Flounders v Millar

Amaca Pty Limited v Hannell [2007] WASCA 158 Batiste v State of Queensland [2002] 2 Qd R 119 Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 (at 316G) Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 419 Betts v Whittingslow (1945) 71 CLR 637 at 649 Chappel v Hart (1998) 195 CLR 232 at [23] Coca Cola Amatil (NSW) Pty Limited v Pareezer (2006) Aust Torts Reports 81-834; [2006] NSWCA 45 Desmond v Cullen (2001) 34 MVR 186; [2001] NSWCA 238 E M Baldwin & Son Pty Limited v Plane & Anor (1998) 17 NSWCCR 434 Fairchild v Glenhaven Funeral Services Limited [2003] 1 AC 32 Forbes v Selleys Pty Limited [2004] NSWCA 149 Henry Walker Eltin Contracting Pty Limited v Hrstic [2005] NSWCA 253 Jones v Dunkel (1959) 101 CLR 298 Luxton v Vines (1952) 85 CLR 352 Manly v Alexander (2005) 80 ALJR 413 at [11] CASES CITED: March v Stramare (E & M H) Pty Limited (1991) 171 CLR 506 McGhee v National Coal Board [1973] 1 WLR 1 Mitor Investments Pty Limited v General Accident Fire and Life Assurance Corporation Limited [1984] WAR 365. Naxakis v Western General Hospital (1999) 197 CLR 269 at 279 North Sydney Council v Binks [2007] NSWCA 245 Orica Limited v CGU Insurance Limited (2003) 59 NSWLR 14 Rufo v Hosking (2004) 61 NSWLR 678; [2004] NSWCA 391 Seltsam Pty Limited v McGuiness (2000) 49 NSWLR 262 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 TC by his tutor Sabatino v State of New South Wales [2001] NSWCA 380 Travel Compensation Fund v Tambree (2005) 224 CLR 627 Tubemakers of Australia Limited v Fernandez (1976) 50 ALJR 720 Van Den Heuvel v Tucker (2003) 85 SASR 512 Wallaby Grip v Macleay Area Health Service (1998) 17 NSWCCR 355 Workers' Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221 at 241 Zahra v Brown [2006] NSWCA 162

PARTIES: Jack Blackfeather Flounders by his tutor the Protective Commissioner - Appellant Wayne Allan Millar - Respondent

COUNSEL: Dr A Morrison SC/Mr G Bassett - Appellant Mr J Poulos QC/Mr B Kelleher/Ms E Elborne - Respondent

SOLICITORS: Mitchell Playford & Radburn - Appellant Moray and Agnew - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40603/2006 DC 4511/2005

IPP JA HANDLEY AJA HOEBEN J

Wednesday, 17 October 2007 Jack Blackfeather FLOUNDERS by his tutor the PROTECTIVE COMMISSIONER v Wayne Allan MILLAR JUDGMENT 1 IPP JA: As Hoeben J points out, the decision in North Sydney Council v Binks [2007] NSWCA 245 was handed down after argument in the present appeal had been completed. 2 In Binks, a motorist affected by alcohol drove his motor vehicle into a telegraph pole. He claimed damages from the Council road authority. He argued that the Council was negligent in relation to road maintenance works in the area and the signage on the road. The cause of the accident was a central issue at the trial. 3 The majority in Binks (Beazley and Santow JJA; Basten JA dissenting) upheld the plaintiff appellant's causation argument which was based on observations by Dixon J in Betts v Whittingslowe (1945) 71 CLR 637 (at 649), Gaudron J in Bennett v Minister of Community Welfare (1992) 176 CLR 408 (at 420 to 421), Kirby J in Chappel v Hart (1998) 195 CLR 232 (at 273), and Gaudron J in Naxakis v Western General Hospital (1999) 197 CLR 269 (at 279). 4 The relevant statement by Dixon J in Betts v Whittingslowe was: "[T]he 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." 5 The relevant statement by Gaudron J in Bennett was: "… [G]enerally 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." 6 The relevant statement by Kirby J in Chappel v Hart was: "Once a plaintiff demonstrates that a breach of duty has occurred which is closely followed by damage, a prima facie causal connection will have been established." 7 The relevant statement of Gaudron J in Naxakis was: "… [T]he trier of fact … is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and resulted in the damage in question in any event." 8 In Binks, Santow JA (with whom Beazley JA agreed), after referring to these statements, said (at [32]): "Kirby J thus states the law in terms which implicitly require that there must be a degree of connection between the nature of the duty and the nature of the damage occasioned by its breach, for the evidentiary onus to shift, in that foreseeable area of risk. But Kirby J does not depart from the relatively undemanding 'might' formulation of Dixon J's statement of principle. Gaudron J too implicitly acknowledges this requirement in Chappel v Hart (supra) at 238 - 239." 9 Santow JA had earlier said (at [30]): "[The accident was] an accident of the kind that might thereby [that is, by the breach of the Council road authority's duty of care] be caused. The word 'might' does not call for the accident being more than a reasonable possibility. It invokes notions of foreseeability and a degree of correlation, not merely temporal, which is typically referred to as within an 'area of foreseeable risk' connecting the defendant's negligence to the accident which follows." 10 His Honour said further (at [37]): "While the primary legal onus of proof remained on Mr Binks as plaintiff, the evidentiary onus had indeed shifted to the Council. This was once its negligence was established …, closely followed by an accident of the kind that might thereby be caused. In other words, the accident was within the foreseeable area of risk from inadequate and delayed signage …"

On this basis, the majority found that causation had been established. 11 Basten JA, dissenting, referred (at [90]) to Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 (at 316G) where Mason P agreed with the proposition that: "The law does not equate the situation where the defendant had materially increased the risk of injury with one where he had materially contributed to the injury." 12 Basten JA also referred (at [93]) to Luxton v Vines (1952) 85 CLR 352 (at 359) and observed that it was held in that case that: "[The element of causation would not be established] where it is 'quite impossible to reconstruct from any materials' the manner in which the accident occurred and where that 'can be done only by conjecture' but where 'a number of conjectures is open, equally plausible'". 13 His Honour noted the contention of the Council that confusion due to a lack of signage was an inference based on speculation, not evidence, and that it might equally be inferred that the plaintiff had lost concentration or not kept a proper lookout. He held (at [97]): "The only clear inference is that the plaintiff lost control of the vehicle, without known explanation. The 'risk' which materialised cannot reasonably be connected with the failure to provide the identified signage. Accordingly, the necessary causal link has not been established…" 14 The authorities relied on by the majority in Binks on the causation issue have previously been analysed by several cases in this Court. Few of them appear to have been referred to the Court in the course of argument. 15 In Bendix, Mason P noted (at 316) that in Bennett, Mason CJ, Deane and Toohey JJ referred (at 416) to whether there might be no real distinction between breach of duty and causation and whether a failure to take steps that would bring about a material reduction of the risk amounts to a material contribution to the injury. His Honour observed that the majority said that the problem created by these questions "still awaits final resolution". His Honour also observed that it was not entirely apparent whether Gaudron J in Bennett (at 420 to 421) "was embracing the idea that in such circumstances the onus shifts to the defendant (cf at 420 footnote (23)) or whether she was merely endorsing a legitimate method whereby the trier of fact could validly move from evidence of risk to a finding of probable cause of damage." 16 In Bendix, Mason P emphasised (at 318) that a party who negligently exposes a plaintiff to a risk of injury will not be liable unless the plaintiff can persuade the trier of fact that it was probable that the risk came home. His Honour said that the basal principle remains: "[t]he law never gives judgment in favour of a plaintiff when the only finding is equally consistent with liability and non-liability". Beazley JA held (at 339) that the onus remains on the plaintiff to prove causation on the balance of probabilities and stated: "[t]he onus is not discharged by establishing that a particular matter cannot be excluded as a cause of the injury". Stein JA dissented on the issue of causation. 17 Mason P's statement in Bendix echoed what was said in Luxton v Vines. His Honour concluded that to discharge the onus of proof in regard to causation, it was not sufficient for a plaintiff to prove that the defendant negligently exposed the plaintiff to a risk of injury. Liability depended upon the plaintiff persuading the trier of fact that it was probable that the risk came home. 18 In Wallaby Grip v Macleay Area Health Service (1998) 17 NSWCCR 355, Beazley JA (with whom Sheller JA and Sheppard AJA agreed) followed Bendix, saying (at 362 to 363, [16]) that it "applied well-known principles of causation" and that "[a] plaintiff must show more than that it is possible that injury was caused by the defendant". 19 In E M Baldwin & Son Pty Limited v Plane & Anor (1998) 17 NSWCCR 434, Fitzgerald AJA (with whom Meagher JA and, in substance, Beazley JA agreed) referred to the relevant authorities, including those I have cited, and said (at 473, [77]): "All relevant circumstances, including an increase in the risk to the plaintiff from the defendant's breach of duty and the character and sequence of events, must be considered in deciding whether a defendant's breach of duty which is a possible cause of the plaintiff's damage probably materially contributed to that damage. Circumstances are relevant for this purpose if they assist in establishing or strengthening a causal connection between the defendant's breach of duty and the plaintiff's damage according to expert opinion or by the application of logic, common sense or experience." 20 In Seltsam Pty Limited v McGuiness (2000) 49 NSWLR 262, Spigelman CJ (with whom Davies AJA agreed; Stein JA dissenting) said (at 280, [119]): "There is a tension between the suggestion that any increased risk is sufficient to constitute a 'material contribution', and the clear line of authority that a mere possibility is not sufficient to establish causation for legal purposes. The latter is too well-established to be qualified by the former. The reconciliation between the two kinds of references is to be found in the fact that, as in Chappel v Hart and in the cases that suggest the former, the actual risk had materialised. The 'possibility' or 'risk' that X might cause Y had in fact eventuated, not in the sense that X happened and Y had also happened, but that it was undisputed that Y had happened because of X." 21 The difficulty with the notion (refuted in Bendix and Seltsam) that there is some equivalence between a material increase in the risk of injury and a material contribution to the injury is illustrated in Workers' Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221 at 241. In that case there was evidence that exposure of non-smokers to asbestos increases the risk of lung cancer five times, that smoking increases the risk ten times but that smoking and exposure to asbestos increases it more than fifty times. Nevertheless, persons who had not been exposed to asbestos contracted lung cancer, and the lung cancer rate among smokers exposed to asbestos was still only 601 per 100,000 (see at 236). Handley JA (with whom Sheller JA agreed) pointed out (at 241) that although smokers exposed to asbestos at work had a greatly increased risk of contracting lung cancer, this "did not necessarily establish that this worker's lung cancer was in fact caused or contributed to by his exposure to asbestos". 22 Mason P returned to the issue in TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380. The case involved an allegation of negligence against a government department in following up complaints of sexual and physical abuse of a child. His Honour (at [58]) referred to an argument by the appellant that Gaudron J in Bennett had endorsed Lord Wilberforce's statement in McGhee v National Coal Board [1973] 1 WLR 1 (at 6 to 7) that the onus of proof shifted in cases of a kind his Honour was dealing with. Lord Wilberforce's statement was referred to by Kirby J in Chappel v Hart (at 273) and relied on by Santow JA in Binks. The appellant in TC invoked Chappel v Hart as authority for the proposition that Lord Wilberforce's statement represented the law in Australia and submitted that Bendix had wrongly been decided. Mason P, however, said (at [59]): "I cannot accept this submission. I remain of the view that Australian law has not adopted a formal reversal of onus of proof of causation in negligence, even negligence involving breach by omission. A robust and pragmatic approach to proof of causation permits, but does not compel, a finding of liability in cases of negligence by omission which (as Gaudron J points out in Bennett ) is necessarily based upon a hypothetical inquiry. A defendant who exposes a plaintiff to a risk of injury or who, by omission, fails to take reasonable steps to avoid or minimise that risk is not liable unless the risk comes home in the sense that the Court is ultimately satisfied on the balance of probability that the defendant's breach caused or materially contributed to the harm actually suffered."

Beazley JA agreed with the reasons of Mason P in TC ; Priestley JA did not express a view on the causation issue. 23 Desmond v Cullen (2001) 34 MVR 186; [2001] NSWCA 238 is a good example of the application of the principles expressed by Mason P in Bendix and TC, and by Spigelman CJ in Seltsam. In Desmond, the driver of a motor vehicle collided with a pedestrian who had consumed a significant quantity of alcohol. The pedestrian claimed damages against the driver who sought a contribution from the publican who had sold the pedestrian the alcohol. Grove J (who gave the principal judgment of the Court) said (at 195, [47]): "The appellant's argument on causation is critically dependent upon an assertion that the risk of injury to the plaintiff was increased by his intoxication. To assert this without context does not advance matters beyond the theoretical. Accepting that causation relates to apportioning responsibility according to common sense ideas rather than philosophical or scientific notions: March v Stramare (E & M H) Pty Limited (1991) 171 CLR 506, common sense requires connection between the increase of risk and the damage suffered. It is no more than speculation to assert that the plaintiff must have done something to contribute to the collision: cf Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307. The evidence did not establish that the plaintiff in any way placed himself into the path of the car. No occupant of the car even saw him. It is not an axiom derived from human experience that those who are intoxicated contribute to being run down by motorists. On the contrary, experience shows that perfectly sober pedestrians become victims of negligent drivers."

Spigelman CJ said (at 188, [13]): "I also agree with Grove J that the appellant fails on the issue of causation. The evidence relating to the connection between the plaintiff's state of inebriation and the injury he suffered, never rose above the level of a mere possibility. The fact that he was walking home in a state of intoxication was not shown to have made a material contribution to the injury he suffered. The appellant had to show a material contribution at the level of probability not possibility. (See the authorities collected in Seltsam Pty Limited v McGuiness (2000) 49 NSWLR 262 at [80] to [83])."

Young CJ in Eq agreed with Spigelman CJ and Grove J. 24 In Orica Limited v CGU Insurance Limited (2003) 59 NSWLR 14, Santow JA (at 34, [91]) accepted that establishing causation in Australia required more of a claimant than merely establishing that a particular matter cannot be excluded as a cause. In this regard he adopted Beazley JA's remarks in Bendix at 339 (to which I have referred in [16] above). His Honour (at 34, [92]) referred to Fairchild v Glenhaven Funeral Services Limited [2003] 1 AC 32 where the House of Lords allowed an evidentiary gap in a causation chain to be overcome for an employee who suffered mesothelioma. His Honour said that an elision (from causing injury to merely causing its risk) "is not permitted under Australian authority to overcome difficulty in establishing causation". 25 In Henry Walker Eltin Contracting Pty Limited v Hrstic [2005] NSWCA 253, Basten JA (with whom Hodgson JA and Burchett AJA agreed) referred to Tubemakers of Australia Limited v Fernandez (1976) 50 ALJR 720 and emphasised that a finding of causal connection may only be made if the evidence justifies an inference of probable connection. 26 In Coca Cola Amatil (NSW) Pty Limited v Pareezer (2006) Aust Torts Reports 81-834; [2006] NSWCA 45, Mason P (with whom Tobias JA agreed) reiterated (at 68,335, [8]) that the onus of proof of causation remains with the plaintiff, who "retains the onus of persuasion albeit that the court may (not must) infer causation". 27 In Rufo v Hosking (2004) 61 NSWLR 678; [2004] NSWCA 391, M W Campbell AJA (at [315]) (with whom Hodgson JA (at [1]) and Santow JA (at [14]) agreed) adopted and followed TC. See also Forbes v Selleys Pty Limited [2004] NSWCA 149. 28 The Full Court of the Supreme Court of South Australia and the Queensland Court of Appeal have followed the Bendix, Seltsam and TC line of authority. In Van Den Heuvel v Tucker (2003) 85 SASR 512, Doyle CJ and Duggan J expressly agreed with Bendix (at 530 to 531, [97]) and Seltsam (at 531, [98]). In Batiste v State of Queensland [2002] 2 Qd R 119, Thomas JA (with whom McMurdo P agreed) adopted (at 124, [10]) the comments of Spigelman CJ in Seltsam Pty Limited v McGuiness at 280, [119]. 29 The Court of Appeal of Western Australia has, however, taken a different approach. Steytler P and McLure JA in Amaca Pty Limited v Hannell [2007] WASCA 158 said (at [395]): "As we understand the law in Australia, once a plaintiff demonstrates that a breach of duty has occurred followed by injury within the area of foreseeable risk, a prima facie causal connection will be established and the defendant has an evidential burden to adduce evidence that the breach had no effect or that the injury would have occurred even if the duty had been performed. If there is evidence sufficient to displace the prima facie case, it remains for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact that the injury was caused by the defendant's negligence." 30 In Australia, Dixon J's statement in Betts v Whittingslowe (at 649) is said to be the origin of the shift of the evidential burden theory. In the light of what has been said subsequently in regard to this issue, and the authority sought to be derived from his Honour's words, it is worth looking at the circumstances of that case. Betts v Whittingslowe concerned an industrial accident involving the operation of a power press. While operating the press, the plaintiff's hand was seriously injured. There was no acceptable evidence as to how the accident happened, but to the trial judge it appeared that the least improbable explanation was that the plaintiff had put his hand around and behind the guard. 31 On this basis, Latham CJ (at 641) found that the least improbable explanation was "what must have happened". Starke J, in accepting that an inference consonant with liability on the defendant's part should be accepted, said (at 644 to 645): "In the end the [trial judge] found that he was unable to believe that the guard was up when the accident happened and that the evidence precluded the possibility of the seizure of the clutch, and, difficult as it was to accept the second possibility, still it was less improbable than either of the other solutions, and he therefore adopted it."

Starke J approved the trial judge's reasoning. Dixon J (at 649), after making his well-known statement cited in Binks , said: "[I]n my opinion, the facts warrant no other inference inconsistent with liability on the part of the defendant."

And said (at 650) that the facts leading to liability on the part of the defendant amounted to "a much more reasonable hypothesis". McTiernan J observed (at 651) that the accident could not have happened had the defendant taken the appropriate precautionary measures. 32 Thus, the facts in Betts and the observations by the members of the High Court in that case indicate that the evidence supported a finding that the inference leading to liability on the part of the defendant was more probable than any other inference. Dixon J's remarks must be seen in this context. In particular, it is difficult to suggest that Dixon J was intending to say anything that would support a theory that involved finding causation to be established where the plaintiff fails to prove that the inference in favour of its case is more probable than other inferences available from the evidence. Betts was not that kind of case, and Dixon J was not dealing with a question of that kind. His Honour was merely explaining why, in that case, it was appropriate to accept an inference that was more reasonable than others that were postulated. 33 The views of Sir Owen Dixon on this issue were made perfectly plain some 14 years later in his dissenting judgment in Jones v Dunkel (1959) 101 CLR 298 (at 304 to 305), where he said: "In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that 'you need only circumstances raising a more probable inference in favour of what is alleged'. But 'they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture'. These phrases are taken from an unreported judgment of this Court in Bradshaw v McEwans Pty Limited (unreported, delivered 27 April 1951) which is referred to in Holloway v McFeeters (1956) 94 CLR 470, by Williams, Webb and Taylor JJ. The passage continues: 'All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood' (at pp 480, 481). But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied." 34 Bendix, Seltsam and TC explain why the onus always remains on the plaintiff to prove causation, and why the mere fact that a breach of duty has occurred, followed by injury within the area of foreseeable risk, does not necessarily mean that the evidential onus is reversed. 35 It remains necessary for a plaintiff, relying on circumstantial evidence, to prove that the circumstances raise the more probable inference in favour of what is alleged. The circumstances must do more than give rise to conflicting inferences of an equal degree of probability or plausibility. The choice between conflicting inferences must be more than a matter of conjecture. If the court is left to speculate about possibilities as to the cause of the injury, the plaintiff must fail. As I have attempted to demonstrate, there are many cases in this Court that follow and adopt these principles. I would explain Binks simply on the basis that the Court in that case was not referred to the relevant authorities. The rules governing causation at common law are those expressed in Luxton v Vines and March v Stramare (E & M H) Pty Limited (1991) 171 CLR 506, namely, the test of commonsense, with the onus of proof at all times being on the plaintiff. 36 A mechanical application of a rule that the evidential onus shifts once a breach of duty has occurred followed by injury within the area of foreseeable risk is in conflict with these basic principles of the common law. In many cases it will simply not be possible for the defendant to discharge such an onus because the defendant was not present when the accident occurred or the injury was caused, and has no knowledge of the circumstances that prevailed at the time. A rule in these terms would introduce a form of liability that in many cases would be absolute and, in effect, do away with the requirement of the element of causation. That would be such a radical change to the law that, for it to be recognised, it must be stated unequivocally by the High Court (and, as the cases I have cited explain, that has not occurred). 37 There have, at times, been suggestions in cases at intermediate appellate level that the test for causation depends on the particular circumstances of the case. The cases do not indicate in what categories of circumstances the test changes and how it changes. In my respectful opinion, the basic principles of causation remain the same; they being those enunciated in Luxton v Vines and March v Stramare (E & M H) Pty Limited. 38 In Travel Compensation Fund v Tambree (2005) 224 CLR 627, Gleeson CJ pointed out (at 639, [28]) that "issues of causation commonly involve normative considerations, sometimes referred to by reference to 'values' or 'policy'". But that does not apply in ordinary motor accident cases. Particularly in litigation of that kind, issues of causation should be answered by judgment and commonsense, not by reference to legal fictions or formulae. I would follow the approach of Burt CJ (and the admonition he repeated) in Mitor Investments Pty Limited v General Accident Fire and Life Assurance Corporation Limited [1984] WAR 365. His Honour, after dealing succinctly with the question of causation that arose in that case by applying commonsense, said (at 370): "I can rationalise it no further and I resist the temptation to do so having been reminded by Holmes in his letter to Pollock of 7 June 1891, that 'there is an awful lot of rot talked about causes by judges …'"

His Honour's reference is to The Pollock-Holmes Letters (London: Cambridge University Press, 1942), Vol 1 at 38. 39 Hoeben J, in his reasons, demonstrates that not only did the appellant not prove that the respondent breached its duty of care, he did not prove that any one of the possible accident scenarios was more probable than the other. For this reason, the appellant did not establish the element of causation. 40 I agree with the orders proposed by Hoeben J. 41 HANDLEY AJA: I agree with Ipp JA and Hoeben J. 42 HOEBEN J: At about 9.30 pm on 23 February 2001 the appellant sustained severe injuries when he was struck by a motor vehicle driven by the respondent. At the time the appellant was a pedestrian. The appellant brought proceedings against the respondent asserting negligence on his part. That matter was heard in the District Court before Balla DCJ between 24 July and 10 August 2006. Her Honour delivered judgment on 29 August 2006 in which she found in favour of the respondent. The appellant has appealed from that decision.

Proceedings in the District Court 43 At the time of the accident the respondent was travelling west along Industrial Drive at Tighes Hill in Newcastle. That road comprised two lanes heading west and two lanes heading east. The road was divided by a broken white centreline. The southern edge of the kerb side lane (lane one) was delineated by an unbroken white line described in evidence as a fog line. The road surface continued south beyond the fog line creating an area variously described as a breakdown or bus lane. This bus lane was 3.2 metres in width. 44 In the accident the appellant suffered a serious closed head injury. This resulted in significant brain damage with post-traumatic amnesia of nine months. The appellant gave evidence in the proceedings. 45 The appellant's evidence was that at the time of the accident he was hitchhiking from Sydney to his father's house at Mullumbimby. He said that he could remember that he had been standing south of the fog line when he saw the respondent's car bound over the unbroken white fog line and hit him. 46 Having reviewed the medical evidence, her Honour concluded that the appellant had little or no recollection of events which had occurred in the period before the accident. Specifically her Honour found that the appellant had no true recollection of the path of the respondent's vehicle immediately before it struck him. Her Honour made it clear that this finding did not indicate that the appellant was lying about his recollection but that to the extent that the appellant had a recollection, it was not a true one. No challenge was made to this finding on appeal. 47 In order to understand how the trial proceeded, it is necessary to say something about the mental state of the appellant at the time of the accident. 48 He was born on 10 July 1974. In 1997 he was diagnosed as a chronic schizophrenic with an anti-social personality disorder. This condition was worsened by poly-substance abuse - primarily marijuana and heroin. Between 1997 and the date of the accident he had been admitted to hospitals on at least eight occasions for psychiatric treatment. The most recent period of hospitalisation before the accident was 14 - 19 February 2001 at the Missenden Psychiatric Unit. 49 There was a substantial body of evidence before her Honour of the appellant acting inappropriately in traffic when in a psychotic state, sometimes as a response to auditory hallucinations. Such incidents included running into the side of a taxi, lying on the road, walking in front of traffic in a catatonic state, wandering on roads and crossing roads against traffic. The two incidents closest in time to the accident were an occasion on 1 December 2000 when the appellant wandered down Cope Street, Redfern in the middle of the road and on 11 January 2001 when he crossed Wilson Street, Newtown against the traffic contrary to a pedestrian control light at 2.45am. 50 Evidence was before the Court describing other incidents, unrelated to roads and motor vehicles, where the appellant had apparently experienced auditory hallucinations. In the three and a half years prior to the accident the appellant appears to have heard voices telling him to "leave the hospital", "kill yourself" and "you are terrible". He experienced a number of persecutory ideations, on occasions believing that he was threatened by the Chinese mafia and by the IRA. From time to time he believed he was possessed by evil spirits. On occasions he experienced command hallucinations and delusional thoughts which produced irrational and bizarre behaviours. 51 In the period August 2000 until the date of the accident her Honour found that the appellant's mental state had deteriorated and that his anti-social behaviour had increased. Over the years he had not been compliant with taking medication and her Honour thought that in part the deterioration may have been due to this. In November and December the appellant was using heroin. 52 Between November 2000 and January 2001 the appellant had been charged with a number of minor offences as a result of which he was in custody between 27 January and 1 February 2001. During that imprisonment he was seriously assaulted by other inmates. On 1 February 2001 he was released on bail and his case was adjourned to 14 February. 53 It is clear from medical records that the appellant was extremely fearful of being returned to prison and that this was contributing to his anxiety and the overall deterioration in his condition. On 14 February 2001 (the day on which he was due to attend court) he was admitted to the Missenden Psychiatric Unit. The hospital records describe him as extremely dishevelled, barefooted with ripped jeans. He was reported as having auditory illusions. 54 On 19 February 2001 the appellant was taken from the Missenden Psychiatric Unit to the Matthew Talbot Hostel. On his admission to the Hostel the clinical services progress notes recorded: "19/12/01 referral from Missenden Unit RPA Hospital. Had five days admission for stabilisation of schizophrenia. Has history of drug use also. Discharged on Risperidone … arrived 1700, young man, homeless six months, long dark hair, ill-fitting clothes, dishevelled. Whilst in clinic appears vague, pre-occupied, perplexed. ? Guarded. Has evident thought blocking and flat affect. Answers questions with monosyllabic answers. Appeared slightly tense; paranoid with other persons in the clinic. Minimal eye contact." 55 Evidence was adduced from a number of doctors with a view to establishing the appellant's mental state at the time of the accident. One of those doctors, Dr Delaforce, characterised the severity of his mental disorder as "up to the accident in February 2001 [he] was at the extreme end of a spectrum of severity." Her Honour concluded that the appellant was in a psychotic state at the time of the accident. Her Honour was not prepared to find that the appellant had been using illicit drugs in the four days before the accident. She did find, however, that the appellant had not taken his schizophrenia medication during that period. These findings were not challenged on appeal. 56 The only evidence as to the movement of the appellant immediately before the accident came from the respondent. There was no objective material. The police evidence was sparse and comprised a notebook with a sketch, photographs and an ERISP obtained from the respondent. None of the attending police officers or the ambulance officers was called. There was, however, no issue that the accident occurred at about 9.30 pm and that the police arrived at about 11 pm. By that time the appellant had been taken to hospital. 57 There was an issue at trial as to the position of the appellant on the roadway at the time when the ambulance officers arrived and as to where on Industrial Drive the accident had occurred. The appellant contended for a location in line with the entrance to the Freight Corp depot. This was a comparatively well-lit location. The respondent's evidence was that he had travelled past the entrance before the accident occurred. The respondent's brother gave evidence that he had attended the scene of the accident half an hour after it occurred when the appellant was being treated by ambulance officers. His evidence placed the location of the accident well past the entrance to Freight Corp. 58 Her Honour concluded that the point of impact was approximately 120 metres past (ie to the west of) the entrance to Freight Corp. This finding was not challenged on appeal. 59 Her Honour found that the respondent was travelling wholly within and in the middle of lane one when the accident occurred at a speed of between 50 and 60 kph. She found that the point of impact was approximately one metre into lane one, measured from the southern side of the lane. Her Honour reached that conclusion as a result of the evidence of the respondent and that of the two experts who gave evidence. 60 The appellant did not accept her Honour's finding on this issue but did not suggest an alternative location or identify any evidence which suggested a different location. In his reports Mr Jamieson, the appellant's expert, assumed that location as the point of impact. In his oral evidence he agreed that to the extent that the location of debris and a bloodstain could be identified, it was consistent with such a point of impact (Black AB 251). 61 Her Honour found that on the approach to the point of impact there were trees planted on the southern footpath which were a source of shadow. She found that in the area where the impact occurred, the only significant source of light was car headlights. There were no operating streetlights or other sources of light in the vicinity. It was common ground that the appellant was wearing dark clothes, had long hair and a beard. 62 The stretch of road where the accident occurred was described by Mr Jamieson in his evidence as "a closed down industrial area". There were no houses facing that part of the road. The Freight Corp depot was a marshalling yard containing bulk freight railway wagons and had closed by 9.30pm. Although there were small businesses and a reserve along the road, those businesses did not operate at night. The respondent's usual route home after work was along Industrial Drive. He said that he had not previously seen a pedestrian on that part of the road at that time of night. 63 It was the respondent's evidence that his headlights were on low beam. Just after he came around the bend into Industrial Drive he tried to move into lane two. He put on his indicator but there was too much traffic in that lane to be able to get across. He turned off his indicator because he decided to stay in lane one. 64 The respondent said that he was looking straight ahead as he continued west in lane one. There were cars on his right hand side in lane two. There were vehicles coming in the opposite direction heading east. He was looking straight ahead as he passed the entrance to Freight Corp. 65 There was a significant issue at trial as to when and where the respondent first saw the appellant. 66 The appellant argued that the respondent had not seen him until he was on the windscreen of the car. The respondent argued that he caught a glimpse of the appellant in front of his nearside headlight just before the collision occurred. Her Honour on the basis of the statements which the respondent had made to the police and his evidence at trial accepted the submissions put on his behalf. 67 Her Honour found (RAB 40T): "I accept that, if every word is separately analysed, there are literal inconsistencies. However, I am satisfied that the effect of the defendant's description was essentially unchanged - that is that he caught a glimpse ("a flash") of something (which he did not recognise as a person) momentarily before he hit the plaintiff, that the "flash" was illuminated by the defendant's own headlights, that it all happened very quickly and that he did not realise that he had hit a person until afterwards. The defendant was not able to say whether the flash was stationary or moving. I accept that this is what occurred and that the plaintiff was in front of the defendant's headlight at the time he was first seen by the defendant immediately before the impact." 68 In reaching her conclusion as to liability, her Honour had regard to certain calculations and data provided by Mr Jamieson as follows (RAB 41F): "I accept that the evidence of Mr Jamieson was to the effect that, if the defendant had been driving at 60 kilometres and allowing a reaction time of 1.5 seconds and taking into account usual braking distances for the type of vehicle the defendant was driving he should have been able to stop in 44 metres or swerve 1 metre horizontally in 42 metres. The headlights on low beam on a Holden Commodore illuminate normally about 50 metres on the left although the maximum intensity of the beam is closer to the car. If the plaintiff had been on the road at a point within the defendant's left headlight beam at the first opportunity, I accept that theoretically the defendant, keeping a proper lookout, reacting with a speed probably more appropriate to an area where the presence of a person or an obstruction on the roadway was more likely than this area and probably travelling at a slightly lower speed than 60kph to allow for the plaintiff's dark clothing, may have just been able to stop in time." 69 There was evidence from Mr Jamieson that if the appellant had run in front of the respondent's car it would have been possible for the respondent to have seen him in the headlights before the collision even though it would not have been possible for the respondent to stop in time. There was evidence from him that the "flash" referred to by the respondent was equally consistent with the appellant running or being stationary. In the latter case the "flash" effect was created by the movement of the respondent's car. That evidence formed the basis of a submission by the appellant that there was a failure to keep a proper lookout by the respondent and that consequently liability should be found in favour of the appellant unless the respondent could establish the appellant had run in front of the respondent's car. 70 Her Honour rejected the submission on the basis that the onus remained on the plaintiff at all times to prove the elements of negligence and that even if there had been a failure to keep a proper lookout, causation had not been established since it was common ground that in such a circumstance the respondent could not have avoided the accident. 71 Her Honour accepted that, on the state of the evidence before her, there were two possible scenarios. In one the appellant was standing within lane one in the respondent's headlights as he approached. While it was difficult to explain why a person behaving rationally would place himself in such a position her Honour, at least implicitly, accepted that in such a scenario negligence could be established against the respondent. The other scenario, which her Honour found was equally possible given the appellant's past history and her findings as to his psychotic state, was that the appellant had come either walking or running from a dark area on the footpath where he could not be seen by the respondent into the path of the respondent's car. In the latter circumstance the respondent could not have avoided hitting the appellant by stopping or swerving and negligence could not be established. It was common ground that the braking distance for a Holden Commodore travelling at 60 kph was 19 metres. 72 Because there was no evidence of what the appellant was doing immediately before the collision there was no way of determining which of those possibilities had occurred at the time of the accident. None of the possibilities was significantly more likely than the other. Because her Honour was not persuaded that one of those possibilities was more likely than the other, she found that the appellant had not made out his case in negligence.

Appeal 73 On the issue of liability the appellant relied upon 17 grounds of appeal. They can be conveniently grouped into a smaller number of categories. 74 The first category (Grounds of Appeal 1-2) challenged her Honour's finding that the respondent caught a glimpse of something in his left headlight immediately before the accident. It was submitted that this finding by her Honour should be set aside as "glaringly improbable". The basis for that submission was a comparison between what the respondent said when first interviewed by the police compared with the evidence which he gave at trial some five and a half years later. It was submitted that the evidence at trial clearly indicated a defective memory and that her Honour should have given much greater weight to the relatively contemporaneous statements made to the police which fully supported the appellant's submission on this issue at trial. 75 In making this submission the appellant recognised that this Court can overturn a factual finding of a trial judge that is influenced by the trial judge having had the advantage of seeing a witness only in circumstances where the judge has "failed to use or palpably misused his advantage", or where "incontrovertible facts or uncontested testimony" demonstrate the findings to be erroneous or where they are "glaringly improbable" and "contrary to compelling inferences" (Fox v Percy (2003) 214 CLR 118). 76 For reasons which will emerge these submissions raise something of a false issue in that it ultimately matters little whether the respondent caught a glimpse of the appellant immediately before the collision, or did not see him until contact had occurred and he struck the windscreen of the car. Nevertheless considerable time was devoted to this submission and it is appropriate that the Court deal with it. 77 Basic to the appellant's submission is a particular interpretation of the statements made by the respondent to the police. The first was a notebook entry recorded at 11pm at the accident site on the night of the accident (Blue AB 776H) which reads: "I left work and signed off at half past nine tonight, the 23rd February 2001. I work at Durachrome at the corner of Darling and Elizabeth Streets, Carrington. I drove down Elizabeth Street and turned right at the roundabout and just drove straight up the road in the outside lane which is the lane of traffic closest to the gutter. I didn't see a thing until a split second before hand when he caught the corner of my eye in the headlights. That was when he was on the windscreen. I hadn't braked until then because I hadn't seen anything. I braked after I realised and heard the noise. …" 78 The second statement was in the form of an ERISP and was recorded six days after the accident on 1 March 2001. That statement relevantly provided (Blue AB 788L): "Q. Okay, and what happened after you left? A. Just driving home, come round the roundabout, round the corner into the stretch there, and I just didn't see anything and next thing I heard a hit and something hit the car and I just pulled over, just behind the telegraph pole. Just thought I'd hit someone, so I run back to check to see if he was all right. Like if he was still breathing. He was still breathing and that. Tried to flag a car down, two or three cars but they just keep going. So I jumped in the car and drove back to work to ring up the police and ambulance and then drove straight back. And there was another white Hyundai Excel there, the bloke was on the phone outside the car on the phone to his wife, which was also a copper and knew him. That's about it. Q. What were you doing just before the collision? A. Just driving along. Didn't see anything. Right at the last minute I just caught something out the corner of my eye. And by then he was already hit. Q. So when did you realise you had struck a person? A. As soon as the front windscreen shattered. Q. So did you see the person in the windscreen? A. No. Q. Or was that after you went back and saw what you'd hit? A. Yes. Q. Is that when you realised that you'd hit a person? A. Yes. Oh, probably just as I was pulling over I'd say, because I just thought the way it's gone through the windscreen as well. So I thought it wasn't a dog or nothing like that. … Q. When was the first time that you saw him? The pedestrian. A. Just caught him out the corner of me eye just before he hit. Q. And what was the pedestrian doing? A. I couldn't actually see what he was doing, I just caught like a flash. You couldn't even see what he was wearing or couldn't see anything. Just like a flash. … Q. And what portion of your car did you strike him with? A. Um, the front left hand guard and headlight, right on the edge of the left hand side, his elbow went through the window from what we can see, just rolled back and gone through the back door window and caught a panel. … Q. At what point did you brake during the collision? A. After I'd hit him. Q. Do you remember if you'd locked the wheels up? A. No I didn't. I remember I didn't. Q. What do you think was the cause of the collision? A. I don't know, dark street, dark stretch of road maybe. I don't know, 'cos I didn't see him, so I don't know whether he was drunk or stumbling around or anything. … Q. Do you know what part of the pedestrian you hit though? A. No, no idea, all I know is the, well from what we seen it looks like his elbow was in the front windscreen. Q. Do you know which elbow that might have been? A. Yeah, it would have been his right one. That one looked fairly broken. Q. Did you know it was his right one before you saw him laying on the ground? A. No, no idea. Q. Did you see, when you say you saw him flash past, do you remember whether you could see his back or his front or side on? A. No, all I remember is just seeing something, it could have even been a tree for all I knew." 79 The respondent was extensively cross-examined in relation to those statements. The cross-examination was directed at eliciting answers consistent with the respondent not having seen the appellant before he struck the windscreen of the car. It would be fair to say that the answers given by the respondent were somewhat inconsistent. Initially he agreed with the proposition that he did not see the appellant until he struck the windscreen but subsequently said that he had caught a glimpse or a flash of something to the left of the car, a split second before impact. The respondent at all times agreed that his recollection would have been better at the time of the accident than when giving evidence at trial. 80 The task facing her Honour was a classic exercise in judicial fact finding. Her Honour was obliged to have regard not only to the statements made close to the time of the accident but also to responses given in evidence and to the respondent's overall presentation and demeanour while giving that evidence. In my opinion there is nothing in her Honour's analysis and conclusions which bespeaks error on her part when carrying out this process. She fully reviewed the evidence. The conclusion which she arrived at was well open on the evidence and could not be properly characterised as inconsistent with "incontrovertible facts" nor could it be regarded as "glaringly improbable". 81 On the contrary her Honour's conclusion in this regard is fully consistent with the respondent's initial statement at the scene of the accident where he said: "I didn't see a thing until a split second before hand when he caught the corner of my eye in the headlights."

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."

And at [27]: "Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring. If, however, the defendant's conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff. That being so, whether the claim is in contract or tort, the fact that the risk eventuated at a particular time or place by reason of the conduct of the defendant does not itself materially contribute to the plaintiff's injury unless the fact of that particular time or place increased the risk of the injury occurring." 92 In this case there is no evidence of conduct on the part of the respondent which increased the risk of injury to the appellant. Accordingly the onus remained on the appellant to establish causation, ie that the breach of duty by the respondent caused the particular damage that the appellant suffered. 93 Finally, an identical argument was rejected by this Court in TC by his tutor Sabatino v State of New South Wales [2001] NSWCA 380. There Mason P said: "[59] I cannot accept this submission. I remain of the view that Australian law has not adopted a formal reversal of onus of proof of causation in negligence, even negligence involving breach by omission. A robust and pragmatic approach to proof of causation permits, but does not compel, a finding of liability in cases of negligence by omission which (as Gaudron J points out in Bennett ) is necessarily based upon a hypothetical inquiry. A defendant who exposes a plaintiff to a risk of injury or who, by omission, fails to take reasonable steps to avoid or minimise that risk is not liable unless the risk comes home in the sense that the Court is ultimately satisfied on the balance of probability that the defendant's breach caused or materially contributed to the harm actually suffered." 94 On the facts of this case for a person running onto the road, the evidence as to causation was all one way, ie that even if the respondent saw the appellant he could not have stopped before impact. "Q. Just assume that a person ran across from the kerb line across the breakdown line into the line of the path of the car. Could that be an explanation for not having seen him as he was proceeding along to where this accident occurred? A. Certainly. If a hypothetical pedestrian ran from outside the range of the left headlights, it becomes what they refer to as a dart out." (Jamieson, Black AB 248T) "Q. Nonetheless, that driver would have in that time have been able to see the running person, wouldn't he? A. Yes, at 60 kph moving at about 17 metres a second, which theoretically would have - and we have Mr Johnstone - was he the runner - running at 5 metres a second, and that's 1 second exposure time. Based on those assumptions, he would have been in the headlights as he ran. So while in that hypothetical case he couldn't have been avoided, he was still nonetheless there to be seen." (Jamieson Black AB 261L) 95 After argument concluded the decision of North Sydney Council v Binks [2007] NSWCA 245 was handed down. In upholding the decision of the trial judge as to causation the majority (Beazley and Santow JJA) applied the dicta of Gaudron J in Bennett [47] in the context of a motor vehicle accident. In particular their Honours referred to the well known passage from Betts v Whittingslow (1945) 71 CLR 637 at 649: "… the 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." 96 The facts in Binks were significantly different to those in this case. They related to an intoxicated driver involved in a collision as a result of inadequate and confusing road signs. Moreover the qualification in Betts - "in the absence of any sufficient reason to the contrary" arises specifically in this case, ie even if the respondent should have seen the appellant earlier than he did, the accident could not have been avoided. 97 The importance of the qualification in Betts was emphasised by Gaudron J in Naxakis v Western General Hospital (1999) 197 CLR 269 at 279 where her Honour said: "… The trier of fact … is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and resulted in the damage in question in any event."

The evidence in this case established the exception referred to by her Honour. It follows that the decision in Binks does not assist the appellant on this issue. 98 Ipp JA in his judgment has further analysed the question of causation. I agree with his Honour's analysis and his conclusion. 99 In the course of argument on this issue, the application of s 5E of the Civil Liability Act 2002 was raised. That section provides: "5E In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."

It was common ground that the Civil Liability Act 2002 applied to this case. 100 The application and meaning of s 5E in the context of the appellant's submission was not raised at trial. It was only briefly referred to in the appeal. In those circumstances it is not appropriate to consider the question further other than to note the potential application of the section to causation questions should they arise in similar cases. 101 On that state of evidence the conclusion as to causation is clear. In one of the possible scenarios, ie that the appellant ran onto the road, causation was not established. Accordingly the grounds of appeal in this category fail. 102 The third category of grounds of appeal (grounds 11 and 12) challenges her Honour's finding as to whether or not the respondent should have been "an alert driver" at the time his vehicle struck the appellant. This matter was not specifically dealt with in oral submissions and the written submissions are somewhat obscure. 103 Her Honour made no finding of the kind which is sought to be impugned by the grounds of appeal. On the contrary her Honour accepted that the respondent was "alert" and in making her findings she used a perception/reaction time of 1.5 seconds which was that suggested by Mr Jamieson as appropriate for an alert or more accurately an "alerted" driver. These grounds of appeal fail. 104 Ground of Appeal 13 challenges her Honour's finding that the point of impact was 1 metre from the southern edge of lane 1. I have previously referred to this issue at [21]. The evidence in support of her Honour's finding came from the respondent's expert, Mr Keramidas. It was not disputed by Mr Jamieson whose conclusions were based on an assumption to that effect. There was no evidence indicating a different point of impact. This ground of appeal has not been made out. 105 Another category of appeal (grounds 14 and 15) challenges her Honour's findings on the basis that she had not adequately considered whether the respondent could have swerved to avoid the appellant. It was submitted that a half metre swerve laterally could have been achieved in 36 metres, a shorter distance than that required to bring the vehicle to a stop. 106 The evidence concerning the practicality of a swerve was significantly qualified by Mr Jamieson. "Q. In the reports there was some exchange on this in relation to whether or not there was the ability to move into the neighbouring lane; and of course, if there were other vehicles there, there would be some restriction on your ability to swerve. That would be a fair comment would it not? A. Well, yes and no. To be fair, on both sides the lane widths were something like 3.3 metres. A Commodore is about 1.7 and if the other vehicles that were in the adjacent lane were of a similar dimension, there would be physically enough room to swerve offline at least a metre. The perception of the driver though would be, "there are vehicles next to me, I'd better not swerve". All this happens very quickly, but to be fair, on both sides there would have been physically enough room to swerve offline at least a metre. I doubt whether the drivers, if they had a vehicle next to them, would do so." (Jamieson Black AB 235S) Q. Would it be fair to say that a swerve of half a metre would have been sufficient to either totally avoid or virtually totally avoid the impact? A. Well, the answer to that would assume exactly where the impact took place, but based on photographs of the vehicle it's suggested that the only really the left headlight was impacted. So that if that was the case, then you'd only need to swerve offline a half a metre and you'd miss him." (Jamieson Black AB 237D) 107 The swerve option assumed that the appellant was standing still in lane 1, not running. The practicality of swerving if the appellant was walking or running onto the road was not explored at trial. It also assumed observation by the respondent of the appellant earlier than the 1 second or less that would have been available if the appellant had run onto the road. Since this was the possible scenario which did not give rise to negligence on the part of the respondent, her Honour was correct to disregard the swerve option when considering this scenario. These grounds of appeal have not been made out. 108 The last category of appeal (grounds 16 and 17) raises two minor factual issues which even if they were decided in favour of the appellant would have no effect on the outcome of the appeal. They refer to inferences which her Honour drew from the appellant's pre-injury medical history. They do not, however, challenge her finding as to his psychotic condition at the time of the accident. Accordingly these grounds have no relevance to the appeal and can be disregarded. 109 Although not related to any specific ground of appeal, it was submitted on behalf of the appellant, that of the three possible scenarios which might account for the accident two were consistent with negligence on the part of the respondent and one was not. By reference to this suggested 2:1 ratio it was submitted that her Honour should have inferred negligence on the part of the respondent. 110 Her Honour implicitly accepted that had the appellant been stationary even though he was standing 1 metre into lane one, negligence could be established against the respondent because the appellant would have been visible in the respondent's headlights from at least 45 metres away. While the question of negligence on the part of the respondent is by no means clear if the appellant had been walking onto the road rather than running, it can be accepted for the purpose of dealing with the submission that on this scenario negligence could also be established. 111 Where the submission founders is in relation to the third possible scenario which has the appellant running onto the road. That scenario is not consistent with negligence. There is no evidence as to what the appellant was doing before impact. The only information available is that he was struck 1 metre into lane one. There is no rational explanation for what he was doing in lane one at the time. Given the point of impact in lane one, her Honour's finding as to his psychotic state and his previous risk taking behaviour, the scenario that he ran into lane one was a rational explanation for how the accident occurred which had to be given equal weight to the rival possibilities that he was stationary in the lane or walked into the lane. 112 This was the very situation considered by the High Court in Luxton v Vines (1952) 85 CLR 352 and was found by the court to be inconsistent with a finding of negligence. In the course of that decision, the majority made the following observations: "Of course, as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We're concerned with probabilities not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture." (p 358) "Many conjectures may be put forward which would explain these matters, but the fact that some of them imply negligence in the driver of the vehicle is not enough. Some of them clearly do not and there is no reason for rejecting the latter in favour of the former. There is no higher degree of probability on the one side than the other … Any answer that you give to such questions is a guess. All lies in conjecture. The fact is that whatever reasons you can find for one explanation of the accident, reasons of equal sufficiency or insufficiency exist for other explanations. The circumstances give rise to nothing but conflicting conjectures of equal degrees of probability and no affirmative inference of fault on the part of a driver of a motor car can reasonably be made." (p 360) 113 Accordingly it matters not that there were two reasonably available scenarios in which negligence could be found if it be the case that there remained available an equally reasonable scenario which was inconsistent with negligence. On that state of the evidence as Luxton v Vines made clear, a plaintiff must fail. Similarly, this submission by the appellant also fails.

Conclusion 114 For the foregoing reasons the appellant's appeal on liability fails. 115 Included in the grounds of appeal was a challenge to one of her Honour's findings as to damages. The respondent also cross-appealed on the question of damages. In view of my conclusion as to liability, it is not necessary to deal with the question of damages. 116 The orders which I propose are:

(1) Appeal dismissed. (2) Cross-appeal dismissed. (3) The appellant to pay the respondent's costs of the appeal. **********

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