Cheng v Geussens

Reasoning of trial judge 6This analysis requires an understanding of the basis on which the trial judge reached his findings. The judge set out the conflicting accounts of the plaintiff and the defendant and stated that "there was no basis derived from their demeanour upon which I could reject their respective versions." He continued (judgment, p 5): "I am therefore left in a position of not being able to say that the plaintiff has proved on a balance of probabilities that his version of the accident is to be preferred to that of the defendant. I can find no reason why I would accept the plaintiff's evidence that the traffic lights were in his favour, in preference to the defendant's evidence that the lights were in the latter's favour. Accordingly, I must reject the plaintiff's evidence that he had the green light." 7After referring to a case involving similar facts, Turkmani v Visvalingam [2009] NSWCA 211; 53 MVR 176, the trial judge reasoned as follows (p 6): "No two cases are alike but it seems to me that on the defendant's version, the plaintiff by entering into the intersection against a red pedestrian traffic signal, and without looking to see if there was any traffic coming from his right, was guilty of contributory negligence to the extent of eighty per cent." 8Pausing at that point in the reasoning, there was no positive finding that the defendant's account was to be preferred: the matter had been left on the basis that neither could be preferred. It did not follow from the fact that the plaintiff had not established his case on the balance of probabilities that the contrary case was to be accepted. Although in the first passage set out above the trial judge said that he "must reject" the plaintiff's evidence, read in context it is reasonably clear that he meant that the plaintiff's account was not proven on a balance of probabilities. That is, the plaintiff had failed to satisfy the onus of proof. 9The explanation for adopting the defendant's account was to be found in the following passage in the reasons: "A matter that has concerned me in relation to contributory negligence is whether I should have assessed it on the basis of the plaintiff's version rather than the defendant's. Had I accepted the plaintiff's version I would have found contributory negligence on the plaintiff's part in entering the intersection without looking to see if there was oncoming traffic. I would have assessed contributory negligence of twenty per cent. It seems to me that not having accepted the plaintiff's version it could not be open to me to assess contributory negligence upon that version." 10Pausing again, no error is revealed in that statement. The judge continued: "It would also be inappropriate to decline to assess contributory negligence at all, on the basis that I had in effect not accepted either party's evidence. Such an outcome would in my view be against public policy. More specifically as stated by Justice Kirby ... in Wheeler v French (1990) 11 MVR 354, the result would be one in which, 'the legal process has certainly failed to provide justice to one of the parties.' " 11The comment from Wheeler v French was made in somewhat different circumstances, the trial judge having been unable to determine which of the plaintiff and defendant was the driver of the crashed car, in circumstances where it was clear that one of them was. The statement quoted does not assist in determining the correct approach in this case. 12With great respect to the judge who delivered a careful ex tempore judgment and undoubtedly asked himself the right question, the alternative answers proposed did not exhaust the field of possibilities. The first proposition assumed that rejecting the plaintiff's version meant accepting the defendant's. In fact, liability had been accepted on the basis of a failure to keep a proper lookout, without regard to which party had a green light. The second proposition, namely declining to assess contributory negligence at all, was correctly rejected as unavailable. There was, however, a third option, namely to assess contributory negligence on the basis of the facts established (or not established) by the defendant. On the approach that neither party had established his version as to the state of the lights on the balance of probabilities, the driver could not rely upon the fact that he had a green light to establish contributory negligence on the part of the plaintiff. Rather, both liability and contributory negligence could have been approach on the basis that the respective parties bearing the onus of proof each failed to establish that his version was correct. 13It is possible that reliance on the differing burdens of proof could result in negligence and contributory negligence being assessed on different factual premises. This might well be undesirable, but it is not this case. The result in this case is that both are assessed on the same basis, namely that the state of the lights was unknown. In my view, that was the correct approach. 14The final passage in the judge's reasoning must also be addressed. Immediately following the last passage set out above, he continued: "On this basis I think it appropriate that at the very minimum I assess contributory negligence on the basis of the defendant's version. I would add that if the plaintiff's memory problems are factored in, then the balance is probably tipped in the defendant's favour in any event." 15This passage does not detract from the conclusion reached above. It is not entirely clear what was meant by "at the very minimum" (perhaps indicating that was the least that could be done where contributory negligence had to be assessed), but, for the reasons already given, it was not necessary to assume that the defendant's version was correct. Indeed, that version should not have been adopted unless the judge was affirmatively satisfied that it should be accepted. Secondly, the reference to the plaintiff's "memory problems" was an aside. In considering whether the plaintiff's version should be accepted or rejected, the judge had concluded that it was not appropriate to take "his brain damage or evidence of forgetfulness" into account, there being no medical evidence that his memory of the events immediately prior to the accident had been affected: judgment, p 4.

Application for leave to appeal 16Counsel for the applicant submitted that he was entitled to appeal as of right. However, that proposition was untenable. An appeal lies from the District Court only by leave "from an interlocutory judgment or order": District Court Act 1973 (NSW), s 127(2)(a). The orders made by the trial judge were as follows: "(a) Judgment for the plaintiff on liability. (b) The plaintiff's damages are to be reduced by eighty per cent on account of his contributory negligence. (c) The matter is stood over for the assessment of damages." 17The plaintiff could not possibly contend that these were final orders: apart from anything else, a judgment without a sum of money was of no value. The process was self-evidently incomplete. Leave was required. 18Assessment of damages had been postponed, appropriately, pending the delivery of judgment by the High Court in Daly v Thiering [2013] HCA 45; 88 ALJR 67. That case determined that, as a participant in the Lifetime Care and Support Scheme, the plaintiff would not be entitled to damages for gratuitous domestic care. As he was long since retired, he had no claim for economic loss. His damages were, in the event, limited non-economic loss. Given the dramatic consequence of a reduction of 80% for contributory negligence, assuming that assessment was arguably wide of the mark, and given the seriousness of his injuries, the amount in issue on the appeal might reach (or at least approach) the monetary floor of $100,000 necessary to permit an appeal as of right from a final judgment: s 127(2)(c). This factor favours a grant of leave to appeal, as does the finality of the determination as to contributory negligence, being a significant element in the case. Combined with the basis for challenge to the reasoning of the trial judge set out above, the case warrants a grant of leave to appeal.

Grounds of appeal 19The appellant relied upon four grounds of appeal, as articulated in a document handed up during the hearing. The first two grounds alleged that the respondent's claim that he did not see the applicant as he approached Carrington Road was "manifestly incredible" and should have been rejected. (The grounds, in terms, did not allege that the trial judge should have found that the plaintiff commenced to cross on a green light, although the submissions appeared to support such an approach.) 20The trial judge analysed such evidence as he had, with care. There were no independent witnesses who could speak to the state of the lights or the conduct of the parties immediately prior to the accident. There was no objective evidence as to those matters. It may seem implausible that, in the circumstances surrounding the accident, neither party saw the other. Nevertheless, the fact that neither took evasive action suggests that that was true. These grounds were without substance and must be dismissed. 21The third ground was based on the assumption that, having referred to the decision of this Court in Turkmani, in which contributory negligence of a pedestrian was assessed at 80%, and having made a similar assessment in this case, the trial judge had "applied" Turkmani, when it should have been distinguished. 22This ground was also without substance. First, it was clear that the trial judge did not consider himself bound to "apply" an assessment of facts made in a different case. In that he was entirely correct. Further, it is clear that he made his own assessment of proportionate responsibility on the facts before him, in the passages set out above. 23The fourth ground asserted error on the part of the trial judge in relying on the version of the respondent in determining contributory negligence. It was not articulated in precisely the manner set out above, which was developed in the course of oral submissions. However, on the basis of the reasoning set out above, the appeal should be allowed. That means contributory negligence must be reassessed, a function which this court is able to undertake, given that the accounts of neither party can be accepted.

Reassessment of contributory negligence 24Contributory negligence is to be assessed, in a case involving a motor vehicle on a public road, pursuant to s 138 of the Motor Accidents Compensation Act 1999 (NSW). That provision requires that damages be reduced in such proportion as the court considers "just and equitable in the circumstances of the case": s 138(3). That assessment must be made by reference to "the common law" and statute: s 138(1). Relevantly, s 5R of the Civil Liability Act 2002 (NSW) applies: see s 3B(2)(a). Section 5R requires that the principles applicable in determining whether a person has been negligent apply in determining contributory negligence. That calls into play the general principles set out in ss 5B and 5C and the general law. The standard of care required of the plaintiff is that of a reasonable person in the position of the plaintiff: s 5R(2)(a). 25Once the state of the lights is taken out of the assessment, it is clear that both parties were negligent in that neither kept a proper lookout. Had they done so, both should have observed the other. On the other hand, the point at which the driver should have seen the plaintiff was, presumably, at or about the time he entered the intersection. At that point the plaintiff was on the footpath. The evidence would not permit an inference that, at that point in time, the driver would have had any indication that the plaintiff was about to cross the road. However, given the speed at which the car was travelling, the plaintiff would have had a clear indication that the driver would cross the intersection. 26There are two further factual elements which must be considered. The first is the configuration of Carrington Road. On the south side of the intersection (from whence the driver came) there were two marked lanes heading north. One contained parked cars. The driver entered Carrington Road from a laneway approximately 50 metres south of the intersection with Coogee Bay Road. He immediately went into the outside lane because there was a car parked on the inside lane between him and Coogee Bay Road. 27The second feature is that north of Coogee Bay Road (at the point of the collision) there were no marked lanes on Carrington Road northbound. Photographs in evidence suggested that there may often be cars parked along Carrington Road north of the intersection which would encourage through traffic to remain close to the median dividing line. Nevertheless, the defendant, on crossing the intersection, veered into the kerbside part of Carrington Road, in effect changing lanes, although none were marked at the point of the collision. 28Thirdly, there was the point of impact. It was just within what might have been the kerbside lane (if marked) on Carrington Road. The car struck the front wheel of the bicycle with its nearside front bumper bar. Although the trial judge accepted that the plaintiff was travelling slowly, it is apparent that he must have commenced to cross at about the time that the driver entered the intersection. 29Had the plaintiff looked to his right, he should have seen the car in time to stop his progress. Had the driver seen the plaintiff start forward, he should have been able to avoid the collision, by remaining closer to the centre of the road, although arguably he could not have stopped. (There was no finding by the trial judge that the driver was travelling too fast in the circumstances.) 30On these facts, there might be something to be said for an equal apportionment of responsibility. However, one factor favours the driver, namely that at the point at which each should have seen the other, the plaintiff was on the footpath and could have been expected not to commence to cross in front of a travelling vehicle, whereas the vehicle was travelling at a speed which would have indicated that it was not about to stop. This places a higher level of responsibility on the plaintiff. A just and equitable apportionment of responsibility would attribute two-thirds (67%) to the plaintiff and one-third (33%) to the driver.

Conclusion 31Although no final orders have been made, the effect of the judgment below was to decide two separate questions, namely the liability of the defendant and the contributory negligence of the plaintiff. Order (b) should be set aside and in place thereof there should be a reduction on account of contributory negligence of 67%. 32The Court should make the following orders: (1) Grant the applicant leave to appeal. (2) Allow the appeal. (3) Set aside order (b) made in the District Court on 6 February 2013 and in place thereof direct that the plaintiff's damages be reduced by 67% on account of his contributory negligence. (4) The respondent is to pay the costs of the applicant/appellant in this Court. 33BARRETT JA: The issues before the Court are explained in the judgment of Basten JA which I have had the advantage of reading in draft. I agree with his Honour in relation to the first three grounds of appeal. I also agree with the approach he takes to the fourth ground and the question of contributory negligence, a matter which, in this case, raises novel issues warranting a grant of leave to appeal. 34As Basten JA explains (at [5]), the inability of the judge to decide which of the parties had the benefit of a green light meant that the issue of contributory negligence fell to be assessed on the basis that neither had a green light (or, for that matter, a red one). The hypothesis of absence of lights is, of necessity, accompanied by a hypothesis that there was no marked pedestrian crossing or other indicator of rights of way as between pedestrians and vehicular traffic. 35On that footing, the situation was one in which a motor vehicle being driven at reasonable speed was approaching a point at which a pedestrian holding a bicycle was standing on the edge of the footpath in an attitude making it clear that he was waiting to cross and no signal or marking regulated the progress of either vehicle or pedestrian. In situations of that kind, the starting point in considering departures from standards of reasonable care is that pedestrians should wait until the road is clear before they cross and motorists are entitled to expect that pedestrians will behave accordingly. The respective positions of motorist and pedestrian in such a situation are similar to those they would occupy if the motorist had a green light and the pedestrian had a red light - being the factual basis on which the primary judge proceeded by reason of his acceptance of the respondent's evidence rather than the applicant's in assessing contributory negligence (a course which, as Basten JA explains, was erroneous). 36As Basten JA points out (at [30]), the applicant could have been expected not to commence to cross in front of a vehicle that was moving at a speed indicating that it could not have been expected to stop. Subject to what is said in the next paragraph, the diversion of the vehicle to the left as it crossed the intersection (described by Basten JA at [27]) was unexceptionable, given that it was proceeding from the section of Carrington Road that contained two marked lanes into the section beyond the intersection that consisted of a single but wider lane; and there was no reason why the respondent should have chosen the far right of the single lane instead of the centre of it. Also, there was no reason why the pedestrian should have expected that the vehicle would keep to the far right of the single lane. 37A qualification to what has just been said comes from the fact that, as Basten JA explains at [28], the applicant must have stepped off the kerb a moment before impact and have still been on the footpath when the respondent entered the intersection. The evidence does not permit any inference that, immediately before the applicant stepped on to the roadway, the respondent would or should have had any expectation that he was about to do so (Basten JA at [25]). However, the inference that the respondent, in exercising due care, should have seen the applicant after he stepped on to the roadway and kept further to the right than he did should be drawn. This applies even though the applicant must have stepped almost into the path of the oncoming vehicle. The inference warrants the conclusion that the respondent was negligent. 38Because of that conclusion and the clear contributory negligence of the appellant, responsibility must be apportioned according to the degree of departure by each party from the standard of care of the reasonable man and the relative importance of the parties' respective acts in causing the loss sustained by the applicant - in other words, the degree of culpability and causative force to be attributed to each of them: Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494. 39In my opinion, the applicant's departure from the standard of care of the reasonable man (by leaving the pavement when an approaching vehicle that could be expected not to stop had already entered the intersection) was significantly greater in degree than that of the respondent (by diverting slightly to the left and heading towards the centre of the single lane beyond the intersection rather than the right hand side of it, even when a pedestrian was obviously waiting to cross); and the applicant's act of stepping on to the roadway when the approaching vehicle was close to him was significantly more important in causing the loss than was the act of the respondent in driving through the intersection in the way he did. A comparison of the conduct of each negligent party in relation to the whole of the circumstances (particularly in light of the matters in [35] above) shows a significantly greater degree of culpability on the part of the applicant and a significantly stronger causative force in the applicant's conduct. 40For that reason, I am of the opinion that the applicant's contributory negligence should be assessed at a level of the order of 70% and accept as appropriate the apportionment 67%/33% that Basten JA proposes. The orders set out at [32] of his Honour's reasons should be made. 41WARD JA: I agree with Basten JA. As to the apportionment of responsibility, I would not have agreed that an equal apportionment of responsibility was just and equitable. Once the state of the lights is taken out of the assessment, the circumstances to which his Honour has referred indicate squarely that greater responsibility lay on the appellant who commenced to cross the road without looking to his right and who could not reasonably have been expected by the respondent to do so. The apportionment proposed by Basten JA fairly reflects the respective responsibilities of the parties for the accident and is the just and equitable outcome in my opinion.

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