Vilips v Watkins

[1988] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P6 of 1988

B e t w e e n -

KRISS VILIPS

Applicant

and

JANET KAY WATKINS

Respondent

Application for special

leave to appeal

WILSON J

Vilips

DEANE J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 AUGUST 1988, AT 1.34 PM

Copyright in the High Court of Australia

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MR D. WILLIAMS, QC:  May it please Your Honours, I appear

with my learned friend, MR ALAN CAMP, for the

applicant. (instructed by Butcher Paull & Calder)

MR P. OLIVIER:  May it please the Court, I appear for the

respondent. (instructed by Talbot & Olivier)

WILSON J:	Yes, thank you.
MR WILLIAMS:	The applicant's submission is that special leave

to appeal should be granted in this case in the

interests of the administration of justice. The

applicant/plaintiff has been held by both the trial

judge and the Full Court of the Supreme Court alone
to have caused the accident without either the trial
judge or the Full Court ever having considered what,
in our submission, is the true issue as to causation.

In that respect he has had neither a proper trial, nor a proper appeal.

In argument in a recent case before the Court

on an application for special leave, HIDE V JONES,

Your Honour Justice Dawson referred to the Full Court

of the Federal Court, in the course of argument as

having, in the applicant's submission, acted in

blatant disregard of principle. In our

respectful submission, what has happened in this case

is that the trial judge and the Full Court have both

acted in disregard of established principle. The

facts are essentially simple. It was an intersection

collision, the applicant was a motor-cyclist

travelling west with a clear right of way all through,

the respondent had a stop sign in front of her and

she was travelling from south to north.

The collision occurred slightly to the west,

that is the left-hand side from the respondent's
point of view of the intersection and in

approximately the centre.

(Continued on page 3)

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MR WILLIAMS (continuing):  The conditions contributed

nothing except in one respect:

The weather was fine and clear -

page 4 of the appeal book -

and there were only a few cars -

on the road the applicant was using.

The road, he said, is long and straight -

As I mentioned, the plaintiff had right of way.

It was in the afternoon, 3.40 pm and the plaintiff's

motor cycle headlights were illuminated.

In the light of the evidence, the trial

judge found against the plaintiff that his speed

had been grossly excessive. Grossly excessive

to put it in context in the evidence meant,
according to the witnesses who gave evidence,

of the order of 90 to 100 kilometres per hour

in a 60 kilometre per hour zone. He also found

against the plaintiff that he glanced down at

his rear vision mirror momentarily, and

the evidence was for one or two seconds, on approaching

the intersection.

The evidence of the respondent, which was

accepted, in our submission lays the ground

for a finding in favour of the plaintiff but

the evidence was never picked up. At page 7 of the appeal book - at the bottom of page 6:

when her vehicle was stationary -

at the intersection -

and saw a bus and some children on bicycles -

pass in front of her and the bus turning across.

His Honour found -

She again looked both ways which she

believed were clear and proceeded across

the intersection fairly slowly.

Further down, in the next paragraph:

She was positive that she had looked

to the right and had not seen the plaintiff's

motor cycle.

And at page 9, at about point 7:

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I have no'hesitation in accepting her

version of the events and in finding that

she did in fact stop at the stop sign and

look both ways before entering the

intersection without having seen the

plaintiff's motor cycle.

Then, at page~7, point 6:

In cross examination she acknowledged

that it was difficult to see along Southern

River Road from Eudoria Street until the line on the road adjacent to the stop sign

had been reached and that she was aware

that care was needed before proceeding through

the intersection. She was unable to explain

why she did not see the plaintiff but

maintained her belief that her view could

have been obstructed by the white posts.

That is a reference, at point 5, to on v1ew1ng

a ppotograph she believed:

her view may have been obscured by a hedge

or bush and some white posts on the verge

of Southern River Road a short distance

from the intersection -

Then, in re-examination, she stated, at point 9

on page 7:

that the stop sign line is a little way

back from the prolongation of the kerbing

on the south side of Southern River Road.

(Continued on page 5)

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MR WILLIAMS (continuing): His Honour found, in the light

of her evidence, that particulars (a), (d), (e)

and (g) of the alleged particulars of negligence

have not been made out but did find that - page

10 point 5:

I find that she did fail to give way as alleged in paras (b) & (c), fail to observe the plaintiff's motor cycle as claimed in para (f) and fail to take any action to

avoid a collision (para (h)).

WILSON J:  Where do we find the paragraphs set out, Mr Williams?

I have got it,on page 3.

MR WILLIAMS:  Page 3, yes. Now, what was found, first,

paragraph (b):

failed to give way to the plaintiff's

motorcycle in accordance with the Regulation.; ...

of the Road Traffic Code.

That regulation is set out at page 42:

Where a stop sign is erected to face a driver

approaching an intersection, such a driver

shall stop his vehicle as nearly as possible

to, but without passing over, the stop line

associated with the sign or, in the absence
of a stop line, shall stop his vehicle, without

entering the intersection, at the point

nearest to it from which he has a clear view

of traffic approaching on the intersecting

road; and in proceeding therefrom shall give

way to every vehicle travelling along, or,

turning from, the intersection road.

Now, His Honour said at page 10, in relation to

those 'findings:

I now turn to consider whether her failure

in any one or more of those respects amounted

to negligence.

· Now, what His Honour appears to be suggesting is

that those breaches of duty as found need to be considered from the point of view of causation.

But, in our submission, what His Honour did then

did not respond to that if that is the appropriate

interpretation. He did not consider the question

of the contribution of the respondent to the

accident in the light of those breaches of duty.

His Honour said at page 16:

particular care was required because of the

nature of the intersection -

that is the fifth line -

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the standard was nothing more nor less than

that of a reasonably prudent driver in the

same circumstances as those which prevailed

in the present case.

He said on page 16 at about point 5:

In my opinion the cause of the accident was a combination of the plaintiff's excessive

speed and want of attention and it may

have been contributed to by the defendant's line

of vision having been obstructed by a post or
bush, but in my opinion the latter was not

the sole cause or even a significant one.

(Continued on page 7)

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:MR WILLIAMS (continuing):	Then further on:

Even though the intersection was a

dangerous one and the plaintiff's

motor cycle headlight was illuminated, looked carefully both ways before

proceedings and that the collision

would not have occurred but the plaintiff's

own excessive speed and lack of care.

Those ..... were the causes of the

collision and I do not accept that the

plaintiff was entitled to look in

his rear vision mirror in the

circumstances.

At page 17 referring to authorities that had been

cited he said at point 2:

None of the authorities cited

means, in my view, that a driver may

travel at an excessive speed along

a main road or one having right of

way and recover damages from another

motorist who, having exercised

reasonable care, enters that road

without having observed him because

his excessive speed and other factors

impaired the other motorist's ability

to see him in time.

In short, after the defendant had stopped and looked carefully the plaintiff

'came out of nowhere' because of his

excessive speed and possibly the

obstructions to the defendant's line of

vision.

Now the conclusion from that, we would submit,

appropriately is that His Honour has considered the

conduct of the respondent behind the stop sign.

He has given no consideration at any point to the

conduct of the respondent beyond the stop sign and

he has found in several places that behind the

stop sign the defendant's vision was impaired by

trees, a hedge and a post.

DEANE J: What was the distance of clear vision along

Southern River Road once you came out on the

intersection?

MR WILLIAMS:  It does not appear from the findings, Your Honour.

There is a reference to it, I think, in the judgment

of the Full Court, being a short distance before

the vision was impaired.

WILSON J: That is after you enter the intersection. I

thought it was a straight road?

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MR WILLIAMS:  There is no impairment once - - -

DEANE J: That is what I was asking you.

MR WILLIAMS:  - once into the intersection, yes.

DEANE J: And for how lorig?

MR WILLIAMS:  The evidence is the road was long and straight

and there was no impediment to vision at all.	Now
the - - -

DEANE J: And while I am interrupting you. Is my recollection

right that 100 kilometres an hour is between 25 and

30 metres a second?

MR WILLIAMS:  I have done the actual calculation, Your Honour.

27.8 metres per second.

DEANE J:  28 I think.

MR WILLIAMS:  Yes. Now what is significant in His Honour's

consideration of the question which he posed himself

is that he did not at any stage ask himself what

would have been the cause if she had looked once

she had got past the line of impaired vision. He

did not address that question, he did not raise it,

although that was directly the question raised by

the particulars of breach of duty that he accepted.

In the circumstances it is our submission that the

true question to which His Honour should have turned

his mind was, having regard to the plaintiff's

excessive speed and momentary inattention, would the
accident have occurred if the defendant had not
cotmnitted the breaches of duty which he did in
the first place identify. He did not ever ask
that question and accordingly he did not ask the

causation question which is required on established

principle.

(Continued on page 9)

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MR WILLIAMS (continuing): He seems to have leapt to the

secondary stage of a contributory negligence case

namely, a comparison of responsibility, without

having ever addressed that question and in doing

so he has failed to take into account the very

breaches of duty that he identified as having been

committed.

When one comes to the Full Court - - -

WILSON J:  Mr Williams, I think we might call on your

opponent. Yes, Mr Olivier.

MR OLIVIER:  May it please the Court. I think it is probably

simpler if I go straight to the submissions that

my learned friend, Mr Williams, made most recently.

He has submitted to Your Honours that the trial

judge did not ask himself the most important question

in relation to causation. He has submitted that

the trial judge failed to take into account the
conduct of the respondent as she moved away from
the stop sign having become stationary and then
looked to her left and to her right. If I could

just quickly refer the Court to some of His Honour's

findings which we can see, and I turn first of

all to page 9 of the application book. We see

first of all His Honour's statement in the second

line that when the applicant:

first saw the defendant's car it was

stationary at the stop sign in Eudoria Street.

His Honour then related some of the evidence given

by the respondent and then went on to say that

the respondent impressed him:

as a truthful witness who had a good memory

of the circumstances and I have no hesitation

in accepting her version of the events -

and he found as a fact that: 

she did in fact stop at the stop sign and

look both ways before entering the intersection.

And if she stopped and if her final speed was some

five kilometres per hour it would seem that she

left the intersection and her ultimate speed before

the collision occurred could hardly be said to

be excessive in the circumstances. On the other

hand His Honour found, on page 10 of the papers

in the third line:

the plaintiff's speed was grossly excessive

in the circumstances .

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And it is submitted that simply to say that that

finding was in the context of a 65 kilometre per

hour limit which prevailed in the area at the time

does not have regard to the advantage which the

trial judge had when he considered all of the evidence.

And he did not find that the applicant was speeding;

he found that his:

speed was grossly excessive in the circumstances.

(Continued on page 11)

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MR OLIVIER (continuing):  He then went on, and it is a

little further down that same page, page 10,

about half-way down:

I find that she did fail to give way

as alleged in paragraphs (b) & (c),

fail to observe the plaintiff's motor

cycle as claimed in para (f) and fail
to take any action to avoid a collision

(para (h)) -

but His Honour said -

because she was unable to.

And then he goes on and he says:

I now turn to consider· whether her failure

in any one or more of those respects

amounted to negligence.

And then he dealt with, in some detail, a

number of authorities quoted to him by counsel

for the applicant at the time and some other

authorities which commended themselves to

His Honour as being worthy of mention in the

context of this case.

If I could now refer Your Honours to page 16

of the papers. His Honour found, at the very

top of page 16, that:

It was a hazardous intersection -

and he found that -

a motorist in Eudoria Street was unable to

see clearly until reaching the white stop

line.

And then His Honour went on to find, and say:

A duty of special care was thus imposed

on the defendant.

While particular care was required

because of the nature of the intersection,

the standard was nothing more nor less than
that of a reasonbly prudent driver in the

same circumstances as those which prevailed

in the present case. In my opinion the

defendant exercised the standard of care

required of an ordinary prudent driver

and the accident was not caused by any

negligence on her part. She was aware of

the hazardous nature of the intersection and

took reasonable precautions.

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DAWSON J: What were the reasonable precautions?

MR OLIVIER:  She came to a stop, she looked left and

right and from that point on, and I accept

my learned friend - - -

DAWSON J:  She looked to the right and could not see

to some extent because her vision was impaired.

MR OLIVIER:  Yes. She proceeded very slowly into the

intersection.

DAWSON J: Without looking again to the right.

MR OLIVIER: His Honour does not find one way or the other there, Your Honour. But, if I could

refer Your Honours to, perhaps, the seventh

authority on my list, which is SELVANARYAGAM V

UNIVERSITY OF WEST INDIES, ( 1983) 1 WLR 585 at

587 to 588. I quote from the judgment of

Lord Scarman. That was a case where the plaintiff, I think, fell down a trench, or a

hole on the defendant's premises. The criticism

there was that there seemed to be gaps in the

judge's reasoning and his finding. Lord Scarman

said, after he referred to the finding made

by the Court, which does not matter, a finding

that would fail to render the plaintiff

contributorily negligent:

This was a finding of fact which, in

the opinion of their Lordships, was

upon the evidence open to the trial judge

to make. The Court of Appeal, however,

after directing themselves correctly as

to the role of an appellate tribunal when

reviewing findings of fact and degree
reached at first instance, criticised

the judge for omitting to make specific

findings fundamental to the issues in the

case. The criticism is, in their

Lordships' view, misplaced. There was a very substantial conflict of evidence as to the plaintiff's knowledge of the state

of the passage-way and as to the degree

of light available. It is understandable
that the Court of Appeal may have felt

disposed to criticise the judgment at

first instance as unstructured and prolix.

It is submitted, Your Honours, that this next

passage is extremely important in the context

of this case before us. The report goes on:

But it is abundantly clear that the judge

had the evidence - all of it - very much

in mind. It- is, of course, not necessary

for a 'trial judge to make explicit findings

on.every disputed piece of evidence.

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If it is clear that he has the evidence in

mind, it suffices for him to state his

final conclusion, as the trial judge did in the passage already quoted. Only the

plaintiff could give evidence as to the

accident: for he alone was there.

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MR OLIVIER (continuing):  If I could go on a little bit further

His Honour referred to the specific facts in this case

but he went on a little later and said:

After referring to these critical

questions, he stated his finding that the

circumstances were such that "mere

inattention" would not render the plaintiff

contributorily negligent. Had he reached

a different conclusion, he could not have

been challenged, as the Court of Appeal

has demonstrated. But that is not the issue.

The question is: was there evidence upon which the trial judge could properly reach

the conclusion which he did?	And the
answer must be:	abundant evidence, if

he chose to accept it.

DAWSON J:  But the only reasonab1e inference here is, even

if there is no direct evidence, that the defendant

did -not look to the right once she had entered
the intersection because if her vtsion was then

unimpaired she must have seen the plaintiff.

MR OLIVIER:  His Honour has found that the cause of the

collision may have been in part some obstruction

off to the respondent's right, and that the other

primary cause was the applicant's - as His Honour

put it - grossly excessive speed. But it is conceded

that His Honour has not specifically made ,any findings

as to what the defendant did after moving away from

the stop sign, except to find that she entered the

intersection slowly. His Honour did, however -

and one would have thought, on page 17 - he was there.

His Honour had all these factors before him and he

found - thatwhether he stated the facts or not, at
about the eighth or ninth line, His Honour found that

the plaintiff was a person who, having exercised

reasonable care, enters the road without having

observed him because his excessive speed and other

factors impaired the other motorist's ability to

see him in time.

WILSON J:  But that is what is put against you, is it not,

Mr Olivier, that the learned trial judge seems to have

proceeded to examine the evidence very closely

with respect to the defendant's approach to the
intersection, but having reached the stage where

the defendant moved into the intersection

His Honour would appear, from silence, to have

overlooked any consideration of the defendant's
continuing responsibility to give way pursuant
to the regulation, because the regulation deals
with the responsibility of the motoris½ after having

stopped at a stop sign, he enters the intersection.

MR OLIVIER:	Yes, Your Honour.	I am the first to concede
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that there is no specific finding, but I am simply

putting to the Court that there is no obligation upon

His Honour to set out each specific finding that he

makes and the fact that he has not specifically

referred to the defendant looking to her right, or

doing anything else - it must be remembered that she

has to look to her left, she must look in front of her,

because there were not only on the road at the time

other motor vehicles, there were children on push-bikes,

as can be seen from the judgment, and all in all she

has to drive into the intersection, in a manner of

speaking, looking everywhere.

WILSON J:  That is true, but having had her vision obstructed

to the right before she entered the intersection, one

might have expected that she would pay some attention

to what was proceeding along the road from her right

after she entered the intersection and since she was

travelling so slowly there would have been little

difficulty had she kept a proper look-out at that

stage to have braked or stop the progress of her

vehicle and allowed the plaintiff, notwithstanding

his negligence, to have proceeded in front of her

vehicle. Is not that the problem you confront?

MR OLIVIER:  Yes, there is a perception that that is the

problem, but we simply say that because His Honour

did not set out step-by-step in his judgment that he

has analysed the conduct of the plaintiff and has

not found what she did - I mean, one would have

thought that perhaps there may have been other

questions put, I do not know.

(Continued on page 16)

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MR.OLIVIER: (continuing): But the fact remains that His Honour,

certainly I must concede, did not make such a

specific finding, but we simply say he was under

no obligation to do so. He clearly demonstrated

that he took into account all of the circumstances.

He gave a very clear and reasoned judgment and

at the end of the day, if he has failed to mention,
or if he has omitted to set out one step in his
reasoning, that is not fatal to his judgment.

I think that was dealt with in the case of my

fifth authority on the list, JONES V SUTHERLAND

SHIRE COUNCIL, (1979) 2 NSWLR 206,and specifically

at page 273. I quote from the judgment of

His Honour Mr Justice Mahoney.

WILSON J:  Not 273?

MR OLIVIER: Yes, Your Honour, the second last paragraph.

WILSON J: It cannot be 273, 213 perhaps? The report commences

at 206.

MR OLIVIER:  I beg Your Honours'pardon. I have referred

you to the wrong authority, I am sorry, number 2,

SOULEMEZIS V DUDLEY (HOLDINGS) PTY LTD, (1987)

10 NSWLR 247,at page 273. His Honour there said:

To require that a judge detail the way in

which he has reasoned step by step to his
conclusion is, in my opinion, to mistake the

nature of the reasoning process.

And a little further down he says:

Conclusions;of:that kind are not arrived

at by syllogisms. Syllogisms may lead to a

conclusion of that kind: more often, their

role (if they have one) is as the auditor

of the reasoning processes and of the

conclusions already arrived at by other

processes.

His Honour in the same report, page 272, referred

to that section of the SELVANARYAGAM case to which

I have already referred.

DEANE J:	But does this not come down to a very simple
issue, namely this: if you come to a stop sign
and your view to the right is obscured, can it
be said not to be negligent if you drive right through the intersection without looking to the
right once your view is not obscured?
MR OLIVIER:	No, I do not proffer that view, Your Honour.

DEANE J: But is that not the fact, her view to the right

was obscured, she could not see, she went more

than half-way through the intersection without

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looking to the right and travelling at 5 kilometres

an hour when she could see?

MR OLIVIER: If this Court accepts that those are the facts and

that His Honour should have so found then - - -

DEANE J: Well, what, in what I put to you, is not the fact?

There is her vision to the right was obscured, that

is a fact, is it not?

MR OLIVIER: To some degree, a minor degree, yes.

DEANE J:  Second, she was travelling at a speed up to
5 kilometres per hour?

MR OLIVIER: Yes.

DEANE J:  Third, she went more than half-way through the

intersection without looking to the right when her

view was not obscured?

MR .OLIVIER: Yes.

DEANE J:  Well, that was all I put to you.

(Continued on page 18)

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MR OLIVIER:	Yes.	I have got to accept that on that basis

the facts are correct. But His Honour was there;

he had the opportunity to gauge these witnesses

as they gave their evidence

DEANE J:	But that is on the basis we reject everything the
plaintiff said and accept your client.
MR OLIVIER:	Yes. Well, there is a finding that her view

may have been obscured. I do not know that

His Honour necessarily found that she did not look

to the right, but it is clear

that ,he did not see the plaintiff and he has

simply absolved her of any fault from having failed

to see him because of the particular circumstances

surrounding this particular case at a fairly

ordinary outer suburban intersection.

But I do not know that I can take that issue

much further. The only other aspect that I do want

to refer to or the only other authority which

probably assists me dispose of the matter more

expeditiously than perhaps otherwise is to refer

Your Honours to the decision of the High Court in

LIVINGSTONE V HALVORSEN, 22 ALR 213. I am simply

reading from the first part of the footnote, where

His Honour the then Chief Justice and

Mr Justice Aickin held that:

The Court of Appeal had correctly considered

that they could interfere with the decision

of the trial judge because he had failed to
perceive that an inference that the appellant's

negligence caused the respondent's injuries

was open on the evidence.

In this case, as I perceive the criticism of the trial judge, it is not that he failed to draw an inference

which was open on the evidence - sorry - not that he

had failed to draw an inferen~P but simply he drew

the wrong one. The only other aspect to which I want- to

refer is to be found at page 226. This perhaps

leads us slightly away from the main thrust of my

opposition to the applicant's submissiora, but

referring to the judgment of His Honour Mr Justice Murphy

and, indeed, the second paragraph which reads:

To succeed, the plaintiff must show that it

was more likely than not that the defendant's

negligent conduct was a contributory cause of

his injury (that is, it contributed to his

falling off the bike).

It is submitted that notwithstanding whatever view one

may have of what the defendant may have done in this

case, the plaintiff, by virtue of his conduct, his

negligence, certainly did not establish, in the eyes
of His Honour or to that degree of persuasion, that

the defendant had been guilty of contributory negligence

herself.	Those are the submissions that I wish to make to
this Court.

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WILSON J:	Yes, thank you, Mr Olivier.	Mr Williams, the

Court does not need to hear you in reply. Special

leave to appeal will be granted in this matter.

MR WILLIAMS:  May it please the Court.

AT 2.09 PM THE MATTER WAS ADJOURNED SINE DIE

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