DOS SANTOS v C MORRIS PAINTING & DECORATING & ANOR

LEGISLATION CITED: Australian Road Rules 46 Motor Accidents Compensation Act 1999, s 138

Archer v Richard Crookes Constructions Pty Ltd (1997) 15 NSWCCR 297 Boyd v Leftwich (1982) 43 ALR 280 Fox v Percy (2003) 214 CLR 118 Municipal Tramways Trust v Ashby [1951] SASR 61 Podrobersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 525 CASES CITED: Port Kembla Coal Terminal Ltd v Braverus Maritime Inc [2004] FCA 1211; (2004) 140 FCR 445 Purcell v Watson and Ors (1979) 26 ALR 235 Rosenberg v Percival (2001) 205 CLR 434 Sibley v Kais (1967) 118 CLR 424 Trompp v Liddle (1941) 41 SR (NSW) 108 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

PARTIES: Wagner DOS SANTOS C MORRIS PAINTING & DECORATING & Anor

COUNSEL: Appellant: H Kelly SC/ D Shoebridge Respondents: K P Rewell SC

SOLICITORS: Appellant: Taylor & Scott Respondents: Dibbs Barker Gosling

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40980/2004

MASON P GILES JA McCOLL JA

Wagner DOS SANTOS v C MORRIS PAINTING & DECORATING & Anor

NEGLIGENCE - Motor vehicle accidents - Failure to indicate when changing lanes - Driver thereby negligent

NEGLIGENCE - Contributory negligence - Motor vehicle accidents - Cyclist riding in clearway during parking times - Collision with motor vehicle looking for parking space - Cyclist guilty of contributory negligence

(1) There will be occasions when it is not reasonable, in regard to one's own safety, to allow no margin of safety for the mistakes or carelessness of others (at [43]).

Municipal Tramways Trust v Ashby [1951] SASR 61 at 64, applied.

(2) What is unreasonable is a question of fact dependent on the particular circumstances (at [43]).

(3) (Per Mason P and Giles JA; McColl JA dissenting) The cyclist was guilty of contributory negligence.

ORDERS: Appeal and cross-appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40980/2004

MASON P GILES JA McCOLL JA

Wagner DOS SANTOS v C MORRIS PAINTING & DECORATING & Anor JUDGMENT 1 MASON P : The appellant was riding his bicycle westerly along Foveaux Street, Surrey Hills at about 2:30 pm on 29 July 2000. Weather conditions were fine. Approximately 50 metres west of the intersection of Foveaux Street and Riley Street, he collided with a Ford utility with a canopy on the back that was owned by the first respondent and driven by the second respondent. 2 Proceedings in the District Court heard by Garling DCJ resulted in a verdict for the appellant. Damages were assessed at $484,571, there being a reduction of 20 per cent for contributory negligence. 3 The appellant has appealed against the finding of contributory negligence. The respondents have cross-appealed against the finding of negligence, contending in the alternative that the 20 per cent reduction for contributory negligence was manifestly inadequate. 4 Foveaux Street has four lanes and is one-way travelling west. It dips downwards west of the Riley Street intersection. At the time of the accident lane 1 (that is, that nearest the kerb) had cars parked in it, with some empty spaces. The appellant was riding within the first lane, but outside the line of parked cars and generally close to the broken white line dividing the first two lanes. The second respondent was driving in the second lane, ahead of the appellant. The second respondent moved across into lane one when he saw a vacant parking spot, colliding with the appellant and throwing him off his bike. 5 The appellant said in evidence that he had been stopped at the red light at the intersection for three or four seconds and that he rode forward after the light turned green. The respondents' vehicle was travelling slowly ahead of him, but in lane 2. The vehicle turned across his path without indicating any intention to do so. 6 English was not the appellant's first language. At times there is ambiguity in his answers as to the time when he perceived that the driver of the van was intending to park. Nevertheless, the totality of his testimony is clearly to the effect that he never realised this until the accident was unavoidable. For example, he said (Black 6): A. What's happened his, he just take over to park his car and I was try to scream at him, "Hey, hey" and he just went straight away without put any indicator and just, that's it. 7 At Black 30-1 there was the following evidence: Q. Did you see any reason why he was going slowly? A. Well, when I saw him close me up like this to park, to go into this carpark, whatever, I was thinking he's looking for park but was no, he didn't have any sign put it on to - to go and park his car, you know, because was a few space was a car in between and the middle section was a place, was a parking space there now. And then he just like, he went to park his car like that. I was supposed to stop he put his blinker or whatever and reverse park, not just go and take over the traffic and go in like that. Q. When you first saw the other car involved in the accident ahead of you, he was going slowly and straight down Foveaux Street, wasn't he? A. He was going down Foveaux Street, yeah. Q. Did it occur to you that he was going slowly because he was looking for a parking space? A. No, if he's on the traffic or he's put his blinker to let people know he's looking for park or always he just keep going or stop and put his blinker, that's what I. Q. Did you think to yourself why he was going slowly? A. Not really because Saturday everybody relaxing down a hill and just, no idea. When I saw him going close me up and --- Q. No, before that I'm asking you about. There was no one in front of you, was there? A. No, no. Q. And there was no reason for him to be doing 15 kilometres an hour unless he was -- OBJECTION Q. Do you agree that before the vehicle involved in the collision moved to its left it was traveling at about 15 kilometres an hour? A. I can't - it was so quick, like, you know, I just - I can't, I don't know. Q. He was going slowly, wasn't he? A. The whole traffic was going slow because everybody was stop at the lights, so. Q. But as the vehicle involved in the accident went down Foveaux Street there was no traffic around the vehicle which would cause it to go so slowly, was there? A. No, there was no traffic at all down there. Q. Didn't it occur to you that there might be a reason why the vehicle was going slowly? A. Well, no because it was running the traffic, going down to the hill, cars behind him and everybody hold onto traffic, I don't think - I don't know. It was, it was my intention to go down, that's it.

8 At Black 33 there was this evidence: Q. You tried to pass him between his vehicle and the parked cars, didn't you? A. No, because I didn't see him have any indicator and he was not stopped to park anywhere. He was keep going driving down slow. 9 The appellant said that the van was moving slowly, despite being the first in its stream of traffic after the light change and initially pulling ahead of him (Black 6T, 7W, 8F). He said that "the whole traffic was going slow" (Black 30). The appellant agreed that his bike gathered speed as it went down the hill and that he caught up with the vehicle (Black 31). But he was adamant that he was within his rights in passing it on the near side because lane 1 was a marked lane and there was no indication from the van of its intention to turn to the left until it was too late (see 32M, 33H, 35P, 36C, 36M). For example, he gave the following evidence (31W): Q. Do you mean you started to overtake the vehicle involved in the accident? A. If I - I don't think I was overtaking him, he's - I was in my lane going down. He's the one just take over me. 10 The second respondent said in evidence that he did not have to stop at the lights and that he had a green light at the intersection (72, 87). He was travelling at about 20 km/h, and he slowed down as he saw the parking spot (83-4). He did not see the bike until he was looking in the external left side mirror as he moved into the vacant area consisting of two or three spots (77-8, 80, 81, 84, 85). He estimated the rider to be then about three metres to his rear and going "like nearly 100 per hour" (74). He tried to accelerate into the vacant spaces, but was unsuccessful in avoiding the accident (81-2, 89). The second respondent admitted that he knew that the law required him to indicate if he was changing lanes (84). 11 Sergeant Keir, an off-duty police officer with 25 years experience, was driving a car in the second lane. He was immediately behind the respondent although it is uncertain how close he was and whether he had to come to a halt before being able to proceed through the Riley Street intersection. 12 Sergeant Keir said that the bike was being ridden on the white line between lanes one and two. He saw the respondents' vehicle about 40 to 60 metres in front of his car. The bike was driving faster and catching up with the van. The van was travelling slowly (between 15-20 km/h), with the indicator showing it was turning left. The officer also saw the car driver looking over his shoulder before changing lanes in a 45 degree turn. He saw the bike rider come off his bike. 13 There was a live issue at trial as to whether the second respondent had his left indicator on. The appellant said it was not on. From as early as immediately after the accident, the second respondent said he could not remember whether it was on. Sergeant Keir gave evidence that it was on, but this testimony was challenged in cross-examination and rejected by the trial judge as a reconstruction. 14 The primary findings relevant to both negligence and contributory negligence included (Red 30-1, 33):

(i) The appellant was riding along the edge of the number one lane travelling at about 20 km/h at the time of the accident;

(ii) The second respondent was travelling slowly in the number 2 lane looking for a parking spot;

(iii) The second respondent turned from lane 2 into lane 1 to enter a parking spot not expecting there to be a bike travelling in the left-hand lane where there were parked cars and without first checking if a cyclist was in lane 1;

(iv) When the second respondent turned into lane 1 the appellant was less than 3 metres from the defendant's vehicle and it was too late to take evasive action; and

(v) The second respondent failed to indicate before moving from lane two to lane one.

Trial judge's conclusions as to negligence and contributory negligence 15 Judge Garling proceeded from the primary findings to the inferred or evaluative conclusion that the second respondent was negligent. The conclusion of negligence was based on the respondent's failure to signal before he changed lanes; his failure to keep a proper lookout for vehicles travelling in the first lane, including bikes, who were entitled to be there; and his failure to change lanes safely. 16 His Honour explained the finding of contributory negligence in the following terms: If a bike rider, in my view, wishes to ride down the left-hand lane of four where there are cars parked in that lane at a speed of about 20 kilometres per hour where a vehicle in front of him is travelling slowly and clearly looking for a parking place then that bike rider, in my view, should be aware that the vehicle may turn into a parking place and may turn without indicating because the driver would not have suspected that a bike rider would be coming down a left lane which had cars parked on it. That, in my view, puts an obligation upon the bike rider to take care for his own safety and to ride in a safe manner. I do not believe he did it on this occasion and I believe he contributed to this accident and I assess that contribution at twenty per cent. Cross-appeal as to negligence finding 17 It is convenient to address the cross-appeal first. The respondents submit that a finding of negligence was unjustified, especially since the correct finding of primary fact should have been that the left indicator was displayed. 18 The cross-appeal seeks to build on the finding as to contributory negligence that the van was "travelling slowly and clearly looking for a parking space" . [This inference as to the clearly apparent intentions of the second respondent is squarely challenged in the appeal itself, but I shall for the moment assume its correctness.] 19 Next, the cross-appellant challenges as "glaringly improbable" the trial judge's rejection of aspects of Sergeant Keir's evidence. 20 In part, the challenge relates to matters of detail concerning the exact point of impact on the van; whether the second respondent had stopped at the lights in the group that included the appellant and Sergeant Keir; and whether the second respondent got well ahead of the appellant before the appellant caught up with him and collided. These were ultimately peripheral matters, as the trial judge effectively acknowledged at Red 30. After all, the collision did occur, and at a point only about 50 metres down from the Riley Street intersection. These details do not bear upon the primary facts that were found and that, with one exception, are not in issue in the appeal. 21 Nor did the judge's limited manner of addressing these details undermine the his Honour's credit-related finding on the critical issue of primary fact that the second respondent did not use his indicator to signal his intention to cut across into lane 1. 22 In my view, Judge Garling has not been shown to have erred in concluding that the indicator was not used. The appellant swore it was not. The second respondent never said it was on, his position from the outset being that he could not remember. The judge correctly observed that it was most unlikely that inability to remember would have been a factor straight after the accident. 23 Sergeant Keir swore that he saw the indicator on and that he also saw the driver of the van looking over his shoulder before changing lanes. Judge Garling did not suggest that this was dishonest evidence, but his Honour provided more than adequate reasons for not accepting this testimony, quite apart from its incompatibility with the evidence of the two other main witnesses. 24 The problems with the officer's evidence included its inconsistency with the notebook entry he made on the day of the accident. Sergeant Keir made a note in his official notebook when he got home: "Car hit bike rider. Car changed lanes and forced rider to try and avoid him causing cyclist to fall heavily onto the roadway..." 25 That entry said nothing about the indicator and it implied fault in the van driver. The entry also referred to the car hitting the bike rider, whereas the officer gave firm testimony that there was no actual collision. 26 Judge Garling was also troubled by the officer's evidence that the second respondent looked over his shoulder before changing lanes. His Honour gave two reasons: the improbability of the policeman having been able to observe such a matter of detail and inconsistency with the evidence of the second appellant who said that he looked in his side mirror. This reasoning was well open to the primary judge. 27 His Honour also thought it "impossible" for the respondent's vehicle to have got through a phase of the Riley Street lights earlier than that which had delayed the officer and the appellant, as the officer stated or implied in his evidence. It was "impossible" because of the small distance between Riley Street and the point of impact. I agree with the cross-appellant that "impossible" may have stated the matter too highly, but the evidence on this matter of detail remained highly improbable. Its rejection was open to be taken into account in assessing the officer's testimony on the material question concerning the indicator. The cross-appellant cannot show, as he must, that there was an error that played a decisive part in the resolution of the critical issue (see Rosenberg v Percival (2001) 205 CLR 434 at [43], [166], [223]; Fox v Percy (2003) 214 CLR 118 at [90]). 28 The balance of the cross-appeal seeks to assail the inferences of negligence that proceeded from the findings of primary fact. It is also argued that the judge made no allowance for the fact that the appellant's pushbike had gathered speed as he travelled downhill in Foveaux Street. It is submitted that the second respondent, acting reasonably, was entitled to proceed on the basis that it was unlikely in the extreme that any road user would be as foolhardy as the appellant allegedly was. 29 These submissions are ultimately unpersuasive. In part, they exaggerate the cyclist's speed and ignore the compelling evidence from both sides that the collision happened because both driver and cyclist only perceived what was about to happen when it was too late. It was well open to the judge to accept the evidence about the closeness of the two parties at the critical moment before impact. 30 What remains are the primary facts, unchallenged or unchallengeable. They show the second respondent to have been in breach of Australian Road Rules 46 (giving a left change of direction signal) and 148 (giving way when moving from one marked lane or line of traffic to another marked lane or line of traffic). 31 I accept that it was unlikely that anyone would have come up on the respondent's left hand rear side, as the appellant did, given the row of parked cars. But it was not inconceivable. The appellant was not breaching any particular Road Rule (cf Rule 141) and the slow speed at which the second respondent was travelling was itself capable of encouraging a cyclist to pass on the left. The unlikelihood of the appellant's presence did not preclude the finding of negligence against the second respondent given the latter's failure to look or signal, his own breach of the Rules and what I would describe as the known possibility that bike or bicycle riders behave the way that the appellant did. 32 A finding of negligence is not precluded by pointing to the contributory negligence of the victim. 33 The cross-appeal should therefore be dismissed.

Appeal and cross-appeal as to contributory negligence 34 The appellant's case, in this Court, as below, was that he was entitled to ride along the left lane. The accident was totally the fault of the van driver. The appellant ought not reasonably to have expected the van driver to change lanes suddenly and without signalling, as he did. The cyclist's conduct was not shown to be a cause of the accident. It follows that there should have been no reduction for contributory negligence. 35 The respondents contend in their cross-appeal that 20 per cent was manifestly inadequate. This submission effectively repeats the contention denying negligence entirely. 36 The appellant submits that there was no basis on which the trial judge could conclude that the respondents' vehicle was "clearly looking for a parking space" . He further submits that, absent this finding, the conclusion as to contributory negligence must fall. 37 I do not agree. In my view, the conclusion was correct and the 20 per cent apportionment well within a sound discretionary judgment. I would therefore reject both the appellant's and the cross-appellants' attack on the finding as to contributory negligence. My reasons follow. 38 I have already indicated why the finding that the left indicator was not used must stand. 39 The sole basis on which the judge inferred that the van driver was "clearly looking for a parking space" was that it was travelling slowly, explained as being at a speed of about 20 km/h. The primary finding about the speed was well supported in the evidence and is not itself challenged. 40 20 km/h was indeed very slow given the 60 km/h limit, the downward slope of Foveaux Street and the absence of any traffic ahead of the second respondent causing him to slow down. 41 The appellant was aware that he was gaining on the slow vehicle in the adjacent lane and that there were no cars ahead of that vehicle in its second lane. 42 I am satisfied that it was open to the judge to infer from the primary facts that the van driver's intention to look for a parking space was "clear" in the sense of being apparent. This does not require a finding that the appellant actually perceived this, and there is no such finding (despite some equivocal support for it in the evidence: cf 35U). Apparentness is nevertheless highly relevant to the issue as to what the appellant ought to have done. 43 The appellant's stance, in brief, was that he was entitled to pass on the nearside and that it was incumbent on the driver of the utility to give adequate warning, in accordance with the Road Rules , before cutting across his path. Acceptance of this did not in my opinion undercut the capacity to find contributory negligence. There will be occasions when it is not reasonable, in regard to one's own safety, to allow no margin of safety for the mistakes or carelessness of others ( Municipal Tramways Trust v Ashby [1951] SASR 61 at 64). What is unreasonable is ultimately a question of fact dependent on the particular circumstances ( Sibley v Kais (1967) 118 CLR 424). 44 Did the trial judge err in his evaluative conclusion on contributory negligence? I am not persuaded that he did, even though I remind myself that the respondent bore the onus of proof on both the fault and causation elements in contributory negligence. 45 In my opinion, a cyclist in the appellant's position ought to have done more to look after his own safety. The unexplained slowness of the second respondent's vehicle betokened to the reasonable observer the possibility that the driver might have a parking spot in mind. Skirting along the outside of lane 1 with its row of parked cars was fraught with risk, even if a driver in lane two signalled as he or she was about to turn into a parking spot. A cyclist knows or ought to know that he or she is not easy to spot in the best of circumstances. The appellant ought at least to have realised the possibility that the driver in the second lane might decide not to signal because he or she knew that no moving car could be sharing the lane of parked cars while overlooking the remote possibility of a cyclist being there as well. 46 I have considered but respectfully disagree with McColl JA's opinion that my reasons disclose a failure to afford procedural fairness to the appellant or to recognise the way in which the trial was run. The Defence contains very full particulars of contributory negligence. If that defence was to succeed in the circumstances it depended on proof of objective matters, not the state of the appellant's mind. The matters found or inferred against the appellant by the trial judge (and myself) were, I believe, open on the primary facts established by the evidence. A party seeking to propound a particular issue is not confined to reliance upon the matters put by way of cross-examination to the opposing party, so long as the pleadings or manner in which a trial is conducted gave adequate notice of intention to rely upon a wider group of matters and those wider matters are otherwise established at trial (see Archer v Richard Crookes Constructions Pty Ltd (1997) 15 NSWCCR 297 at 302-3, and cases cited). This was not a case where the court was asked to reject any part of the appellant's evidence that had been accepted as true by failure to cross-examine on it. 47 Like the trial judge, I would infer that the appellant's conduct contributed to the collision. Slower speed, or waiting until it became apparent that the driver of the utility was not looking for a parking space, would probably have prevented the accident. The point of impact towards the rear of the utility shows that the utility was fairly well into its turn before the collision occurred. I infer that the accident would have been avoided, had the cyclist driver travelled more slowly or kept a sharper lookout as he ought to have done, in my opinion. 48 As to the precise apportionment, both parties have failed to show error in the sense required by Podrobersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 525. 49 The appeal and cross-appeal should each be dismissed with costs. 50 GILES JA: I agree with Mason P. 51 McCOLL JA : I have had the benefit of reading Mason P's judgment in draft. I agree with, and gratefully adopt, his Honour's reasons for disposing of the cross-appeal. 52 I have reached a different conclusion on the appeal. In my view, the primary judge erred in finding that the appellant was guilty of contributory negligence. 53 The facts are set out in Mason P's judgment. I shall not repeat them save as necessary to explain my reasons for differing with his Honour's conclusion on the issue of contributory negligence.

54 The respondents alleged that the appellant had been guilty of contributory negligence at common law. No question arose of contributory negligence pursuant to the Motor Accidents Compensation Act 1999, s 138. The appellant relied upon the Australian Road Rules ("ARR") both to establish that he had been riding lawfully in the circumstances and that the second respondent had breached those rules. 55 The Australian Road Rules are incorporated into New South Wales law by virtue of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999. They relevantly provide: Giving a left change of direction signal 46. (1) Before a driver changes direction to the left, the driver must give a left change of direction signal in accordance with rule 47 for long enough to comply with subrule (2) and, if subrule (3) applies to the driver, that subrule. … (2) The driver must give the change of direction signal for long enough to give sufficient warning to other drivers and pedestrians. How to give a left change of direction signal 47. The driver of a vehicle must give a left change of direction signal by operating the vehicle's left direction indicator lights. No overtaking etc to the left of a vehicle 141. (1) A driver (except the rider of a bicycle) must not overtake a vehicle to the left of the vehicle …

(2) The rider of a bicycle must not ride past, or overtake, to the left of a vehicle that is turning left and is giving a left change of direction signal. Giving way when moving from one marked lane or line of traffic to another marked lane or line of traffic 148. (1) A driver on a multi-lane road who is moving from one marked lane (whether or not the lane is ending) to another marked lane must give way to any vehicle travelling in the same direction as the driver in the marked lane to which the driver is moving. "Give way" is defined in the Dictionary to mean the driver must slow down and, if necessary, stop to avoid a collision. A bicycle is a "vehicle": ARR 15 56 The respondents' essential case at trial both on liability and contributory negligence was that the appellant had attempted to pass the second respondent's vehicle while its left indicator was operating. The primary judge found that the left indicator on the second respondent's vehicle was not operating. The respondents' challenge to that finding in their cross-appeal has failed. 57 The respondents also put to the appellant that he had gathered speed as he cycled down Foveaux Street, in itself an unremarkable proposition having regard to the laws of physics, but one which apparently foundered in any sense material to contributory negligence, by the finding that the appellant was travelling at about 20km/h, well within the speed limit, at the time of the accident.

The primary judgment 58 The primary judge's finding on contributory negligence was: "If a bike rider… wishes to ride down the left-hand lane of four where there are cars parked in that lane at a speed of about 20 kilometres per hour where a vehicle in front of him is travelling slowly and clearly looking for a parking place then that bike rider, in my view, should be aware that the vehicle may turn into a parking place and may turn without indicating because the driver would not have suspected that a bike rider would be coming down a left lane which had cars parked in it. That, in my view, puts an obligation upon the bike rider to take care for his own safety and to ride in a safe manner. I do not believe he did it on this occasion and I believe he contributed to this accident and I assess that contribution at twenty per cent."

His Honour did not specify in what respect, in his view, the appellant had not ridden "in a safe manner". No doubt the generality of that conclusion reflects, as I shall later explain, the respondent's failure to put to the appellant any case on contributory negligence, alternative to the proposition that he had either failed to see, or ignored, the left indicator switch blinking. However, critically, for present purposes, the generality of the primary judge's conclusion means that this Court is not burdened by findings of fact, but is concerned rather with what inferences should be drawn from the facts, an exercise it is in as good a position as the trial judge to determine: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Submissions on appeal 59 The appellant challenged the primary judge's finding that he ought to have perceived that the second respondent was "clearly looking for a parking space". He submitted that the sole basis for this conclusion was that the second respondent's vehicle was travelling slowly, but pointed out that the evidence was that the respondents' vehicle was travelling at approximately the same speed as his. 60 The appellant also argued that he was entitled to assume the second respondent would obey the minimum requirements of the Australian Road Rules of giving way and signalling his intention to change direction to the left prior to entering lane one. 61 The appellant pointed out that he was cycling at a speed that was less than half the legal speed limit when the second respondent veered into his lane without warning and knocked him off his bicycle. He argued that to find contributory negligence on the basis that he ought to have been aware that a slow moving driver would, without warning, flout the road rules and fail either to indicate or check for a cyclist prior to merging into the cyclist's lane amounted, in essence, to a finding that it was contributory negligence to be lawfully riding a bike. 62 The appellant also submitted that, to the extent the speed at which he was travelling was relevant, the respondents had failed to prove that speed was relevantly causative of his injuries. He contended that there was no evidence that had he been travelling at half the speed, he would have had sufficient space to stop. 63 The respondents submitted that it was sufficient to support the primary judge's finding of contributory negligence that the appellant ought to have foreseen that one possible reason why the second respondent was driving slowly was that he was looking for a parking space. They argued that once the appellant had that degree of foresight it was unsafe for him to ride his bicycle in the manner and along the path he did. They submitted that the appellant failed to take reasonable care for his own safety in riding his bicycle to the rear nearside of the vehicle into a position where a collision was inevitable in the foreseeable event that a vacant parking space appeared and the second respondent began to move into it. They contended that in order to discharge his obligation to take reasonable care for his own safety, the appellant had to ride his bicycle so as to be able to stop if the second respondent's vehicle moved into a car parking space.

Contributory negligence 64 The principles of contributory negligence at common law were analysed by Hely J with customary clarity in Port Kembla Coal Terminal Ltd v Braverus Maritime Inc [2004] FCA 1211; (2004) 140 FCR 445 relevantly as follows: "[466] At common law a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably might have been foreseen and avoided and suffers injury within the class of risk to which the plaintiff was exposed: Joslyn v Berryman (2003) 214 CLR 552 at [16]…. [467] The decision of the High Court in Astley v Austrust Ltd (1999) 197 CLR 1 is authority for the following propositions (see 197 CLR 11-14 per Gleeson CJ, McHugh, Gummow and Hayne JJ): - if a plaintiff fails to take care of its property it may be guilty of contributory negligence although it owed no duty to the defendant in respect of the property; - contributory negligence may be established by conduct which contributed towards the plaintiff's injury, but not to the accident; - the plaintiff may be guilty of contributory negligence even though the very purpose of the duty owed by the defendant is to protect the plaintiff's property; and - contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is only one of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its property. [468] The applicable standard is one of reasonableness rather than perfection: Purcell v Watson (1979) 26 ALR 235 at 237. In the context of negligence, McHugh J said in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at [38] that: … a defendant is not negligent merely because it fails to take an alternative course of action that would have eliminated the risk of damage. The plaintiff must show that the defendant was not acting reasonably in failing to take that course. If inaction is a course reasonably open to the defendant, the plaintiff fails to prove negligence even if there were alternatives available to the defendant that would have eliminated the risk (emphasis in original) Those observations are equally applicable where the issue is one of contributory negligence. [469] The defendant must further establish that the loss or damage suffered by the plaintiff was causally linked to the contributory negligence of the plaintiff. The plaintiff's negligence must be shown to be a cause operating to produce the damage: Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 165. Exactly what this statement means has, in times past, varied considerably. However, in the modern context, it can be accepted as settled that in determining whether contributory negligence caused the relevant injury, the ordinary common law commonsense principles of causation apply: see R P Balkin & J L R Davis, Law of Torts, Butterworths, 3rd Ed, 2004 at [10.6]."

The principles Hely J extracted from Astley v Austrust Ltd were expressed in the context of a plaintiff's failure to take reasonable care for the protection of his or her person, as well as property. 65 I would add some remarks of particular relevance to the present case. 66 The question whether a person has been guilty of contributory negligence is determined objectively; contributory negligence "eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question"; accordingly "any fact or circumstance is relevant in determining contributory negligence if it proves, or assists in proving, a reasonably foreseeable risk of injury to the plaintiff in engaging in the conduct that gave rise to the injury suffered": Joslyn v Berryman , per McHugh J (at [16], [32]); see also at [70] per Gummow and Callinan JJ who observed that the "the standard of care expected of the plaintiff be measured against that of a person of ordinary prudence and not merely by reference to subjective attitudes of the particular plaintiff". The fact that the question of contributory negligence is determined objectively means the Court is not confined to the facts and circumstances observed or observable by the plaintiff ( Joslyn v Berryman at [15] - [16]); it does not, however, mean the plaintiff's perceptions of the circumstances of the accident are irrelevant. They form part of the factual matrix in which the issue of contributory negligence is determined. 67 As a general rule, a person is entitled to assume that others will act in a non-negligent manner. However, as Gibbs J (as he then was) said in Purcell v Watson and Ors (1979) 26 ALR 235 at 240 "the assumption that other users of the highway will act reasonably and safely is so often falsified that it cannot be said as a general rule that a user of the highway can reasonably act on that assumption." 68 The fact that the appellant was entitled to rely upon the second respondent to observe the ARR forms part of the factual inquiry as to whether, in all the circumstances, he failed to take reasonable care for his own safety. As Jordan CJ said in Trompp v Liddle (1941) 41 SR (NSW) 108 at 109: "A driver is entitled to assume that other drivers will observe the rules of the road. This does not mean that he may drive at any pace he chooses so far as roads coming in on his left are concerned, or with complete indifference to the possibility of a car suddenly emerging from the side road as a result of accident, miscalculation, ignorance or recklessness. It means that it is not unreasonable for him to act on the assumption that other drivers are obeying the rules unless there is something which should make him realise that they are not . Thus the mere fact that he sees the bonnet of a car appear from a side street on his left does not make it imperative for him to stop. Drivers in such positions normally advance far enough to see whether cars are approaching on their right; and a driver so approaching may reasonably assume that the driver on his left is advancing for this purpose unless he gets some indication to the contrary. " (emphasis added)

In Astley v Austrust Ltd , (at [30]) after referring to this passage, Gleeson CJ, McHugh, Gummow and Hayne JJ observed that while "[i]n many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty … there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists…" 69 Jordan CJ's statement was approved by the High Court in Sibley v Kais (1967) 118 CLR 424 at 427 - 428 where Barwick CJ, McTiernan, Kitto, Taylor and Owen JJ also observed: "…[T]here is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case."

Decision 70 It was common ground that at the time the appellant was riding his bicycle west along Foveaux Street, Surry Hills on 29 July 2000, he was acting lawfully. Conversely, on the findings of the primary judge, which Mason P accepts, the second respondent was in breach of ARR 46 in that he failed to operate the vehicle's left direction indicator light before he moved from lane 2 to lane 1 and, too, in breach of ARR 148, in that he failed to give way to the appellant's bicycle when moving from one marked lane to another marked lane. In addition, he turned from lane 2 into lane 1 to enter a parking spot without first checking whether a cyclist was in that lane. 71 I agree with Mason P's conclusion that on the totality of his evidence, the appellant did not perceive that the second respondent was intending to park until an accident was unavoidable. I would add that it is apparent from the appellant's evidence that he expected that, if the second respondent intended to change lanes, he would activate the left indicator on his vehicle. 72 As I have said, the primary judge did not specify in what respect he found the appellant failed to take reasonable care for his own safety. Mason P has identified the appellant's omissions in the following manner: "In my opinion, a cyclist in the appellant's position ought to have done more to look after his own safety. The unexplained slowness of the second respondent's vehicle betokened to the reasonable observer the possibility that the driver might have a parking spot in mind. Skirting along the outside of lane 1 with its row of parked cars was fraught with risk, even if a driver in lane two signalled as he or she was about to turn into a parking spot. A cyclist knows or ought to know that he or she is not easy to spot in the best of circumstances. The appellant ought at least to have realised the possibility that the driver in the second lane might decide not to signal because he or she knew that no moving car could be sharing the lane of parked cars while overlooking the remote possibility of a cyclist being there as well." 73 As to these reasons I would make the following observations. First, the speed of the respondent's vehicle was equivocal. As Mason P says (at [37]) "[t]he slow speed at which the second respondent was travelling was itself capable of encouraging a cyclist to pass on the left". Secondly, there was no evidence, or finding, that the appellant was "skirting along the outside of lane 1" if, by that observation the President intends to convey that he was riding his bicycle in a fundamentally unsafe manner. Thirdly, the proposition that "a cyclist knows that he or she is not easy to spot in the best of circumstances" was not put to the appellant in cross-examination and was not otherwise the subject of evidence. Indeed the evidence was to the contrary: the second respondent saw the appellant as soon as he looked in his side mirror. Fourthly, riding in lane 1 was not fraught with risk if a driver in lane 2 signalled his/her intention to turn into a parking spot and gave sufficient warning of that intention as required by ARR 46 (2). 74 Fifthly, I cannot, with respect, accept Mason P's basic premise that cyclists should ride their bikes with the expectation that drivers assume the prospect of a cyclist riding in the appellant's position is remote. It is commonplace for drivers of motor vehicles to encounter cyclists on the road, particularly in the inner city where the accident occurred. Road signs encourage drivers to respect cyclists (and, no doubt pedestrians and each other too) by exhortations such as "the road is there to share". It is also usual to observe cyclists travelling in the position in which the appellant was riding his bicycle prior to the accident. Cyclists typically travel to the left of the line of moving vehicles no doubt because they usually cannot maintain the same speed as a car. In my view a cyclist is entitled to expect that his or her presence on the road will be anticipated by, and apparent to, other road users. 75 It may well be that the appellant ought to have appreciated that the speed at which the second respondent was travelling meant it was possible he might be looking for a parking spot. That does not, in my view, mean that he ought also to have appreciated that, had the second respondent spotted a position in which to park, he would have driven into it without checking to see whether there was anyone (most probably a cyclist, or a motor cyclist) in lane 1 and, moreover, without indicating his intention to do so. 76 The President has concluded (at [47]) that the appellant's conduct contributed to the collision because he should have ridden slower, or waited until it became apparent that the second respondent was not looking for a parking space and/or kept a sharper lookout. However the question where contributory negligence is alleged is whether the defendant has proved that the plaintiff has failed to protect his or her person against damage, not whether the failure contributed to the accident or whether, had the plaintiff acted differently, the accident would have been prevented: see Dovuro v Wilkins at [38] (as cited by Hely J in Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (at [468], above); Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 at [21]; see also Derrick v Cheung [2001] HCA 48; (2001) 33 MVR 393 at [13]. Accordingly, the respondents had to establish that the appellant was not acting reasonably in failing to take an alternative course of action, not that, had he acted differently, the accident would have been prevented. In my view they failed to discharge that burden. 77 As has been observed, it is dangerous to attempt to decide cases of this kind by the application of general abstract propositions; everything must depend on the facts of the particular case: see Boyd v Leftwich (1982) 43 ALR 280 at 282 per Gibbs CJ (with whom Murphy, Wilson and Brennan JJ agreed). 78 Mason P's conclusion means that the appellant was required to defer to a motor vehicle in the adjacent lane for fear that, without warning, its driver would behave in the grossly negligent manner in which the second respondent did. In my view that imposes upon the appellant a duty which exceeds the requirement that he take reasonable care for his own safety. The appellant did not act with a "stiff-neck insistence upon his rights" ( cf Purcell v Watson at 240). He was lawfully riding in lane 1, well within the speed limit. The weather conditions were fine. The appellant was entitled to expect the second respondent would have been aware of his presence and, too, that he would give sufficient indication of his intention to turn: ARR 46(2). 79 Mason P's analysis also fails to have regard to the reasonable cyclist's expectation that drivers will observe the Australian Road Rules. While those rules are a variable factor in determining whether contributory negligence exists, it is relevant to note that this was not a case where the second respondent's conduct gave the appellant any reason to foresee he would not observe them: Trompp v Liddle . 80 Accordingly I do not accept that, even if the appellant ought to have appreciated the second respondent was looking for a car spot, he ought also to have foreseen that if he saw one, he would flagrantly disregard two road rules in seeking to park so that it was incumbent on him to take an alternative course of action. 81 I would also add that none of the abstract propositions upon which Mason P founds his conclusion of contributory negligence was put to the appellant. His evidence was that he did not realise the second respondent was attempting to park until the accident was unavoidable. He said he tried to pass on the left (I would add, as the ARR permitted) because the second respondent did not have his indicator on. The respondents bore the burden of proving the plaintiff was not acting reasonably. It would have been incumbent upon them to put to the appellant the propositions upon which Mason P's conclusion of contributory negligence is founded. That, at least, would have provided a cyclist's view of the reasonableness of the course which Mason P surmises the appellant ought to have taken. As it is there is no evidence before the Court as to those matters. 82 I cannot agree that this is a case which falls within the principles explained in Archer v Richard Crookes Construction Pty Ltd (1997) 15 NSWCCR 297. That case concerned the question whether the plaintiff had established he suffered anosmia as a result of the defendant's negligence, the defendant bearing only an evidentiary onus of establishing his anosmia was caused by some other condition. Here the respondents bore the legal onus of establishing the appellant had been guilty of contributory negligence. 83 Secondly, while it is true that the respondents' defence pleaded a number of allegations of contributory negligence, so that, to that extent, the appellant was on notice of the case they would seek to make good in that respect, unlike Archer v Richard Crookes Construction Pty Ltd , none of those matters was established at trial. At the risk of repetition, none of the matters Mason P has found constitute contributory negligence on the appellant's part was put to him in cross-examination. Had they been, it is possible he could have given an explanation, consistent with reasonable conduct on his part, as to why, in the circumstances, those steps were not practical - evidence which could, and most probably would, have informed the objective exercise of determining whether or not he had been guilty of contributory negligence. 84 Finally, the proposition that the Court is not being asked to reject any part of the appellant's evidence that had been accepted as true by the failure to cross-examine on it (Mason P at [46]) underlines the proposition that the finding of contributory negligence entails formulating a case that was not put at trial. 85 I propose the following orders: (1) Appeal allowed. (2) Set aside the trial judge's finding of 20% contributory negligence on the part of the appellant.

(3) Judgment for the appellant as against the respondents in the sum of $605,714.00.

(5) Cross appeal dismissed with costs. **********

09/05/2006 - Wrong year in judgment date - Paragraph(s) none

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