Fogarty v Creasey

COUNSEL : Mr E G H Cox (Appellant) Mr M B Williams (Respondent) SOLICITORS : Patterson Houen & Commins (Appellant) McCourts (Respondent) CATCHWORDS : Tort - negligence - duty of care - existence - scope - motor vehicle collision - whether defendant keeping a proper lookout - breach - evidence of - findings of fact - Tort - negligence - duty of care - causation - whether alleged breach of duty causative of motor vehicle collision - no such causation - Practice - pleadings - grounds upon which trial run - where appeal sought to be run on different grounds - whether defendant surprised - no surprise where argument run on appeal pleaded at trial - ND CASES CITED: Knight v Maclean [2002] NSWCA 314 DECISION : The appeal is dismissed; the appellant is to pay the respondent's costs of the appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40090/02 DC 1121/01

MEAGHER JA BEAZLEY JA HEYDON JA

23 September 2002 FOGARTY v CREASEY Judgment 1 MEAGHER JA: I have had the privilege of reading in draft the judgment of Heydon JA in this matter. I agree with it, both the orders he proposes and his reasons. 2 In the recent decision of Knight v Maclean [2002] NSWCA 314 Heydon JA said: "It is not the law that a driver complying with the minimum requirements of the law of negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey. Yet in the circumstances of the present case the trial judge's test would entail that duty."

The unsuccessful argument by the appellant in the present case, although presented very attractively by Mr Cox of counsel, runs counter to this clear principle. 3 The appeal should be dismissed with costs. 4 BEAZLEY JA: I agree with Heydon JA. 5 HEYDON JA: This is an appeal by an unsuccessful plaintiff who claimed damages for injuries sustained in a motor vehicle accident on 21 February 1998. Balla DCJ dismissed the plaintiff's claim on 14 December 2001 after a trial on 4-7 and 11 December 2001. 6 At the trial the plaintiff represented herself. The Notice of Appeal was filed by solicitors and the written submissions filed in support of it were prepared by counsel. Those solicitors were dismissed. However, on the appeal, new counsel, Mr E G H Cox, appeared for the plaintiff at short notice. He presented argument on her behalf with impressive ability.

The circumstances 7 The trial judge said: "The accident occurred at the intersection of Pacific Highway and Cook Drive, Coffs Harbour. Mrs Fogarty had been driving her motor vehicle a Suzuki Hatch along Cook Drive and had stopped behind another vehicle at the T intersection with Pacific Highway intending to turn right. It is common ground that there was a give way sign facing Mrs Fogarty. Mr Creasey had been travelling along Pacific Highway in a southerly direction in a Ford Falcon. The speed limit was 70 kph. There were two lanes available for southbound traffic and Mr Creasey was in the lane closest to the median strip. He was approaching Mrs Fogarty from her right. After coming over the crest of a small hill the road slopes downwards towards Cook Drive. There was at least 200 metres from the crest of the hill to the intersection with Cook Drive. The roadway is initially straight but at around the point where a left hand turn lane commences, that is 125 metres from Cook Drive, the roads bends to the right if travelling from north to south. That left hand turn lane is an extra lane, forming a third south bound lane." 8 Just before the vehicle in front of the plaintiff had turned right onto the Pacific Highway, two other vehicles (driven by Mrs Jensen and Mr Blackburn) which had been in the Pacific Highway heading north turned right into Cook Drive. The vehicle before the plaintiff, described as a work truck, then turned right to travel up the Pacific Highway, and the plaintiff followed it. The defendant then collided with her. 9 The evidence was confused and conflicting, but the trial judge made the following findings:

(a) There was a large vehicle travelling in the kerbside lane on the defendant's left, but it did not obscure his view at any relevant time.

(b) The defendant "had a clear view down to the intersection with Cook Drive from the point at which he came over the crest of Pacific Highway, being about 200 metres from the intersection."

(c) The defendant was travelling at 70 kilometres per hour at all relevant times.

(d) The defendant was entitled to assume that the plaintiff would observe the rules of the road - that is, that she would comply with the give way sign controlling traffic moving from Cook Drive onto the Pacific Highway. "[A] vehicle, which has been described as a work truck, did turn right from Cook Drive into Pacific Highway before [the plaintiff], however the fact that it crossed safely, at least as far as [the defendant] is concerned, does not cause me to conclude that this was a situation which should have alerted [the defendant] to the possibility that [the plaintiff] might also try to turn."

(e) The defendant first saw the plaintiff's vehicle on the Pacific Highway when it was 20 metres away. He braked immediately on seeing it.

(f) Contrary to a suggestion from the plaintiff that the defendant should not have braked, but continued on and passed in front of her vehicle, "taking into account all of the surrounding circumstances which involve a situation of unexpected danger, I am satisfied that the action taken by [the defendant] was reasonable."

(g) "It is possible that [the defendant] should have seen [the plaintiff's] vehicle coming onto the roadway at a slightly earlier time as the diagram that he drew showed [the plaintiff's] vehicle wholly within the first lane at the time that he first became aware she had left Cook Drive. However there is no satisfactory evidence, including any expert evidence, on which I could form a view that [the defendant] was not driving appropriately in the circumstances or that he could have avoided the collision if he had noticed [the plaintiff's] vehicle when it first started to enter the intersection." 10 The trial judge concluded that the plaintiff had not proved that the defendant was in breach of his duty of care. The last passage quoted also contains a finding that even if there was any negligence by the defendant, it was not causative of the collision.

The speed of the defendant's vehicle 11 Grounds 1 and 2 of the Amended Notice of Appeal, and the written submissions filed on behalf of the plaintiff, contended that the finding that the defendant had been travelling at 70 kilometres per hour was erroneous. These grounds were not abandoned by Mr Cox, though he said little about them. 12 The essence of the argument on behalf of the plaintiff on this point was that the trial judge found that the defendant had a clear view of 200 metres from the crest of the hill to Cook Drive and that when Mr Blackburn commenced his right hand turn into Cook Drive there was no oncoming traffic over 200 metres up to the crest of the hill. A car travelling at 70 kilometres per hour travels at 19.5 metres per second. Hence the defendant's vehicle must have covered the distance from the crest of the hill in a much shorter period of time than about ten seconds if it were to have been unobserved by both Mr Blackburn and the plaintiff. It was said at the trial to follow that the defendant's car was doing between 103 and 144 kilometres per hour. 13 The trial judge's conclusion that the defendant's speed was 70 kilometres per hour was based on an acceptance of evidence to that effect by the defendant, his then wife (a passenger in his vehicle) and Mr Gatenby. The trial judge summarised Mr Gatenby's evidence thus: "Mr Gatenby had been driving in the same direction as Mr Creasey. He first became aware of Mr Creasey's vehicle 5 kilometres from the accident scene. From then on the vehicle was in his view. He was not in a hurry and was obeying the speed limits. The two vehicles travelled through about 8 traffic lights and on occasion they would pull up next to each other when the children in the two vehicles waved to each other. He did not observe Mr Creasey travel in excess of the speed limit. Mr Gatenby was 4 semi trailer lengths behind Mr Creasey's vehicle as they approached the intersection and they were both travelling in the left hand lane. He was not aware of any vehicle in front of Mr Creasey's vehicle. Mr Creasey's vehicle did not gain speed and they were both travelling at 70 kph."

The trial judge rejected Mr Blackburn's evidence that the defendant had been speeding. Of that evidence, the trial judge said: "Mr Blackburn did form the view that Mr Creasey had been speeding. However he did not look directly at Mr Creasey's vehicle nor do I understand how he estimated the speed by reference to other traffic when Mr Blackburn also said that there was no other traffic around Mr Creasey's vehicle. I prefer the evidence of Mr Gatenby who had been travelling behind Mr Creasey for some time travelling at the same speed and whose evidence is broadly confirmed by Mr Creasey and his wife. I find that Mr Creasey had been travelling at 70 kph at all relevant times. I have not placed much reliance on the evidence of Mr Blackburn. He suggested in his statement that his vehicle would have blocked Mrs Fogarty's view of Mr Creasey's vehicle. However neither Mrs Fogarty nor Mr Creasey described their view of the roadway as obscured by a vehicle. The manoeuvre that he described that he performed is difficult to reconcile with the evidence of any other witness." 14 In short, the trial judge rejected Mr Blackburn's evidence of the defendant's speed because he was not in a good position to estimate it, and because in other respects his evidence was unreliable. The trial judge accepted the evidence of Mr Gatenby, an independent witness, with good opportunities to observe the defendant's speed not only at the time of the accident but also for some time earlier. This reasoning is difficult to challenge. 15 The reasoning advanced by the plaintiff in criticism of the trial judge's conclusion depends on the proposition that the road was clear, to which both the plaintiff and Mr Blackburn testified, was sound, and based on accurate observations by them; or on the proposition that less than ten seconds elapsed between the plaintiff's decision to turn and the collision. Those propositions are not so compelling that they invalidate the trial judge's resolution of the conflicts among the witnesses about their direct observations of the defendant's speed. It is highly unlikely that the road was clear. And ten second was a very long time to elapse between the plaintiff's decision to turn and the collision. 16 Further, so far as the plaintiff relies on Mr Blackburn's evidence in contradiction of the witnesses who favoured a speed of 70 kilometres per hour, he estimated the defendant's speed as being at least 80 kilometres per hour, which is a considerable distance short of the range for which the plaintiff contended. 17 Accordingly these grounds of appeal fail.

Was the defendant keeping a proper lookout? 18 Mr Cox submitted that a conclusion that the defendant was not keeping a proper lookout inevitably flowed from two findings of the trial judge:

(a) that the defendant had a clear view down to the intersection with Cook Drive from the point at which he came over the crest of the hill about 200 metres away;

(b) that the defendant first saw the plaintiff's vehicle on the Pacific Highway when it was 20 metres away. 19 Mr Cox's argument was that as the defendant came over the crest of the hill, he should have noticed the T-junction ahead with shops beyond it, and as he moved down the hill he should have noticed the two cars turning right across his path into Cook Drive. He should have heightened his alertness without necessarily slowing down. He should have seen the two cars waiting to move out of Cook Drive to turn north up the Pacific Highway. When the work truck ahead of the plaintiff came out, he should have begun to slow down because of the advent of possible danger. He gave no evidence to suggest that he did any of these things. 20 Mr Cox relied on Mr Blackburn's accounts of how the accident happened, but these do not themselves cast light on whether any negligence by the defendant was causative of the accident, even if one puts aside the trial judge's unhappiness with Mr Blackburn's evidence and even if one puts aside difficulties about how Mr Blackburn could have seen the defendant in his peripheral vision. 21 Mr Cox supported this submission by referring to evidence by the defendant that he did not see the plaintiff in Cook Drive and that he did not see the cars turning right out of the Pacific Highway into Cook Drive. 22 The trial judge made no findings on when the plaintiff entered the Pacific Highway in relation to the position of the defendant's vehicle as it moved down the Pacific Highway. The evidence of the defendant's wife cast no light on that matter. Nor was the evidence of either the plaintiff or the defendant clear on that point. 23 The defendant said, in a written statement made ten months after the accident: "I do not remember any cars or vehicles close in front of mine, there was plenty of room in front of my vehicle. I was travelling in the lane beside the median strip, I think I would have been in that lane for some time before the accident, because I generally stay in that lane in that sort of area, because you get a fair amount of traffic turning left out of the left lane. I was just driving along, I remember seeing a small brown car, a little Suzuki car, about the size of an old Mini, it was a Hatchback thing, in the street on my left. don't remember seeing any other cars directly in front of this Suzuki now. I remember that I could see there was a Give Way sign on the side street, and as far as I am aware every road coming onto the Highway would have either a Give Way or a Stop Sign. I do not remember any other cars turning on that intersection now, as I approached. I just remember seeing the Suzuki on the side road, I do not remember seeing her stopped on the side road. I remember only that when I was about from where we are sitting in the back room of this house, to no further than the Bar-B-Que in the back yard from the intersection, when the Suzuki drove out. It was not speeding, it was just driving steadily out of the side road, and I knew straight away I had no chance of stopping or missing her. I agree the distance I have indicated is not more than fifteen to twenty metres. I remember I immediately braked, and called out to Kerry and the girls 'Hang on.' I braked as hard as I could, and my car stayed perfectly straight under brakes. I heard the tyres screeching under the heavy braking. There was nothing more I could do. I don't remember any vehicle directly beside me. I only had time to brake, but no time to even consider any other evasive action before the front of my car hit the driver's side of the Suzuki. I did not even have any time to swerve, but I would say I would have been in danger of rolling my car if I had attempted that. As I said there was no time to do anything more, and then bang." 24 The plaintiff cross-examined the defendant about that statement. He confirmed the material parts of it. 25 The plaintiff said that she had no recollection of what happened after she decided that the intersection was clear and entered it. Mr Cox drew attention to her evidence in chief and in cross-examination to the effect that she had an actual recollection, before moving onto the Pacific Highway, that it was clear to her right. 26 One difficulty in these arguments is that the trial was fought on different issues from those which the plaintiff now relies on. It was fought on the issues of whether the defendant was driving at excessive speed, and the issue of whether there was a conspiracy between the defendant, his wife, Mr Blackburn and the police. In consequence there was no close cross-examination of the defendant on what precisely he did and did not see as he moved down the road towards Cook Drive. 27 In answer to this problem, Mr Cox pointed out that among the pleaded particulars of negligence were the following: "(ii) Failing to heed the presence of the Plaintiff's vehicle on the roadway … . (iv) Failing to keep a proper lookout. (v) Failing to approach a major intersection with caution … ." 28 Mr Cox submitted that though the plaintiff, appearing in person, had not concentrated the focus of the trial on these allegations, she had advanced them, she was entitled to have them dealt with, and the trial judge had not dealt with them.

The defendant's arguments 29 The defendant submitted:

(a) The burden of proof of want of care on the part of the defendant, and of causation, was on the plaintiff.

(b) While a driver cannot assume that in all circumstances other road users will obey the law and drive carefully, it is proper to assume that they will unless there is some trigger to make the driver realise that they may not.

(c) Whether the defendant showed a want of care based on failure to keep a proper lookout by reason of not heeding the presence of the plaintiff on the Pacific Highway and by failing to approach Cook Drive with caution depended on the timing of the movements of Mrs Jensen, Mr Blackburn, the work truck in front of the plaintiff and the plaintiff in relation to the movements of the defendant.

(d) The evidence was insufficiently precise to permit any conclusions to be drawn as to how long Mrs Jensen's turn took, how long Mr Blackburn's turn took, how long the work truck's turn took, when the plaintiff commenced to move onto the Pacific Highway after having waited in a stationary position behind the work truck, and what positions the defendant had reached on the Pacific Highway at the time of each of these events.

(e) The plaintiff's evidence that just before she turned she saw a clear road to the north cannot have been correct, or if she did she cannot have observed the road properly, because the road was not clear and if it had been the accident would not have happened.

(f) Nothing in what the defendant saw put him on notice that the plaintiff was about to execute a risky manoeuvre, and there was nothing else in the scene to suggest that it might be perilous for him to continue driving as he was.

(g) The only perilous element in the chain of events was the plaintiff's decision, made after three other vehicles had safely executed, or were safely executing, their turns, to move out into the path of the defendant.

(h) Even if the defendant should have observed the various vehicles, and in particular the plaintiff's vehicle, earlier than he did, and was in that sense in breach of duty, as a matter of causation it could not be inferred that if he had been keeping a satisfactory lookout he would have received enough notice of the plaintiff's manoeuvre to avoid the accident. 30 There is, however, one submission which counsel for the defendant did not put. He did not submit that the plaintiff should not be allowed to run her case differently on appeal from the way it had been run at the trial. He took this stance for the reason that the plaintiff was unrepresented at trial and it was not "entirely edifying" to be strict about the matter. That circumstance alone would not justify non-compliance on the plaintiff's part with fundamental procedural rules of civil litigation such as the rule that parties may not advance on appeal a case not advanced at trial. However, just as counsel for the plaintiff had frankly conceded that the appeal turned on a substantially new case, so counsel for the defendant frankly conceded that he was not prejudiced. In any event, the point had been taken in the pleadings, some of the evidence tendered bore on the point, and the trial judge appeared to consider the point to be still alive when she said that it was possible that the defendant should have seen the plaintiff's vehicle coming onto the road at a slightly earlier time. 31 In these circumstances it is appropriate to consider the merits of the plaintiff's new case.

Conclusion 32 The defendant did not give evidence from which it could be inferred that he had been keeping a satisfactory lookout as he came down the hill. He must be taken to have been on notice of the issue, raised as it was by the particulars of negligence in the Statement of Claim. In chief he said nothing either way about what he saw at Cook Drive or the gap in the median strip facing it. According to his evidence in chief, the first he saw of the plaintiff was just before he braked and hit her. The statement he prepared ten months after the accident leaves it obscure as to whether he saw the plaintiff's car twice (once stationary in Cook Drive and later moving onto the Pacific Highway across his path) or once (moving onto the Pacific Highway across his path). In cross-examination he said that while he saw the work truck in front of her go across (a fact not referred to in the statement made ten months after the accident, though it was referred to in the statement made to the police on the day of the accident) he only saw her once, namely while she was crossing in front of him. He said he did not see the vehicles of Mrs Jensen and Mr Blackburn. Since the last of these two vehicles passed in front of the work truck, his attention to what was happening can only have become focused when the work truck began moving. This suggests he had failed to keep a satisfactory lookout up to that point. To that extent the trial judge's statement that there "is no satisfactory evidence" that the defendant "was not driving appropriately in the circumstances" is incorrect. To that extent the defendant was in breach of duty. 33 However, the plaintiff's manoeuvre can only have commenced about the time the works van moved onto the Pacific Highway. At 70 kilometres per hour, the defendant was covering over 19 metres per second. He estimated that he saw the plaintiff about 20 metres away, and braked. That he braked is corroborated by other witnesses observing a puff of smoke from his tyres. Though the distance may have seemed to him to be only 20 metres, he must have observed the plaintiff from a greater distance, for, if one assumes, as one must, a reaction time of any significant duration at all, he would not have had time to brake before the collision if the plaintiff was only 20 metres away. Assuming that the defendant had kept a proper lookout, the crucial question is when he would have been put on notice of the plaintiff's manoeuvre by its commencement. The onus lay on the plaintiff to prove causation: that is, to prove that her manoeuvre gave the defendant sufficient notice either to react to the crisis, brake, and bring his vehicle to a halt before it hit hers or to react to the crisis by adopting some other manoeuvre. The plaintiff submitted that the defendant's correct reaction would have been not to brake. Not to have braked would appear to have been a risky decision, contrary to the natural human instinct to brake in a crisis. The trial judge's rejection of the plaintiff's criticism of the decision not to brake is thus sound. But either way, the trial judge said that there was "no satisfactory evidence, including any expert evidence" on which she could conclude that the defendant "could have avoided the collision if he had noticed [the plaintiff's] vehicle when it first started to enter the intersection". That conclusion has not been shown to be wrong, and it appears to be correct. 34 It would seem unlikely that the plaintiff's turn onto the Pacific Highway had been in progress for long before the defendant saw her - not long enough to permit the accident to have been avoided even if he had seen the commencement of the turn. It would be necessary to reach a view as to the defendant's reaction time and form a view as to how long in addition it would have taken his brakes to operate, and measure the sum of those two times against the time between the moment when the plaintiff commenced her turn and the moment of collision. There was neither direct evidence (reliable or not), nor circumstantial evidence, nor expert evidence, to permit investigation of that kind.

Failure of the trial judge to deal with the pleaded case 35 As has been seen, the plaintiff complained that the trial judge erred by not dealing with paragraph (ii), (iv) and (v) of the particulars of negligence and with related issues. 36 To this complaint there are several answers. 37 First, a trial judge cannot be criticised if the parties by their conduct of the trial narrow the pleaded issues. The issues of a trial can expand, even without an amendment to the pleadings; they can contract too. It seems likely that because of the plaintiff's concentration on speed and conspiracy, that happened in this case. 38 Secondly, the trial judge did deal with the issues, though very briefly, when she said that it was possible that the defendant should have seen the plaintiff's vehicle coming onto the roadway at a slightly earlier time. But she rejected that possibility as an avenue of liability on the causation grounds discussed above. 39 Thirdly, even if the trial judge failed to deal with the issues, any attempt by her to do so would have led inevitably to the dismissal of the plaintiff's claim, because even though the allegations of breach of duty appear valid, the plaintiff failed to prove that they caused her loss for the reasons indicated above.

2. The appellant is to pay the respondent's costs of the appeal.

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