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.