sights, sounds and other inputs around them. Human have evolved a mechanism which he calls attention, which acts as a filter which quickly eliminates sensory input and selects a small percentage for full processing and for conscious perception. The remaining information is lost, unnoticed and unremembered. Humans are inattentionally blind to it because it has never reached consciousness. All of this happens without the awareness of the person and cannot be brought under conscious control.
Neither of the experts expressed an opinion about whether the defendant as well as the plaintiff might have been subject to inattentional blindness. The defendant saw Mr McLeish on the footpath and must have had the plaintiff within his field of vision for some period between first seeing Mr McLeish and the collision. His evidence was that he was unaware of seeing the plaintiff at all before the collision. The developing concept of inattentional blindness may well be part of the explanation for that failure.
In evaluating the expert evidence, I take account of the fact that in a collision between a moving pedestrian and a moving vehicle, there are inevitably many variables which remain unknown. That is even more so than usual in a case like the present one where the plaintiff, because of his head injury, has no memory of the events and can provide no information about them. Accident reconstruction evidence has the superficial attraction of precision, but on closer analysis it becomes apparent that the precision is illusory because so many of the assumptions which form the base for the conclusion are in reality less certain, less definite and less precise than they at first appear. I have found the expert evidence helpful in narrowing the range of possibilities about what happened but I remind myself to take care not to treat the conclusions as likely to have a high degree of accuracy about them.

The apportionment legislation

At common law contributory negligence was a complete defence. The position in this regard was ameliorated for plaintiffs by legislation in each of the Australian jurisdictions, including the Law Reform (Miscellaneous Provisions) Act 1965 (NSW). The applicable provision now is s 9(1). It is common ground that the subsection applies to the present action, by reason of the collision having occurred in New South Wales. The subsection is in the following terms:

9 Apportionment of liability in cases of contributory negligence

(1) If a person (the claimant) suffers damage as the result partly of the claimant’s failure to take reasonable care ( contributory negligence) and partly of the wrong of any other person:
(a)a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and
(b)the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

This provision, which applies generally to apportionment for contributory negligence in New South Wales, has been affected to some degree by the Motor Accidents Compensation Act 1999 of that state, s 138 of which relevantly provides:

138 Contributory negligence - generally

(2)     The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section.
(3)     [Not relevant]
(4)     The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.
(5)     The court must state its reasons for determining the particular percentage.
(6)     [Not relevant]
(7)     [Not relevant]
(8)     [Not relevant]

Clearly the collision was a motor accident for the purposes of the section. It appears that the words “having regard to the claimant’s share in the responsibility for the damage” appearing in s 9(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1965 are to be taken as no longer applicable to an award of damages in respect of a motor accident. The extent to which this makes any difference was discussed by the NSW Court of Appeal in Mackenzie v The Nominal Defendant (2005) 43 MVR 315; [2005] NSWCA 180 at [54] – [63]. The approach there approved by the Court of Appeal was that explained by the High Court of Australia in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494:
The making of an apportionment as between a plaintiff and a defendant of their respective shares and the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man . . . and of the relative importance of the acts of the parties in causing the damage . . . It is the whole of the conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance [reference to other authorities omitted].
It seems to me that the NSW legislation, read in combination, confers on the court a broad discretion as to apportionment, but a discretion which must be exercised according to principle and in relation to which the reasoning process must be set out.

Consideration of the evidence and factual findings

I formed a favourable view of the defendant as a witness. I said as much two days after he gave his evidence (transcript page 318, line 16 and following, 21 July 2011). He came across to me as someone trying to give his evidence honestly. I did not form the impression that he was being evasive or trying to hide anything, or that he was the sort of person likely to be deliberately untruthful. To the extent that any of his evidence was inaccurate, I said that I would be inclined to the view that he was more likely to be genuinely mistaken about events of seven years earlier than to be deliberately giving false evidence.
There was no challenge to the credibility of any of the other witnesses of fact. I accept that each of them gave evidence truthfully to the best of their recollection. As I said earlier in these reasons, I take account of the fact that they were giving evidence seven years after the event, and would place more reliance on contemporaneous statements, or statements made relatively early after the events they were asked to recollect.
Senior counsel for the plaintiff challenged the defendant’s credibility, suggesting that he had avoided going to the police station to make a statement, and instead obtained legal advice and then given a handwritten statement influenced by that advice to the police some three weeks after the accident. The real challenge was to the defendant’s evidence that he had had his lights on at the time of the collision.
Sergeant Coulter’s recollection was clear to the effect that the defendant was in no condition to give a statement on the night of the accident. She gave no evidence of any difficulty in obtaining a statement from him. There is really no evidence to cast doubt on my assessment of the defendant as a witness of truth, or at least a witness who believed that the evidence he was giving was true.
It follows that I accept the defendant’s evidence as to his recollection about turning his lights on before moving out from his parking position, and turning them off after the impact before he got out of this car, as evidence he believed to be true when he gave it. That is not necessarily the end of the matter. However, I also accept Sergeant Coulter’s evidence about her entry in the police computer record on the evening of the accident. I do not believe for a moment that she would have made the entry to the effect that the defendant’s lights were on without asking him. Certainly there is no suggestion that by that stage anyone had asserted that the defendant’s lights were off at the moment of impact, but Sergeant Coulter was an experienced police officer with a senior role in the investigation of a collision which had caused extremely serious injuries which might have led to a prosecution of the defendant for offences which might carry significant consequences for him. She is unlikely to have taken her responsibilities lightly or to have cut corners.
I am a little troubled by the detail into which the plaintiff went as to apparently inconsequential matters about turning his lights on, for example his recollection that the lights shone into the eyes of a driver on the other side of the road, and the detailed description of the vehicles which passed him as he was waiting to drive out from his parking position. This part of his handwritten statement to the police seams unnecessarily detailed in the absence of any suggestion that he might not have had his lights on. This is suggestive that the defendant suspected that there might be an issue about whether he had his lights on or off.
I take account of the evidence of Mr McLeish, whose evidence I accept. He at no stage said anything about the defendant’s headlights not being on. In his statement to the insurance investigator Mr McLeish said that he could not say that he saw the defendant’s car before impact but that he would say it had its lights on at the time of the accident. He was not cross-examined about this. Senior counsel for the plaintiff did not put to him that the defendant’s headlights were not on. He was the one witness to give evidence who saw the collision. If the defendant’s vehicle’s headlights had been off, I would have expected Mr McLeish to have observed this and to have told the police about it.
Senior counsel for the plaintiff sought to persuade me in his closing address that Mr Burgin’s vehicle must have been immediately behind the defendant’s vehicle. This does not seem to me to accord with the evidence of Mr and Mrs Burgin. If Mr Burgin had been immediately behind the defendant’s car I would have expected him to have seen the plaintiff’s body in the air before it came to rest on the roadway. It is clear from his evidence that he did not do so. Nor did Mrs Burgin. Further, Mr Burgin initially said in evidence that Mr McLeish was already there when he first got to Mr Senton. If the Burgins had been immediately behind the defendant’s car, I would have expected them to have seen Mr McLeish run across the road to help. Clearly neither of them did.
Mr McLeish said in his statement to the insurance investigator, as I recorded at paragraph 36 above, that as he was crossing the road to help the plaintiff and ringing the ambulance on his mobile phone, the plaintiff was nearly struck by another car, and that there was traffic coming up Kendal Street, with cars trying to get around the defendant’s car. He said that one of these cars was Mr Burgin’s, and that Mr Burgin stopped and helped at the scene by directing traffic.
As I said at paragraph 40, I am aware of a statement made to the police by Jason Dunn which is not in evidence. I must infer that Mr Dunn’s evidence would not have assisted the plaintiff on the issue of whether the defendant’s headlights were on or off at the time of impact.
Taking all of those matters into account I am satisfied that it is more probable than not that the defendant’s headlights were on as he drove up Kendal Street, and that they were on at the moment of impact.
I find, on the basis of the defendant’s evidence and the evidence of the two expert witnesses, that the speed of the defendant’s vehicle at the moment of impact was between 11 and 16 km/h.
I think it is more likely than not that the plaintiff’s head did not strike the windscreen, and that the mechanism of collision was not that of a head strike and roof vault. I accept the evidence of Mr Urquhart, with which Mr George did not really disagree, that there were two centres of damage to the windscreen and that these were probably caused by the plaintiff’s shoulder and elbow – more likely the left shoulder and elbow, as he was facing in a northerly or slightly north-easterly direction.
I cannot be sure precisely where on the defendant’s vehicle the initial impact took place. It seems to me that the most likely point would have been about the front offside corner. Equally, I cannot be certain which part of the plaintiff’s body was first struck by the car, but it seems likely to have been the left leg, considering the direction in which the plaintiff was walking.
As to the movement of the plaintiff’s body following the initial impact, I prefer the hypothesis put forward by Mr Urquhart, that his body was swept up and forward, that his left shoulder and elbow struck the windscreen, with some part of his body, probably a hand, striking the turret and another part, perhaps the other hand, striking the bonnet and causing, in both cases, minor indentations. I think it likely that the plaintiff’s body was thrown up just above the height of the vehicle, and out to the driver’s left, and that the body came to rest on the road surface with the plaintiff’s head pointing west and his feet east, a metre or so from the rear offside wheel of the defendant’s vehicle and roughly parallel to the vehicle.
The plaintiff’s body may have missed the wing mirror entirely or may have glanced it, allowing it to spring back to its open position but not damaging it.
Mr George sought to make much of the marking and discolouration on the bumper bar. It seems to me quite possible that the bumper bar came into contact with the plaintiff’s left leg and that it may have been slightly distorted by this contact, causing the discolouration. I am not satisfied that the impact must have taken place precisely where the discolouration appeared. The bumper bar is presumably a single piece of some kind of synthetic or plastic material, attached to the metal chassis of the vehicle at particular points. It may well be that, assuming the discolouration was caused by something that happened during the collision, an impact between the plaintiff’s leg and the bumper bar at the front offside corner of the vehicle caused the distortion and hence the discolouration some little distance from the point of impact on the vehicle. It is also possible that the discolouration and marks have nothing to do with the accident and were there when the defendant bought the vehicle second-hand but that no one noticed them. The discolouration and marking on the bumper bar are not inconsistent with the manner in which I find on the balance of probabilities the collision happened.
I find that more probably than not the plaintiff crossed the road, eating his hamburger, walking at a normal walking pace at an angle to the road in a slightly north-easterly direction so that his body was facing slightly away from oncoming traffic on his left. If he had stopped at the marked centreline and looked left, there is no reason why he would not have seen the approaching headlights of the defendant’s vehicle or indeed the vehicle itself. He must therefore have failed to do so, or at least to do so in other than a cursory manner, and to have walked on continuing to cross the road into the path of the defendant’s vehicle. I am satisfied that he failed to keep a proper lookout and that he failed to take the care for his own safety which a reasonable man in his position would have taken.
The defendant’s negligence is admitted. His lookout must have been inadequate. The plaintiff was plainly there to be seen. Mr McLeish could see him. He was wearing dark clothing, but this did not render him invisible.
The defendant was intending to make a left turn at the traffic lights and was, no doubt understandably, focused on where he was going. It is, however, incumbent upon a driver of a moving motor vehicle to keep a proper lookout to the front and to both sides to ensure that his vehicle does not collide with anyone or anything. The defendant did see the plaintiff, or at least a movement to his right which must have been the plaintiff, but too late to take any avoiding action. If he had been keeping even a slightly better lookout to the front and to his right, he may have been able to avoid the collision or at least greatly reduce its severity.
As to the plaintiff, whilst he was perfectly entitled to cross the road at night wearing the reasonably dark clothing he was wearing at the portion of the roadway where he crossed, a person who crosses a roadway at a poorly lit position wearing dark clothing takes on a rather greater responsibility for his own safety, because a reasonable man in his position would be aware that the danger of not being seen in such circumstances is greater than it would be in a more brightly lit area or if he were wearing lighter or brighter clothing.
In apportioning liability between pedestrians and drivers of motor vehicles, courts have consistently emphasised the fact that a driver of a motor vehicle has far greater capacity to cause damage than a pedestrian. In Pennington v Norris (1956) 96 CLR 10, the High Court allowed an appeal from a judge of the Supreme Court of Tasmania who had apportioned liability equally between a car driver and a pedestrian, and reduced the contributory negligence of the pedestrian to 20%. The court said at 16:
What has to be done is to arrive at a “just and equitable” apportionment as between the plaintiff and defendant “of the responsibility” for the damage. It seems clear that this must of necessity involve a comparison of culpability. By “culpability” we do not mean moral blameworthiness but degree of departure from the standard of care of the reasonable man. To institute a comparison in respect of blameworthiness in such a case as the present seems more or less impracticable, because, while the defendant’s negligence is a breach of duty owed to other persons and therefore blameworthy, the plaintiff’s “contributory” negligence is not a breach of any duty at all, and it is difficult to import “moral” blame to one who is careless merely of his own safety.
Here, in our opinion, the negligence of the defendant was in a high degree more culpable, more gross, than that of the plaintiff. The plaintiff’s conduct was ex hypthothesi careless and unreasonable. But, after all, it is the sort of thing that is very commonly done: he simply did not look when a reasonably careful man would have looked. We think too in this case the very fact that his conduct did not endanger the defendant or anybody else is a material consideration.
The court drew attention to a number of aspects of the conduct of the car driver which could be seen as increasing his culpability for the collision, but the approach in principle to a collision between a motor vehicle and a pedestrian is reasonably clear.
Much more recently a differently constituted High Court revisited a similar fact situation in Anikin v Sierra (2004) 211 ALR 621; [2004] HCA 64, which arose from a collision between a bus and a pedestrian. The trial judge (Sidis DCJ) had found the pedestrian 25% responsible for his injuries. The NSW Court of Appeal by majority had found the pedestrian wholly responsible. The High Court restored the decision of the trial judge, referring to her Honour’s emphasis on the fact that the bus driver had far greater capacity to cause damage than the pedestrian.
Were it not for this factor, there would be a temptation to apportion liability for this collision equally between the driver and the pedestrian. Having regard to the authority of decisions such as Pennington and Anikin and making allowance for the very much greater capacity of the motor vehicle to inflict damage by comparison with the pedestrian, it seems to me that an appropriate apportionment of liability is 70% to the defendant and 30% to the plaintiff.
That is to say, it seems to me just and equitable to reduce the plaintiff’s damages by 30% to reflect his contributory negligence.
I shall make orders accordingly. The further hearing of the action will be stood over for the assessment of damages.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 3 August 2012

Counsel for the plaintiff:  Mr AJ Bartley SC & Mr SJ Longhurst
Solicitors for the plaintiff:  Porters Lawyers
Counsel for the defendant:  Mr WM Fitzsimmons
Solicitors for the defendant:  Moray & Agnew

Date of hearing: 18-21 July 2011, 11 October 2011, 25-28 June 2012

Date of judgment: 3 August 2012