Wynne v Pilbeam - [2005] WASCA 200

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WYNNE -v- PILBEAM & ANOR [2005] WASCA 200

CORAM: STEYTLER P
WHEELER JA
PULLIN JA

HEARD: 5 AUGUST 2005

DELIVERED : 21 OCTOBER 2005

FILE NO/S: FUL 181 of 2003

BETWEEN: MARK WYNNE
Appellant
AND
ROGER PILBEAM
First Respondent
CITY OF STIRLING
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MACKNAY DCJ
Citation  :WYNNE -v- PILBEAM & ANOR [2003] WADC 258
File No  :CIV 1037 of 2002, CIV 1941 of 2001

Catchwords:

Torts - Negligence - Road accident case - No new point of principle - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Mr R I Viner AO QC & Mr K H M Wong
First Respondent           :     Mr D R Clyne
Second Respondent       :     Mr K J Martin QC & Mr D R Sanderson

Solicitors:

Appellant:     Friedman Lurie Singh & D'Angelo
First Respondent           :     Simon Walters
Second Respondent       :     Talbot & Olivier

Case(s) referred to in judgment(s):

Abalos v Australian Postal Commission (1990) 171 CLR 167
Bomford v Commissioner of Main Roads (2000) 32 MVR 201
Czatyrko v Edith Cowan University (2005) 79 ALJR 839
Devries v Australian National Railways Commission (1993) 177 CLR 472
Edith Cowan University v Czatryko [2002] WASCA 334
Fox v Percy (2003) 214 CLR 118
Graham Barclay Oysters Pty Ltd v Ryan & Ors (2002) 211 CLR 540
Maiolo v Hansen (1989) 10 MVR 200
March v E & M H Stamare Pty Ltd (1991) 171 CLR 506
Swain v Waverley Municipal Council (2005) 79 ALJR 565
Tame v New South Wales (2002) 211 CLR 317
Thompson v Woolworths (Queensland) Pty Ltd (2005) 79 ALJR 904; [2005] HCA 19
Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Waverley Municipal Council v Swain (2003) Aust Torts Rep 81‑694
White v Humphries (1984) 1 MVR 426
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Alexander v Manley (2004) 29 WAR 194
Brodie v Singleton Shire Council (2001) 206 CLR 512
Cole v South Tweed Heads Rugby League Football Club Inc (2004) 217 CLR 469
Commissioner of Main Roads v Jones (2005) 79 ALJR 1104
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Joslyn v Berryman (2003) 214 CLR 552
Koehler v Cerebos (Australia) Ltd (2005) 79 ALJR 845
Pennington v Norris (1956) 96 CLR 10
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Sullivan v Moody (2001) 207 CLR 562
Teubner v Humble (1962) 108 CLR 491

STEYTLER P: I have had the advantage of reading the judgment of Pullin JA. I agree with him, for the reasons which he has given, that the appeal should be dismissed. However, I wish to make some comments of my own concerning the proposition, said to be encapsulated within grounds 1 to 4 of the appellant's grounds of appeal, that the trial Judge fell into the error of considering the question of liability in terms of causation before formulating and answering questions of law as to the existence of a duty of care and whether there was a breach of that duty.
The relevant facts, as found by the trial Judge, appear from the judgment of Pullin JA. Essentially they are that early one morning, nearly an hour after dawn, the first respondent lawfully parked a rubbish truck, operated by him on behalf of the second respondent, on Hale Road, Wembley Downs, so as to collect rubbish in that area. He was parked in the left‑hand lane of a two‑lane carriageway (the road had two lanes heading in each direction). His truck was large and bore numerous signs and warnings. It was lit at the time with four brake lights, four flashing hazard lights and a revolving beacon light. General visibility was good and there was not much traffic on the road. However, for a driver travelling east along the road at that time of the day, the sun was a problem. It faced directly into the driver's eyes as it rose. The appellant was travelling east along Hale Road at the time. This made it difficult, but not impossible, for him to see ahead. However, undeterred by this, the appellant accelerated along the road in the mistaken belief that there could not lawfully be a stationary vehicle in the left lane. He drove directly into the back of the rubbish truck and was injured.
That brings me to the error which is said to have been made by the trial Judge in dealing with causation before considering the other issues to which counsel for the appellant referred. The trial Judge did say, at one point in his judgment (at [132]), that the appellant's failure to take adequate care for his own safety was the cause of the collision and its consequences. However, it is apparent from the whole of the judgment that this was not the sole, or even the principal, foundation for his Honour's conclusions. In the course of his earlier analysis as regards the issue of liability the trial Judge plainly accepted that the first respondent owed a duty to take reasonable care for the safety of other users of the road in the course of his operation of the rubbish truck (although he did not say so expressly) and said (at [103]) that the "real question" in the trial was that of whether or not the first respondent had been negligent.
In the course of answering that last question his Honour referred, first, to what he considered to be the more material facts, being some of those set out above. Then, he said (at [110]) that the first respondent, who was aware of the sun but not troubled by it, had not turned his mind to the question "whether for some reason or combination of reasons a driver would not observe his truck and drive straight into the back of it". Finally, he asked (at [111]) whether that amounted "to an unreasonable lack of care for another, or in other words, … [whether] a reasonable person in the position of the first … [respondent would] have turned his mind to it, and in addition decided there was a risk of injury to others such that it was necessary for him to move off Hale Road". He said (at [112]) that the first of those questions (which I take to be a reference to the question whether the first respondent's conduct amounted to an unreasonable lack of care for another) and the last of them (which I take to be a reference to the question whether a reasonable person in the position of the first respondent would have decided there was a risk to others such that it was necessary for him to move off Hale Road) should be answered in the negative.
As I understand what was said by his Honour (at [110] and [111]), he was there applying the two‑stage test for determining whether there has been a breach of a duty of care enunciated by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47. Mason J there said:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk."
(See also Swain v Waverley Municipal Council (2005) 79 ALJR 565 [108] ‑ [109]). The trial Judge concluded that there was no breach of the duty of care owed by the first respondent to the appellant and that this was enough, of itself, to dispose of the claim against him. It is apparent from the whole of his reasons (which are more fully set out in the judgment of Pullin JA) that he concluded that, in the circumstances as he had found them to be (including the fact that the risk which had eventuated was an obvious one), a reasonable person in the position of the first respondent, or in that of the second respondent, would not have taken any precautions additional to those which were taken. While his Honour's reasons were very briefly expressed, they were adequate, in my respectful opinion, and sufficient to make it plain that his analysis was generally in accordance with accepted principles.
In Swain, at [5], Gleeson CJ said, as regards legal formulations of the duty and standard of care, that the central concept is reasonableness. He went on to say (ibid):
"The duty is usually expressed in terms of protecting another against unreasonable risk of harm, or of some kind of harm; the standard of conduct necessary to discharge the duty is usually expressed in terms of what would be expected of a reasonable person, both as to foresight of the possibility of harm, and as to taking precautions against such harm. Life is risky. People do not expect, and are not entitled to expect, to live in a risk‑free environment. The measure of careful behaviour is reasonableness, not elimination of risk. Where people are subject to a duty of care, they are to some extent their neighbours' keepers, but they are not their neighbours' insurers."
Also, as to the issue of obviousness of the risk and that of the reasonableness of an expectation that others will take care for their own safety, the High Court (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) has recently said, in Thompson v Woolworths (Queensland) Pty Ltd (2005) 79 ALJR 904; [2005] HCA 19, at [35] ‑ [37]:
"When a person is required to take reasonable care to avoid a risk of harm to another, the weight to be given to an expectation that the other will exercise reasonable care for his or her own safety is a matter of factual judgment. It may depend upon the circumstances of the case. … Most people drive as though it may be expected that other road users will be reasonably careful. At the same time, it is often judged reasonable to expect a motorist to allow for the possibility that some other road users will be inattentive or even negligent.
The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. …
The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight

to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration."

The approach which was adopted by the trial Judge was broadly in accordance with the principles discussed in the cases to which I have referred. The judgments which he made for the purpose of applying those principles followed logically from his findings of fact. Those findings, in turn, were open on the evidence accepted by him, as appears from the judgment of Pullin JA.
I would consequently dismiss the appeal.
WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Pullin JA. I agree with those reasons and have nothing to add.
PULLIN JA: The appellant's appeal is against the judgment of Macknay DCJ, who dismissed the appellant's action for damages for personal injury.
The appellant, who was 28 years old at the time of the accident, was badly injured in a traffic accident which occurred on Tuesday 7 March 2000 in Hale Road, Wembley Downs, at about 7.00 am. The appellant was on his way to work. He travelled first along Weaponess Road. At the intersection of Weaponess Road and Hale Road the traffic lights facing him were red and he stopped. When the lights turned green he turned left and began travelling east in Hale Road. He was in the left‑hand of the two lanes travelling east. Hale Road was not a main road. Parking was permitted in the left‑hand lane.
The sun was low down in front of him and shining into his eyes. He put down his visor which did not help. He put his left hand up to shade his eyes. He continued to accelerate as this was happening. He had taken this route before and had experienced driving with the sun in his eyes. His vehicle then drove into the back of a rubbish truck owned by the second respondent and which was driven by the first respondent. This collision occurred 140 to 150 metres from the intersection with

Weaponess Road. The truck was stationary at the time of the collision. It was in the course of collecting rubbish in Hale Road. The first respondent was in the driver's seat.

His Honour found that there were a number of features on the rear of the truck designed to alert other road users to its presence and mode of operation, those being in some cases standard pursuant to some regulatory regime or general practice, or otherwise something fitted at the request of the second defendant.
The features included the rear being painted white, there being a beacon containing a flashing orange light on top of the truck at the back, with rear, brake, and indicator lights on either side of the back of the truck at both top and bottom, the four indicator lights serving as hazard lights also on demand, a large "caution" sign in black on a gold background in the middle of the back, two red and gold turning warnings, large red and gold chevrons across the back beneath the caution sign, and a large "dual control vehicle" sign in black on gold below the chevrons. The truck was one of at least 12 similar trucks operated by the second respondent.
When the truck was examined shortly after the accident, the truck had all its hazard lights and rear beacon light operating. The truck was about 200 mm from the kerb. The truck was about 2.4 metres wide. The morning was fine apart from some clouds. The sun had risen at 6.11 am. There were several witnesses who spoke of the effect of the sun at this time.
A Mr Lower was a lawn mowing contractor who was mowing lawn and walking east in Hale Road not far from the accident. He said that the sun was rising "pretty much directly" over Hale Road, and was just over the crest of the hill, having been just coming over the crest and fairly low when he had arrived. Mr Lower said he drove in Hale Road quite frequently and did drive directly into the sun there, which he said could be quite blinding and difficult to see into.
The first person at the accident scene after Mr Lower was a Mr Fenner, who was a leading hand employed by the second respondent. He arrived at the scene approximately ten to twenty minutes after the accident. He travelled from Weaponess Road and then into Hale Road and said he had been able to see the truck when he turned, although he had utilised his sun visor as the sun was "a bit on the glary side" so that his vision would otherwise have been impaired. Mr Fenner said he drove east along Hale Road three years later on 7 March 2003 at about 7.05 ‑ 7.10 am. It was a fine day. He observed the sun rising above the road while a rubbish truck was close to the accident point. He said he experienced no difficulty whatsoever in "seeing" as he drove east. He had seen the truck when about 300 metres away.
A Mr Robert Smith was called by the appellant. He was an investigator. He attended Hale Road on 8 March 2001 early in the morning and took some photographs, some whilst out of the vehicle and some from within his vehicle, which he said was "highly likely" to have had a dirty windscreen. The photographs were taken between 6.45 am and 6.55 am. Mr Smith said that he thought the sun was "quite blinding" and impaired the vision of a driver travelling east.
Another witnesses called was a Mr Steadman, who was the Occupational Health and Safety Coordinator of the second respondent. He had been in that position for the 13 years before the time when he gave evidence. He said that the second respondent was the largest local authority in terms of number of employees. The system of rubbish collection utilised by the second respondent was no different to any other local authority. There were bi‑monthly meetings of safety officers employed by local authorities attended also by Main Roads Department and local government insurance services representatives. There had never been any report of any problem arising from the use of rubbish trucks on roads that were subject to a rising or setting sun.
Mr Rickman had been the second respondent's waste collections operations supervisor for 13 years. He said that the second respondent's boundaries contained in excess of 2200 streets to a length of 1100 kms with more than 72,000 domestic collections per week by side‑loading rubbish trucks which this vehicle was. Mr Rickman said he had never heard of any complaint about rubbish collection on an east‑west aligned road resulting from the position of the sun. He also gave evidence that a change in operations to avoid the collection of rubbish on such roads at such times would be a major disruption and the second respondent would probably have had to extend its operating hours whilst the annual passage of the sun would mean collection rounds would have to constantly change, as would collection times. Mr Rickman had also driven east in Hale Road at a time when the sun had affected his vision. He said with the visor down he was able to "drive up there comfortably but not at the speed limit".
The appellant also called a Worksafe inspector, a Mr Reid, who gave evidence about publications which mainly dealt with the risk to employees when collecting rubbish.
His Honour made the following findings. First he held that the need to ensure a truck was visible from the rear had been addressed by the second respondent in a manner that substantially exceeded regulatory requirements. He accepted the evidence of Mr Steadman that there had been no report of any difficulty arising from the operation of a rubbish truck on a road affected by rising or setting sun known to him at least; or any report of the same at a local authority safety meeting. His Honour accepted the evidence of Mr Rickman about the difficulties associated with changes to collection rounds and found that because Hale Road was not a main road, there was no need for any special dispensation concerning parking or stopping in the left‑hand lane. His Honour found that there was no parking restriction on the road.
The appellant alleged that the first respondent was negligent because he caused an obstruction on the road, allowed the rubbish truck to remain stationary when he knew, or ought to have known that the rising sun would blind a motorist travelling in the same direction, that he failed to "ensure that the sun had risen sufficiently before proceeding to collect rubbish from rubbish bins along Hale Road so as to avoid the rubbish truck being a danger to other road users" and failed to take reasonable precautions to prevent avoidable harm.
As to the second respondent, the appellant alleged that there was a failure to establish, maintain and enforce a system of collecting rubbish by which the first respondent was not required to travel east in Hale Road when the sun was rising so as to cause an obstruction on the road, failed to instruct the first respondent not to allow the rubbish truck to remain stationary on Hale Road when the morning sun was rising above Hale Road and failed to instruct the first respondent not to allow the truck to be managed so that it caused an obstruction on the road.
At [110] in relation to the claim against the first respondent, his Honour found that:
"The first defendant was aware of the sun but was not troubled by it, and had not turned his mind to the question whether for some reason or combination of reasons a driver would not observe his truck and drive straight into the back of it."

His Honour then asked rhetorically at [111]:
"Does that amount to an unreasonable lack of care for another, or in other words, would a reasonable person in the position of the first defendant have turned his mind to it, and in addition decided there was a risk of injury to others such that it was necessary for him to move off Hale Road?"
His Honour then held at [112]:
"The first and last questions at least ought in my view be answered in the negative."
This is a little puzzling because it might be read as suggesting that [111] contains more than two questions. In fact [111] contains only two, namely whether:
(1)a reasonable person in the position of the first respondent would have turned his mind to the risk of injury; and
(2)whether a reasonable person would have decided there was such a risk of injury to others that it was necessary for him to move off Hale Road.
In my opinion his Honour found that both questions should be answered in the negative. The appellant sought to argue that his Honour only found what it was the first respondent was aware of without deciding what a reasonable person should have been aware of. I do not agree.
His Honour in [112] thereby held that there was no breach of duty on the first defendant's part.
His Honour then considered some authorities relied upon by the appellant, those being March v E & M H Stamare Pty Ltd (1991) 171 CLR 506, White v Humphries (1984) 1 MVR 426, Maiolo v Hansen (1989) 10 MVR 200 and Bomford v Commissioner of Main Roads (2000) 32 MVR 201. His Honour said that those authorities did not assist the appellant in relation to its claim and made some further findings. His Honour found at [128] that the sun presented an impediment to vision of the appellant and also found that from the perspective of the first respondent from the cabin of his truck, the sun had not bothered him. His Honour then made an important finding, namely that although the position of the sun created a difficulty for the appellant while driving his car, it did not make it impossible for him to see ahead as he claimed. More importantly, his Honour concluded at [131]:
"The likely explanation for the plaintiff's failure to avoid the collision, in my view, is a combination of difficulty of vision and a gross lack of vigilance, in circumstances where the plaintiff's speed did increase, as he conceded, where he had an erroneous belief that there could not lawfully be any stationary vehicles in the left lane, and where he simply failed to keep a proper lookout, although one was obviously required by the conditions."
His Honour then concluded at [132] to [134]:
"132The plaintiff's failure to take adequate care for his own safety was thus the cause of the collision and its consequences.
133I should add that had I found the sun had in fact prevented the plaintiff from seeing ahead that would not affect my conclusion that the first defendant was not in breach of duty.
134I accordingly find that the first defendant is not liable to the plaintiff for the injuries unfortunately suffered by him."
As to the claim against the second respondent, his Honour concluded that the second respondent was also not negligent, meaning thereby that the second respondent was not in breach of any duty of care. The relevant findings appear at pars [135] to [153] where he found "The second defendant was thus not in breach of any duty of care owed to the plaintiff". He then said at [138] to [142]:
"138 The need to ensure a truck was visible from the rear had been addressed by the second defendant, in a manner that substantially exceeded regulatory requirements.
139I accept the evidence of Mr Steadman that there had been no instance of any difficulty arising from the operation of a rubbish truck on a road, affected by a rising or setting sun, known to him at least, or any report of the same at a local authority safety meeting.
140I also accept the evidence of Mr Rickman to like effect, as well as that as to the difficulties of changes to collection rounds.
141The second defendant did not apparently regard Hale Road as a "main" road, and hence subject to the need for any special dispensation for its rubbish trucks, and that was not challenged.
142Nor was the absence of any parking restriction on the road. "
His Honour referred to what was said by Heydon JA in Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [74] where, after referring to various examples of obvious risk to a person's own safety, Heydon JA said:
"These are matters which no adult need be told about and which any adult can be trusted to guard against the dangers of because it is part of the equipment of all normal adult human beings. All citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks."
His Honour said at [153]:
"This is a sad affair, but not one where it could be said in good conscience that the second defendant was required to do more than had already been done. The second defendant was thus not in breach of any duty of care owed to the plaintiff."
His Honour also said (at [152]):
"And, as appears from the above, it is plain that had the plaintiff not shown a disregard for his own safety by driving in the manner he did, the accident would not have occurred."

Grounds of appeal

The appellant's notice of appeal contains 16 grounds. They range over complaints relating to the existence of a duty of care (which did not appear to be an issue), contain allegations about a "failure to consider" certain points of evidence, contain allegations that the trial Judge was "wrong in believing" a matter, contain allegations about a failure to give "proper weight" to the evidence of certain witnesses, contain generalised assertions that the trial Judge "should have found" that the first respondent was negligent in his driving and use of the rubbish truck and that the trial Judge "should have found" that the second respondent was negligent in its employment of the first respondent and management and use of the rubbish truck.
As to the grounds asserting that the trial Judge "failed to consider" various points (examples are whether the truck was a hazard on the road and whether the truck was properly fitted with signals or warnings reasonably visible to approaching vehicles and other examples which are referred to in the next paragraph), those contentions cannot be sustained. His Honour did consider the matters alleged not to have been considered.
As to the contention that his Honour did not consider whether the first respondent could have taken action to relocate the rubbish truck, the contention cannot be sustained. His Honour did give consideration to that issue. His Honour did so by accepting the evidence of Mr Rickman as to the difficulties of making changes to collection rounds and accepted the evidence of Mr Steadman that there had not been any reports of any difficulty arising from the operation of a rubbish truck on a road affected by a rising or setting sun at the authority's safety meetings. As to the contention that his Honour did not consider whether the truck was properly fitted with signals or warnings reasonably visible to approaching vehicles, this ignores the fact that his Honour considered that steps had been taken to put warning signs on the vehicle, along with lighting which substantially exceeded regulatory requirements.
The written submissions of the appellant attempt to re‑categorise the grounds of appeal by categorising grounds 1 to 4 as one group of grounds attracting one set of submissions. Grounds 5 to 14 are then treated in the same way. Ground 8 is then selected for special attention and grounds 15 and 16 are treated separately. Counsel for the appellant said that the written submissions set out the real matters of complaint about his Honour's reasons.
The submissions concerning grounds of appeal 1 to 4 allege that the trial Judge fell into error in considering "the question of liability in terms of causation before formulating and answering the proper questions of law as to duty and breach of duty". In my opinion that submission is unsustainable. In support of this argument the appellant pointed to the part of his Honour's reasons where he referred to the appellant's conduct as having caused the accident. His Honour was not there confusing issues of causation with issues of breach of duty. It is clear that a duty to exercise reasonable care to avoid injury to other road users involves a consideration, not only of the conduct of the respondents, but also the conduct of other road users. The duty of care involves having regard to drivers who may be momentarily inattentive or even negligent, but this is not to be carried to extremes. As I have already set out above, Heydon JA said in Van der Sluice that all citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks.
This can be explained in other ways; namely certain risks may be disregarded: Graham Barclay Oysters Pty Ltd v Ryan & Ors (2002) 211 CLR 540 at [87]; or whether it is reasonable to require a person to have in contemplation the risk of injury which has eventuated: Tame v New South Wales(2002) 211 CLR 317 at [12]; or that the failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligent: Tame's case at [99] per McHugh J; or that foresight of harm does not suffice to establish the existence of a duty of care: Tame [250] per Hayne J.
On the findings made by his Honour, the conduct of the appellant involved the appellant incurring unnecessary and blatantly obvious risks. As I have already pointed out, his Honour found that, despite the appellant's evidence, the appellant could see the road ahead (albeit with difficulty). Knowing of that difficulty he displayed a "gross lack of vigilance" and accelerated. In my opinion, if the appellant could not see ahead or his vision was severely impaired as he claimed, he should have been decelerating or braking. The respondents owed no duty to guard against the risk of injury which might result in those circumstances. The appellant was guilty of more than mere inattention or negligence.
Furthermore, there was no breach of duty because there was nothing in the circumstances that alerted the first respondent (or rather a reasonable person in the position of the first respondent) that he should have taken the truck off the road. From the truck driver's point of view or a reasonable person in his position, his vision was not obscured by the sun and other vehicles were successfully passing him by. He knew that his vehicle was large, well marked and its presence signified by flashing lights.
Under the heading "Grounds of Appeal 5‑14" a number of references are made to evidence (described as "facts" in the submissions). It is then submitted that the existence of a duty of care and a discharge of it are "objective, not subjective, as framed by the trial Judge at AB 24 par [111]". In my opinion [111], which is set out above, reveals that his Honour considered the issue by reference to the "reasonable person" in the position of the first defendant.
Under the heading "Grounds of Appeal 8", it is submitted that the question was "what reasonable steps could and should the First Respondent have taken to avoid the danger to other users of Hale Road". It was submitted by the appellant that the "answer to that question is straight‑forward: to have removed the truck from its stationary position on Hale Road". That is a merely argumentative submission. It ignores his Honour's findings that there was no negligence in failing to do so. In my opinion there was no error on his Honour's part in this regard.
Under the heading "Grounds of Appeal 15 and 16" submissions are made about the issues of causation and contributory negligence, but in my opinion it is unnecessary to deal with them in view of my conclusion that his Honour did not err in finding that there was no breach of duty on the part of the respondents.
Finally I should mention ground 7 which contended that the "learned trial Judge should have found; (a) that the appellant was blinded or his vision was impaired by the sun as he turned out of Weaponess Road and travelled east along Hale Road." The ground also contends that the appellant was driving with reasonable care for his own safety and was not speeding or travelling faster than he should have been in the circumstances. There is no doubt that the appellant's vision was impaired. His Honour found that this was so. Nevertheless, his Honour said that he was not able to find (as the appellant claimed) that it was impossible (as opposed to merely difficult) for him to see ahead. His Honour then found (in essence) that the sun did not have that effect (see [129]). In making that finding, his Honour had before him and had considered the evidence of Mr Fenner, the first respondent, Mr Lower, Mr Smith, Mr Steadman and the appellant, all of whom gave slightly different accounts of the effect of the sun. There were also some photographs. The evidence of Mr Fenner was doubtless important because he drove along the road three years later at about the same time as the accident. He drove along specifically to see how much his vision was impeded by the sun and he said that he experienced no difficulty in seeing the road ahead. His Honour reviewed all of the evidence and his finding was open on the evidence. His Honour had the advantage denied to us of seeing and hearing the witnesses. There is no basis for upsetting his findings. See Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 and Fox v Percy (2003) 214 CLR 118 at 127. The same can be said of his Honour's findings that the appellant had been guilty of a gross lack of vigilance because the appellant increased his speed and failed to keep a proper lookout when this was required by the conditions.
In my opinion his Honour was correct in his conclusion that the action had to be dismissed for the reasons given by him. In the course of his reasons, his Honour referred to two cases (Waverley Municipal Council v Swain (2003) Aust Torts Rep 81‑694 and Edith Cowan University v Czatryko [2002] WASCA 334) which were subsequently overturned on appeal to the High Court. See Swain v Waverley Municipal Council (2005) 79 ALJR 565 and Czatyrko v Edith Cowan University (2005) 79 ALJR 839. However, the fact that those decisions were overturned does not detract from his Honour's process of reasoning. In my opinion the appeal should be dismissed.