Williams v Nutley
[1992] QCA 270
•25/08/1992
IN THE COURT OF APPEAL [1992] QCA 270 SUPREME COURT OF QUEENSLAND No. 78 of 1991 BETWEEN: BRETT ANDREW WILLIAMS
(Plaintiff) Appellant
AND:
ANTHONY PAUL NUTLEY
(Defendant) Respondent
REASONS FOR JUDGMENT OF THE COURT
Delivered the 25th day of August 1992
This is an appeal by a plaintiff against a dismissal of his action upon a finding that the defendant was not negligent in causing him personal injury and damage. Neither side is critical of the precautionary assessment of damages by the learned Trial Judge except that the respondent concedes that a further sum of $3,780 should have been allowed in respect of the appellant's liability for hospital expenses. The total damages should then be assessed at $79,980.00.
The facts are relatively simple. On the morning of 10 January 1985 the respondent was driving his motor car at about thirty to thirty-five miles per hour along a relatively busy suburban street approaching a T-junction.
It was the stem of the 'T', and at the relevant place it had a moderate curve to the respondent's right and a slight upwards gradient; and the bitumen surface extended to the concrete kerb formation. For a short distance back from the junction the respondent's side of the road was divided into two lanes by road markings but he had not quite reached that division at the time of the impact with the appellant. He was keeping close to his left-hand side of the road because he intended to turn left at the junction. The weather was fine, the light was good and although there were moving vehicles in his general neighbourhood, there was nothing ahead of him to interfere with his forward vision.
The appellant, then a fifteen year old youth, was riding a bicycle. The respondent first saw the appellant riding towards him at about ten kilometres per hour on the adjacent footpath on his left but then directed his attention elsewhere. He did not look again until he suddenly saw the appellant riding on the bitumen surface of the roadway ahead of the front near-side corner of his car, so close that he could do nothing to avoid a collision. In the meantime, the appellant, whilst continuing to ride generally in a direction opposite the respondent, had ridden from the footpath via a driveway, into the gutter for some distance and then had moved slightly out from the gutter, "half a ruler", 150mm or 6 inches, but still moving in a direction opposite to the respondent when the collision occurred. He was throughout this period, he said, coasting, by which he meant he was not pedalling.
When interviewed by a police officer shortly after the accident the respondent said that the appellant was about four feet onto the roadway at the point of impact. However, from his evidence it was clear that he did not see the appellant on the roadway until the point of impact and in cross-examination he agreed with the appellant's estimate of six inches. When one adds to that his distress at the time which, he said, in effect made his version at the time doubtful, we think that his Honour should have accepted the appellant's version in this respect.
The relevance of this evidence is that, because the appellant was very close to the gutter, the respondent would have had adequate room to avoid him had he seen him in sufficient time to take avoiding action, without endangering other traffic on his right.
However, the real issue as to negligence is the respondent's lookout. This depends primarily upon the length of time available to the respondent to have seen that the appellant was in his path. That in turn depends upon the distance over which the appellant had travelled on the roadway or in the gutter before he was struck. Although neither party estimated that distance in metres each did so by reference to photographs tendered and the evidence of the parties is not at serious variance upon this issue. Even if the respondent's version was accepted (exhibits 9 and 21), when one adds to that the diagonal path taken by the appellant across the driveway and into the gutter, the respondent must have had sufficient time to see him and to avoid a collision, if he were keeping a proper lookout. Since he did not see the appellant in his path at a time earlier than he did, his lookout must have been inadequate.
The respondent's peripheral vision to his left was impaired by blindness in his left eye. This enlarged his lookout obligations and it may be that this contributed to his inadequate lookout. This inadequate lookout was a cause of the collision.
Learned counsel for the appellant concedes that his client's negligence was serious, even for one of his age. He rode on the wrong side of the road and he took the risk that he would be seen and avoided. However, in considering the appropriate apportionment the fact that the appellant's conduct was unlikely to endanger the respondent or anyone else is a material consideration: Pennington v. Norris (1956) 96 C.L.R. 10 at 16. Taking all factors into account, we think that forty percent of the responsibility should be attributed to him.
As the assessment of damages as adjusted for the concession made by the respondent amounts to $79,980, the appellant is entitled to judgment for $47,988, being sixty percent of that sum.
Accordingly, it should be ordered:
(a) that the appeal should be upheld.
(b)
that the judgment for the defendant entered below should be set aside and in lieu thereof there should be judgment for the plaintiff in the sum of $47,988 together with costs of the action including reserved costs.
(c)
the respondent should pay the appellant's costs of the appeal.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND No. 78 of 1991 Mr Justice Pincus Mr Justice Davies Mr Justice Derrington
BETWEEN: BRETT ANDREW WILLIAMS
(Plaintiff) Appellant
AND:
ANTHONY PAUL NUTLEY
(Defendant) Respondent
REASONS FOR JUDGMENT OF THE COURT
Delivered the 25th day of August 1992
MINUTE OF ORDER: Appeal upheld.
Judgment for the defendant entered below
set aside and in lieu thereof judgment
for the plaintiff in the sum of $47,988,
together with costs of the action
including reserved costs.
Respondent to pay the appellant's costs
of the appeal.CATCHWORDS:
NEGLIGENCE - ROAD ACCIDENTS - appellant claimed trial judge erred in not making a finding of negligence against defendant - whether defendant who hit cyclist coming in opposite direction on wrong side of the road was liable - whether failure to keep a proper lookout
Counsel: T. Griffin for the Appellant
M. Grant-Taylor for the RespondentSolicitors: Tutt & Quinlan for the Appellant
O'Shea Corser & Wadley for the RespondentHearing Date(s): 22 May 1992 IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND No. 78 of 1991 BETWEEN: BRETT ANDREW WILLIAMS
(Plaintiff) Appellant
AND:
ANTHONY PAUL NUTLEY
(Defendant) Respondent
__________________________________________________
__PINCUS JA DAVIES JA DERRINGTON J
__________________________________________________
__
Reasons for Judgment of the Court delivered the
25th day of August 1992
__________________________________________________
__"APPEAL UPHELD. JUDGMENT FOR THE DEFENDANT ENTERED BELOW SET ASIDE AND IN LIEU THEREOF JUDGMENT FOR THE PLAINTIFF IN THE SUM OF $47,988, TOGETHER WITH COSTS OF THE ACTION INCLUDING RESERVED COSTS. RESPONDENT TO PAY THE APPELLANT'S COSTS OF THE APPEAL."
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 78 of 1991
Before the Court of Appeal
Mr. Justice Mr. Justice Mr. Justice Derrington
BETWEEN:
BRETT ANDREW WILLIAMS
(Plaintiff) Appellant
AND:
ANTHONY PAUL NUTLEY
(Defendant) Respondent
JUDGMENT - DERRINGTON J.
Delivered the Twenty-fifth day of August 1992.
MINUTE OF ORDER:
CATCHWORDS:
Counsel:
Solicitors:
Hearing date:
IN THE COURT OF APPEALSUPREME COURT OF QUEENSLAND
Appeal No. 78 of 1991
Before the Court of Appeal
Mr. Justice Mr. Justice Mr. Justice Derrington
BETWEEN:
BRETT ANDREW WILLIAMS
(Plaintiff) Appellant
AND:
ANTHONY PAUL NUTLEY
(Defendant) Respondent
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ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
Mr. Justice Mr. Justice Mr. Justice Derrington
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Judgment of the Court delivered on
the Twenty-fifth day of August 1992.
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...
IN THE COURT OF APPEALSUPREME COURT OF QUEENSLAND
Appeal No. 78 of 1991
BETWEEN:
BRETT ANDREW WILLIAMS
(Plaintiff) Appellant
AND:
ANTHONY PAUL NUTLEY
(Defendant) Respondent
JUDGMENT - DERRINGTON J.
Delivered the Twenty-fifth day of August 1992.
This is an appeal by a plaintiff against a dismissal of his action upon a finding that the defendant was not negligent in causing him personal injury and damage.
Neither side is critical of the precautionary assessment of damages by the learned Trial Judge except that the respondent concedes that a further sum of $3,780 should have been allowed in respect of the appellant's liability for hospital expenses. The total damages should then be assessed at $79,980.00.
The facts are relatively simply. The respondent was driving his motor car at about thirty to thirty-five miles per hour along a relatively busy suburban street approaching a T-junction. It was the stem of the "T", and at the relevant place it had a moderate curve to the respondent's right and the bitumen surface extended right up to the concrete kerb formation. For a short distance back from the junction the respondent's side of the road was divided into two lanes by road markings but he was a little short of that division at the time of the impact with the appellant. He was keeping close to his left-hand side of the road because he intended to turn left at the junction and that required that he take the left-hand lane ahead of him. The weather was fine, the light was good and although there were moving vehicles in his general neighbourhood, there was nothing ahead of him to interfere with his forward vision.
The appellant, a fifteen year-old youth, was riding a bicycle. The respondent first saw the appellant riding towards him at about ten kilometres per hour on the adjacent footpath on his left but then directed his attention elsewhere. He did not look again until he suddenly saw the appellant riding on the bitumen surface of the roadway ahead of the front near-side corner of his car, so close that he could do nothing to avoid a collision. The appellant had ridden via a driveway onto the roadway intending to ride between the kerb and the approaching car.
There was an issue as to how far onto the bitumen surface the appellant was travelling, but the respondent could not deny the appellant's version which varied from fifteen to thirty centimetres from its edge. In his evidence the respondent confirmed the account which he gave the police investigator in which he said the distance was four feet but in cross-examination he conceded that the appellant's account could have been correct. The force of this admission should have overridden his weaker evidence to the contrary, particularly as his recollection related to a moment of surprise and emergency. Accordingly, His Honour's finding of four feet was, with respect, incorrect.
The value of the point is limited because the respondent was entitled to drive close to the kerb providing there was no indication to the contrary. As it turned out that position did not interfere with his capacity to take avoiding action because he did not have the time to take it.
In any case in order to avoid the impact he would have had to steer towards his right, and this was not adversely affected by his position.
The real issue as to negligence is concerned with proper lookout. First this depends upon the length of time available to the respondent to have seen that the appellant was in a position of danger. That in turn depends upon the distance over which the appellant had travelled on the roadway before he was struck, which can be demonstrated by the location of the point of impact. The evidence of the parties is not at serious variance upon this issue.
Even if the respondent's version was accepted, the general position is clear. From the distance travelled by the appellant at about ten kilometres per hour from the time that he commenced to leave the footpath to the time that he was first seen by the respondent, the latter must have had sufficient time to see him and to avoid a collision if he were keeping a proper lookout. In not seeing the potential danger in his path at a time earlier than he did, his look- out must have been inadequate.
It is true that he was required to direct his attention to alternative sources of danger but the most serious source was always in the direct path ahead of his vehicle.
Moreover, although he had seen that the appellant was riding on the footpath, there was then a danger that the latter may do what he did. It was not, as His Honour found, a suicidal act to ride between the approaching traffic and the kerb, and the manoeuvre would have been successful had the respondent been driving more towards the centre of the lane, as drivers are wont to do. The appellant was certainly negligent but his negligence was of such a nature that it should reasonably have been foreseen as a possible danger so that appropriate precautions should have been taken: cf Loveday v. Paddison (1965) Qd.R. 535.
While the respondent's driving close to the kerb was not negligent in itself, however, in that situation its consequences if the appellant were mistakenly to venture onto the roadway, as he did, would give rise to or increase the danger. His propinquity to the kerb also reduced the appellant's avenues of escape. The respondent's negligence lay in failing to keep sufficient lookout to meet the danger if it arose. Whilst he was entitled to divert his attention to alternative possible sources of danger, if he did so he was also required to adjust the speed of his vehicle so as to be able to meet this one as well, should it arise. In his case this obligation was enlarged because his own peripheral vision to his left was diminished by blindness in his left eye. In other words, he either spent too much time directing his attention away from the forward path of his vehicle or alternatively his speed was excessive in those circumstances. This formulation of his duty is not unduly strict. His vehicle had the potential to cause serious harm to the appellant. Whilst the appellant's conduct might not have been expected, however when he was first seen he was clearly mobile and he needed only to have decided to move onto the roadway, intending to travel near the kerb, for serious danger to arise. This situation did not demand more from the respondent than that he should keep an appropriate lookout along the forward path of his own vehicle, which is always important.
Learned counsel for the appellant concedes that his client was seriously negligent, even for one of his age. He rode on the wrong side of the road and he was mistaken in believing that he could pass between the respondent's car and the kerb. He took the risk that he would be seen and avoided, but while this was wrong it was an expectation not entirely without merit. If the principle in Pennington v. Norris (1956) 96 C.L.R. 10 is applied, then forty per cent of the responsibility should be attributed to him when all factors are taken into account.
As the assessment of damages as adjusted for the concession made by the respondent amounts to $79,980, then the appellant is entitled to judgment for $47,988 being sixty per cent of that sum.
Accordingly it should be ordered:
a) That the appeal should be upheld. b) That the judgment for the defendant entered below should be set aside and in lieu thereof there should be judgment for the plaintiff in the sum of $47,988 together with costs of the action including reserved costs. c) The respondent should pay the appellant's costs of the appeal.
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