Ground 2 - Contingent Finding of Negligence
80 The basis upon which the judge found the Appellant had been negligent included findings that she was travelling at 60kph, and did not apply her brakes or decelerate at all in the period before the impact. He found at [176] that the Respondent's car was parked on the bitumen cycleway, with its front about 25m to the south of the 70kph sign, and its rear approximately 30m to the south of that sign. He made two findings about the distance in which the Appellant had the opportunity to observe the Respondent's vehicle. At [174] he said:
"I find that the Defendant ought to have seen the rear of the Plaintiff's vehicle at a point about 120m south of the 70kph speed limit sign."
81 However at [182] he said:
"I find that it is more probable than not that the Defendant had a view of at least 100m if not 120m line of sight to the rear of the Plaintiff's vehicle at the first moment the Plaintiff's vehicle was available to be seen by the Defendant."
82 If the rear of the Respondent's vehicle was 30m from the sign, those two findings could not both be right.
83 The judge thereafter reasoned on the basis of adopting the 100m to 120m line of sight finding. He reasoned that the Appellant would have travelled that distance in six or seven seconds, assuming there was no braking. He accepted expert evidence that a driver perception reaction time of 1.5 seconds was a reasonable assumption for a driver on an urban road at night. He found that the Appellant should have decreased her speed on first sighting the rear of the Respondent's parked vehicle, and should have done so by applying the brakes. Given the distance that she would have travelled in the reaction time, the Appellant would have been at least 75m to 95m away from the Respondent's vehicle at the time she began to slow. He found that the Appellant should have both flashed her headlights and sounded her horn upon seeing the Respondent's vehicle. Had the Appellant slowed, that would have given the Respondent the "fraction over a second" that, at the Respondent's estimated turning speed of 5.5m per second, would have been needed for the Respondent to move her vehicle further into the U-turn and out of the path of the Appellant's vehicle. The judge also found that it would have been a reasonable manoeuvre for the Appellant to swerve, and steer a course behind the Respondent's turning vehicle. He concluded, at [221]:
"In my view the Defendant should have, in sequence, decelerated, braked, flashed her lights, sounded her horn and steered or swerved slightly to the left to move behind the Plaintiff's turning vehicle. In my view, had she done so the collision would not have occurred."
84 On his way to this conclusion the judge said, at [207] concerning flashing headlights and sounding her horn:
"In my view both of these measures were reasonable and prudent steps that she should have taken in the circumstances because, in my view she should have anticipated the possibility of the Plaintiff making a turn across her path. This would have been my view irrespective of whether or not the Plaintiff's right indicator was flashing, as the Defendant ought to have anticipated the presence of possible danger. Manley v Alexander (2005) 80 ALJR 413."
85 The judge's reasoning on negligence was premised on there having been a flashing indicator.
86 Mr Deakin submits that the contingent finding of negligence in para [207], that even if the right indicator had not been flashing the Appellant failed to take reasonable and prudent steps, cannot stand, as it is supported by inadequate reasons. I agree. In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Meagher JA at 442 accepted that "… a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why they lost". His Honour accepted, at 443 that one of the "fundamental elements of a statement of reasons" was that there should be "reasons in applying the law to facts found".
87 The majority judgment of Gummow, Kirby and Hayne JJ in Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413; 223 ALR 228 at [11]-[12] accepted that:
"Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path.
… the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events."
88 The issue in Manley concerned whether a driver had been negligent when, while driving at night, he took his eyes off the road for two or three seconds to look at a potential source of danger at the side of the road, and because he was looking to the side of the road did not see that a man was lying in the roadway until it was too late for the driver to avoid running over him. The conclusion of the majority judgment, at [14] was:
"It was well open to the Full Court to conclude, as it did, that the Appellant had failed to exercise reasonable care. "
89 Thus, the ratio of the case concerns whether a particular decision on a question of fact, namely breach of duty, was open to the Full Court. There is nothing in the reasoning to suggest that the duty of a driver of a motor vehicle is anything other than to exercise reasonable skill and care in all the circumstances.
90 In Hawthorne v Hillcoat [2008] NSWCA 340; (2008) 51 MVR 523 at [47] Hodgson JA, with whom Ipp JA and Gyles AJA agreed said of Manley:
"… it is noteworthy that their Honours used the words "may know" and not "knows" or "will know" . I do not suggest that, in their context, the words "may know" mean merely "might possibly know" . However, the words certainly do not mean "knows" or "will know" . In my opinion, the best understanding of the words can be expressed as "is in a reasonable position to know" . The standard in respect of the position a driver should be in so as to be able to take reasonable steps to react to events is itself a standard of reasonable skill and care; and although the standard of reasonable skill and care required of drivers is a high standard (because cars are so dangerous, and can so easily cause serious injuries), it is not a standard measured by success or perfection assessed with the wisdom of hindsight."
91 In my view, adequate reasons for a conclusion that failure of the Appellant to flash her headlights and sound her horn upon seeing the Respondent's vehicle parked in the breakdown lane, with its taillights illuminated but no indicator flashing, would require some explanation of the risk that such a vehicle might be seen to pose, and of why sounding the horn and flashing the lights was a reasonable response to any such risk. There is no such explanation.
92 Further, a finding of the tort of negligence (as opposed to a negligent act) in those circumstances would require some consideration of whether failure to flash the lights and sound the horn in those circumstances was a cause of the accident. Even if it were the case that failure to do so increased the risk of a collision occurring between the two vehicles (a topic on which I express no view), that would not be enough by itself to show that failure to take those steps caused the accident: Flounders v Millar [2007] NSWCA 238; (2007) 49 MVR 53; Warren v Gittoes [2009] NSWCA 24; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [240]; Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355; [2007] Aust Torts Reports ¶81-924. The trial judge has not considered causation of damage, an essential element of the tort of negligence. That provides a separate reason why the judge's finding at para [182] is insufficient to enable the judgment to stand.