[2020] ACTSC 1

Appeal and cross-appeal dismissed - see [113]

CIVIL LAW - NEGLIGENCE - Appeal from Magistrates Court - cross-appeal - collision involving appellant's car and a fire engine - whether magistrate erred in finding fire officer breached his duty of care - he did not - whether magistrate's apportionment of contributory negligence should be altered - it should not

APPEAL - GENERAL PRINCIPLES - Leave to amend Statement of Claim and Statement of Particulars - leave to admit further evidence on appeal - applications refused

Civil Law (Wrongs) Act 2002 (ACT), ss 43(2), 102

Magistrates Court Act 1930 (ACT), s 276

Davis v Swift [2014] NSWCA 458; 69 MVR 375

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

Logar v Ambulance Service of NSW Sydney Region [2017] NSWCA 274; 82 MVR 216

Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529

Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568

1. This is an appeal from a judgment of a magistrate in a personal injury case involving a collision between the appellant's vehicle and a fire engine. The accident occurred on 27 February 2013. The fire engine was travelling in a southbound direction on the roads around Parliament House when it was called back to attend to an incident in Ainslie. In order to return to the north side of Canberra the driver of the fire engine intended to use what was called a 'crossover' of the median strip on Adelaide Avenue. This would allow him to cross from the southbound lanes of Adelaide Avenue to the northbound lanes and then to travel north around Parliament House towards Ainslie. The crossover was a paved crossing of the median strip. It was not a route which was generally used by ordinary road users, even though it was open to them to do so. However, it provided for an emergency vehicle such as the fire engine a route by which the median strip could be crossed without the risk of becoming bogged on the grass of the median strip.

2. The driver of the fire engine needed to make a right turn to get onto the crossover. Because of the size of his vehicle and its significant turning circle, he commenced that turn from the middle lane on the road, crossing the right-hand southbound lane (referred to in the evidence as the 'T2 lane') in order to get onto the crossover. The appellant's vehicle was travelling in the T2 lane and was struck on its left-hand side by the front right-hand side of the fire engine.

3. The appellant claimed damages from the driver of the vehicle (the first respondent) and his insurer (the second respondent). The insurer made a counterclaim against the appellant seeking to recover the costs of repairs to the fire engine.

4. The proceedings were heard over three days in March 2018. The appellant and the respondents were represented by counsel at the hearing. The magistrate reserved his decision and delivered a written decision of 214 paragraphs on 5 November 2018. Formal orders were made on 13 March 2019.

5. The magistrate found that the first respondent was negligent. He also found that the appellant was contributorily negligent. He assessed contributory negligence at 60%. He assessed the appellant's damages at $40,600 which, when reduced by 60% on account of contributory negligence, gave an amount of $16,240. The cost of repairs to the fire engine was agreed at $6350.11. The second respondent was entitled to recover this, less 40% on account of the driver's contributory negligence. The second respondent was therefore entitled to recover $3810.07. Setting off these amounts against each other resulted in a judgment in favour of the appellant in the sum of $12,429.93. The second respondent was ordered to pay the appellant's costs fixed in the sum of $2500.

6. The appellant has appealed against the judgment. The appellant's grounds of appeal are wide-ranging. The first and second respondents have cross-appealed. The respondents' grounds for the cross-appeal challenge the finding that the driver of the fire engine breached his duty of care and also challenge the apportionment on account of contributory negligence.

7. Paragraphs [3]-[43] of the magistrate's reasons deal with the circumstances of the collision. Paragraphs [44]-[60] address whether the first respondent breached his duty of care. Paragraphs [61]-[68] deal with the issue of contributory negligence. Paragraphs [69]-[214] deal with the assessment of damages.

8. The magistrate dealt with two disputes about the circumstances surrounding the collision. The first was the path of travel of the fire engine. The appellant and his mother gave evidence that the vehicle had travelled up the on-ramp from State Circle and merged with the traffic on Adelaide Avenue. The first respondent and two other fire officers (Dale McCormack and Samuel Evans), who were present in the vehicle at the time of the collision, gave evidence that the vehicle had instead been on Capital Circle which then turns into Adelaide Avenue. Their evidence was supported by readings from a GPS mounted in the fire engine. His Honour recorded that the evidence of the firefighters was not shaken in cross-examination.

9. His Honour referred to police reports contained within the expert reports that were tendered. The reports recorded police statements as to what they were told by the first respondent about his path of travel at the time of the accident. His Honour found that although the description provided appeared to support the version given by the appellant and his mother, a closer examination was not consistent with it. In circumstances where the first respondent was not cross-examined about what he said to the police, the magistrate attached little weight to that evidence. His Honour accepted the combined testimony from the three fire officers, supported by the GPS data: at [9].

10. He then dealt with a dispute about the position at which the fire engine came to a halt after the collision. The appellant gave evidence that the fire engine was moved after the collision, to a position further across the T2 lane. He surmised that this was in order to reduce the hazard to traffic travelling in the other lanes.

11. The first respondent and Officer McCormack were not cross-examined on this issue. Officer Evans said that the vehicle had not been moved after the accident. This was not challenged in cross-examination, although he accepted that the vehicle may have taken some time to stop after the impact.

12. The magistrate found that the fire engine was not moved immediately after the accident. He found that it came to a stop at a point depicted in a photograph tendered by the respondents. He recorded that this finding was consistent with the expert evidence about the likely point of impact. The magistrate identified that these two findings involved the rejection of some of the evidence of the appellant and his mother. He referred to some cross-examination of the appellant in which the appellant agreed that he believed that there was a conspiracy between the Australian Capital Territory Government and its employees.

13. The magistrate said that the rejection of the evidence of the appellant and his mother about the route taken cast doubt upon the evidence given in relation to the mechanism of the accident. The magistrate said (at [17]):

The [appellant's] testimony (which I have rejected) about the route of the appliance is so at odds with what I have concluded was its route that it cannot have resulted from simply an honest mistake about what he saw. The testimony he gave can only have resulted from the [appellant] being deliberately untruthful or from him having somehow subconsciously but erroneously persuaded himself that the appliance took the route he described in his evidence. In either case what he subsequently said in evidence about the immediate lead up to and circumstances of the collision (to which I refer as the mechanism of the collision) must also be called into question. The same considerations apply to the evidence of Mrs Carvalho.

14. The magistrate found that the testimony of the appellant and Mrs Carvalho about the mechanism of the collision was also unreliable to the extent that it was contradicted by the evidence given on behalf of the respondents. He therefore referred in some detail to the evidence of the first respondent, the other fire officers and the experts who gave evidence.

15. This evidence described the manner in which the first respondent attempted to make the right turn onto the crossover. The lights on the vehicle were activated and Officer Evans activated the sirens. Although he was in the T2 lane on Capital Circle, he merged left into the centre lane. He was travelling at about 80 km/h when coming onto Adelaide Avenue, but slowed down so that at about 100 m from the crossover he was travelling at about 30 km/h. He had not used the crossover before. He slowed to about 10 km/h when he was about 20 m from the crossover. His lights remained on. He recalled that the sirens remained on. He was in the middle lane at the time that he commenced to turn right. He had turned his right-turn indicator on as soon as the appliance moved into the centre lane. He heard a loud bang and saw a blue vehicle move forward of the appliance. He had not seen the vehicle prior to the collision. In cross-examination he gave evidence that he had checked his mirrors and blindspots immediately before commencing the turn. He checked the blindspots by looking out of the windows to the right and left-hand side of the vehicle.

16. The evidence of the other officers did not add to the evidence of the first respondent. The magistrate recorded that the first respondent gave his evidence in a straightforward manner and was unshaken in cross-examination. He demonstrated a certain reluctance to consider the obvious, namely that the blue vehicle must have been present behind the fire engine in the lead up to the collision, even though he had not seen it. Notwithstanding that, the magistrate found him to be an honest and reliable witness and accepted his testimony.

17. The magistrate identified that the appellant accepted that the lights on the fire engine were operating. Both the appellant and his mother gave evidence that the siren was not on. Officer Evans, who was responsible for turning the sirens on and off, accepted that it was possible that he had turned them off when on the open road, but said that he would have turned them back on at the time of the collision because the vehicle was commencing to turn across traffic. His Honour concluded that it was not necessary to make any formal finding in relation to the operation of the siren at the time of the collision as, given the lights were on, the operation of the siren did not affect the conclusions that he reached. The magistrate found that the right-turn indicator was operating at the time that the first respondent commenced the right turn.

18. The magistrate then referred to the expert evidence of Mr Grant Johnston (engaged on behalf of the appellant) and Mr John Jamieson (engaged on behalf of the respondents). During the course of giving evidence, the experts viewed a video showing the fire engine and the operation of the lights, brake lights and turn indicators. His Honour agreed that the combined effect of what was depicted was "visually busy". The appellant had marked a point on an exhibit, identifying the point at which he first saw the fire engine. The magistrate referred to the agreement between the experts, that the point was about 175 m from the accident site and that if the appellant had perceived the risk that the fire engine was going to turn in front of him at that marked point, then he would have had time to apply the brakes and avoid the accident.

19. Similarly, it was not in dispute between the experts that if the fire engine had travelled along Adelaide Avenue (as the magistrate found to be the case), then the appellant "had the opportunity to observe the appliance as he approached it from behind for a considerable period of time and over a considerable distance": at [43].

20. His Honour recorded that the appellant's case was that the first respondent had failed to keep a proper lookout. The respondents had relied upon r 79 of the Road Transport (Road Rules) Regulation 2017 (ACT) that requires a driver to give way to an emergency vehicle displaying a flashing red or blue light. They also relied on r 306 which exempts the driver of an emergency vehicle from the Regulations, subject to certain conditions. He recorded that "much turns on" the evidence about the observations made by the first respondent and about the fire engine's blindspots. He then referred to some of the expert evidence which set out the extent of the blindspots in the fire engine by reason of the fact that it had side-mounted mirrors but no rear window permitting a line of vision directly to the rear of the vehicle.

The submissions made on the [appellant's] behalf have considerable merit. The manoeuvre undertaken by Officer Town involved a U-turn from the centre lane. It was conducted on a road which had an 80 km/h speed limit. It was conducted at a point in the road at which it was not obvious to other road users, including the [appellant], that there was a break in the median strip and hence not obvious what might have been the intended route of the appliance. There was a duty on the driver to take a high level of care to ensure that other road users were not placed in danger by the manoeuvre. There is no evidence that the [appellant's] vehicle was travelling at high speed, and yet the testimony of Officer Town was that he at no time saw the [appellant's] vehicle before the collision. That concession strongly supports a conclusion that, as the driver of the appliance, he breached a duty of care to the [appellant] to keep a proper lookout and I so find.

22. He recorded that there was no evidence that the appellant's vehicle was travelling at high speed and that had the driver of the fire engine seen the appellant's vehicle it is likely that he would have been able to break or take some evasive action to avoid the collision.

23. He made reference to the requirement under s 43(2) of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act) to consider, when deciding whether a reasonable person in the circumstances would have taken identified precautions, to consider "the social utility of the activity creating the risk of harm". His Honour recorded that he was "not persuaded that proper consideration of it relieves Officer Town of the obligation to take precautions by way of keeping a proper lookout and of taking action to avoid a collision": at [60].

24. His Honour recorded the submissions of the parties, namely: the appellant submitted that his contribution to the accident should not exceed 50%; and the respondent submitted that there should be a finding of 100% contributory negligence which should defeat the appellant's claim.

25. His Honour found that the appellant had an unobstructed view of the fire engine with lights flashing for some considerable time and distance prior to the collision, that the right‑turn indicator was operating, although its effect was somewhat diminished by the presence of the flashing lights. He found that a careful driver would have seen the indicator and would have slowed or stopped his or her vehicle to avoid a collision. Even if the indicator had not been observed then the operation of the lights and perhaps the marked slowing of the vehicle with no obvious destination in sight would have caused a careful driver to slow or stop his or her vehicle. He therefore found that the appellant's failure to take reasonable care for his own safety contributed to his own injury to the extent of 60%.

26. The magistrate set out at some length the evidence given by the appellant about his personal circumstances and the impact of the accident upon him. In the most general terms the asserted impacts involved: neck, back and thumb pain and a reduction in his capacity to work as a musician. His Honour referred to the fact that the appellant was extensively cross-examined by counsel for the respondents. He recorded a number of areas where his evidence was proven to be inaccurate. He recorded that in relation to one issue the cross-examination involved "considerable equivocation and obfuscation" on the appellant's part.

27. His Honour then turned to examine the medical evidence. This was in the form of evidence adduced by the appellant from Dr Leon Le Leu, an occupational physician and Wayne Hutchison, who the parties treated as a psychologist. The respondent adduced evidence from Dr Geoffrey Stubbs, an orthopaedic surgeon, and Associate Professor Richard Jones, a consultant physician in rehabilitation medicine. Only Dr Stubbs gave oral evidence. He did so by telephone. His Honour set out in some detail the evidence in the reports of these witnesses.

28. He concluded that Dr Stubbs did not directly challenge the diagnosis by Dr Le Leu of cervical whiplash injury or of musculoligamentous injury to the right thumb and lower back. He noted that Dr Stubbs regarded such injuries as having been fully resolved. In relation to the appellant's bursitis, Dr Stubbs said that this was more likely to have been caused by the appellant's work as a professional violinist, rather than a car accident. If the bursitis was caused by a motor accident then he said pain symptoms would be expected within 24 hours. If there was a separation between the traumatic event and the onset of symptoms then the linkage would be broken. Dr Le Leu's second report did not directly challenge Dr Stubb's opinion that the bursitis was more likely than not the result of the appellant's work as a musician or the significance of the absence of any complaint and the contemporaneous medical records relevant to causation. His Honour therefore accepted the evidence of Dr Stubbs that if the appellant had not suffered significant shoulder related pain in the immediate aftermath of the collision then any causal connection between the appellant's bursitis and the collision was unlikely.

29. In order to resolve that issue his Honour carefully reviewed the evidence of complaints made by the appellant post-accident. He examined in some detail the notes of the Phillip Medical Centre concerning the appellant in the period following the accident, in particular the notes of a consultation on 4 March 2013, five days after the accident. Having reviewed those notes, the appellant's evidence and other entries in the subsequent medical practice notes, he rejected the appellant's evidence that he made a specific complaint about shoulder and neck pain post-accident. He made that finding in light of:

(a) the absence of any reference to a report of any symptoms associated with bursitis post-accident: [147];

(b) the reservations that his Honour had generally about the reliability of the appellant's other testimony: [154];

(c) the fact that he was "argumentative and evasive under cross examination about the injuries he says he suffers and their effects upon him": [155].

30. However, he did accept that the appellant complained that he had "aches and pains all over": at [156].

31. He therefore did not accept that there was a causal link between right shoulder bursitis and the accident. That was largely because of the absence of pain with crepitus within 24 hours of the accident and Dr Stubbs' evidence that bursitis is a condition relatively common in instrumentalists by virtue of their occupation.

32. His Honour then turned to consider the other injuries attributable to the collision. Despite the magistrate's reservations about the reliability of the appellant's evidence he was satisfied that the appellant suffered a cervical whiplash injury and musculoligamentous injury to the right thumb and lower back that had been diagnosed by Dr Le Leu. This meant that for the purposes of working out the past and future consequences, his Honour needed to separate the consequences of the injuries caused by the accident from the right shoulder bursitis which his Honour had found was not caused by the accident.

33. He was not satisfied that the injuries caused any loss of income following the collision: at [165]. He was satisfied that the pain and discomfort during performances, practice and rehearsals should be compensated as part of general damages: at [166]. He allowed 100 hours of domestic assistance in the period of two months following the accident: at [167].

1. The injuries which can be attributed to the collision caused moderate pain and discomfort and some restriction of movement for a short period after the accident and were then the source of intermittent pain decreasing in intensity and frequency in the years subsequent to the collision;
2. The effects by way of pain, discomfort and restricted movement resulting from those injuries has now resolved insofar as the cervical whiplash and thumb injury are concerned and is likely to resolve within 12 months insofar as the lower back is concerned.

35. He then considered the psychological effects on the appellant. He referred to the evidence of Associate Professor Jones that the psychological issues were maximising the physical symptoms. He then referred in some detail to the evidence of Mr Hutchison, including setting out the content of his clinical notes. Those notes included numerous references to the appellant's anger and rage about what had happened. He then referred to the notes of Dr Bilboe, a registered psychologist, which he set out in some detail. Finally, he referred to the evidence in Dr Le Leu's report.

36. His Honour referred to the difficulty for the appellant's claim being the absence of any direct expert evidence of a formal diagnosed psychological condition or any causal connection between that condition and the collision. The magistrate accepted the submissions made by counsel for the appellant that there was evidence of the complaints made by the appellant to his GP and to Mr Hutchison, that he was entitled to be compensated for the psychological impact whether there was a formal diagnosis or not and that he was entitled to draw inferences from the facts as to the causal connection between the psychological condition and the injury. Adopting that approach his Honour found that as a result of the collision the appellant suffered psychological effects by way of flashbacks and disturbed sleep and to some extent some level of anger or rage: at [206]. He was not satisfied that there was a causal connection between the anxiety which the appellant described to Mr Hutchison and the accident. Similarly, he was not satisfied of such a causal connection with the panic attacks, depression, stress, post-traumatic stress disorder and adjustment disorder referred to in the evidence.

37. His Honour's assessment of damages is summarised in the following table.

Judgment entered for appellant against second respondent

38. By Application in Proceeding filed on 5 August 2019 the appellant seeks to have admitted certain additional documents as evidence on the appeal. The affidavit in support merely annexes the relevant documents.

39. The admission of further evidence on appeal is a course which is permissible under s 276 of the Magistrates Court Act 1930 (ACT). That section gives the court a power to "in its discretion, receive further evidence". Although the statutory language does not impose any particular constraints on the discretionary power to admit further evidence, that discretion must be exercised in the context of a system in which the trial is the primary venue for the admission of evidence and resolution of questions of fact. The admission of further evidence is therefore "exceptional" in the sense that it is an exception to the usual rule: Fox v Percy [2003] HCA 22; 214 CLR 118 at [22]. In a case such as the present the need for the finality of litigation and whether or not the evidence was or might reasonably have been available at the trial will both be significant discretionary considerations.

40. The evidence that was sought to be admitted on appeal was as follows:

8. statutory declaration of Daniel Frederick Town;

9. letter from Kate Waterford dated 27 November 2013;

10. engineers report prepared by Grant Johnston of Consulting Engineers;

11. engineers report prepared by Jamieson Foley of Consulting Engineers;

13. Crux Investigation Group claim number CANTP13/00192/01;

41. Documents 10, 11, 15, 16, 17 and 18 were all already in the appeal book and hence there was no need for any application in relation to them. The respondents did not ultimately oppose the admission of documents 4, 5, 7, 8, 12 and 13. I made an order admitting those documents as evidence on appeal. That left items 1, 2, 3, 6, 9 and 14.

42. In relation to documents 1 and 2, these clearly could not become evidence. The appellant made an oral application so as to amend the Statement of Claim in the proceedings and the Statement of Particulars in the proceedings, so that they were in the form of documents 1 and 2. He was then directed to file marked up versions of those documents showing the additions to them and indicating where any deletions had occurred. He filed those documents on 13 December 2019. The application for leave to amend those documents in those terms was opposed.

43. The issues that need to be resolved are therefore:

(a) whether leave should be granted to permit the amendment of the Statement of Claim and the Statement of Particulars; and

(b) whether documents 3, 6, 9 and 14 should be admitted as further evidence on the appeal.

44. The proposed Amended Statement of Claim makes a number of amendments, the most significant of which is to the claim for past and future economic loss. The amendments elaborate upon the details of his anticipated professional international violinist and violist career and the consequences of the accident for that career.

45. No reasons are advanced as to why it would be appropriate to grant leave to make this amendment at this stage of the proceedings.

46. The amendments to the Statement of Particulars amend matters of detail concerning the appellant's past work history and the claims for past and future economic loss. The claim for past economic loss is increased from $39,102.86 to $61,068.80. The claim for future economic loss is increased from a buffer of $50,000 to a claim of $159,198.

47. No reasons are advanced as to why it would be appropriate to grant leave to make these amendments to the Statement of Particulars at this stage of the proceedings.

48. Both categories of amendments would be of no utility unless there was an error in the manner in which the magistrate addressed the question of past and future economic loss. That is because on his Honour's findings the respondents had no liability for economic loss. It would only be if there was evidence before the magistrate or further evidence admitted on appeal that warranted different findings in relation to economic loss that the amendment to the claim or the particulars may be of significance. There is no further evidence that would be admitted on appeal that would affect the conclusions reached by the magistrate. For the reasons given below in relation to Ground (c), there was no error in the manner in which his Honour addressed the question of economic loss.

49. The application to amend the Statement of Claim and the Statement of Particulars is dismissed.

50. Document 3 is a document headed "Statements of facts and evidence". This is a document which appears to have been prepared by the appellant. This statement is in the nature of submissions. It principally addresses the appellant's contention that the magistrate was mistaken in finding that the fire engine had not been moved after the accident. It refers to a number of aspects of the evidence.

51. Having regard to the nature of the document it is clearly not appropriate to be admitted as evidence on appeal. That is because it is in the nature of submissions and, to the extent to which it contains factual material that might have been given in evidence by the appellant, was material that was available to the appellant at the time of the trial. It is not admitted as further evidence on the appeal.

52. Document 6 is in fact a bundle of 30 photographs of the fire truck and the appellant's car after the accident. It shows the position and condition of these two vehicles in relation to the median strip. The submission of the appellant is: "This bundle demonstrates that the accident, as described in the respondents' multiple conflicting statements and as per the decision of Magistrate Morrison in the instant case, is an impossibility and farcically fictitious." Similar photographs were in evidence before the magistrate (see, for example, Appeal Book pages 989, 991, 999, 1000, 1003, 1004, 1007, 1008, 1055 - 1064. There were also similar photographs in the expert reports of Mr Jamieson and Mr Johnston.

53. The photographs sought to be tendered were clearly available to the appellant at the time of the trial. They do not self-evidently demonstrate that the accident described in the magistrate's reasons is "impossibly and farcically fictitious". Having regard to the material that was already in evidence and the absence of any explanation of the separate significance of the photographs making up document 6 there is no basis for its admission as further evidence on appeal.

54. Document 9 is an email from Kate Waterford, a solicitor at Maliganis Edwards Johnson, to the appellant's mother. It appears that the letter relates to a claim by the appellant's mother in relation to the same accident. It is a reporting letter identifying responses received from the second respondent in these proceedings in relation to "CAD/GPS documents" provided to the solicitors. It sets out the questions asked of the second respondent and the answers given. None of those answers appear to be particularly helpful.

55. The submission of the appellant was that the email:

demonstrates the insufficient evidentiary value of this CAD drawing overlayd [sic] with GPS data/co-ordinates. The overlayd [sic] coordinates are easily obtained from Google Earth.... The evidentiary value of this CAD drawing is addressed in the report of Dr Short. The comments made in relation to the appellant's evidence as given by Mr Whybrow are entirely out of context, patently erroneous, vexatious and a retraction and apology ought to be forthcoming on the part of the respondent.

56. On the basis of the submissions that were made, it is not possible to work out what the significance of this document would be either by itself or in combination with Dr Short's report. In my view, there is no proper basis on which it could be admitted as further evidence on this appeal. The document is therefore not admitted on the appeal.

57. Document 14 is an expert report prepared by Dr Andrew Short. Dr Short is identified as holding the following qualifications: "B.A., M.Sc., BMED,, D. Phil (Orthopaedic Engineering)". He identifies himself as having expertise in the analysis of injuries and in accident reconstruction. His areas of expertise are not clearly identified although his CV does indicate that he has prepared expert opinions in over 1000 court proceedings and the topics that those reports cover appear to include a large range of engineering or biomechanical issues.

58. The report examines tracking data provided to the appellant's mother in relation to the location of the fire engine in the period leading up to the accident. Those data are said by Dr Short not to be GPS data, but he understands that the data were processed from GPS data into their current form by some form of software. He plotted the data and overlaid them upon a map of Capital Circle and State Circle. The plots are consistent with the evidence given by the respondents' witnesses as to the route by which the fire engine approached the accident site. He identifies what he describes as a number of "anomalies" in the raw data provided. It is not clear from the terms of his report whether any of these "anomalies" reflect on the accuracy of the data or whether they simply reflect Dr Short's lack of familiarity with the format in which the data were provided. He then set out a number of different route options provided by Google maps for a journey to Ainslie Village from the location where the fire engine received the direction to attend. He expresses the opinion (which does not appear to be an opinion based upon any specialised knowledge) that it would be unreasonable to complete the journey by the route that the fire engine was travelling rather than by one of the five different alternative routes. This was not part of the appellant's case at trial. Next, Dr Short identifies that the fire engine travelled under a bridge and that: "It may have been possible that passing under this bridge disrupted the GPS tracking signal and caused some of the upcoming data to be inaccurate or delayed." It is not clear whether this tentative opinion is based upon any specialised knowledge. In any event, having regard to Dr Short's apparent conclusion that the route followed was that of which evidence was given by the fire officers, the possibility of some delayed GPS tracking does not support the evidence of the appellant or his mother.

59. The report then sets out rr 78 and 79 of the "Australian Road Safety Road Rules 2009" [sic]. He then purports to analyse two scenarios. The first, consistent with the findings of the magistrate, that the vehicles were travelling along Adelaide Avenue. The second, consistent with the appellant's version of events, that the fire truck was merging onto Adelaide Avenue from the slip lane. So far as the first scenario is concerned, Dr Short assumes that "the faster moving fire truck would have had to first overtaken Ben and his mother". On that basis he concluded that the fire truck should have been aware that there was a car travelling in the lane to its right in taking that into account when performing the right turn. The evidence given by the first respondent and the appellant did not support the proposition that the fire truck overtook the appellant's vehicle prior to the accident. So far as the second scenario is concerned, this involved the fire truck cutting across the solid white lines which identify the location of the slip lane so as to reach the middle lane on Adelaide Avenue at a point close enough to the accident site that the appellant would have been unable to stop his vehicle in time to avoid the accident. While this scenario is based upon the instructions given by the appellant, it is inconsistent with the findings of the magistrate and inconsistent with the tracking data that Dr Short analysed earlier in his report.

60. The report then states a summary of the conclusions reached which do not accurately reflect the contents of the report. In particular, it states in categorical terms: "Ben Carvalho could not have avoided this collision safety [sic] as he did not have enough braking distance or space to steer away. At his left was the fire truck forcing him to drive on the grass and to his right was a sign and oncoming traffic;"

61. The appellant submitted that the prior experts' reports "do not properly address the CAD drawing overlayd [sic] with GPS data/co-ordinates". It asserts that the report of Mr Jamieson "is based on tainted, misrepresented and fundamentally and demonstrably misinterpreted evidence and data".

62. The appellant submitted that the report demonstrated the "fraudulent nature of a lot of the... documentation that went into the respondent's report". He also submitted that it was a report based upon all of the information in the matter.

63. At the trial the appellant led expert evidence from a traffic engineer, Mr Grant Johnston. The respondents also led evidence from Mr Jamieson. Dr Short's report is simply another report by a person who appears to be less well-qualified than the two experts who gave evidence at the hearing on the same subject matter. There is no explanation as to why, if the appellant wished to rely upon the opinion of Dr Short, the report was not obtained prior to the trial. The contents of the report would appear to be of limited value having regard to the consistency of the tracking data with the respondents' case and the assumptions upon which any parts of the report favourable to the appellant were based. The admission of the report would inevitably reopen factual issues which were determined by the magistrate in light of the evidence that was put before him. It would inevitably require an opportunity for the respondents to provide additional evidence and would require cross‑examination. There is no explanation as to why the opportunity to lead evidence at the trial was inadequate or why the evidence on crash reconstruction issues should be permitted to be reopened. In my view, there is no proper basis upon which the report could be admitted as further evidence on this appeal. The document is therefore not admitted on the appeal.

64. On appeal the appellant was self-represented. His grounds of appeal are in some cases difficult to understand. It is most convenient to address them individually or in groups which address similar subject matters.

Ground (a) - assessment of contributory negligence

(a) Assessment of contributory negligence: heavy reliance and resulting disproportionate reliance and value of social utility. Unfair and unjust, weight should be given to other (unchallenged) factors as instructed to counsel but not argued. His Honour's decision of 40/60 contributory negligence against the [appellant] was inadequate; his Honour's failure to deal with aspects of the applicant's credit worthiness infected his assessment of contributory negligence.

66. Although this ground of appeal raises a number of matters relevant to the assessment of contributory negligence, the written submissions upon which the appellant relied focused on the issue of the creditworthiness of the appellant and his mother and the asserted lack of creditworthiness of the first respondent. The appellant points to his own "near two decades of service to the Canberra Community" and "the social utility of the appellants future service to Australian society". He asserts that these matters were not properly considered. Similarly, he points in relation to his mother to "her near two decades of service to the AFP resulting in her role in the teaching of ethical standards under the role of diversity" as being a matter not properly considered by the magistrate. The submissions assert that the creditworthiness of the first respondent was "highly questionable" and that this was an "irrefutable fact".

67. The creditworthiness of individual witnesses or the social utility of their conduct generally are not matters directly relevant to the extent of any reduction on account of contributory negligence under s 102 of the CLW Act. To the extent to which this ground of appeal is directed to the magistrate's assessment of the credit of the respective witnesses for the purposes of assessing the factual basis for the claim of negligence and contributory negligence, no error is demonstrated in the approach taken by the magistrate. The magistrate carefully assessed the evidence and the inconsistencies in the evidence. He also carefully considered how the credit of the appellant was affected by the answers that he gave on a range of issues and the manner in which he gave those answers. No error has been demonstrated in the manner in which the magistrate undertook this exercise. In particular, it has not been shown that the magistrate's use of his undoubted advantage from having seen and heard the witnesses give evidence was in any way abused or that the conclusions he reached were not open on the evidence.

(b) Damages awarded too low and are not proportionate to actual damages. There is also a question of law surrounding this issue of a jurisdictional nature.

70. The appellant's submissions do not identify any particular factual or legal error on the part of the magistrate in relation to the assessment of damages. The reasons of the magistrate demonstrate a logical approach to the assessment of damages and do not demonstrate any misunderstanding of the principles to be applied. It is not clear what the "issue of a jurisdictional nature" is.

(c) Jurisdiction: quantum in relation to damages should have been greater. Only damages accrued to date were considered.

73. It is not clear what issue of "jurisdiction" this ground of appeal goes to. Insofar as it refers generally to the quantum of damages it adds nothing to the previous grounds of appeal. Insofar as the question of future loss of earnings is concerned, the magistrate specifically considered and rejected any claim for economic loss saying (at [165]): "I am not persuaded that the effects of the injuries attributable to the collision were the cause of any loss of income following the collision." This finding applies equally in relation to the future as it does to the past. Having regard to his Honour's findings about the nature of the injuries suffered, the level of earnings before and after the accident and his Honour's conclusions about the resolution of his physical conditions either before the trial or within 12 months of the trial, no error is demonstrated in relation to his failure to award economic loss in relation to the future.

(d) Fraud: Unjust weight attributed to evidence of a fraudulent nature.

76. The written submissions of the appellant do not articulate what the alleged fraud is. The nature of the submissions made may be gleaned from the following extract from the appellants written submissions:

The respondent's counsel's position in relation to these claims, as mentioned above, is entirely facetious and contemptible in the highest regard. Further, the claims of the appellant are demonstrably evident from the material facts of this matter. Any other conclusion is not only folly but severely detrimental to the fabric of, and a grave dis-service to, society, the judiciary and the legal profession in its entirety.

77. Given the gravity of the allegation it is not appropriate to speculate about the content of this unparticularised allegation.

(e) Conflict of interest: Magistrate Morrison should have excused himself from hearing this case as the [appellant] is the son of Leomar Felix Carvalho who was an officer of the courts and in conflict with the Department of Community and Safety Directorate at this time. Magistrate Morrison knew or [ought] to have been cognizant and of Mr Carvalho's conflict with the Department of Community and Safety Directorate. In a previous case involving the appellant all magistrates including Mr Morrison disqualified themselves from hearing the case to protect the impartiality and clarity of procedures. This case again involved the ACT Government and JACS is an interested party as is part of the ACT Government. Mr Phillip's[sic] Kellow, Principal Registrar of the courts, is heavily involved in Mr Carvalho's issues with the Directorate and attended the hearing. This further calls to question the Magistrates[sic] decision in this case as it is the Directorate that chooses the Magistrates to hear a case.

80. The submissions of the appellant assert that "the claim that there were demonstrable conflicts of interest of the most egregious manner and form is a serious and supportable claim". However, those submissions do not go on to explain what the alleged conflicts were, except to assert at the end "the irrefutable fact that all subsequent witnesses for the defence were dismissed as a result of this identified, unconscionable and contemptable[sic] collusion". It is therefore very difficult to work out what the substance of this ground of appeal is.

81. At the commencement of the hearing in the Magistrates Court the magistrate identified the fact that the appellant's father worked in the court and that the magistrate would on a regular basis see him within the court building and exchange pleasantries with him. His Honour indicated that he did not think there would be any difficulty in bringing to bear what is required in terms of any assessment or analysis of the witnesses and the circumstances. The enquiry as to whether any objection was to be made to his Honour hearing the case was directed to the respondents. Presumably that was on the basis that there might be a perception that the magistrate would be favourably disposed towards a person who worked at the court. Counsel for the respondents indicated that he raised no issue about the magistrate hearing the case. There was never any suggestion by counsel for the appellant that there was any objection or other difficulty with the magistrate hearing the case. The appellant's father did in fact give evidence. The magistrate did not make any findings about, or that turned on, his credibility.

82. Having regard to the manner in which the issue was dealt with I consider that no fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that he was asked to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]. In any event, having regard to the manner in which the issue was raised and responded to by counsel for the appellant, the appellant waived any objection to the magistrate hearing the matter. He was made fully aware of the circumstances which might be said to give rise to an apprehension and clearly impliedly consented to the magistrate hearing the case, thereby waving his entitlement to object: Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 570, 577, 579, 587.

83. The reference in the submissions to the "unconscionable and contemptable [sic] collusion" of defence witnesses was not elaborated upon.

(f) Evidence not challenged properly despite advice to legal counsel.

(h) There were mitigating factors that lead to the deterioration of the professional nature of the lawyer client relationship. This has placed the appellant at a significant disadvantage and has placed the current legal representation of the appellant in question to date.

(k) There is potential evidence of negligence on the part of Ken Kush[sic] and Associates in relation to advice received and advocacy on the part of their client. This is supported by the improper advice in relation to costs/disbarments[sic] resulting in the deterioration of a professional relationship on the part of KKA upon the lack of receipt of the final order.

86. These grounds of appeal were not elaborated upon in the appellant's written submissions in a way that would make them understandable. The written submissions assume the correctness of the matters asserted in the ground of appeal without explaining them.

87. Insofar as there is an assertion that the appellant's legal representation fell below an appropriate standard or involved a failure to follow his instructions, the factual basis for such an allegation is not made out. Further, such matters would not provide a basis for setting aside the decision of the magistrate.

(g) Request to present new expert evidence to the court. Expert testimony (inclusive of the introduction of new witness testimony).

90. This ground of appeal seems to relate to the admission of further evidence on the appeal. It does not itself identify any error in the decision below or provide a basis for allowing the appeal. Those documents which have been admitted as further evidence (documents 4, 5, 7, 8, 12, 13) do not demonstrate any error in the judgment below.

(i) Collusion: There are questions relating to the collusion of the respondent and witnesses called for the defence. There are questions of conflict of interest in relation to members of the judiciary.

(j) There are questions relating to the manner in which identified collusion was addressed by the court once brought to the courts[sic] attention.

92. Apart from asserting their gravity and correctness, the written submissions of the appellant do not explain these grounds of appeal. Insofar as the grounds may raise the question of an apprehension of bias on the part of the magistrate, that has been addressed in relation to Ground (e) above. Insofar as there is an assertion of collusion between witnesses called by the respondents, the three fire officers called by the respondents were questioned about their possible collusion or coordination of evidence and they denied it. It is clear that the magistrate accepted the evidence of those officers. On the issue of the route followed by the fire engine, that evidence was consistent with the tracking data and the expert evidence about it. These grounds of appeal have not been made out.

(l) His honour erred in his decision based on hearsay. He made his decision on conflicting statements given by the fire truck crew, found to be colluding during the hearing, and not challenged properly by the appellants counsel (as stated by the magistrate in his decision).

94. This ground of appeal was not addressed in the appellant's submissions. The matters that are raised in the ground, to the extent to which they are understandable, do not demonstrate any error in the approach taken or findings made by the magistrate. Therefore, the ground of appeal is not made out.

Ground (m) - assessment of credibility of the appellant and his mother

(m) His honour erred in his decision to disregard the appellant's witness based on her credibility, a 61-year-old woman with an impeccable driving and criminal record and an impeccable record serving the AFP as a public servant for over 21 years. The [appellant], himself a 30 year old with a clean driving and criminal record that serves the community as a musician and teacher member of the CSO (Canberra Symphony Orchestra), involved in several social and cultural activities the appellant and witness statements were unchanged throughout and consistent in contrast to Mr Towns various changed (yet unchallenged) statements and sworn statutory declaration.

96. This ground of appeal raises the issue of the manner in which the magistrate assessed the credibility of the appellant and his mother. The appellant's submissions do not identify where in the evidence the driving record of either person was addressed. Having regard to the starkly different versions of the fire engine's route given in evidence, his Honour was required to determine that issue in order to make findings as to how the accident occurred and hence in order to determine the question of liability. The manner in which he approached that task appears to have been entirely orthodox. His Honour paid proper attention to the corroborative evidence that was before him and to other aspects of the evidence that would reflect upon the reliability of the evidence of the appellant and his mother. Similarly, the submissions of the appellant do not demonstrate any error in the manner in which his Honour approached the assessment of the reliability of the first respondent's evidence. Therefore, the ground of appeal is not made out.

97. The Notice of Cross-Appeal challenges the finding of only 60% negligence on the part of the appellant. It seeks that there be judgment for the second respondent against the appellant, or alternatively that the appellant be found to be 100% contributorily negligent. The grounds of appeal that were pressed will be dealt with separately.

98. The ground of appeal (to the extent that it was pressed) was as follows:

(a) His Honour erred in finding that the first defendant had breached his duty of care to the [appellant] for the following reasons:

(i) His Honour erred in finding that the first defendant failed to keep a proper lookout.

...

(iii) His Honour failed to give adequate regard to the social utility of the activity being undertaken by the first defendant as is required by section 43 of the Civil Law (Wrongs) Act 2002.

(iv) His Honour erred in finding, at paragraph 59 of the primary judgment, that had the first defendant seen the [appellant's] vehicle it is likely he would have been able to avoid the collision.

99. The respondents assert that having accepted the first respondent's testimony that he did look on several occasions and did not see the appellant's vehicle, the magistrate must have found that he should have checked more times or taken some other precaution to ensure that it was clear to turn. They submit that when assessing whether the precautions taken on the lookout kept by the first respondent were sufficient to meet the risk of harm in the circumstances, the social utility of the activity, the fact that the fire engine had its lights flashing over a considerable distance with unobstructed vision to any vehicles behind and the fact that he had checked several times meant that his failure to see the appellant's vehicle did not itself mean that he had failed to discharge his duty of care.

100. The respondents referred to the decision in Logar v Ambulance Service of NSW Sydney Region [2017] NSWCA 274; 82 MVR 216. In that case the driver of an ambulance vehicle responding to an emergency under lights and sirens "nudged" into an intersection against a red light and collided with the plaintiff who had proceeded through the green light facing her. The ambulance driver was found to have driven slowly and carefully through the intersection. She had already stopped twice but was not negligent in proceeding in circumstances where vehicles and the other three lanes facing the green light were stationary. Schmidt J and Emmett AJA both made reference to the requirement to take into account the social utility of the activity being undertaken.

101. Notwithstanding the submissions of the respondents, there was no error in making the finding as to breach of duty that his Honour did at [58] (set out at [21] above). The simple point is that the first respondent failed to see a vehicle in the lane to his right as he was about to make a right-hand turn across that lane. His Honour found that there was "no evidence that the [appellant's] vehicle was travelling at high speed". To find a breach of duty in those circumstances is not to, as the respondents suggest, impose an absolute duty rather than a duty to exercise reasonable care.

102. In my view, his Honour did not err in how he dealt with the question of the social utility of the first respondent's activities. He found that the social utility of the activity was "obvious", but that did not relieve the first respondent of an obligation to keep a proper lookout. The precise reason why the first respondent did not see the appellant's vehicle is not clear on the evidence. The appellant's vehicle was travelling in the T2 lane faster than the fire engine, as the fire engine had slowed down in order to make the turn. The appellant must have been overtaking the fire engine as it slowed down, not having realised that it was indicating to make a right-hand turn. The social utility of the activity being undertaken by the fire engine is appropriately recognised by the fact that there was no allegation nor finding of negligence arising from the fact that it was making what would otherwise be a dangerous and inappropriate turn in the circumstances. It is that activity which is the equivalent of the ambulance "nudging" through the red light. The present case proceeded on the basis that it was appropriate for the first respondent to make that turn, but that in doing so a lookout should have been kept for vehicles in the lane to the right which, apart from viewing the indicator, could have no expectation that the vehicle would make that manoeuvre.

(b) His Honour erred in finding that the [appellant] was contributorily negligent to the value of only 60%.

(i) Having found that:

(a) the [appellant] had the opportunity to observe the fire appliance for a considerable period of time and over considerable distance (paragraph 43 of the primary judgment);

(b) the fire appliance had beacons operating (paragraph 31) and right turn indicator operating (paragraph 32); and

(c) having rejected the [appellant's] evidence as to the path taken by the fire appliance, which by necessary implication means the [appellant] was not paying any or any adequate attention to the movements of the fire appliance in front of him; and

(d) noting the operation of rule 79 of the Road Transport (Road Rules) Regulation (ACT);

His Honour erred in apportioning only a 60% contribution for the accident to the [appellant].

(ii) His Honour failed to give adequate regard to the social utility of the activity being undertaken by the first defendant in considering the apportionment of liability.

105. The respondents point to the following facts found by his Honour:

(a) the appellant had an unobstructed view of the appliance, with its beacons flashing, for a considerable time and distance before the collision;

(b) the appellant had "ample opportunity" to observe the appliance;

(c) a careful driver would have kept a close watch on the appliance and would have slowed down considerably;

(d) slowing down considerably was what the appellant ought reasonably to have done;

(e) the first respondent had his right turn indicator activated;

(f) a careful driver would have seen the indicator operating and alerted that driver to the intended line of travel of the appliance;

(g) a careful driver travelling on a course that would have crossed that intended line of travel would have slowed or stopped his or her vehicle or otherwise steered it so as to avoid a collision; and

(h) even if the operation of the indicator had not been observed, the operation of the lights (and perhaps also the siren) would have caused a careful driver to slow or stop his or her vehicle.

106. The respondents assert that the magistrate should have found that the appellant's contributory negligence was 100% or, in the alternative, above 80%. They referred to the decision in Davis v Swift [2014] NSWCA 458; 69 MVR 375 (Davis), in which a pedestrian attempted to cross a busy highway, got stranded in the middle of the road and retreated back without looking into the path of a car that had just pulled out onto the road behind the plaintiff. The majority of the Court of Appeal assessed contributory negligence at 80%. For reasons which are unclear, the respondents relied not upon the majority judges' reasons but on the reasons of Adamson J who dissented on the issue of apportionment and would have upheld the trial judge's assessment of 100% contributory negligence.

107. The respondents submitted that the only party whose conduct was "culpable" was the appellant.

108. In Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 at 532 the High Court unanimously held:

A finding on a question of apportionment is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds": British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.

109. In the present case these considerations are apposite. The exercise was one of balance and relative emphasis. Once it is accepted, contrary to the contentions of the respondents in the earlier ground of appeal, that there was a failure on the part of the first respondent to keep a proper lookout, clearly a reduction of the appellant's damages by 100% was not appropriate. The first respondent was at least "culpable" to some extent. So far as some lesser apportionment is concerned this is a matter where reasonable minds might differ and where the inability to make comprehensive findings of fact about precisely why the appellant's vehicle was not seen is significant. The first respondent had failed to keep a proper lookout. The appellant, who was obliged to give way to the fire engine, had attempted to pass it when:

(a) he had been able to see it for some time;

(b) it was travelling with its emergency lights on;

(c) it was signalling so as to indicate a right turn or change of lane; and

(d) it was slowing down.

110. It is notable that his Honour accepted that when the lights on the vehicle were being displayed the turning indicator was less prominent.

111. In the circumstances, given that the issue is one of balance and relative emphasis, I am not satisfied that the assessment that his Honour made was not open to him. The respondents have therefore failed to demonstrate an error on the magistrate's part and as a consequence this ground of appeal is not made out.

112. Both the appeal and the cross-appeal are to be dismissed. The prima facie position is that costs should follow the event in the appeal and the cross-appeal.

1. The oral application to amend the Statement of Claim and the Statement of Particulars is dismissed.

2. In relation to the Application in Proceeding filed on 5 August 2019, documents 3, 6, 9 and 14 are not admitted as evidence on the appeal.

4. The appellant is to pay the respondents' costs of the appeal.

6. The respondents are to pay the appellant's costs of the cross-appeal.

7. Orders 4 and 6 do not take effect for a period of 14 days and if, within that period either party notifies my associate by email (copied to the other party) that he or it wishes to be further heard in relation to costs, those orders do not take effect until further order of the court.

I certify that the preceding one hundred and thirteen [113] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.