Hamshere v Favelle

Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 Dos Santos v C Morris Painting & Decorating [2006] NSWCA 54; 45 MVR 168 CASES CITED: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 New South Wales v Fahy [2007] HCA 20; 81 ALJR 1021 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; 192 CLR 431

PARTIES: Thomas John Cameron Hamshere (Appellant) Matthew Favelle (Respondent)

COUNSEL: J Gormly SC/S Galitsky (Appellant) L King SC/P Sternberg (Respondent)

SOLICITORS: G A Kinsey Solicitors Sparke Helmore Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40936/07 DC 4068/06

HODGSON JA CAMPBELL JA MACFARLAN JA

THURSDAY 12 FEBRUARY 2009 HAMSHERE v FAVELLE Judgment

1 HODGSON JA: I agree with Macfarlan JA. 2 CAMPBELL JA: I agree with Macfarlan JA. 3 MACFARLAN JA: This is an appeal from a decision of Balla DCJ in proceedings brought by the appellant for damages for injury suffered by him in a road accident which occurred on 24 August 2004. Her Honour directed judgment for the respondent, who was the defendant below, finding that negligence on his part had not been proved. 4 The injury to the appellant occurred when the motorcycle he was riding collided with the driver's door of a parked car in which the respondent was seated and from which the respondent was about to alight. The accident occurred at dusk on Allison Crescent in Menai New South Wales. The appellant's front headlight was illuminated at the time of the accident. 5 The primary judge described the circumstances of the accident as follows: "The plaintiff entered a roundabout from Menai Road and turned into Allison Crescent. He travelled in a northerly direction towards the intersection with Mina Road. The speed limit on Allison Crescent was 50 kilometres per hour. Shortly before the accident there were two vehicles travelling in front of his motorbike. The photographs show a typical suburban road with a broken white line down the centre. It narrowed in the area where the accident occurred. There is a straight level stretch of road from the intersection with Schofield Place for about 100 metres and then the road curves to the right. The defendant had parked just outside his town house. This was at a point on Allison Crescent just after the right hand curve had commenced. There was a "No Standing" sign just in front of the defendant's car but it is common ground that parking was permitted where he had stopped his car. Three witnesses gave evidence - the plaintiff, Mr Rose who was the driver of one of the two cars travelling in front of the plaintiff and the defendant. The plaintiff's father gave evidence of certain admissions he said the defendant made on the day after the accident and his observation of the scene and the damage to the motorcycle and the car. The plaintiff said that the two cars in front of him had been travelling at 25 to 30 km. He rode behind them until he reached broken lines. He checked to make sure it was safe to overtake the cars, indicated, pulled out and started to overtake. He then realised that the cars were travelling quite close to each other and it would not be safe to pull in between them. The plaintiff said he rode past both cars, indicated again and moved back to his side of the road at a point just past the northern curve of Schofield Place. The plaintiff said there were oncoming traffic and cars, including the defendant's car, parked on the left hand side of the road. He maintained his speed at approximately 50 kilometres per hour. The plaintiff said that he was aware of the defendant's parked car but did not see anybody inside it. As he started into the right-hand turn and drew alongside the defendant's car the driver's door opened very suddenly into his motorbike. It all happened very quickly but he was aware of the interior light coming on, the door about to hit him and a person's leg. The plaintiff felt an impact to the left side of his motorbike, the rear wheel was pushed out to the right and he lost control and headed towards the kerb. He came off his bike and came to rest in Mina Road. His bike was next to him." (Red Appeal Book 20I-21G) 6 The primary judge said that she preferred the evidence of Mr Rose and of the respondent to the evidence of the appellant and his father where they conflicted. Having given reasons for that view, she made the following factual findings which, subject to one matter, were not challenged on appeal: * "the plaintiff overtook Mr Rose's car and continued on towards the defendant's car at between 80 and 90 kmh per hour that is almost twice the applicable speed limit; * the plaintiff was an inexperienced rider on a fast motorbike; * the plaintiff lost control of the motorbike as he tried to correct after he had completed the overtaking manoeuvre. This caused him to veer to the left and ride much closer to the defendant's car than any reasonable rider taking care for his own safety would have done; * the defendant looked back to check for northbound traffic in the manner he described. He could see 200 metres to the south. * at the time the defendant looked south, the plaintiff's motorbike was obscured from his view by Mr Rose's vehicle. * the defendant opened his door by 20 cm to activate the interior light. It had been open a matter of seconds before impact. Over that time the plaintiff was approaching the defendant's car; * the lane at that point was 4.2 metres wide. The defendant's car was 1.82 metres wide. There was room between the defendant's car and the centre lane for a motorbike to pass safely without coming within 20 cm of the side of the car; * the damage to the motorbike and the car is consistent with an impact between the edge of the driver's door and the gear lever and foot peg assembly of the motorbike." (Red Appeal Book 24K-U). 7 The appellant challenged the primary judge's finding that the appellant "lost control of the motorbike as he tried to correct after he had completed the overtaking manoeuvre". I consider that the finding was open to the primary judge to make and that the inference she drew as to loss of control was in fact correct. 8 The primary support for the finding is the fact that the appellant veered as close as he did to the respondent's vehicle. On the judge's findings, he would have come to 20 centimetres from it if car the door had been closed. This is a very small distance indeed when it is recalled that the primary judge found that the appellant's speed was 80 to 90 kph as he travelled towards the respondent's vehicle after overtaking Mr Rose's vehicle. No reason was suggested by the evidence or in argument as to why he would have wanted to come so close to the respondent's car. It plainly put the appellant in a highly dangerous situation. The appellant could not have intended to travel so close to the respondent's vehicle. That being the case, my view is that an inference that he was not in control of his motorcycle was the appropriate one for the primary judge to draw. 9 Further the evidence of Mr Rose, who was in a good position to observe the appellant, appeared to indicate that Mr Rose thought the appellant had lost control. After giving evidence that up until the time of the impact the appellant was perpendicular, the following exchange occurred: "Q. I'd like suggest [sic] to you sir that if he was approaching there would be some movement, either tilting one way or the other, approaching the car with which [he] had the collision. A. If he was in control of the motorbike maybe he would have been leaning away from the parked car." (Black Appeal Book 128N). 10 Additionally, there was evidence of a statement made by Mr Rose to an investigator that "he didn't look like he had control. He went wide into the turn" although on an earlier occasion Mr Rose had said in response to a question from the investigator as to whether the appellant lost control before or after the impact that "I thought he was going hard into the bend. He lost it after he hit the car" (Blue Appeal Book 503). 11 The primary judge's conclusion as to the absence of negligence on the part of the respondent was expressed in the following way: "The defendant had checked whether the roadway was clear. There was no particular danger observable at that time. It was not reasonable for the defendant to anticipate that the plaintiff was riding a motorbike behind Mr Rose's car, that he would overtake the car at high speed and then continue at that high speed towards his car. I am satisfied that it was reasonable for the defendant to then open the door by 20 cm and that it was not a hazard. In any event I accept the submission made by counsel for the defendant that even if the defendant had seen a motorbike at that time (when it would have been around 100 metres south of his car) he could still have reasonably formed the view that opening the door by 20 centimetres would not pose a danger to a motorbike rider who would be passing the car in a few seconds. A reasonably prudent person would not expect a motorbike to pass unnecessarily close to the side of his or her car in which the interior light had been activated." (Red Appeal Book 25R-X). 12 The principal basis of the appellant's challenge to these findings, as made in the written submissions filed on his behalf, is encapsulated in the following submissions: "22. Had her Honour considered the Defendant's duty first she would not have overlooked the Defendant's evidence that he had two 'looks' in mind. The first he carried out when there were two cars well back from him and certainly several seconds back on the Defendant's evidence, but the second 'look' was not carried out before opening the door but rather at the same time as it was done. 23. The Defendant allowed time to pass between first looking and then opening the door when he knew that there was some form of oncoming traffic about the content of which he simply made an assumption. … 26. In this case the Defendant is asking the Court of Appeal of New South Wales to sanction opening a car door into the traffic way without looking properly first. 27. There is no doubt that the Plaintiff was there. The Defendant would have seen him if he had looked before opening the car door. There was no issue that the Plaintiff's headlight was on." (Orange Appeal Book 13W-14H and 14M-Q). 13 It will be seen that the appellant's case was thus founded in his written submissions on the proposition that the respondent did not look properly for any oncoming vehicles before opening his car door. In particular, it was submitted that "the defendant allowed time to pass between first looking and then opening the door …". 14 The only evidence, whether oral or documentary, which bore directly on this issue was that of the respondent. The critical passages in the respondent's evidence in chief were as follows: "Q. What did you do after the car came to a halt. Just tell us very slowly please because people have to take notes? A. Okay. I proceeded to collect my wallet and phone and keys from the ignition and then I looked to the rear of the car through the rear passenger and rear window of the car. I noticed two headlights coming in my direction down from a southerly direction on Allison Crescent. Q. That's coming towards you? A. Coming towards me and I proceeded to open the door with the purpose of indicating to the oncoming traffic my intention of leaving the car, so I unlatched the car door and opened it and my intention was to wait for the traffic to pass and I was to alight from the vehicle. Q. How did you open the door of the car? A. I unlatched it with my right hand and normally what I would do is turn obviously to look for the oncoming traffic as I was doing it, so I notched my hand and pushed the door with my right elbow and knee and then suddenly I saw a flash from the accident. Q. Now just taking you back a step or two. How far had you opened the door - I withdraw that. You said you saw a flash of an accident, the accident? A. Yes. Q. That was the motorbike? A. Yes. Q. Coming on contact with your car? A. Yes. Q. How, doing the best you can, firstly for how long was the car door open before the impact? A. Matter of seconds. Q. Matter of seconds did you say? A. Yes. Q. How far had you opened the door before the impact? A. Approximately 20 centimetres. … Q. What do you recollection about the impact? [sic] Did you hear something, did you see something? A. As I was turning to take another look at the oncoming traffic all I remember was the yellow flash and hearing a loud crashing or banging sound as the motorbike hit the door." (Black Appeal Book 137J-138D and 138I-K). 15 In cross-examination, the respondent gave the following evidence: "Q. What you had previously done was to look in your rear vision mirror and you had seen some car lights? A. No, it wasn't in my rear vision mirror. Q. Did you actually physically turn your body right around and have a look? A. Yes, I did. Q. And at that time you saw nothing? A. No, I saw two cars approaching. Q. Yes, but you saw not motorbike? [sic] A. I saw no motorbike, no. Q. Then you commenced I suggest getting out of the car? A. I proceeded to open the door to indicate to the traffic that was my intention." (Black Appeal Book 142R-X). 16 The respondent's evidence was thus that he looked for oncoming vehicles by physically turning his body around and that he then opened his car door to the extent of 20 centimetres. There is no support in his evidence for the appellant's submission that the respondent delayed between looking behind and opening his door, nor are there any other circumstances from which an inference to that effect could be drawn. Understandably, her Honour made no finding to that effect. 17 The appellant's oral submissions were put more broadly. They focused not only upon the opening of the door but on the leaving of it open for what, according to the respondent's evidence, was a "matter of seconds" prior to the impact occurring. The appellant made the point that the effect of the respondent's evidence was that, assuming that he looked before opening the door, he was not in the few seconds after opening the door and before the impact occurred looking to the rear for oncoming vehicles. This would explain why he did not see the motorcycle prior to impact. When he looked prior to opening the car door, the motorcycle was obscured behind Mr Rose's car. The appellant must have completed his overtaking in the following few seconds by which time the respondent had his head turned towards his driver's side window. 18 In light of the respondent's evidence, I do not consider that there is any basis for a complaint that the respondent did not turn to look for oncoming traffic before opening his car door or that he did so too long before opening the door. The evidence indicated that he did look immediately prior to opening the door. 19 The further questions arise however as to whether he was negligent in opening the door, even to the limited extent that he did open it, when he had seen that there was oncoming traffic and whether he was negligent in not remaining turned to look back at the road in the few seconds that the door was open prior to impact. 20 My view on these questions accords with that of the primary judge. What the respondent did was not unreasonable in the circumstances because a reasonably prudent person in the respondent's position would not have expected a vehicle, whether car or motorbike, to pass so close to the person's vehicle as to be endangered by a door open to the extent only of 20 centimetres. In my view there was no foreseeable risk of sufficient magnitude to have caused a reasonable person to refrain from acting as the respondent did. It was the appellant's loss of control of his motorcycle, no doubt resulting from his excessive speed and his inexperience, which brought him so close to the respondent's vehicle that he was within a matter of centimetres of colliding with it, even if the door had not been ajar. The respondent was not in my view negligent in failing to guard against the possibility of this occurring. The approach of the High Court in Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at [13] is applicable to the present case. 21 Derrick v Cheung was a case in which an infant child was hit by a motor vehicle. The High Court emphasised that the question to be addressed in negligence cases is not whether "different conduct on the part of those involved" in occurrences would have produced a different result but "whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care" (at [13]). The claim against the defendant in that case that she should have been driving her motor vehicle at a slower speed to guard against the possibility that came to pass was rejected upon the following basis: "What was unlikely in this case was that an unattended infant of such tender years would dart in front of a relatively slow moving vehicle on a busy road in such a way that a collision was, to all intents and purposes, unavoidable" (at [14]). There was thus not a foreseeable risk of sufficient magnitude to cause a reasonable person in the defendant's position not to drive at the speed at which she was driving. Likewise in the present case, it is undoubtedly true that the appellant's injury would not have been suffered if the defendant had not opened his car door but the respondent's liability has to be assessed primarily by a consideration of the magnitude of the risk of a motorcycle (or indeed a motor vehicle) whose rider (or driver) had lost control, passing 20 centimetres from the respondent's vehicle at a speed which was significantly in excess of the speed limit. As I have said, a reasonable person in the respondent's position would not have assessed this risk as requiring action different from that which the respondent took.

22 The decision of this Court in Dos Santos v C Morris Painting & Decorating [2006] NSWCA 54; 45 MVR 168, upon which the appellant relied, was a different case from the present. In that case the driver of a utility was found to have been negligent when he collided with a cyclist who was passing the utility on its left. The driver of the utility changed lanes without warning. It was said by Mason P (with whom Giles JA agreed) that "the unlikelihood of the [cyclist's] presence did not preclude the finding of negligence against the [utility driver] given the latter's failure to look or signal, his own breach of the rules and what I would describe as the known possibility that bike or bicycle riders behave the way that the [cyclist] did" (at [31]). 23 I add in conclusion that the appellant submitted that the primary judge did not undertake her consideration of the liability of the respondent to the appellant in a manner which conformed with High Court authority. Reference was made to Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; 192 CLR 431 at [115]; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 at [59] and New South Wales v Fahy [2007] HCA 20; 81 ALJR 1021 at [57-58]. To this list I would add Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330. In my view her Honour's reasoning conformed to the principles stated in these cases as she assessed the nature and extent of the risk which a reasonable person in the respondent's position would have foreseen and considered how, if at all, that reasonable person would have responded to the risk. 24 In my view, the appeal should be dismissed with costs.

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