Turkmani v Visvalingam

[2009] NSWCA 211

New South Wales

Court of Appeal

CITATION:	Turkmani v Visvalingam [2009] NSWCA 211
HEARING DATE(S):	2 July 2009
JUDGMENT DATE:	27 July 2009
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 7; McColl JA at 60
DECISION:	(1) Appeal allowed in part. (2) The amounts set out in the order below bearing date 16 October 2008 and 22 October 2008, in respect of the judgment for the respondents and the payment of money to or for the benefit of the various respondents, all to be reduced by one-half, the judgment to bear interest from 16 October 2008. (3) Respondents to pay the appellant’s costs of the appeal and to have a certificate under the Suitors’ Fund Act 1951 if otherwise eligible.
CATCHWORDS:	TORTS – Negligence – Motor vehicle accident – Vehicle strikes pedestrian crossing at an intersection against “don’t walk” sign – Whether primary judge’s finding that driver liable was in error – Whether primary judge’s assessment of contributory negligence at sixty per cent was in error.
LEGISLATION CITED:	Compensation to Relatives Act 1897
CATEGORY:	Principal judgment
CASES CITED:	Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452 Cook v Hawes [2002] NSWCA 79 Jarzebski v Jiminez [2006] NSWCA 104 Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 Liftronic Pty Limited v Unver [2001] HCA 24; (2001) 179 ALR 321 Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 Podrebersek v Australian Iron and Steel Pty Limited [1959] HCA 34; (1959) 59 ALR 529 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
PARTIES:	Ahmad TURKMANI (appellant) Marie Pryanthi VISVALINGAM (first respondent) Stephen VISVALINGAM by his next friend Marie Visvalingham (second respondent) Shanara VISVALINGAM by her next friend Marie Visvalingham (third respondent) Anika VISVALINGAM by her next friend Marie Visvalingham (fourth respondent)
FILE NUMBER(S):	CA 40382/08
COUNSEL:	S G CAMPBELL SC (appellant) P G MAHONY SC/ S E McCARTHY (respondents)
SOLICITORS:	Moray & Agnew (appellant) McLachlan Chilton (respondents)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 697/08
LOWER COURT JUDICIAL OFFICER:	Elkaim SC DCJ
LOWER COURT DATE OF DECISION:	16 October 2008

CA 40382/08

BEAZLEY JA
HODGSON JA
McCOLL JA

27 JULY 2009

Ahmad TURKMANI v Marie Priyanthi VISVALINGAM and Ors

Judgment

1 BEAZLEY JA: I have had the advantage of reading in draft the reasons of Hodgson JA in this matter. I agree with his Honour that the death of the deceased was caused by the appellant’s negligence and have no additional comments to make in that regard. However, I differ from his Honour with respect to contributory negligence.

2 The principles governing appellate review of a trial judge’s assessment of contributory negligence are well established. In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529, the High Court stated, at [8], [10] 532-3:

“A finding on a question of apportionment is a finding upon a ‘question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197, at p 201. Such a finding, if made by a judge, is not lightly reviewed.

…

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris [1956] HCA 26 (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd (1953) AC 663, at p 682; Smith v McIntyre [1958] Tas SR 36, at 42-49 and Broadhurst v Millman [1976] VR 208, at p 219 and cases there cited. It is the whole 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 an 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.”

3 In Liftronic Pty Limited v Unver [2001] HCA 24; (2001) 179 ALR 321 Gleeson CJ, at [2], cited with approval the passage in Podrebersek to which I have just referred. Kirby J, at [90], pointed out, relevantly, that the question of contributory negligence is always a question of fact. In Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552, at [157], Hayne J noted that “[f]indings about apportionment of responsibility are not lightly to be disturbed”. His Honour then set out the above passage from Podrebersek.

4 In accordance with these principles, I see no reason to interfere with the trial judge’s apportionment of contributory negligence. The deceased failed to take reasonable care for his own safety in the manner described by the trial judge, who examined the features of the accident that were relevant to contributory negligence. Hodgson JA considers that there was an additional factor relevant to the assessment of contributory negligence, namely, the fact that the deceased emerged from in front of the white van. However, had that been the only relevant feature of the accident, there would have been no negligence.

5 The appellant’s negligence was in failing to keep a proper lookout in circumstances where the deceased was failing to take care for his own safety. Given the degree of lack of care for his own safety, it is clear that attribution of the greater share of responsibility for the accident should lie with the deceased. Although this is a case where minds might reasonably differ as to the proper assessment of contributory negligence, in my opinion, an assessment of 60 per cent was reasonable and there is no basis to disturb that on appeal.

6 Accordingly, I would dismiss the appeal with costs.

7 HODGSON JA: On 16 October 2008, Elkaim DCJ gave his decision in proceedings in which the respondents had sued the appellant for damages pursuant to the Compensation to Relatives Act 1897, on the basis that the appellant’s negligence in driving a motor vehicle had caused the death of the husband of the first respondent.

8 The primary judge found that the death of the deceased had been caused by the appellant’s negligence, but reduced damages by sixty per cent by reason of the contributory negligence of the deceased. In the event, he gave judgment for the respondents in the sum of $958,168; and he apportioned that sum between the respondents in a way that has not been discussed on the appeal.

9 The appellant appeals from that decision, challenging the finding that the death of the deceased was caused by the appellant’s negligence; and in the event that this challenge fails, contending that the reduction for contributory negligence should have been substantially greater.

Circumstances

10 The accident which caused the death of the deceased occurred at about 5.25 pm on 19 December 2002 at the intersection of Fox Valley Road and Comenarra Parkway in Wahroonga, an intersection governed by traffic lights.

11 The appellant’s vehicle was travelling through this intersection in a westerly direction along Comenarra Parkway, and the traffic lights were green for traffic moving in that direction. There were vehicles in the lane for traffic intending to turn right from Comenarra Parkway (having travelled west) into Fox Valley Road (to travel north) to the right of the appellant’s vehicle, the first in line of which was a quite large white van. The deceased came from in front of those vehicles, within the pedestrian crossing over Comenarra Parkway at the east of the intersection, and came into contact with the right side of the appellant’s vehicle (just behind the front wheel), then struck the windscreen of the vehicle, and was thrown onto the road. The deceased died as a result of this accident.

12 The primary judge found that the appellant’s vehicle was travelling at between 40 and 50 kilometres per hour, that the deceased was jogging at something like 3.4 metres per second, and there is no challenge to those findings. In crossing the road as he did, the deceased was disobeying a “don’t walk” traffic signal.

13 There were a number of witnesses who gave evidence concerning the accident, in addition to the appellant. Perhaps the most significant was one Mr Irvine, who was driving westwards immediately behind the appellant’s car, at a distance of the order of 20 to 25 metres, who saw the deceased running or briskly jogging along the footpath near the corner and on to the pedestrian crossing, first seeing the deceased when Mr Irvine was (as found by the primary judge) about 70 metres back from the intersection. Mr Irvine flashed his lights a number of times, and noticed that the appellant’s vehicle decreased its speed. However, shortly afterwards he observed the collision between the deceased and the appellant’s vehicle.

Decision of primary judge

14 The primary judge identified three core liability issues:

A. Was the defendant keeping a proper look out as he approached the intersection?

B. Could the defendant, assuming he was keeping a proper look out, have seen the pedestrian before the collision and at a time when he could have taken action to avoid the collision?

C. If ‘B’ is answered in the affirmative should the defendant, as a matter of law, have seen the pedestrian?

15 He decided all three issues in the affirmative.

16 In dealing with the first issue, the primary judge considered that the appellant’s evidence established that he had not seen the van or any vehicles behind it as he approached the intersection (Red 42FG) and that it followed that as he drove towards the intersection he was not keeping a proper lookout (Red 42Q). He considered this may in part have been due to the flashing of lights behind him (Red 42Q), and that there may have been other reasons for his attention not being on the whole of the intersection as he approached it (Red 42U).

17 One such reason adverted to by the primary judge was that the appellant had, between about 4.57 pm and about 5.22 pm, made nine telephone calls on his mobile phone, none of which were answered and eight of which were to the same number. This led the judge to conclude:

(a) The last phone call was made close to the accident scene.

(b) The last phone call, like the seven before it, was unsuccessful in reaching its intended recipient.

(c) The defendant was at least keen, but perhaps also anxious or worried, to be in contact with the intended recipient.

(d) The intention to successfully complete the call was weighing on the defendant’s mind as he approached the intersection.

18 Another such reason was that, immediately after the accident, the appellant had no concept of his car having collided with a pedestrian (Red 44L); and the primary judge considered that, although the appellant could not have avoided the deceased if the first time he saw him was when the deceased emerged from in front of the white van, the appellant’s failure to see the deceased at all enforced the conclusion that the appellant was not keeping a proper lookout (Red 44OR).

19 In relation to the second issue, the primary judge discussed the reports of experts (Mr Johnston from the respondents, Mr Keramidas for the appellant), but considered the evidence of Mr Irvine a more useful tool in deciding the likely events of the day than the scientific approach of the experts (Red 48OP). However, he accepted a point on which the experts agreed, namely that the speed of the appellant on approach to the intersection was likely to have been more than 40 kilometres per hour, but not in excess of 50 kilometres per hour.

20 The primary judge concluded that the appellant did not in fact see the deceased, but he did not conclude that the deceased did not see the appellant’s car. He continued:

117. As I have already said, I have concluded that the deceased was running across the road. I was told that an average person "fast jogs" at 3.4m per second. Having regard to the evidence of Mrs Thompson who described a brisk walk and the evidence of Mrs Visvalingam who said that he walked in a way, as I understand it, that could be perceived as running and, perhaps more importantly, because he was laden with a number of files, I do not think he was sprinting across the road. I think jogging is probably the best description of his pace at least as he approached the road. It is possible that he chose to run when he entered the intersection and this would be consistent perhaps with him having seen the BMW, but I cannot reach a firm conclusion about that. What is known, however, is that his pace was such that even before he entered the road he was observable for some period of time by Mr Irvine. Mr Irvine had seen him, noted his path of travel over some distance, reacted to what he perceived was a danger, reduced his speed and warned the driver ahead by flashing his lights. Mr Irvine's estimate of ten seconds may be too long but I treat his estimate in the same way as his observations of distance. They are almost by definition, as the observations made in recollection by a lay person in unusual circumstances, going to be inaccurate. I am more comfortable with the conclusion that enough time passed, whatever it may have been, for Mr Irvine to have had the thoughts he did and take the actions that he did. This I think was conceded to a degree by Mr Keramidas:-


"Q. The fact that Mr Irvine had the opportunity, not only to react to what he perceived was a hazard on the roadway?
A. Yes.

Q. To reduce the speed of his vehicle so as to be in a position to stop if necessary?
A. Yes.

Q. And to warn the vehicle in front of him by flashing his high beam lights on a number of occasions?
A. Yes, attempted to, yes.

Q. All those things could only mean that his observation occurred over a relatively long period of time and distance in this case?
A. Yes, the combination of observation and tracking would have, yes."

(Transcript 22/9/08 page 358.33)


118. The evidence from the experts was that a person walking briskly travels at about 1.8m per second.

119. The experts also told the Court that a vehicle travelling at 50kph, which seems to be the maximum at which the vehicles here were travelling, would cover 13.9 metres per second. Assuming then that Mr Irvine was four to five car lengths behind the defendant, he would have passed a point in the road one to one and a half seconds after the defendant. If I am right that the deceased was jogging when Mr Irvine saw him, so that his speed would have been something less than 3.4 metres per second, but close to it, then, compared with the speed of a vehicle at 40 to 50kph, the pedestrian would cover significantly less ground compared to the motor vehicle. In my view, although there would have been some difference in angles and lines of sight, having regard to the length of time over which Mr Irvine observed the pedestrian, he could have been seen by the defendant had he been keeping a proper look out. The defendant himself agreed that had he seen the pedestrian when he was some 40 metres or so from the intersection he could have brought his car to a halt. I note here that although a little way behind, Mr Irvine had reduced his speed to around 20kph without any emergency braking being required.

120. The defendant also submitted that vehicles travelling in the opposite direction, and vehicles present in the right hand lane, could have been extra sources of obstruction preventing the defendant from seeing the pedestrian. I should say, at this point, that even if the pedestrian was seen as no more than a fleeting glance of a running person that should have alerted the defendant to take avoiding action. However, as to vehicles travelling in the opposite direction the evidence was not conclusive but I think consistent to the effect that there was substantially less traffic going east compared to that going west. In relation to the number of cars in the right lane, again it is difficult to reach any firm conclusion. However, on the basis of the various estimates I do not think I could conclude that there were any more than five vehicles. The only reference to more than five vehicles came from Mr Irvine's overview of ' there could have been one to ten ', which I have already dealt with. Both in relation to the number of vehicles in the right hand lane and the number of vehicles travelling east, I think the more significant point is that neither of these conditions affected Mr Irvine and although there would have been, as I have said, a different angle of sight, the observation of the defendant would have been made at the same time as the observations of Mr Irvine.

121. I am therefore of the opinion that the defendant could have seen the pedestrian and could have, had he done so, avoided the collision.

21 On the third point, the primary judge referred to a number of cases, including Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413; and Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452; and Jarzebski v Jiminez [2006] NSWCA 104. He concluded that, as a matter of law, the appellant should have seen the pedestrian.

22 On contributory negligence, the primary judge said this:

129. There must also be a finding of substantial contributory negligence. Senior counsel for the plaintiffs conceded this and suggested 50%. Counsel for the defendant said that 80% was more appropriate. In my view, the estimates given by counsel represent the two extremes and the appropriate figure must be between them although not necessarily at a figure which would represent splitting the difference.

130. Both the deceased and the driver obviously did not keep a proper look out. The deceased crossed against a red light at a busy intersection and ran without regard into the traffic. He did not, for example, walk up to the front of the left front corner of the white van and check again for traffic. I note in this regard I have specifically rejected the version of Mrs Thompson. The deceased clearly initiated the events that led to the accident. The driver, besides failing to keep a proper look out, was in control of a vehicle capable of causing extreme harm and death.

131. In my view, having regard to the above factors, the appropriate degree of contributory negligence on the part of the deceased was 60%.

Issues on appeal

23 The appellant relies on the following ground of appeal:

1. The Primary Judge erred by inferring that the appellant was negligent in failing to keep a proper look-out in that he:


a) reasoned erroneously that if the following driver, a Mr Irvine, saw the pedestrian, the appellant should have;

b) decided the question by reference to a reasonable driver in the position of Mr Irvine, not of the defendant;

c) failed to consider whether the appellant and the pedestrian failed to see each other because their mutual line of vision was obstructed so they were invisible to each other;

d) failed to consider whether Mr Irvine was in a position of particular advantage owing to his position on the roadway when the pedestrian became visible to him, given that the presence of the pedestrian at that time was not detected by either the appellant or Ms Fung, the driver following Mr Irvine;

e) failed to engage with the expert evidence concerning available lines of sight to a driver in the position of the appellant and resolve the differences between them;

f) drew inferences not available to him from aspects of the evidence of the appellant.

2 The Primary Judge erred by treating the question of breach of duty as a question of law not fact, requiring an answer by reference to the outcome in previous cases.

3 The Primary Judge erred in the apportionment for contributory negligence in that he made findings of fact for that purpose inconsistent with the findings made in relation to primary liability and as such fell into an error of principle.

24 The appellant sought to add an additional paragraph (g) to ground 1:

g) rejected at Red 30 [33] and Red 35 [56] the evidence at Blue 862W and 955K respectively. This opinion evidence was admissible pursuant to s 78 Evidence Act 1995.

There was no objection to that amendment.

25 I will deal first with the question whether there was appellable error because the primary judge treated the question of breach as a question of law; and I will then consider whether there was appellable error in the primary judge’s finding of breach (not keeping a proper lookout) and/or in his finding of causation (to the effect that the accident would have been avoided if the appellant had been keeping a proper lookout); and I will then consider the question of contributory negligence.

Breach as a question of law

26 I accept it was an error of the primary judge to address the question of whether the appellant should have seen the deceased as a question of law.

27 It is a matter of law that the appellant, as the driver of a vehicle on a public road, was under a duty, to other persons on and in the vicinity of the road on which he was driving, to exercise reasonable skill and care with a view to avoiding the causing of injury to those persons. The question of whether the appellant failed to exercise the requisite reasonable skill and care, and if so whether this caused injury to the deceased, are questions of fact. However, those questions of fact are informed and illuminated by principles or guidelines, which may be considered as legal principles or guidelines, for example those considered and discussed in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, which have in effect been applied to the particular case of drivers of motor vehicles in cases such as Manley.

28 One relevant effect of those principles and guidelines is that a person driving a motor vehicle on a public road should, as a reasonable person, appreciate that there is a significant risk of causing serious and perhaps catastrophic injury to other persons; and for that reason should, as a reasonable person, exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections.

29 As I read the judgment of the primary judge, he was in substance giving effect to considerations such as these in making the finding which he described as being a matter of law. In my opinion, a fair reading of the judgment is that the primary judge found, as a matter of fact, that the appellant had fallen short of exercising reasonable care in relation to the keeping of a proper lookout; and that, having regard to the degree of vigilance required having regard to considerations such as the above, this was causative of the accident because, if the appellant had exercised the appropriate degree of vigilance, he would have seen the deceased in time to avoid the accident.

30 Thus I do not think that the primary judge’s mischaracterisation of a question of law would of itself justify appellate intervention. The real questions in the appeal concern whether the primary judge made appellable errors of fact in finding a breach of the duty care and/or in finding causation.

Failure to keep a proper lookout

31 For the appellant, Mr Campbell SC submitted that this was a case in the category of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at [18]; so that the appellate court was in as good a position as the primary judge to decide on proper inferences to be drawn.

32 Mr Campbell submitted that the primary judge should not have placed the reliance that he did on the evidence of Mr Irvine, and he pointed out that Ms Fung, the driver of the next car in line behind Mr Irvine, did not see the deceased before he came out from behind the white van.

33 Mr Campbell submitted that the primary judge should have concluded that the deceased did not see the appellant’s car, and that this was because at material times there was absence of visibility between them; and he submitted that the primary judge could not properly have been satisfied that the reason for the appellant not seeing the deceased was that the appellant was not keeping a proper lookout.

34 Mr Campbell submitted that the primary judge was in error in holding that the appellant had not seen vehicles in the right turning lane as he approached the intersection, and in giving weight on the question of proper lookout to the circumstance that the deceased did not appreciate before the accident that the first vehicle in line in that lane was the large white van. When he spoke to the police at the scene, the appellant said, “As I approached the intersection, there were cars on my right in the right-turn lane”; and at worst he was vague on that matter in his evidence given before the primary judge some six years later.

35 Mr Campbell submitted that the primary judge did not give appropriate weight to the consideration that the flashing of lights by Mr Irvine may have been a distraction to the appellant; that the primary judge erred in considering that the evidence of mobile phone calls was significant when the last of those calls was probably two to three minutes before the accident; and that the primary judge erred in treating as irrelevant the lay opinions of Ms Fung and Mr Irvine that the appellant could not have avoided the accident.

36 In my opinion, this is not a case where the only question concerns inferences to be drawn from clearly established facts, so that Warren v Coombes does not apply with full force. Indeed, in some of his submissions, Mr Campbell criticised the primary judge’s acceptance of and reliance on Mr Irvine’s evidence. Further, in my opinion the primary judge’s conclusion on whether or not the appellant was keeping a proper lookout could itself to some extent be informed by his assessment of the appellant as a witness. However, I do accept that the case does to a considerable extent depend on inferences from facts that are largely undisputed or clearly established, so that Warren v Coombes does have some application.

37 In making his finding that the appellant was not keeping a proper lookout, the primary judge did not appear to rely on the appellant’s failure to see the deceased before the deceased would have been hidden by the white van; so Mr Campbell’s submissions on this point are not directly relevant at this stage. However, I will be returning to this matter and I will there advert to Mr Campbell’s submissions.

38 There is force in Mr Campbell’s criticism of the use by the primary judge of a finding that the appellant had not seen the vehicles in the right-turning lane as he approached the intersection, and in giving weight to the circumstance that the appellant did not then appreciate that the first vehicle in line was the large white van. Having regard to the content of the appellant’s statement to police, in my opinion mere vagueness in the appellant’s evidence before the primary judge concerning such vehicles, given six years later, would appear to be a slender basis for such a conclusion; and in my opinion the appellant’s failure to appreciate the particular nature of one of such vehicles is again a slender basis for a finding of failure to keep proper lookout.

39 In my opinion, the primary judge did appropriately take into account the possibility that the appellant was distracted by Mr Irvine’s flashing of lights; and in my opinion the primary judge’s use of the mobile phone calls was not vitiated by the circumstance that the last one actually made was probably two or three minutes before the accident.

40 On the lay opinions of Ms Fung and Mr Irvine, the primary judge noted those opinions and said their relevance was “limited” (Red 30G, 35H). As pointed out by Mr Mahony SC for the respondents, it was not submitted to the primary judge that these were lay opinions within s 78 of the Evidence Act; and there is a real question whether the requirements of s 78(b) were satisfied. In my opinion no error by the primary judge on this matter has been shown.

41 So the question is whether the possible error in the primary judge’s use of his findings in relation to the appellant not seeing vehicles in the right-hand turning lane, and not appreciating the presence of the white van, vitiates his finding of fact, or whether the finding otherwise is shown to be erroneous.

42 In considering this question, it is in my opinion relevant to have regard to a matter not explicitly taken into account by the primary judge, namely the appellant’s failure to see the deceased before the deceased was hidden by the white van. In relation to that question, there is one piece of evidence not referred to by the primary judge which is in my opinion significant; namely, Mr Irvine’s statement to the police to the effect that the deceased appeared to run in front of the white van, and that his “view of the pedestrian was obscured momentarily due to this vehicle” (Blue 954U), suggesting that this view had not been obscured by the cars waiting behind the white van.

43 In oral evidence, Mr Irvine was asked the following questions:

Q. Over what period of time did you have the man within your observation from the time when you first saw him to the time when he reached the middle of the road? That is the middle of Comenarra Parkway when you lost sight of him.
A. I can’t recall the exact time.

Q. Are you able to make an estimation of that time?
A. If I could give an estimate it would be probably from 5-10 seconds.

44 Cross-examination on this did not throw further light on this matter.

45 It is reasonable to conclude, on the basis of times and distances found by the primary judge, that Mr Irvine first saw the deceased when he was about 70 metres back from the intersection and about four seconds before the accident; that the appellant was then about 45 to 50 metres back from the intersection; and that the deceased was just about to step off the footpath and on to the road. A drawing produced by Mr Keramides and marked MFI-B in the appeal is broadly consistent with these findings; and that drawing indicates that if Mr Irvine (in an ordinary sedan car) was able to see the deceased until the deceased went behind the van (either because he stood out above the cars that were behind the van, or was visible over the bonnets and boots of those cars), then the deceased probably had been visible to the same extent to the appellant for a period of about two seconds (that is, while the appellant was moving from about 45 to 50 metres from the intersection to about 20 to 25 metres from the intersection, and while the deceased was proceeding from about where he left the footpath to about the halfway point before the place of collision with the appellant’s car).

46 In those circumstances, although Mr Irvine had a different line of sight from which to view the deceased, the circumstance that the appellant did not observe the deceased at all in those two seconds gives some further support to the conclusion that he was not keeping a proper lookout; although I do not suggest that this matter alone would be sufficient to justify that conclusion.

47 In reaching this view, I have had regard to Mr Campbell’s submissions. I have not disregarded the circumstance relied on by Mr Campbell that Ms Fung, who was presumably a further 20 to 25 metres behind Mr Irvine, did not see the deceased before the accident; and in my opinion there is no substance in Mr Campbell’s submission that the primary judge should have reached a definite conclusion that the deceased did not see the appellant’s car, and did not do so because there was no visibility between the deceased and the appellant’s car at material times.

48 Further, in my opinion the circumstance that the appellant did not know what he had hit gives some support to the conclusion that he was not keeping a proper lookout, perhaps to a greater extent than acknowledged by the primary judge. I give full weight to the circumstance that the appellant may have been distracted by Mr Irvine flashing his lights, to the circumstance that the deceased would have been visible only over a space of about one to two metres (and thus for about one-third to two-thirds of a second) after coming from behind the van before hitting the car (see MFI-B), in which time the car itself would have travelled about four to eight metres, and to the circumstance that the deceased struck the car at about the rear of the front wheel; but still, in my opinion, the fact that the appellant had no idea what he had hit does give some further support to the conclusion that he was not keeping a proper lookout.

49 Having regard to all these considerations, in my opinion a case is not made out for this Court to set aside the primary judge’s finding that the appellant breached his duty of care in not keeping a proper lookout.

Causation of injury

50 Although I would not have inferred a failure to keep a proper lookout from the appellant’s failure to see the deceased before he was hidden by the white van, considered in isolation, in my opinion the conclusion was open to the primary judge that the appellant’s failure to keep a proper lookout, inferred from all the circumstances discussed above, did cause the accident.

51 In reaching this conclusion, I have regard to the considerations referred to earlier supporting the view that reasonable care required a high degree of vigilance in circumstances of the kind considered here; and to the circumstance that, for reasons given earlier, there was on the balance of probabilities a period of about two seconds when the appellant could have seen the deceased.

52 For those reasons, I would not intervene to overturn the primary judge’s finding of liability.

Contributory negligence

53 I appreciate the restraint appropriate for appellate courts in considering whether to intervene on questions of apportionment for contributory negligence, as exemplified by Podrebersek v Australian Iron and Steel Pty Limited [1959] HCA 34; (1959) 59 ALR 529.

54 However, in my opinion the apportionment of 60/40 in this case, which does not depart very far from equality of responsibility for the accident, is so plainly wrong as to require appellate intervention.

55 The fault of the appellant which was proved in this case was no more than a quite small falling short of the high standard of vigilance required of a driver in traffic approaching an intersection. On the other hand, the deceased deliberately broke the law by going on to the road against the “don’t walk” sign, thereby intentionally giving rise to a situation where he and other road users were put at serious risk. The risk thus deliberately created by the deceased was not merely to himself, because a pedestrian on the road in traffic in an unexpected position can cause cars to swerve and crash. I take into account that the appellant was driving a car capable of causing very severe injury; but the deliberate action of the deceased was also capable of causing very serious injury by cars, not only to himself but also to others, for the reasons I have given. Further, the action of the deceased in emerging at a jogging pace from behind the white van was a further action causing great risk to himself and others.

56 In those circumstances, I would assess contributory negligence at 80 per cent. I note that a somewhat similar result was reached in somewhat similar circumstances in Cook v Hawes [2002] NSWCA 79; although in my opinion the fault of the driver was greater in that case than in this case, because the driver there had more opportunity to see the pedestrian, and because the accident was in the Sydney CBD, where the presence of pedestrians on the road in defiance of traffic lights is quite common.

Conclusion

57 The result is that the appeal should be allowed in part, and the award to the respondents halved. I assume this would not disturb the proportions. If it is intended to contend that it does, then application should be made within the fourteen day period limited by the Rules.

58 In my opinion that result would not affect the costs orders below, except possibly the order for indemnity costs. The issues of negligence and contributory negligence involved essentially the same evidence and submissions, and there was no severable issue which extended the costs of the case. Similarly, although the appeal has been only partly successful, the same considerations indicate that the respondents should pay the appellant’s costs of appeal, although of course they should have a certificate under the Suitors’ Fund Act 1951.

59 For those reasons, I propose the following orders:

(1) Appeal allowed in part.

(2) The amounts set out in the order below bearing date 16 October 2008 and 22 October 2008, in respect of the judgment for the respondents and the payment of money to or for the benefit of the various respondents, all to be reduced by one-half, the judgment to bear interest from 16 October 2008.

(3) Respondents to pay the appellant’s costs of the appeal and to have a certificate under the Suitors’ Fund Act 1951 if otherwise eligible.

I agree with Hodgson JA.

**********