Boateng v Dharamdas - [2016] NSWCA 183 - NSWCA 2016 case summary — Zoe

NSWNSWCA

Boateng v Dharamdas

[2016] NSWCA 183

Court of Appeal (NSW)|2016-03-04|Before: Gleeson JA, Leeming JA, Davies J

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2016-03-04

Before

Gleeson JA, Leeming JA, Davies J

Catchwords

211 CLR 621 Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298 Blacktown City Council v Hocking [2008] NSWCA 144
Aust Torts Rep 81-956 Boral Bricks Pty Ltd v Cosmidis (No. 2) [2014] NSWCA 139
86 NSWLR 393 Commonwealth of Australia v Gretton [2008] NSWCA 117 Derrick v Cheung [2001] HCA 48
181 ALR 301 Dungan v Chan [2013] NSWCA 182

Source

Original judgment source is linked above.

Catchwords

211 CLR 621 Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298 Blacktown City Council v Hocking [2008] NSWCA 144Aust Torts Rep 81-956 Boral Bricks Pty Ltd v Cosmidis (No. 2) [2014] NSWCA 13986 NSWLR 393 Commonwealth of Australia v Gretton [2008] NSWCA 117 Derrick v Cheung [2001] HCA 48181 ALR 301 Dungan v Chan [2013] NSWCA 18280 ALJR 413 Marien v Gardiner [2013] NSWCA 39666 MVR 1 Nominal Defendant v Green [2013] NSWCA 21959 ALJR 492 Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 Strong v Woolworths [2012] HCA 5246 CLR 182 T & X Company Pty Ltd v Chivas [2014] NSWCA 235 Turkmani v Visvalingam [2009] NSWCA 21153 MVR 176 Vairy v Wyong Shire Council [2005] HCA 62223 CLR 422 Wallace v Kam [2013] HCA 19250 CLR 375 Warth v Lafsky [2014] NSWCA 94 Whisprun Pty Ltd v Dixon [2003] HCA 48

Judgment (44 paragraphs)

[1]

[5]

The respondent

Early on 31 January 2011, at about 6 am, the respondent was walking from Redfern station to his place of employment at HPM Industries in Lachlan Street, Waterloo. It was his daily practice to take the same path. This was walking south down the eastern side of Bourke Street, until he reached the "T" intersection with Potter Street, where he turned left. He then proceeded east on Potter Street along the northern footpath before cutting across Potter Street to the footpath on the southern side and proceeding to his workplace.
At the time of the accident there were no dividing lane markings on Potter Street. There are two trees on the edge of the northern footpath on Potter Street. The experts measured the distance from the eastern kerb of Bourke Street to the first tree as 12 metres and to the second tree as 29.2 metres.
There was a dispute at trial as to two matters concerning the point of impact of the collision in Potter Street. The first was how far along Potter Street the respondent walked before cutting across the roadway to the footpath on the other side. This was relevant to how long the appellant had to observe the respondent in Potter Street before the collision. The second matter concerned how far the respondent had travelled across Potter Street from the northern kerb before the collision. This was relevant to how long the respondent was on the road and the time available to the appellant, acting reasonably, to avoid the collision.
The respondent initially said in cross-examination that on the day of the accident, he saw a red light preventing pedestrians crossing Potter Street at the intersection. He then qualified his answer, saying he was "not 100% sure", and that he may not have paid much attention to the pedestrian lights because he knew where he was going to walk, as he followed the same route each day. He said that he turned left (at Potter Street) and walked east along the northern footpath of Potter Street until he came to the second tree from the intersection and, as was his habit, he "swung around" the second tree to the edge of the footpath before stopping facing the road, looking to his right, then to his left then back to his right to check for traffic and that it was safe to cross the road. He did not see any vehicles approaching in either direction. He walked straight across the road; he did not cross the road at an angle towards his destination. When he came to the middle he looked to his left, because that was the path he was going to walk and while in the middle of the road the vehicle hit him. He estimated that he would have walked "at least 5 metres" on the road before he was hit.
The respondent explained that he would touch and swing around the second tree in Potter Street because the first one was very small and thin. The respondent described the second tree being opposite the "big door" of the Toyota dealership with a "No Entry" sign above it, on the other side of Potter Street.
The respondent did not see the vehicle before it hit him. He said that he was walking at "normal walking pace" and that he was struck while in the middle of Potter Street, not in the middle of the eastbound "lane" of Potter Street. The respondent said that the vehicle hit him on his right hip and his body came on top of the bonnet before he was pushed down onto the road and hit his right shoulder. He did not recall exactly where on the bonnet he landed "because it happened so quick".
The respondent gave evidence in chief that when he opened his eyes after being struck by the taxi he saw the vehicle "just very close to me. Then after that he had his engine on at the time … I could get strong fumes of the car coming to my nose, the engine was on, I could smell strong fumes of the car". He added that "after that, I don't know what happened". The respondent said that he later observed, while lying on the road, that the appellant's vehicle was in a different position to when he first came to rest on the road. He described it as being further away - "it was back". In cross-examination, the respondent adhered to his evidence despite being challenged on the point that the taxi had moved.

[6]

The appellant

The appellant had been a taxi driver for 16 years. On the morning of the accident, he was driving without any passenger along Bourke Street towards the City heading back from the airport. The appellant did not give evidence at the trial due to his medical condition, however, three statements by the appellant were admitted into evidence.
The first was a record of the appellant's statements made to Constable Cicek during an interview immediately following the accident. The appellant's signed police statement (recorded at 7.50am) included the following: I was travelling north along Bourke Street in lane two of a two lane divided road. I came to the T-intersection of Bourke and Potter, there were traffic lights at the intersection. I was planning on turning right into Potter Street from Bourke Street. The lights were green, I was waiting for a clear way from oncoming traffic. I turned right when oncoming traffic was clear. I turned right into Potter Street, all of a sudden there was someone on the roadway, the car hit him. All I saw was that this male person was on my bonnet. I didn't see him, he just come out in front of my car. The first time I noticed him was when he was on the bonnet.
The appellant's police statement continued with the following questions and answers: Q. When did you first notice him? A. When he was on the bonnet. Q. What did you do to avoid the accident collision? A. I put the brakes on. Q. How fast were you doing the turn? A. It's very hard to tell, 20-30 k's. There was a big gap on Bourke Street from oncoming cars before I turned right onto Potter Street.
In a subsequent statement made on 20 September 2011 to an investigator retained by the appellant's CTP insurer, the appellant said that he had stopped at the intersection with Potter Street, at the traffic light, as it was red. When the light went green, he turned right into Potter Street and the next that he saw was someone on top of the bonnet. He said he did not know where he came from. He said he did not see anyone else crossing the road before the impact and estimated his speed at between 20 and 30 km/h at the time of impact. He said that he collided with the respondent "about 12 metres from the corner of Bourke and Potter Streets".
In a third statement dated 4 November 2014, the appellant said that after striking the respondent he was able to bring his vehicle to a halt within a short distance of the point of impact and that he did not move his vehicle prior to the arrival of the police. He said that he believed that the police photographs (which were annexed to his statement and are described below) depicted his vehicle in the position in which he brought it to a halt immediately following the collision.

[8]

Constable Cicek

Constable Cicek interviewed the respondent at St Vincent's Hospital shortly following the accident. He recorded in his notebook the respondent saying: I was crossing the road, on Potter Street, on the northern kerb. I was on the opposite of the big door to the Toyota shop. I looked both ways and there was no car. I made a move to go to the other side (southern kerb), I was on the middle of the road and suddenly I saw this taxi coming and … first the taxi bonnet hit me then I fell straight on the road on my tummy.
Constable Cicek also recorded the respondent later saying: I waited for the light. I moved ahead of the lights and walked on the pavement. I walked 10 metres down the pavement. I walked onto the road, I look both sides, I found there was no car coming. I was nearly on the middle of the road and this car came and hit me. I didn't see the car.
The COPS event entry for the collision recorded the conditions at the time of the accident as "fine"; natural light as "daylight"; the speed zone for the area as 50 kph; and that the appellant's vehicle was travelling east at a pre-crash speed of 20 kph. Damage codes to the appellant's vehicle were recorded as "front". The detailed crash narrative included the following: … Upon coming to the T intersection of Bourke and Potter Streets the driver of Vehicle Two [the appellant] indicated to turn right into Potter Street Waterloo 2017 on a green signal. … Upon indicating to turn right on a green signal the driver of vehicle two came to a complete stop, waiting for a break from oncoming traffic. Upon a break in oncoming traffic the driver of vehicle two negotiated a right hand turn into Potter Street. Upon entering Potter Street a pedestrian walked onto the roadway into Driver Two's line of travel causing a collision. The front end of Vehicle Two came into contact with the pedestrian, causing him to roll onto the bonnet and onto the roadway where he landed face down. The point of impact was approximately 10 meters (sic) from the intersection of Bourke and Potter Street and four meters (sic) from the northern curb (sic) of Potter Street. The point at which the pedestrian crossed the road was at an undesignated area, approximately 10 meters (sic) east of a set of designated lights for the purposes of crossing the road safely. … Traffic conditions were medium. Weather fine. Sealed bitumen. Drugs alcohol not a factor. Particulars exchanged. The incident was seen by two independent witnesses both stated [sic] that the pedestrian walked into the path of the vehicle without looking. … [Emphasis added]

[9]

The council workers

Two council workers, Mr Maximus Coelho and Mr Marco Konjevic, were working in Potter Street on cleaning duties at the time of the accident. They were sweeping the gutter and street, and removing dumps. They each gave evidence that the appellant's vehicle came to a stop after hitting the respondent in the vicinity of the first tree in Potter Street.
Mr Coelho first saw the respondent on the northern footpath of Potter Street, walking east. He also saw the appellant's taxi waiting at the traffic lights. He crossed at the pedestrian lights to the southern side of Potter Street and continued with his work. He heard a screech and saw the collision. He said that the taxi stopped "straight away" and he saw the respondent on the road in front of the taxi. Mr Coelho estimated that the respondent had walked 1 to 1.5 metres onto the road. He marked a photograph, which was tendered in evidence, indicating where he observed the appellant's taxi came to a stop. His Honour noted that this put the appellant's taxi close to the first tree and observed that Mr Coelho was not challenged in cross-examination on that evidence. The appellant complained (justifiably) that this was an error by his Honour, and pointed to cross-examination of Mr Coelho suggesting that the accident occurred beside the second tree.
Mr Coelho gave evidence that the taxi stopped just in front of the first tree and did not move until the time the ambulance left the accident site. He was challenged on this point in cross-examination but adhered to his evidence.
Mr Konjovic was on the northern side of Potter Street when he first saw the respondent standing near a "No Standing" sign, near the first tree in Potter Street. He did not see the collision, but heard a "short screech" and "a bit of a thud" which caused him to turn around. He said that when the respondent fell to the roadway he was about a metre from the appellant's taxi and about a metre from the northern kerb of Potter Street. In his police statement, Mr Konjovic had said that the respondent was lying "near the middle of the road" directly in front of the taxi. In cross-examination, he clarified that he meant that the respondent was in "the middle of the lane", that is, the eastbound lane in Potter Street. Mr Konjovic also marked a photograph indicating the position where the appellant's taxi had stopped was near the first tree from the intersection of Bourke Street, not the second tree.
Mr Konjevic also gave evidence that he did not see the taxi reverse at any stage before the ambulance took the respondent away. He was not challenged on this evidence.

[11]

Mr Urquhart

For the purposes of his report, Mr Urquhart was instructed to assume a number of matters, including that: the appellant did not see the respondent until he was on top of the bonnet; the appellant did not have an opportunity to brake before the collision; and that the taxi stopped within 10 metres or so of the collision. As to the last matter, the actual assumption made by Mr Urquhart was that the taxi came to rest 7.5 metres east of the point of impact - this being the average post impact distance based on the respondent's diagram in his insurance claim form and the maximum distance of 10 metres he was instructed to assume. (This assumption was inconsistent with the evidence of Mr Coelho which was that the taxi stopped just in front of the first tree: see [26] above).
Mr Urquhart assumed that the point of impact of the collision was 10 metres east of the pedestrian crossing at the intersection of Bourke Street and Potter Street and that the respondent was in the centre of the eastbound lane when the collision occurred. Mr Urquhart estimated this to be 3.1 metres from the northern kerb of Potter Street. He noted the differing estimates of the point of impact from the northern kerb ranged from 1.5 metres (Mr Coelho) to 4 metres (COPS entry) and analysed the respondent's range of motion. He assessed the appellant's likely impact speed as between 20 and 30 kph.
Mr Urquhart estimated that the distance travelled by the appellant once he commenced his right-hand turn into Potter Street was about 25 metres. This estimate was based on an assumption that the appellant had proceeded into the intersection with Potter Street when the lights turned green where he waited for a break in southbound traffic (in Bourke Street) and then turned right into Potter Street. As is evident from the appellant's police statement (set out at [14] above), the appellant did not indicate to the police that he had entered the intersection with Potter Street (rather than remained at the traffic lights) before making the right turn. Nor is this assumption by Mr Urquhart consistent with the appellant's subsequent statement to the CTP insurer: see [16] above.
Mr Urquhart expressed the view that the appellant accelerated at a normal rate, or possibly more gently, taking into account his opinion of the likely impact speed as between 20 and 30 kph. He considered that this was consistent with the appellant's police statement that there was "a big gap on Bourke Street from oncoming cars": see [15] above. Accordingly, there was no requirement, in Mr Urquhart's view, for the appellant to accelerate quickly to beat oncoming traffic and the appellant was driving at an appropriate speed in the circumstances, and at about half the speed limit.
In cross-examination, Mr Urquhart described the likely sound of rapid acceleration while turning as a "squealing screechy sound", which would be continuous until the pressure is released off the accelerator. The appellant relied on this description of the sound of rapid acceleration in contrast to the description of the "screech" before the thud heard by the council workers, which the appellant attributed to braking before the point of impact, notwithstanding the appellant's evidence that he did not see the respondent until the respondent was on the vehicle's bonnet.
Mr Urquhart prepared a collision diagram based on his assumption that the appellant had halted his vehicle within the intersection whilst he waited for a suitable break in the southbound traffic (on Bourke Street) before making a right-hand turn. Mr Urquhart expressed the view that at the time that the respondent commenced crossing Potter Street, the appellant's vehicle was likely to be about 15 metres away. The basis of calculation of this estimated distance was not stated. (As will be seen, Mr Johnston calculated a longer distance to the point of impact at the time the respondent commenced crossing Potter Street: see [47] - [48] below).
Mr Urquhart's opinion was that it would likely take the respondent 2.5 seconds to walk from the (northern) kerb of Potter Street to the point of impact (assuming that the impact occurred in the centre of the eastbound lane, 3.1 metres from the kerb, 10 m east of the pedestrian crossing), based on an average walking speed for a man of the respondent's age of 1.25 metres per second. However, if the distance travelled to the point of impact was 4 metres, it would likely take the respondent 3.2 seconds.
In Mr Urquhart's view, a reasonable perception/response time for the appellant-driver, once the hazard of the respondent stepping off the kerb became apparent, was 1.8 - 2.4 seconds. Mr Urquhart did not assume, as his Honour found and as is not challenged on appeal, that the Respondent "swung around" the first tree to the perception/response time, Mr Urquhart added the time required to bring the taxi to a stop once the brakes were applied, which he estimated to be 0.6 - 1.0 seconds, resulting in a total stopping time, from the point of first perception to the taxi being brought to a halt, of 2.5 - 3.4 seconds.
It followed, in Mr Urquhart's opinion (and assuming the distance to impact on the roadway of 3.1 metres), that the appellant could not have avoided the collision unless he saw the respondent on the footpath, and anticipated that the respondent would change direction and cross the road, or at least assess the respondent as an "immediate hazard" the instant he commenced his motion across the road.
If the point of impact was 4 metres onto the roadway, as indicated by the police (in the COPS entry), Mr Urquhart considered that the time of the respondent's motion (3.2 seconds) was similar to the total stopping time of the appellant. Mr Urquhart's opinion (on this alternative assumption as to the point of impact) was that unless the appellant detected the respondent as he commenced walking across the roadway, it was again unlikely that he would have been able to avoid the collision. Mr Urquhart concluded that it was unlikely that the collision could have been avoided by evasive steering by the appellant.
Mr Urquhart supplemented his report in his oral evidence. He referred to the site survey diagram which he had prepared as a result of his inspection of the accident site and explained that he had measured: 1. the width of Potter Street kerb to kerb at the first tree as 12 metres; and 2. the distance from the first tree to the eastern kerb line of the pedestrian crossing at Bourke Street as 10 metres and to the western line of the pedestrian crossing as 13 metres; so that the pedestrian crossing itself was 3 metres wide.
Mr Urquhart agreed in cross-examination that: 1. the pedestrian crossing at Potter Street was 1.5 metres to the east of the alignment of Bourke Street; 2. the distance from a point in the northbound lanes of Bourke Street, in line with the middle of Potter Street, to the line of stationary traffic in the northbound lanes at the traffic lights was 12 metres; 3. Bourke Street, like Potter Street, was 12 metres wide, so that a vehicle in the nearside north-bound lane would be at least 6 metres from the eastern alignment of Bourke Street before commencing any right turn into Potter Street; 4. the distance travelled from the stationary position in Bourke Street (at the traffic lights) to the first tree in Potter Street was in the order of 33 metres; and 5. it would take 11 seconds to travel that distance assuming an average speed of 25 kph.

[12]

Mr Johnston

Mr Johnston was initially asked to assume that the respondent was crossing Potter Street approximately 10 metres from the intersection with Bourke Street and that the point of impact was approximately 4 metres from the northern kerb of Potter Street. The first of those assumptions was superseded by instructions given to Mr Johnston by the respondent when they conducted a view of the scene of the accident for the purpose of preparing his report. The respondent instructed Mr Johnston that he crossed Potter Street opposite the "large door" to the Toyota workshop. This was about 25 metres beyond the eastern edge of the pedestrian crossing or 29.2 metres from the eastern kerb of Bourke Street.
Nonetheless and importantly, Mr Johnston expressed the opinion that the distance from the intersection with Bourke Street did not matter to avoidance opportunities "to any substantial degree" and "it is the distance the pedestrian walks after entering the roadway that is the key determinant of the avoidance options". Mr Johnston accepted that a speed of 20 - 30 kph at the point of impact, as estimated by Mr Urquhart, was not unreasonable but expressed the view that such speed suggested no response at all by the appellant prior to impact.
Mr Johnston disagreed that the crossing distance from the northern kerb of Potter Street to the point of impact was about 1.5 - 4 metres. He estimated the crossing distance to the point of impact (which he assumed was in the middle of the roadway) was 4.0 - 5.2 metres. This equated to a crossing time of about 3.2 - 4.2 seconds, which he considered was significantly longer than the 2.5 seconds estimated by Mr Urquhart. Mr Johnston considered that the range of perceptions/response times estimated by Mr Urquhart (1.8 to 2.4 seconds) was too high. In his opinion, the appropriate response time was either 1.2 (assuming impact at the first tree) or 1.4 seconds (assuming impact at the second tree) in Potter Street.
Mr Johnston disagreed with Mr Urquhart's opinion that it was likely that there was insufficient time available to the appellant to avoid the collision. Mr Johnston approached the prospect for collision avoidance by considering the distance the vehicle would have been from the point of impact at the time that the respondent stepped onto the roadway. Accepting the police estimate that the point of impact was 4 metres from the kerb of Potter Street, Mr Johnston agreed with Mr Urquhart's exposure time for the respondent, at an average walking pace, to be 3.2 seconds. For a vehicle travelling at 25 kph (7 metres per second), Mr Johnston estimated that this placed the appellant's vehicle about 22 metres from the point of impact when the respondent stepped onto the roadway. It is to be observed that Mr Urquhart estimated the distance travelled by the appellant once he commenced his right-hand turn to be about 25 metres, that distance being calculated from within the intersection, not back at the traffic lights in Bourke Street. Accordingly, Mr Johnston's estimate that the appellant's vehicle was about 22 metres from the point of impact when the respondent stepped onto the roadway, places the appellant's vehicle part way into the right-hand turn facing Potter Street.
Accepting Mr Urquhart's perception/response time of 1.8 seconds (which, as already indicated, Mr Johnston considered was high), and the appellant's speed as 25 kph, Mr Johnston estimated this would take about 12.5 metres of the available 22 metres. He calculated the stopping distance for a vehicle travelling at 25 kph at about 3 metres, based on Mr Urquhart's assumed deceleration rate. Mr Johnston concluded: … Therefore when the distance available is considered as opposed to the time (as impact does not occur if the vehicle never reaches the position of the pedestrian regardless of elapsed time) it can be seen that this incident was avoidable for even the scenarios proposed by Mr Urquhart using average values for walking speed and crossing distances of 4 metres as specified in the Police material.
Mr Johnston added that, based on a 4-metre crossing distance, the appellant's vehicle would have stopped at a point some 7 metres short of the point of impact.
Alternatively, (assuming an exposure time of 2.5 seconds, which equated to a crossing distance of 3.1 metres from the kerb), Mr Johnston calculated that the appellant's vehicle was about 17.4 metres from the point of impact when the respondent stepped from the kerb. Again, adopting the 1.8 second perception/response time which would take 12.5 metres of the available distance and a 3-metre stopping distance (a total of 15.5 metres), Mr Johnston calculated that the appellant's vehicle would not have reached the point of impact, stopping about 2 metres short. Mr Johnston concluded that even on Mr Urquhart's most likely scenario of taking all the averages, the collision was avoidable.

[17]

Determination

The evidence concerning the point of impact of the collision has been outlined above. The starting point is the objective evidence of two police photographs of the accident site. These support his Honour's finding that the point of impact of the collision was adjacent to the first tree on the northern kerb of Potter Street.
His Honour noted in his reasons (at [11]-[12]) the conflict in the evidence as to whether the appellant's taxi was moved prior to the arrival of the police. He referred to the appellant's evidence (in his witness statement) that he only moved his vehicle after the police told him that he could do so. His Honour observed that this conflict could not be resolved by an assessment of the witness's credibility as the appellant was unavailable to give evidence at the trial. His Honour resolved the conflict in the evidence by accepting the evidence of the two council workers who were independent witnesses: at [13].
As indicated above (at [26] and [28]), Mr Konjevic was not challenged on his evidence that he did not see the taxi reverse at any stage before the ambulance took the respondent away, and the challenge to Mr Coelho's evidence was limited to suggesting that he did not observe the taxi moving backwards to make room for the ambulance because he went back to doing his street sweeping work. Mr Coelho was firm in his evidence that he saw the respondent "go into the ambulance" and that the taxi was not moved. It was open to his Honour to accept the council workers' evidence in preference to the recollection of the respondent, which his Honour was entitled to treat as mistaken due to the circumstances and trauma of the collision, as he did with other aspects of the respondent's evidence concerning the point of impact of the collision.
There is another matter which supports the improbability that the appellant moved his taxi before the police arrived at the accident site and took photographs. One of the photographs shows the location of the taxi with the bonnet angled slightly towards the middle of Potter Street. Had the appellant reversed his taxi, it is improbable that he would have parked the taxi in the manner shown in the police photograph, rather than closer to the kerb of Potter Street.
In addition to the objective evidence contained in the police photographs, his Honour's finding as to the point of impact of the collision is supported by the following matters. First, the respondent's own contemporaneous police statement was that he "walked 10 metres down the pavement". This is consistent with his Honour's finding that the respondent crossed Potter Street at the first tree, not the second tree.
Secondly, while the appellant's contemporaneous statement to the police did not specifically identify the point of impact, his statement was consistent with his Honour's finding. The appellant told police, "I turned right into Potter Street, all of a sudden there was someone on the roadway, my car, hit him". If the point of impact had been adjacent to the second tree in Potter Street there would have been a greater period of time between the appellant executing the right-hand turn and the collision. In a later statement by the appellant, given 8 months after the collision, he said that he collided with the respondent "12 metres from the corner of Bourke Street". Although the weight to be given to the appellant's statements is limited by the fact that he was unavailable to attend for cross-examination, it should be noted nonetheless that his Honour's finding is consistent with his evidence.
As mentioned, the respondent challenged the reliance placed by his Honour on the evidence of the two council workers. First, Mr Coelho's evidence, allowing for braking distance, put the point of impact near or adjacent to the first tree, and as the appellant submitted, nowhere near the second tree. The respondent complained that the primary judge did not refer to the cross-examination of Mr Coelho and erred when he observed that Mr Coelho was not challenged in cross-examination on the photograph he had marked.
The respondent emphasised that Mr Coelho agreed in cross-examination that the point of impact was opposite the first door of the Toyota dealership building and "nearly in the middle of the road". This was consistent with the respondent's evidence as to the point of impact; that he had crossed the road after swinging around the second tree.
It can be accepted, as was common ground, based on the photographic evidence, that the second tree in Potter Street is opposite the "No Entry" door, being the first door of the Toyota dealership building on the other side of Potter Street. Notably, however, Mr Coelho also said that he had cleaned about the length of the Toyota building along Potter Street by the time he became aware of the collision. If this were correct, then that would have placed Mr Coelho much further along Potter Street than the second tree, let alone the first. The appellant submitted that this cannot be correct having regard to other parts of Mr Coelho's evidence. Reference was made to Mr Coelho's evidence that he first saw the respondent when he was on the northern side of Potter Street and before he crossed Potter Street and began his sweeping work on the southern side. The appellant submitted that Mr Coelho could not have crossed Potter Street, which was about 12 metres wide, carrying his sweeping equipment and then swept the entire road and/or footpath for the whole length of the Toyota building, during the time that it took the respondent to walk 12 metres to the first tree, or indeed 28 metres to the second tree. There is force in that submission.
Mr Coelho acknowledged in his evidence that there was a lot that he did not remember about the accident which he had observed about 4 years earlier. The better view of his evidence is that he was mistaken as to his precise location at the time that he heard and saw the collision. When read as a whole, Mr Coelho's evidence is not inconsistent with his Honour's finding as to the point of impact of the collision.
Next, the respondent complained that the primary judge did not refer to the cross-examination of Mr Konjevic. Mr Konjevic was on the northern kerb of Potter Street and did not see the collision, but he heard a short screech and "a bit of a thud". He turned in time to see the respondent just before he hit the ground. Although pressed in cross-examination to agree with the proposition that he saw the respondent near the middle of the road out from the second tree, Mr Konjevic adhered to his evidence-in-chief. Mr Konjevic had marked the position of the appellant's taxi after it stopped just past the first tree. This was consistent with the position marked by Mr Coelho.
The respondent also drew attention to Mr Konjevic having qualified his police statement (referred to at [27] above), explaining what he meant was that the respondent was "in the middle of the lane". This qualification of his earlier police statement does not undermine the correctness of his Honour's acceptance of Mr Konjevic's evidence that the point of impact was near the first tree.
In order to succeed on his cross-appeal, it is not sufficient for the respondent to point to an inconsistency in part of Mr Coelho's evidence, or the qualification by Mr Konjevic of his earlier police statement. His Honour had the considerable advantage of seeing the witnesses give their evidence. It was open to his Honour to accept parts of Mr Coelho's evidence and not others. Although his Honour did not expressly say so, he must be taken to have considered that Mr Coelho was mistaken as to his recollection of his location at the time he became aware of the collision. Similarly, his Honour was entitled to accept Mr Konjevic's evidence which had been tested in cross-examination. His Honour was entitled to prefer the evidence of the two council workers to that of the respondent as to the point of impact of the collision, which was consistent with the police photographs.
In my view, there was no error in his Honour's finding that the respondent swung around the first tree, not the second tree, before looking both ways and then stepping onto Potter Street.
Ground 5 of the cross-appeal has not been made out.

[19]

Primary judge's reasons

After referring to the elements of s 5B(1) of the Civil Liability Act 2002 (NSW) (Civil Liability Act), his Honour recorded the respondent's submission that a reasonable driver in the position of the appellant would have taken the precautions of having looked where he was going and proceeded at a slow speed: at [24]. His Honour noted that the appellant had acknowledged in his police statement that there was nothing blocking his view and in his second statement he recalled that, before turning into Potter Street, he observed the street cleaners: at [25].
His Honour accepted the respondent's evidence that when he reached the (first) tree he touched the tree with his right hand, "swung around it" (at [5] and [14]), looked both ways (right, left and right again) before stepping off the footpath onto the road. His Honour found that the appellant had a clear view into Potter Street as he was waiting to turn right at the intersection with Bourke Street and could have observed the respondent on the northern footpath, but did not: at [26].
His Honour found that a prudent driver in the position of the appellant should have been alert to the presence of the respondent on the edge of the footpath near the first tree as he turned his vehicle into Potter Street. He added that a prudent driver should also have been alerted to the possible presence of pedestrians at the intersection by the fact that there were lights and a traffic "button" to control pedestrians at the intersection: at [27].
His Honour found that the appellant did not see the respondent until the respondent landed on the bonnet of the taxi after impact with the appellant's vehicle: at [27]. He accepted the respondent's evidence, and that of the two council workers, that the appellant braked simultaneously with colliding with the respondent: at [28]. He found that if the appellant had been keeping a proper lookout he could have braked: at [27]. He concluded that the appellant was not keeping a proper lookout and was negligent: at [29].

[20]

Legal principles: driver's duty of care

Although there was no dispute as to the applicable principles, it is desirable to say something briefly on this topic before considering the challenge to his Honour's finding of negligence.
In Marien v Gardiner [2013] NSWCA 396; 66 MVR 1, Meagher JA (Macfarlan and Emmett JJA agreeing) summarised the principles concerning the duty of care a driver owes to other road users, and those relating to breach of duty by reference to s 5B of the Civil Liability Act. This summary was affirmed in Warth v Lafsky [2014] NSWCA 94 at [55] (McColl JA, Preston CJ of LEC and Tobias AJA agreeing) and Johnston v Stock [2014] NSWCA 147 at [26] (Barrett JA, Meagher and Ward JJA agreeing). In short, the driver of a motor vehicle owes a duty of care to other road users, including pedestrians, to take reasonable care for their safety having regard to all of the circumstances with which the driver is confronted: Marien v Gardiner at [33].
The question of whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of a response to any foreseeable risks of injury or sources of danger to other road users. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: Civil Liability Act s 5B(1).
Meagher JA continued in Marien v Gardiner (at [35] - [37]) as follows: [35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path". [36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle. [37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the "limits of visibility and control" so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.
In Warth v Lafsky at [56] McColl JA observed that notwithstanding the conclusion in Derrick v Cheung [2001] HCA 48; 181 ALR 301, it is accepted that drivers must take into account the possibility of careless behaviour by pedestrians and the fact that they are in charge of frequently lethal machines: Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416, 418 (Mahoney P); Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249 at [16] - [17] (Emmett JA, Ward and Gleeson JJA agreeing).
It has also been said that motorists should "exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections": Turkmani v Visvalingam [2009] NSWCA 211; 53 MVR 176 at [28] (Hodgson JA, Beazley and McColl JJA agreeing).

[21]

Application of principles to the facts

No argument was directed by the appellant to whether the risk of harm to a pedestrian crossing Potter Street near the intersection of Bourke Street was foreseeable and not insignificant: Civil Liability Act, s 5B(1)(a) and (b). The focus of the appellant's attack on the finding of negligence was on the issue raised by s 5B(1)(c) - what a reasonable person in his position would have done by way of response to any foreseeable risk to harm to another road user, including pedestrians: Marien v Gardiner at [40].
The short answer to the "reasonable precautions" question is that there is no challenge to his Honour's finding that the appellant did not keep a proper lookout. The appellant did not see the respondent until he was on the bonnet of the taxi. The appellant's complaint was directed to the nature of the lookout his Honour found should have been taken. This complaint is misdirected. The context of his Honour's observation (at [27]) that "[the appellant] did not observe the [respondent], notwithstanding that he was a taxi driver and presumably keeping an eye out for potential fares", did not detract from the finding that a reasonable driver in his position should have been alerted to the presence of the respondent on the edge of the footpath near the first tree as he made the right turn into Potter Street. This conclusion followed from the nature of the intersection, including lights and a traffic "button", the range of visibility available to the appellant taxi driver, a professional motorist, and the unobstructed view of Potter Street available from the appellant's position once he entered the intersection when making the right turn, if he was keeping a proper lookout.
In writing, the appellant argued that once the respondent ignored the pedestrian crossing and turned left into Potter Street, a prudent driver in the appellant's position could not reasonably have expected the respondent intended to cross Potter Street, much less anticipate where such a crossing may have been attempted. This submission seemed to be directed to the probability that harm would occur if care were not taken: Civil Liability Act, s 5B(2)(a).
The difficulty with this submission is that the appellant was required to exercise quite a high degree of vigilance in the presence of oncoming traffic and in the vicinity of the Potter Street intersection: Turkmani v Visvalingam at [28]. The appellant was waiting at the traffic lights for a gap in the oncoming traffic in Bourke Street to turn right into Potter Street. That the respondent had not used the pedestrian crossing did not exclude the possibility of him crossing Potter Street a short distance from the pedestrian crossing. Further and importantly, as his Honour found, the appellant should have been keeping a lookout for persons on the roadway, having regard to his observation of the two council workers in Potter Street who were cleaning the gutters.
In oral argument, the appellant contended that it is completely unrealistic and goes beyond the duty owed by a driver to other users of the roadway while the driver is waiting for a gap in oncoming traffic to turn right, that the driver should be monitoring pedestrians walking along the footpath. Again, this submission seemed to be directed to the probability that harm would occur if care were not taken: Civil Liability Act, s 5B(2)(a). It was said that the driver's primary objective was to turn right safely, without hitting oncoming traffic, if a sufficient gap presented itself and it was not the duty of the driver to watch out for pedestrians, particularly adult pedestrians walking along the footpath. I do not agree. The appellant's duty required simultaneous attention to, and consideration of, the different features of what was already or may later come to be, ahead of the taxi's path: Manley v Alexander [2005] HCA 79; 80 ALJR 413.
A related submission was made that his Honour erred in finding that the appellant should have regarded the respondent as a hazard to which some response was required by the appellant, had the appellant observed the respondent walking on the footpath of Bourke Street and/or Potter Street, and in finding that the appellant should have anticipated that the respondent might attempt to cross Potter Street, rather than remain on the footpath. Again, this submission ignored the need for the appellant to give simultaneous attention to the different features ahead of the taxi's path in order to pay reasonable attention. These included not merely what was on the roadway, but the pedestrian crossing, and what might come onto the taxi's path on the roadway, such as a pedestrian or a council worker cleaning the street gutters and footpath.
The appellant was aware of the pedestrian crossing and that Potter Street was not deserted. He had observed the two council workers sweeping the gutters. If he had kept a proper lookout for whether it was safe to make the right turn, he would have observed the respondent approach the pedestrian crossing and turn east into Potter Street; he also would have observed the respondent swing around the first tree before looking both ways (right, left, then right) before commencing to cross the roadway. It can be accepted that the appellant was not required to know or predict every event that may happen as he turned right into Potter Street, so as to be able to react to such events. Nonetheless, reasonable care required that he keep a proper lookout. The appellant's failure to do so was negligent.
The appellant also complained in relation to the finding, or implicit finding, that the appellant was travelling at an excessive speed. This complaint is connected with the challenge to his Honour's reasoning on causation. It is convenient to deal with it in that context.
The appellant has not demonstrated error in his Honour's finding that the appellant was negligent. Grounds 1, 2, 3, 4 and 5 have not been made out.

[26]

Determination

The starting point is to note that his Honour did not make any findings based on the expert evidence concerning the sufficiency of the time available to the appellant to avoid the collision. It is necessary therefore for this Court to consider the matter and make the necessary findings: Supreme Court Act 1970 (NSW), s 75A.
The evidence of the experts has been summarised above. It is appropriate to preface the following discussion with a brief restatement. Mr Urquhart's opinion (assuming that the impact occurred in the centre of the eastbound lane of Potter Street) was that the total stopping time, from the point of first perception to the vehicle being brought to a halt, was between 2.5 and 3.4 seconds, whereas it would take the respondent 2.5 seconds (assuming an average walking speed of 1.25 metres per second) to walk (3.1 metres) from the kerb to the point of impact. Assuming, however, a point of impact of 4 metres onto the roadway, Mr Urquhart considered that the time in motion of the respondent of 3.2 seconds was similar to the total stopping time of the appellant. Extrapolating Mr Urquhart's table of motion, if the distance travelled to impact was 5 metres onto the roadway, it was common ground that the time in motion of the respondent was 4 seconds.
Contrary to Mr Urquhart, Mr Johnstone reached the conclusion that the appellant should have been able to stop his vehicle before getting to the point of impact whether the distance travelled by the respondent from the kerb was 4 metres, as identified in the COPS entry, or 3.1 metres, being Mr Urquhart's most likely scenario, which was consistent with his Honour's finding that the point of impact was in the middle of the eastbound lane of Potter Street. As already indicated, the appellant did not seek to cross-examine Mr Johnston. Nor did it lead any evidence from Mr Urquhart disagreeing with Mr Johnston's criticism that Mr Urquhart failed to pay necessary attention to the distance involved and focused exclusively on time.
There are a number of difficulties with an acceptance of Mr Urquhart's views.
First, Mr Johnston was not challenged on his opinion that the range of perception/response times estimated by Mr Urquhart (1.8 - 2.4 seconds) was too high. Assuming that the collision occurred adjacent to the first tree in Potter Street, Mr Johnston's view was that the appropriate response time was 1.4 seconds. A difference of 0.4 seconds has a material bearing on whether the appellant could have avoided the collision, particularly when taken into account with the matter next referred to.
Secondly, Mr Urquhart's opinion makes no allowance for the time taken by the appellant in swinging around the first tree and looking both ways (right, then left, then the right again) before stepping onto the roadway. Although the appellant suggested in argument that the time involved in making these observations would not have added materially to the perception/response time available to the appellant, I do not agree. It was not suggested in cross-examination of the respondent that when he stopped on the kerb and made his observations he did so in a perfunctory manner, or that he did not in fact stop on the kerb before making his observations and stepping off onto the roadway. On any view, the time taken by the respondent in stopping at the kerb and checking if the roadway was clear would have materially added to the perceptions/response time available to the appellant.
Thirdly and related to the previous matter, the perception/response time for a reasonable driver in the position of the appellant keeping a proper lookout is to be calculated from the moment the respondent became an immediate hazard once he "swung around" the first tree. The appellant accepted so much in submissions. However, Mr Urquhart's views did not make any allowance for the time the respondent swung around the tree, and checked for traffic before stepping onto the roadway.
Fourthly, Mr Urquhart's calculations assumed that the appellant's taxi stopped 7.5 metres east of the point of impact: see [30] above. That assumption was not established on the evidence. Mr Coelho's evidence was that the taxi stopped just in front of the first tree. His Honour raised with the appellant's counsel the inconsistency between that assumption, among others, and the evidence of the witnesses, but counsel for the appellant made a forensic decision not to correct those assumptions on which Mr Urquhart's report was based. Mr Urquhart's incorrect post-impact position would have the effect that his assumed deceleration rate was greater than was the case.
Fifthly, Mr Urquhart did not consider the significance of the distance involved between the location of the appellant's vehicle when the respondent stepped from the kerb and the point of impact. The unchallenged evidence of Mr Johnston is that the appellant's vehicle was either about 17.4 metres from the point of impact when the respondent stepped from the kerb (assuming the crossing distance by the respondent was 3.1 metres) or 22 metres from the point of impact (assuming the crossing distance from the kerb was 4 metres).
Accepting that the appellant was travelling at a speed of around 25 kph, and was part way through his right turn either 17.4 metres or 22 metres from the point of impact when the respondent stepped from the kerb adjacent to the first tree, Mr Johnston's opinion was that the appellant could have avoided the collision. The difficulty with accepting Mr Urquhart's analysis is that he failed to pay attention to the distance of the appellant's vehicle from the point of impact as at the time the respondent first stepped onto the roadway.
In summary, although his Honour did not address the expert evidence, I am not persuaded that the evidence of Mr Urquhart demonstrates that there was insufficient time available to the appellant to avoid the collision, even if the appellant had kept a proper lookout. On the contrary, the unchallenged evidence of Mr Johnston establishes causation, even on the assumption (most favourable to the appellant) that the crossing distance by the respondent from the kerb of Potter Street was 3.1 metres. The appellant has not demonstrated that the primary judge erred in finding that the collision with the respondent was avoidable, if the appellant had kept a proper lookout. Grounds 6 and 7 have not been made out.
In relation to ground 8, the appellant complains that his Honour erred in finding that the appellant told a police officer at the scene "that he could have braked to avoid the collision". That complaint is well-founded. The police statement records that Constable Cicek asked the appellant what he did, not what he "could have" done, to avoid the collision and the appellant said "I put my brakes on". That error by the primary judge, however, is not material having regard to the above analysis of the causation issue.

[31]

The competing arguments of the parties

The appellant argued that the deviation from the standard of care required of him as a driver was exceedingly slight. In particular, his speed was reasonable; he was focused on making a turn; and even if he had seen the respondent on the footpath, there was no reason to him to perceive, much less to anticipate, any reasonable prospect of the respondent attempting to cross Potter Street until the very last moment.
The appellant further argued that, given his Honour's findings that (a) the respondent decided to cross Potter Street 10 or 12 metres from a pedestrian crossing controlled by traffic lights; (b) the respondent did not look to see whether there were any vehicles waiting to turn from Bourke Street into Potter Street; and (c) the respondent came upon the roadway by "swinging around" a tree and stepping into the path of the appellant's taxi, his Honour erred in failing to apportion the major share of responsibility for the collision to the respondent. It was submitted that the respondent's contributory negligence should have been assessed at a high degree, in the order of 80 per cent.
The respondent disputed that the primary judge made the second and third of the "three findings" stated by the appellant. It was contended that his Honour erred in not taking into account the respondent's evaluation that it was safe to cross where he did and that the respondent had been crossing at that location without incident since shortly after he started work at HPM in September 1998.
The respondent further contended that the evidence did not permit a finding that had the respondent crossed at the traffic lights the accident would not have occurred. It was argued that there was no evidence that the appellant would have seen the respondent if he had been at the traffic lights, nor evidence from the appellant that he looked to see whether any pedestrians were using the crossing before he turned into Potter Street.
The respondent contended that his Honour ought to have found no contributory negligence, or alternatively any finding of contributory negligence ought to have been minimal and no more than 10 per cent.
Both parties accepted that the appropriate approach to apportionment required the "balancing exercise" described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 (Podrebersek). In written submissions, the parties diverged on the status of authorities prior to the Civil Liability Act as to whether the driver of a motor vehicle has a greater responsibility to avoid harm than a pedestrian: Pennington v Norris (1956) 96 CLR 10 (Pennington v Norris), Anikin v Sierra [2004] HCA 64; 211 CLR 621; and Podrebersek. The appellant suggested that there is considerable doubt as to whether those earlier authorities should now be followed. Reference was made to statements by this Court in T & X Company Pty Ltd v Chivas [2014] NSWCA 235 (T & X Company v Chivas) and Boral Bricks Pty Ltd v Cosmidis (No. 2) [2014] NSWCA 139; 86 NSWLR 393 (Boral Bricks v Cosmidis (No. 2)) involving cases under the Civil Liability Act. The appellant submitted that s 5R and s 5B of the Civil Liability Act alter the emphasis placed on the conduct of the driver and instead emphasise the responsibility of pedestrians for their own safety.
The respondent submitted that decisions of this Court in T & X Company v Chivas and Boral Bricks v Cosmidis (No. 2), which doubted whether the driver of a motor vehicle has a greater responsibility to avoid harm than a pedestrian, were incorrectly decided and should not be followed. However no detailed submissions were made concerning this issue.
Neither party addressed this issue in oral argument. Counsel for the appellant acknowledged that the issue probably did not need to be addressed to determine the present case. Counsel for the respondent did not argue to the contrary. In the circumstances it is unnecessary to deal with this issue.

[32]

(a) The respondent contributed to his own damage

Given his Honour's findings (at [37]) as to the point of impact of the collision 10 or 12 metres from the pedestrian crossing, and the respondent's failure to observe the traffic in Bourke Street, or look to see if there were any stationary vehicles waiting to turn from Bourke Street into Potter Street, it is not to the point that the respondent may have safely crossed Potter Street for many years at a different location further along Potter Street. The respondent did not pay due attention to the presence of oncoming traffic turning into Potter Street. Nor did he check for oncoming traffic from Bourke Street once he stepped off the kerb; he only looked straight across the road, and later to his left, as he approached the middle of Potter Street. His failure to take reasonable care for his own safety went beyond mere inadvertence. It cannot be explained by a lack of knowledge or visibility of vehicles waiting to turn from Bourke Street into Potter Street.
Next, the respondent's contention that the collision would have occurred even if he had crossed at the traffic lights is misconceived. First, it raises a false issue because the relevant question is whether the respondent took reasonable care for his own safety in crossing Potter Street where he did; and, on his Honour's findings, which have not been shown to be wrong, he did not, because he did not keep a proper lookout for the presence of vehicles turning from Bourke Street into Potter Street either before or after he stepped off the kerb.
Thirdly, it is speculation to suggest that if the respondent had crossed at the traffic lights he would still have been hit by the appellant. This relies upon two assumptions which are not made out. One is that the lack of due attention on the part of the appellant would have been the same if the respondent had crossed at the traffic lights. That is unfounded speculation. The other assumption is that the phrasing of the traffic signals permitted pedestrians to cross on a green "Walk" sign at the Potter Street intersection at the same time as traffic could turn right from Bourke Street either on a green light or green arrow. There was no evidence of the phasing of the lights at the intersection to support this assumption.
For these reasons, I do not consider that there was any error in his Honour's finding of contributory negligence on the part of the respondent.

[33]

(b) Apportionment

It has been said that the apportionment of responsibility under the Civil Liability Act is not without difficulties. Such difficulties were emphasised by Beazley P (Barrett and Gleeson JJA agreeing) in Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, where the President said: [161] The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of s 5B and s 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case. [162] As has been remarked in various cases in this Court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person's own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a)-(d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 38(3) requires the court to reduce the damages recoverable "by such per centage as the court thinks just and equitable in the circumstances of the case".
In Pennington v Norris (16 - 17), the High Court emphasised that what was to be considered was the respective degrees of departure from the standard of care of the reasonable person. There it was said that driving a car at high speed involved negligence of a far greater culpability than the failure of a pedestrian to keep a proper lookout when crossing the road. The High Court fixed the proportions at 20:80, rather than the 50:50 which had been fixed by the trial judge.
It is well established that the apportionment decision of the trial judge is "not lightly reviewed": Podrebersek, 494. This is on the basis that reasonable minds may differ as to where within a particular range the appropriate result is to be found: Podrebersek, 493-494. However, whilst the principle of restraint is important, as Basten JA explained in Nominal Defendant v Green [2013] NSWCA 219; 64 MVR 354 at [48], its operation may vary depending on the circumstances as to whether the decision involves a jury case or determination by a judge with particular expertise in the area. Also important is the nature of the challenge by the party seeking appellate intervention. The essential question is whether a finding is outside an appropriate range, in which event this Court would usually intervene under s 75A of the Supreme Court Act 1970 (NSW).
Here, as his Honour found, the respondent made a significant contribution to the occurrence of this collision. Given that the respondent was aware of the danger posed by vehicles turning right into Potter Street at the pedestrian crossing itself, he had actual knowledge of the risk of harm but, as his Honour found, did not adequately respond to it by keeping a proper lookout for any vehicles waiting to turn from Bourke Street into Potter Street, or at the point at which he crossed Potter Street just beyond the pedestrian crossing.
Importantly, as indicated above, the respondent's evidence was that once he stepped onto the roadway he only looked straight ahead and, as he approached the middle of Potter Street, he looked to the left for oncoming traffic from that direction. He did not look back to his right for cars turning into Potter Street from Bourke Street. His culpability was reasonably high. However, the contribution by the appellant to the occurrence of the collision was no less significant. The appellant's culpability was also high taking into account to the conditions at the time, namely daylight, the range of visibility, and the fact that the appellant did not observe the respondent until the collision had occurred. As the driver of a vehicle which can cause significant damage by impact with pedestrians, the assessment that the appellant's culpability was slightly higher than that of the respondent was not outside an appropriate range. In my opinion, no error has been demonstrated in his Honour's assessment of the respondent's contributory negligence as 40 per cent.
Grounds 10 and 11 of the notice of appeal and ground 6 of the cross-appeal have not been made out.

[36]

The primary judge's reasons

The primary judge found that the respondent suffered injuries to his right shoulder, right wrist, low back, left thumb and both knees. He rejected the respondent's claim that he suffered gastrointestinal symptoms, or seizures, as a result of the accident as the respondent had alleged. He also accepted that the respondent had suffered psychological symptoms caused by the accident.
His Honour found that the principal injury suffered by the respondent was an injury to his right shoulder. His Honour referred to the evidence concerning the respondent's earlier right shoulder pain and treatment, first in August 2006 and again on a number of occasions in 2007 when he sought medical treatment and when he saw his general practitioner, Dr Mahammad Viuk, on 16 January 2011, two weeks before the accident.
His Honour found that the respondent did not disclose any prior problem with his right shoulder to any doctor, including the treating surgeon, Dr Biggs. His Honour continued at [65]: It would be natural for the Plaintiff, given the type of heavy work he was engaging in, and being right-handed, to have shoulder pain and strain from time to time. The lack of frankness by the Plaintiff about his right shoulder problem reflects upon the Plaintiff's credit.
His Honour also noted that the respondent gave evidence of back pain prior to the accident, although he did not always admit back pain to the doctors who examined him: at [71]. His Honour referred to the histories recorded by Dr Wallace, Dr Deveridge, Dr Harrison and Dr New, to the effect that the respondent had no previous history of injury or disability from back pain prior to the accident, although he did tell Dr Harrison of a back injury five years prior to the accident, "but that settled": at [73]. After referring (at [74]) to the appellant's submissions detailing the respondent's pre-accident history of complaints and examinations in relation to back and leg pain from 2006 to 2009, none of which the respondent recalled in cross-examination, his Honour continued at [75]: The Plaintiff's vagueness as to his medical history with regard to back pain goes to his overall credit. Against this I must balance the fact that his work was heavy duty in a foundry and back complaint and pain would not be uncommon. I accept that following various treatments to his back he returned to his old job in the foundry.
The respondent was aged 64 at the time of the accident and 67 at the date of trial. He did not work following the accident and his Honour accepted that there was no medical evidence to suggest that he was able to return to his previous job or any other: at [118]. His Honour observed that the respondent did not give evidence as to what age he hoped to continue work other than saying that he "would have loved to work forever" and would have worked "a long, long time": at [116]. His Honour awarded past wage loss on the basis of total incapacity for work from the date of the accident for 232 weeks (at [118]) without any discount for the respondent's pre-existing symptoms and conditions affecting his right shoulder, right wrist and low back, and that he was engaged in heavy manual work. His Honour did not accept the submission of the respondent's counsel that he would have worked until he was 75 "as a minimum": at [124]. He awarded future economic loss to the age of 70 and applied a 10 per cent discount for vicissitudes given the short period involved: at [125].

[37]

Submissions

The appellant emphasised that his Honour had received detailed written submissions on this issue at trial, particularly in relation to the complaints made by the respondent before the accident, the symptoms recorded by treating doctors before the accident, and the radiological investigations carried out, relating to the respondent's right shoulder and low back. Those submissions were to the effect that the respondent had deliberately concealed these pre-accident symptoms and conditions from the medico-legal experts relied upon in his case, and had falsely denied any recollection of such symptoms in cross-examination. Although the primary judge noted some of the appellant's submissions in his reasons, particularly in connection with the right shoulder and low back, the appellant complained that there is nothing in his Honour's reasons to demonstrate that he took this matter into account in assessing damages.
The appellant also complained that there is nothing in his Honour's reasons to suggest that any account was taken of the credit finding concerning the respondent's lack of frankness about his pre-accident symptoms in assessing the damages. The appellant emphasised that his Honour had made his assessment of damages under most heads in reliance on the respondent's medico-legal evidence. The appellant contended that the failure to take any account of the respondent's pre-accident symptoms and conditions infected the assessment under each and every head of damage.
In support of these contentions, the appellant pointed to the high measure of correlation between the respondent's schedule of damages at trial and the amounts awarded by his Honour in respect of each of the heads of damage. So much was acknowledged by the respondent, as can be seen in the following table provided to the Court by the appellant: Head of Damage Amount awarded Respondent's Submission Appellant's Submission Non-economic loss $175,000.00 $250,000.00 $125,000.00 Past out-of-pocket expenses $108,880.94 $109,886.59 $8,554.00 Future medical treatment costs $143,817.00 $280,029.91 $10,000.00 Past wage loss $272,484.00 $272,484.00 $81,645.90 Past loss of superannuation $29,973.24 $29,973.24 $8,588.00 Fox v Wood $15,377.25 $15,377.25 $15,377.25 Future economic loss $160,000.00 $358,888.53 Nil Future loss of superannuation $17,600.00 $41,954.07 Nil Past gratuitous assistance $47,142.00 $58,928.00 Nil Past paid assistance $33,629.00 $33,629.00 $6,298.00 Future commercial assistance $150,422.81 $150,433.81 $12,685.00 $1,154,326.24 $1,601,584.40 $268,148.15

[39]

Determination

In my view, the appellant's contentions should be generally accepted. First, it is not apparent from his Honour's reasons that the adverse credit finding was taken into account, as his Honour said that it should be, in assessing damages. In particular, his Honour's reasons do not address what impact the credit finding had on the weight that should be given to the opinions of the medico-legal experts relied upon by the respondent, based, as they were, on the incorrect and incomplete history provided by the respondent. The medical opinions were premised on an acceptance of the appellant's account of his history and complaints. Such an opinion would only be as acceptable as the history on which it was based: Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447 at [60] (Gleeson CJ, McHugh and Gummow J) and at [105] (Kirby J).
Secondly, it may be inferred from his Honour's acceptance of most of the respondent's claim under the various heads of damage, without any reference to the adverse credit finding, that his Honour disregarded the incorrect and incomplete histories provided to the respondent's medical experts. As can be seen from the table (set out at [135] above), his Honour awarded the precise amount claimed by the respondent in respect of past wage loss, past superannuation loss, the Fox v Wood component, past paid assistance and future commercial assistance, whilst the award for past out-of-pocket expenses was discounted by only about $1,000 less than the respondent's claim.
The respondent sought to counter the inference that his Honour failed to take into account the credit finding by pointing to the award for non-economic loss of $175,000, this being just under the mid-point of the respective amounts the parties had suggested. Against this, his Honour's reasons do not suggest that this figure was arrived at having regard to the credit finding. On the contrary, his Honour's observations (set out at [140] and [141] above) that shoulder pain "would be natural" and back pain would "not be uncommon" having regard to the heavy duty nature of the respondent's employment in a foundry, and that "following various treatments to his back he returned to his old job", seem to indicate that his Honour disregarded the respondent's pre-accident symptoms and conditions when assessing damages, including non-economic loss.
The respondent also sought to uphold the award of damages by contending that the evidence in relation to pre-accident symptoms was not as dramatic as the appellant suggested. I do not agree. The appellant provided detailed written submissions on damages at trial. It is unnecessary to canvass all the evidence. Importantly, the respondent did not dispute that he did not disclose any prior history of right shoulder injury to Dr Biggs, Dr Drummond, Dr Wallace or Dr Harrison. Nor did he disclose any previous history of injury or episodes of pain in his spine to Dr Wallace, Dr Deveridge, or Dr New.
The respondent did provide a history to Dr Harrison including a back injury five years earlier at work which caused him to take time off work for about 2.5 weeks but that settled. He told Ms Grinter, an occupational therapist, that he injured his back five years ago and had two weeks off work and made a full recovery. He told Dr Harvey-Sutton that he had a back strain at work in 2007 which disappeared completely about eight weeks after that accident. However, these histories were incomplete. The appellant's submissions at trial highlighted the following matters:

there was evidence that, following an assault in 1998, the respondent, although he claimed to have no recollection of ongoing symptoms, either to his right wrist or low back, underwent an MRI of his right wrist on 19 November 1999 and attended the Northmead Family Centre on 23 November 1999 complaining of pain in both the right wrist and low back;
Although the respondent also claimed to have no recollection, there was evidence of complaints of back and leg pain in 2006; right shoulder pain in August 2006, complaints of right shoulder pain for six months in February 2007 attributable to the use of equipment to break moulds at work; a referral for scans of the appellant's shoulders in February 2007; attending physiotherapy in early 2007 complaining of pain in the back of the shoulder for three months after using mallets at work, injuring his low back at work while turning a mould; physiotherapy for severe pain in the shoulders and low back radiating down the right leg or being prescribed medication for pain in March 2007; an x-ray of the appellant's low back in March 2007; a CT-scan of the appellant's low back in July 2007; participation in the rehabilitation programme upon the appellant's return to work on restricted duties until the end of 2008; and a further x-ray of the appellant's low back in December 2009.

The respondent also claimed that he was unable to recall a number of matters recorded in various clinical notes including:

physiotherapy in September 2010 complaining of pain in the right shoulder being present for about eight weeks, which pain was not improving and which the appellant felt had started with the use of the mallet and been aggravated by lifting with the right hand;
giving a history to the physiotherapist that his right shoulder pain was aggravated by pulling off a jumper and elevating it over his shoulder and also by sweeping or by sleeping on his right side and receiving further physio treatment in September 2010;
attending Dr Virk, his general practitioner, on 16 January 2011 concerning his right shoulder two weeks before the motor vehicle accident. He denied complaining to Dr Virk of restricted movement in his right shoulder, not recalling informing Dr Virk that he had pain in his right shoulder for a few weeks, and denying that he told Dr Virk that he had an old injury and that there had been excessive use of his right shoulder at work.

No attempt was made by the respondent in this Court to demonstrate how his Honour took into account the respondent's pre-accident symptoms and conditions in assessing any of the heads of damage. The respondent's description of the medical evidence as "sporadic complaints of pain in different body parts" and that the respondent had experienced only "the transient symptoms" at times prior to the accident significantly understated the medical evidence.
Further, to suggest, as the respondent does, that the pre-accident symptoms and conditions were not significant because following various treatments the respondent returned to his old heavy job, does not answer the appellant's valid criticism that his Honour based his assessment of damages on an acceptance of medical opinions which were based on incomplete or inaccurate histories provided by the respondent. Nor does it take into account the effect of those matters on the respondent's work capacity and likelihood of continuing in heavy manual work for many more years taking into account the matters referred to above (at [152] - [153]) in particular: that when the respondent returned to work following the injury to his low back in March 2007, he was on restricted duties during a rehabilitation programme from mid-2007 to the end of 2008, and the respondent's work related complaint to the physiotherapist in September 2010 of right shoulder pain present for about 8 weeks and not improving.
The appellant has demonstrated error by the primary judge in failing to engage with the medical evidence and his earlier credit finding, both of which would justify some discount for vicissitudes in relation to the claim for past economic loss and a greater discount than the usual 15 per cent for vicissitudes in relation to the claim for future economic loss, notwithstanding the short further working period in view of the respondent's age at the date of trial. It can be accepted that this error also impacted his Honour's assessment of the other heads of damage.
Grounds 12, 13, 14, 16, 17, 18, 19 and 20 have been made out.

[42]

Determination

It is not in dispute that his Honour did not refer in his reasons to the unchallenged evidence of Dr Slezak, which was relevant to the respondent's assumed life expectancy. Nonetheless, his Honour must be taken to have rejected Dr Slezak's opinion. In my view, his Honour erred in assuming that the appellant's life expectancy at the time of trial was 18.5 years.
The two reports of Dr Slezak address different aspects of the matter.
Dr Slezak's first report of 5 December 2013 was given in respect of the anticipated life expectancy of the respondent, then aged 66 years, having regard to his background health which included a diagnosis of type 2 diabetes at the age of 50 and evidence of sub-optimum glycaemic control 18 months later. Dr Slezak's supplementary report of 28 April 2014 was directed to a different issue. This was whether the respondent would likely have developed vascular disease prior to his anticipated retirement age of 65 years. Dr Slezak expressed the opinion that it was not possible to confidently predict whether the respondent would have developed any such complications prior to his anticipated retirement age of 65 years.
In his supplementary report, Dr Slezak noted that the respondent had managed to continue work duties for 14 years following the diagnosis of the type 2 diabetes. He continued: Sub-optimum glycaemic control does predispose to the development of accelerated obstructive vascular disease, particularly myocardial infarction, peripheral vascular disease and stroke. It would not be possible, however, to confidently predict as to whether the respondent would have developed any such complications prior to anticipated retirement age of 65 years.
Nothing in the supplementary report of Dr Slezak undermines his assessment of the respondent's life expectancy (as at December 2013) of a further 10 to 13 years.
Ground 15 has been made out with respect to the error in the assessment of future treatment and future care. If this was the only error it would have been possible for this Court to re-assess these components of the claim for damages. However, it was common ground on the appeal that, if error was established with respect to the other grounds relating to damages, it was not appropriate for this Court to re-assess damages because there are credit issues involved and therefore the matter should be remitted for re-assessment of damages by the District Court.

[43]

Conclusion, Costs and Orders

The appellant has failed in his challenge to his Honour's findings on liability and the respondent has failed in his challenge to his Honour's finding as to the point of impact of the collision. Both parties have failed in their respective challenges to his Honour's assessment of contributory negligence.
The appellant has succeeded in establishing error with respect to the assessment of damages. It follows that the appeal should be allowed in part and the notice of cross-appeal dismissed. The credit issues involved in the assessment of damages preclude this Court from being in as good a position to decide the issues as the District Court. Accordingly, the proceedings must be remitted for a new trial on damages.
As to costs, there is no reason for disturbing the costs order made in favour of the respondent-plaintiff in the court below. First, the respondent has maintained the finding of liability against the appellant. Secondly, it can be expected that the respondent will be awarded some substantial damages on a re-assessment. So much can be inferred from the appellant's submissions at trial as to the appropriate award of damages under the various heads of damage: see table set out at [146] above.
As to costs in this Court, the appellant should receive a proportion of its costs to reflect his limited success in the appeal, subject to the outcome of the retrial on damages. As Hodgson JA explained in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121], "underlying the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs". Most of the time spent by the parties in submissions, both written and oral, was directed to the liability issues, on which the appellant failed apart from the finding as to the point of impact of the collision being upheld.
In the circumstances of the present case, justice requires that the respondent not bear all of the appellant's costs in this Court. In my view, the appropriate order would be that the respondent pay 40 per cent of the appellant's costs in this Court.
I would propose the following orders: 1. Appeal allowed in part. 2. Notice of cross-appeal dismissed. 3. Set aside order 1 made by Sorby DCJ on 1 September 2015. 4. Remit the matter to the District Court for a new trial on damages. 5. Respondent to pay 40 per cent of the appellant's costs in this Court. 6. Respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.
LEEMING JA: I agree with Gleeson JA.
DAVIES J: I agree with Gleeson JA.

Boateng v Dharamdas

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