Woods v Leane No. Scciv-02-231

WOODS v LEANE
[2003] SASC 78
Full Court: Doyle CJ, Perry and Nyland JJ

DOYLE CJ. I would allow the appeal. I would set aside the judgment entered by the District Court, and order that the plaintiff recover from the defendant the sum of $38,050 inclusive of interest. I would hear the parties on the question of costs in the District Court. I agree with the reasons of Perry J for so ordering.
PERRY J. This is an appeal from a judgment entered in the District Court following the trial of the appellant’s action for damages arising out of a road accident which occurred on 4 February 1997.
Although a number of matters are complained of in the notice of appeal, before the appeal came on for hearing the parties resolved all issues between them with the exception of the question of apportionment of liability. A cross-appeal was not proceeded with on the basis that by consent it was noted by the court that the trial judge had erred in applying a discount rate of 3 per cent in his calculation of the award for future economic loss.
The appeal was not set down within the time prescribed in SCR r 95.11, but the respondent not opposing, an order was made extending the time for that step to be taken.
The trial judge apportioned liability on the basis that the plaintiff should bear 70 per cent of the responsibility for the accident, having regard to his contributory negligence. The appeal proceeded by reference to that question alone, the appellant’s contention being that the award for contributory negligence should have been much lower.
Factual circumstances
The following description of the factual circumstances is taken from the trial judge’s findings of fact. The relevant findings were not challenged by either counsel on the hearing of the appeal, and are, in that sense, common ground.
At the time of the accident the appellant was working as a “runner” with a company which operated refuse trucks collecting recyclable refuse from residential premises. The truck on which the appellant was working at the time was manned by a driver, Mr Wayne Soltes, and two runners. The other runner was Mr Jarrod Norton.
The appellant and Mr Norton were required to pick up recyclable hard waste, which was largely cardboard and paper, by hand from the footpath outside houses; run with the waste to the truck; and throw the waste into the back of the truck where it was compacted by a machine. Any bottles were to be placed in hessian bags hanging from hooks on each side of the back of the truck.
As the truck made its way down the street, one runner collected refuse from the footpath on the passenger’s side of the truck, and the other collected from the footpath on the driver’s side.
The runners wore coloured vests. The truck was equipped with two flashing orange-coloured beacon lights, one above the cabin roof and the other towards the back. If any traffic was approaching from either direction, the understanding was that Mr Soltes would sound the air horns or activate the air brakes of the truck, so as to warn the runners.
The accident occurred in broad daylight. On the day in question, the truck had returned to the depot where it was unloaded, and it then proceeded to Thistle Avenue, Klemzig, in order to recommence work in that street.
After turning into Thistle Avenue, the truck stopped adjacent to the first pick-up point. The appellant was to work on the driver’s side of the truck.
Thistle Avenue runs in a roughly north-south direction. When the truck was stopped, it was facing north, parallel to the kerb. The trial judge found that the near side of the truck was about 1.5 metres out from the kerb. Given that the truck was about 2.5 metres wide, this meant that the off-side, or driver’s side, of the truck would have been positioned at about the centre of the roadway, the carriageway of which was about eight metres from kerb to kerb.
After the truck stopped, the appellant hooked a hessian bag onto his side of the back of the truck, while Mr Norton did likewise on the other side.
While the runners were attending to the bags, Mr Soltes alighted from the truck in order to drain the air tanks. He left both beacon lights flashing and the engine running. He also activated the four flashing hazard indicator lights which were positioned at the front and rear of the vehicle.
The respondent was driving a Torana sedan motor car south on Thistle Avenue, approaching the stationary truck. The speed limit in the area was 60 kilometres per hour. The respondent was travelling at about 50 kilometres per hour. A passenger, Mr Philip Grace, was sitting in the front passenger seat of the Torana. It does not appear that there was any other traffic on the roadway in the near vicinity.
The accident occurred as the appellant emerged from the rear of the truck intending to collect his first pick-up of refuse on the driver’s side of the vehicle. He stepped backwards rather than facing the way in which he was going, and came out quickly from the driver’s side of the truck. This occurred just as the respondent was passing the truck.
In his examination in chief, the appellant described the immediate circumstances of the accident in the following terms:
“Q.You went around to the back and hooked the bag on the back of the truck.
A.Yes.
Q.What was Jarrod doing when you did that.
A.I think he was doing the exact same thing on the other side.
...........
Q.You’ve hooked the bag up; then what did you do.
A.Went to go get my first pick-up which was on the right side.
Q.Could you describe to his Honour how you went to get your first pick-up.
A.Well, I took about two to three backwards steps to turn around and in that time, that split second, a car hit me and, yes, I was on the bonnet.
Q.Let’s just stop there. Had you heard the air horns.
A.No.
Q.If you had heard air horns would your manner of crossing the road have been different.
A.I would have run back to the back of the truck.
............
Q.When did you first become aware of the motor vehicle that struck you.
A.I had a split second glance which was probably a hundredth of a second that I actually seen the car, but it was too late and it just hit my leg and I rolled up the bonnet and -
Q.Let’s just stop there. Which leg did it hit.
A.My right leg.
............
Q.Before the car hit you did you hear any car horn at all.
A.No car horn, no.
Q.Did you hear the screech of brakes at any time.
A.No.”
In her evidence in chief, the respondent described the accident in this way:
“Q.So as you continued down Thistle Avenue towards Fourth Avenue ... did anything occur or did you see anything.
A.Only the truck that was parked and I saw a few people behind it and sort of just vaguely lifted my foot off the accelerator .... people’s feet, legs, feet, behind the truck and I just sort of lifted my foot off the accelerator because that’s the natural reaction that you do, but not really slowed down at all, may be five Ks I would have slowed down.”
Later she said:
“A.They looked like workers feet that were collecting garbage for the garbage truck. They looked like they were standing behind the truck throwing garbage into it or whatever they were.”
Elsewhere she described the truck as being stationary, close to, but not over the centre of the road.
The respondent described the appellant as running backwards into her path, but she said that she saw him take no more than about one step when a collision occurred, the appellant’s right leg coming into collision with the front of the Torana just above the driver’s side headlight. She said in evidence:
“Q.Just before lunch you were telling us how you drove past the truck, a person stepped out from behind it, you told us where your vehicle was. When you told us where your vehicle was relative to the back of the truck when the person stepped out, was it the front of your vehicle you were telling us about or the back of the vehicle.
A.The front of the bonnet of my vehicle was approximately one foot from the rear of the truck.
Q.What did you see at that time.
A.At the time that Jamie stepped out from behind the vehicle?
Q.Yes.
A.I saw him running out from behind the vehicle backwards into the side of my car, the very front edge of my car.
......
Q.You referred to Jamie running out backwards, how many steps did he take.
A.One at the most.
Q.Between the time he emerged and the time he hit your car.
A.I would say one at the most, it was basically on the sort of one foot flat on the ground with a step back would have collided with my car I’d say.
Q.As you saw him emerge did you take any action to try and avoid hitting him, such a braking or swerving.
A.Well there was no time at the point that he emerged, I hit the brakes instantly but there was no room to swerve, it sort of happened immediately. There was no time to react sort of thing apart from hit the brakes.
HIS HONOUR
Q.As you were beginning to pass the truck how far from the driver’s side of the truck was your drive’s side of the Torana.
A.I would say approximately one to two feet, the average distance that cars would pass at as they were driving down, a little bit more because the truck was parked more on the side of the road, but I would say a maximum of one to two feet.
Q.From the side of the truck.
A.Yes.
Q.And what room was there between the left side of your vehicle and the kerb.
A.I would say probably three foot, the normal driving distance that you have.”
Given that there was no cross-appeal, the finding of negligence against the respondent stands. The only issue on the appeal is as to the extent of the reduction for contributory negligence.
Having regard to the date of the accident, the reduction for contributory negligence was governed by the Wrongs Act 1936, pursuant to which the appellant’s damages fell to be reduced “to such extent as the court thinks just and equitable having regard to the claimant’s share and responsibility for the damage ...”.[1]
[1] Wrongs Act 1936, s 27a(3). As from the coming into effect of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001, which came into operation on 16 August 2001, the relevant provisions of the Wrongs Act have been repealed and apportionment of liability for contributory negligence is determined in accordance with the provisions of s 7 of the new Act. There is no difference in substance between the two provisions.
During the course of his reasons, the trial judge referred to the submission put on behalf of the appellant that he should apportion liability on the footing that Mr Soltes was guilty of some proportion of the blame for the accident. He correctly rejected that contention. He correctly held that the apportionment must be worked out between the parties before the court, even if it is suggested that a third party, who is a stranger to the action, might have been guilty of negligence contributing to the accident.
The trial judge’s finding of negligence against the respondent appears in the following passage from his reasons:
“24Before the accident occurred, the defendant’s vehicle was passing and approaching the front of a large refuse truck which was stationary in a quiet suburban street, with the driver’s side close to the centre of the road and flashing beacon and hazard lights operating. Having observed the movement of feet or legs of workmen standing behind the truck, a prudent motorist in the defendant’s position would, in my view, have taken precautionary action to guard against potential danger from inattention or lack of care of those workers for their own safety. Such a motorist would have sounded her horn, moved her vehicle to the left and significantly reduced her speed. In failing to perform those precautionary measures and in continuing to pass the truck with only about 75 centimetres separating the two vehicles (there being available about 1.5 metres to the left of the Torana), I am satisfied that the defendant was negligent and did not drive with reasonable care towards a pedestrian in the plaintiff’s position.”
As for the appellant, he held that his conduct constituted “a serious departure from a standard of care required of a reasonable pedestrian”. He went on to hold:
“25....Much as one may sympathise with him, in stepping quickly backwards behind the truck and turning anti-clockwise into the path of the Torana without looking where he was going, the plaintiff acted with quite foolhardy or reckless disregard for his own safety or the hazards he was likely to create for other road users. In my view, he was very much the author of his own misfortune and should bear the greater share of responsibility for the accident. He placed the defendant in an unenviable predicament. The situation was one in which the defendant had but little opportunity to observe and avoid him.”
There was a suggestion in the evidence that the appellant might have been indulging in some horseplay with the other runner, Mr Norton, more particularly that they might have been splashing water at each other from water bottles at the time when the appellant emerged into the path of the respondent’s car.
The evidence as to this was from Mr Soltes, who said that immediately after the accident, the appellant said that he and Mr Norton were throwing water at one another. That they were doing so was denied in evidence by both the appellant and Mr Norton.
The trial judge did not find it necessary to make a finding one way or the other as to that aspect of the matter.
I agree with the submissions of Mr Harms who appeared for the appellant that as the respondent has not filed a notice of alternative contention, it is not open for the respondent to contend, as Mr Swan suggested during the course of his argument, that it is open for this Court to justify the apportionment by making a finding against the appellant on that issue.
Apportionment
As I have said, this is a case where, on the hearing of the appeal, neither party challenged the essential findings of fact upon the basis of which the trial judge decided the question of apportionment.
Mr Harms, however, argued that the trial judge erred in law, as he put it, in failing to make any allowance for the fact that at the time of the accident the appellant was engaged in the course of his employment, and was therefore not in the same category as an “ordinary” pedestrian who was not so engaged.
I would not be prepared to hold that a pedestrian who is engaged in the course of his or her employment will necessarily be held less blameworthy than a pedestrian who is otherwise in a similar situation but is not acting in the course of employment.
Every case must be judged according to its own circumstances. A mother chasing her child across the roadway may not be held so much to blame as another pedestrian moving in exactly the same way but with no good reason to do so.
The fact that a plaintiff who was a pedestrian was engaged in the course of his or her employment has in some instances been held to be relevant to the question of apportionment.
For example, in Spiniello v Hurley,[2] King CJ, sitting in the Full Court, was dealing with a case involving a collision between a car driven by the defendant and the plaintiff who at the time was standing next to his truck parked at the side of the road. The plaintiff took a step backwards and was struck by the passing car driven by the defendant.
[2] (1991) 161 LSJS 161.
In the course of his judgment in that case, King CJ said:[3]
“I do not think that the respondent could reasonably have been expected to keep a constant look out for passing cars while he was concentrating on his work .. I do not think that the failure to see the car or the slight movement of the foot can be regarded as a failure on the part of the respondent to take reasonable care for his own safety.”
[3] Ibid 314.
In Teubner v Humble,[4] the plaintiff was a news photographer. He was hit by a car driven by the defendant while he was walking back to a taxi in which he was travelling, after taking some photographs in the course of a violent storm. In the course of his judgment in that case, the trial judge (Chamberlain J) observed:[5]
“The apportionment is between, on the one side, a defendant driving at a very modest speed, and keeping what I have no doubt he believed to be an adequate look out in difficult circumstances, but failing through some unconscious lapse in perception to see a pedestrian whom I am obliged to hold that a reasonably vigilant driver would have seen, and on the other side a plaintiff absorbed in his own and his employer’s affairs and in protecting himself from the weather, for the moment forgetful of his own safety.”[6] (emphasis added)
[4] (1961-1962) 108 CLR 491.
[5] Ibid 120.
[6] On appeal to the High Court, Chamberlain J’s apportionment was varied but the quoted comments were not criticised. See (1961-1962) 108 CLR 491.
These examples demonstrate that, depending on the circumstances, the fact that a pedestrian is engaged in the course of employment may be a factor to be taken into account in assessing contributory negligence on his or her part.
Having regard to all of the circumstances of this case, I think that there is some force in the submission that the trial judge in this case failed to pay sufficient regard to the immediate situation in which the appellant was placed.
Having regard to the system of work, the appellant could ordinarily expect some warning from Mr Soltes of the approach of other vehicles. Furthermore, he must be taken, at least in part, to have been concentrating on the job in hand. These are circumstances to be taken into account in assessing the extent of his failure to take reasonable care for his own safety.
Clearly, however, such considerations could not operate to exonerate the appellant. The manner in which the appellant emerged past the alignment of the side of the truck was, on any view of the matter, foolhardy.
However, it seems to me that in apportioning liability, the trial judge has either failed to give weight to the fact that the plaintiff was acting in the course of his employment, and might ordinarily have expected some warning of the defendant’s approach, or has failed to attribute a sufficient degree of blameworthiness to the respondent.
I have referred to the findings by the trial judge that a prudent motorist in the respondent’s position would have “sounded her horn, moved her vehicle to the left and significantly reduced her speed”. They were all measures which the respondent should have taken, but failed to do so.
She did not have to pass so close to the truck, and she could have moved at least a metre closer to the kerb on her near side.
Although she had no recollection of seeing the beacons or the flashing hazard lights, she should have seen them when she was far enough away to reduce her speed below the 40 kilometres per hour or so which she eventually slowed down to.
Furthermore, she admitted to seeing indications of people behind the truck, which is an observation which she must have made while a fairly significant distance away from the truck. It would not have been possible for her to see under and behind the truck while close to it.
In assessing whether or not there has been a departure from a standard of care to be expected of the driver of a car, the court should have regard to the fact that careless driving may cause great harm to others. See, for example, the observations of King CJ in Evers v Bennett:[7]
“The standard of care in the case of the appellant was that which a reasonable person would observe in driving a car, that is to say in executing an operation which requires skill, alertness and concentration and one which has the capacity, if carelessly executed, to cause great harm to others.”
[7] (1982) 31 SASR 228 at 229.

On the other hand, no great assistance is to be derived in conducting an exercise of assessing relative degrees of negligence by describing a motor car as a “lethal weapon”. As it was put by Windeyer J in Teubner v Humble: [8]
“A motor car does not become anything different from what it is by calling it a ‘lethal weapon’. Doing so may bring home, if it be not sufficiently obvious, that if the driver of a motor car does not drive carefully he may kill somebody; whereas the carelessness of a pedestrian is a carelessness of his own safety rather than a disregard of the safety of others. But when both are at fault the question is how far in the circumstances did the motorist depart from the standard of care of a reasonable man driving a motor car, and the pedestrian from the standard of care of a reasonable pedestrian.”
[8] (1961-1962) 108 CLR 491 at 584.
In all the circumstances, I have reached the view that the apportionment found by the trial judge was erroneous. I am of the view that an appropriate apportionment would be 50 per cent.
I would allow the appeal and quash the apportionment ordered by the trial judge. I would substitute an order that the plaintiff’s damages be reduced on account of his contributory negligence by 50 per cent.
I notice that the trial judge ordered that the appellant recover from the respondent his costs of action up to 14 days after 7 August 2000, and that the respondent recover her costs against the appellant from the same date, and that the respondent’s costs be set off against the amount of the judgment. This suggests that there was a Rules of Court offer by the respondent which was not exceeded, but the papers to do with that are not before this Court.
I would hear counsel as to what, if any, adjustment needs to be made with respect to that part of the order under appeal.
NYLAND J.           I agree that the appeal should be allowed for the reasons expressed by Perry J.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1.    Wrongs Act 1936, s 27a(3). As from the coming into effect of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001, which came into operation on 16 August 2001, the relevant provisions of the Wrongs Act have been repealed and apportionment of liability for contributory negligence is determined in accordance with the provisions of s 7 of the new Act. There is no difference in substance between the two provisions.
2. (1991) 161 LSJS 161.
3.    Ibid 314.
4. (1961-1962) 108 CLR 491.
5.    Ibid 120.
6. On appeal to the High Court, Chamberlain J’s apportionment was varied but the quoted comments were not criticised. See (1961-1962) 108 CLR 491.
7. (1982) 31 SASR 228 at 229.
8. (1961-1962) 108 CLR 491 at 584.

[2003] SASC 78

19 March 2003