It was only the use of the word "that" in the next sentence which raised any doubt about what was meant by that otherwise clear statement of fact.
82 Given the circumstances in which the statement was taken, ie a summary of what he was told handwritten in a notebook by a police officer at the scene of an accident, its meaning should not be ascertained by reference to close grammatical analysis. Her Honour was justified in going beyond such an approach in order to ascertain the true recollection of the respondent. This challenge to her Honour's finding of fact has not been made out.
83 As part of the same category in the grounds of appeal, the appellant submitted that in making this finding and in accepting the respondent as being a generally reliable witness, her Honour had fallen into error by failing to give adequate reasons. The Court was referred to what were described as "repeated errors" in the respondent's evidence.
84 The examples to which the Court was referred were relatively few in number and related to peripheral matters at best. Such matters included the number of statements which he had made to the police, whether the road was wet or dry and the difference between his recollection of where the appellant was lying after the accident and that of his brother, (the difference being a matter of metres). Authorities such as Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 and Zahra v Brown [2006] NSWCA 162 did not require the trial judge to resolve every inconsistency in evidence before her particularly where those inconsistencies related to peripheral issues and were readily explained by the effluxion of time.
85 Her Honour reviewed the respondent's evidence. She set out how that evidence was consistent with other unchallenged evidence. Where the respondent's evidence dealt with matters central to the issue of liability, her Honour analysed that evidence in detail. Her overall conclusion that the respondent was a reliable witness was open to her and this ground of appeal has not been made out.
86 The second category of grounds of appeal relates to the question of onus of proof (grounds 3-10). The appellant's submission was developed as follows. Had the respondent been keeping a proper lookout, he should have seen the appellant before impact even if he was running. The respondent's failure to see the appellant meant that the respondent was not keeping a proper lookout and accordingly breach of duty was established on the part of the respondent. Once that finding was made the evidentiary onus shifted to the respondent to show that the appellant was acting irrationally or ran into the respondent's path giving insufficient time for him to avoid impact. In support of that proposition the appellant relied upon the following passage in the judgment of Gaudron J in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 419 where her Honour said:
"The case against the Minister was based on an omission or failure to act, rather than on the doing of some positive act. There are occasions when a failure to do something may have a direct physical consequence such that the failure and the consequence may together be viewed as a positive act. Thus, a failure to keep a proper look out may lead directly to one motor vehicle being driven into another. In situations of that kind the physical act of driving one car into another, rather than the failure to keep a lookout, will ordinarily be treated as the act by reference to which questions of causation are to be answered. And there are occasions when an omission or failure to act, although not attended by any physical act, is properly treated as a positive act. Thus, where silence gives rise to an inference that a particular state of affairs does or does not exist, a failure to inform may be treated as a misstatement of fact. Again, in cases of that kind questions of causation may be approached as though the positive act had, in fact, occurred. But this case, so far as it involves the Director and, vicariously, the Minister, does not fall into either of those categories: it does not involve any positive act and it does not involve an omission which can be treated as a positive act. It must be approached on the basis of omission and nothing else.
Leaving aside cases involving some positive act and those in which an omission can be treated as a positive act, a case based on omission or a failure to act will, in certain respects, fall for analysis in a way that differs from that appropriate for a case based on a positive act. Thus, in the case of a positive act, questions of causation are answered by reference to what, in fact, happened. In the case of an omission, they are answered by reference to what would or would not have happened had the act occurred. In that exercise, the larger philosophical questions are brushed aside and the issue is approached on the basis that "when there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm".
In practice, it is not always necessary to inquire what would have happened in the circumstances under consideration had a positive duty been performed. Thus, in the case of a statutory duty, a "breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty"
And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury."
87 There are a number of difficulties with the appellant's submission. Firstly, it is by no means clear that the respondent's failure to observe the appellant if he was running onto the road would constitute a breach of duty on his part. The evidence was that a running person would cover five metres in one second. The distance from the edge of the bus lane to the point of impact was 4.2 metres. It follows that a running person in the second before impact would have been moving from the grassed or tree area before reaching the breakdown lane for part of that time. In that second the respondent's vehicle if travelling at 60 kph would have travelled 16.7 metres to the point of impact.
88 In Manly v Alexander (2005) 80 ALJR 413 at [11] the High Court restated the obligations of a driver:
"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."
89 Taking into account that requirement, and in particular the obligation to pay reasonable attention to all that is happening on and near the roadway, I am not persuaded that a failure on the part of the respondent to see the appellant until just before impact if the appellant was running onto the road, constitutes a breach of duty on his part. His obligation as a driver was to look to the front, to have regard to the cars which we know were travelling in lane two, and to have regard in a general sense to his left. The obligation to exercise reasonable care needs to be looked at in the context of the location, ie a closed down industrial area where the respondent had not previously seen a pedestrian and the dark clothing, long hair and beard of the appellant. The question of breach of duty in those circumstances cannot be looked at in isolation from the actions of appellant if he was running onto the road.
90 There is another difficulty with the submission. The test for causation formulated by Gaudron J in Bennett specifically excluded "those cases in which an omission can be treated as a positive act". Running down cases involving a failure to keep a proper lookout were the sort of cases excluded by her Honour. Accordingly her Honour's test of causation is not appropriate to this case.
91 In cases such as this the relevant test for causation remains that stated by McHugh J in Chappel v Hart (1998) 195 CLR 232 at [23] where his Honour said:
"Proof of a cause of action in negligence or contract requires the plaintiff to prove that the breach of duty by the defendant caused the particular damage that the plaintiff suffered. In civil cases, causation theory operates on the hypothesis that the defendant has breached a duty owed to the plaintiff and that the plaintiff has suffered injury; but causation theory insists that the plaintiff prove that the injury is relevantly connected to the breach of duty. The existence of the relevant causal connection is determined according to common sense ideas and not according to philosophical or scientific theories of causation."