Hathaway & Anor v Thorpe bht Kinghorn

LEGISLATION CITED: Australian Road Rule 259 Civil Liability Act 2002 (NSW), ss 5B, 5S

Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 CASES CITED: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 75 ALJR 867 Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

Bronwyn Kate Hathaway (First Appellant) PARTIES: Sarah Hathaway (Second Appellant) Jason Frederick Thorpe by his tutor Deidre Kinghorn (Respondent)

COUNSEL: L M Morris QC/B Kelleher (Appellants) BMJ Toomey QC/DRJ Toomey (Respondent)

SOLICITORS: Moray & Agnew (Appellants) McClellands (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40630/05 DC 32/2003

SANTOW JA IPP JA McCOLL JA

Friday 30 June 2006 BRONWYN KAY HATHAWAY & ANOR v JASON FREDERICK THORPE BY HIS TUTOR DEIDRE KINGHORN Judgment 1 SANTOW JA: I agree with McColl JA. 2 IPP JA: I agree with McColl JA. 3 McCOLL JA: This is an appeal, confined to liability and contributory negligence, from a judgment of Puckeridge DCJ in which he awarded Jason Frederick Thorpe, the respondent, the damages of $1,925,000 plus costs and the costs of funds management to be determined according to law. 4 The respondent was injured on 31 December 2001 at 10pm when struck by a motor vehicle owned by Bronwyn Kate Hathaway, the first appellant, and driven by Sarah Hathaway, the second appellant, while riding his bicycle. Immediately prior to the collision the second appellant was making a right-hand turn across his path. The point of impact was on his correct side of the road. The respondent was wearing a dark shirt and dark shorts. While his bicycle had reflectors on the pedals and wheels, it did not display the white and red lights required to be affixed to the front and rear of bicycles ridden at night: Australian Road Rule 259. 5 The appellants alleged at trial that the respondent had been guilty of contributory negligence because of his breach of the Australian Road Rules and his failure to observe, and avoid, the second appellant. The primary judge found the respondent guilty of contributory negligence to the extent of 30 percent and reduced the damages which the parties had otherwise agreed would have been $2.75 million to reflect that percentage. 6 The Notice of Appeal contained nineteen grounds, one of which Mr L Morris QC, who appeared with Mr B Kelleher for the appellants, formally abandoned. However, in essence, Mr Morris QC confined the appellants' case to two points. First, that the second appellant had not breached her duty of care because, assuming she had seen the respondent approximately four seconds prior to impact, that period was a reasonable time for her to react, that she had brought the vehicle to a stationary, or virtually stationary, position immediately prior to impact and could not have done more in the circumstances. 7 Secondly, the appellants attacked the primary judge's apportionment of liability for the accident, arguing that attributing only 30 percent to the respondent was too low. They argued his contribution should either be assessed at 100 percent (s 5S, Civil Liability Act 2002) or, at least, some amount greater than 30 percent.

The primary judgment 8 The primary judge made the following findings of fact:

(a) The respondent was riding his bicycle without any headlamps. A reflector or reflectors were affixed to the pedals and wheels of his bicycle.

(b) The respondent was riding his bicycle on Dalton Street, Orange in a westerly direction towards the intersection of Seymour Street.

(c) The second appellant was driving a motor vehicle on Dalton Street in an easterly direction towards the intersection of Seymour Street.

(d) It was the second appellant's intention to make a right hand turn into Seymour Street.

(e) The respondent was wearing dark shorts and a dark T-shirt. 9 The primary judge also found that the lights on the second appellant's vehicle were on, on low beam and that she activated her indicator to signal her intention to turn. Mr B Toomey QC, who appeared with Mr D Toomey for the respondent, abandoned a Notice of Contention seeking to challenge these findings because it had not been served. 10 The accident occurred at about 10pm on New Years Eve 2001. Immediately prior to the accident the respondent had turned right into Dalton Street from Carramar Street at a point approximately 60 to 70 metres east of the intersection of Dalton and Seymour Streets. Dalton Street sloped down towards Seymour Street, a slope a police constable who attended the scene after the accident, described as a slight rise, and Mr Schnerring, the respondent's expert said was an 11 percent grade. (Red 54 O). The police constable also said that the area of the intersection was poorly lit on the night of the accident. 11 The second appellant said she was driving east along Dalton Street at about 50 km per hour then slowed to about 20 km per hour about 30 metres before the intersection (Red 56 R), as she wanted to turn right into Seymour Street. She said she was looking straight ahead up Dalton Street to see if anything was coming, did not see anything, started to turn right, then saw a hand near the windscreen, increased her braking, heard a bang and stopped. (Red 56 - 57). She got out of her motor vehicle and saw someone lying on the road. The bicycle was underneath the front of her car. (Red 57 M) 12 Mr Schnerring gave evidence, which the primary judge appeared to have accepted that the second appellant would have been in a position to observe the reflectors on the respondent's bicycle about five seconds before impact and the bike and rider about four seconds before impact. (Red 59 T). 13 The primary judge regarded the following evidence Mr Schnerring gave as of assistance: that the stopping distance of the bicycle travelling downhill on an 11 percent grade to the intersection at 15 km per hour would be 2 metres and the stopping distance travelling at 35 km per hour would be 11 metres. He also considered Mr Schnerring's evidence that if the second appellant's vehicle was travelling at 20 km per hour it could stop in a distance of 2.3 metres in 0.9 seconds as of assistance. 14 Mr Schnerring undertook calculations according to which four seconds prior to impact the driver's perception (presumably of the cyclist) would commence and, at that time, the motor vehicle and the bicycle would be 53 metres apart. Once the motor vehicle was 30 metres from the point of impact, the reaction time of the driver would be three seconds and the distance of the motor vehicle from the point of impact, 15.6 metres and the distance of the bicycle from the point of impact, 22 metres. [Red 61] 15 The primary judge concluded, on Mr Schnerring's evidence, that at a point at about 30 metres from the intersection when the second appellant indicated her intention to turn, the light from her headlights was sufficient for light from the reflectors to shine back towards to her, whatever the position of the respondent on the roadway was at that point. On that basis he also accepted Mr Schnerring's opinion that the second appellant was in a position to observe the reflectors on the bike and the rider four seconds prior to impact. 16 One of the witnesses who came to the scene of the accident shortly after it occurred said he considered the appellant's motor vehicle "well over on the wrong side of the road" and that it was apparent to him that the second appellant had cut the corner. The second appellant agreed that she had cut the corner and had begun her turn in a manner which, if completed, would have placed her on the incorrect side of Seymour Street. She said she had "misjudged the corner", had looked up Dalton Street, but then was looking into Seymour Street to correct the car. 17 The primary judge made the following findings: "I consider that the second-named defendant, in misjudging the corner and attempting to correct her vehicle, diverted her gaze from looking up Dalton Street and thereby denied herself any further opportunity to observe the reflectors on the bicycle and the rider himself. I consider that in stating that she first saw a hand the second-named defendant has shown that she failed to keep a proper lookout. As I have already stated, I consider the evidence of Mr Schnerring that she ought to have been able to see the bicycle and the rider at a point when she was at least four seconds away. One second was stated by Mr Schnerring to be a good reaction time. …

I consider that had the vehicle driven by the second-named defendant seen the reflectors and continued past the pedestrian crossing and made a right hand turn in accordance with the Australian Road Rules the accident may well have been avoided." 18 The primary judge rejected an argument advanced by the appellants that they did not owe a duty of care to the plaintiff by virtue of s 5B of the Civil Liability Act, concluding that there was clearly a risk of harm if the second-named defendant failed to make a right-hand turn in accordance with the Australian Road Rules, a risk which could not be insignificant in those circumstances. His Honour considered a duty of care arose and, on his findings, had been breached in a manner which caused the respondent's injuries. (Red 65). 19 Insofar as contributory negligence was concerned, the primary judge did not accept the respondent's negligence was the sole cause of the accident but, rather, that as the respondent was aware of the risk of riding a bicycle without a headlamp, he had been guilty of contributory negligence. His Honour thought it was possible that the respondent (who had no recollection of the crash or seeing another vehicle before it) failed to see the second appellant indicate her intention to turn right or, too, that in the prevailing light conditions he failed to notice the angle at which she was approaching the intersection. His Honour then said: "… I do consider that the owner of the motor vehicle was in a superior position and that had it proceeded to make a right-hand turn, as required by the law, the collision may well have been avoided. I also take into account the fact that had the second appellant been paying proper attention it would have been a useful output of light to the right of about ten to twelve degrees by a longitudinal access and that may well have allowed her the opportunity to continue past the pedestrian crossing and make a right-hand turn."

Consideration 20 At trial the appellants had argued that the facts of the case did not lend themselves to expert analysis and, accordingly, did not rely upon any expert reports. Their written submissions on appeal substantially criticised Mr Schnerring's opinions, asserting they lacked an adequate factual basis. 21 In oral argument, however, Mr Morris sought to rely on the following. He sought to turn the primary judge's finding that the second appellant ought to have seen the respondent four seconds prior to the accident (which he did not challenge) into a finding that the incontrovertible evidence demonstrated that, in fact, she must have seen him four seconds before the accident (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118) and that stopping within that time was, on the basis of Mr Schnerring's evidence, reasonable in the circumstances. 22 This submission took the rather unusual course of impugning the second appellant's evidence that she had only seen the respondent's hand prior to the accident - the version she had given within two hours of the accident to the police officer who attended the scene. Mr Morris properly accepted that he had a difficulty with the theory of the case the appellants presented on appeal because of the second appellant's evidence but persisted with the proposition that on the basis of the incontrovertible facts said to be demonstrated by Mr Schnerring's reconstruction of the accident, and acceptance of the proposition that four seconds was a reasonable reaction time, the appellants had not breached their duty of care. 23 Leaving that aside there was, in my view, no incontrovertible evidence of a Fox v Percy kind which demonstrated that, even if the second appellant had seen the respondent four seconds prior to the accident, it was reasonable conduct on her part only to bring the motor vehicle to a halt immediately prior to, or eo instanti with, the accident. 24 Mr Schnerring's evidence, which the primary judge considered of assistance, was that if the second appellant's vehicle was travelling at 20 km per hour (as she said it was immediately prior to the accident) she could have stopped in 2.3 metres and 0.9 seconds Accordingly, had she seen the respondent four seconds prior to impact when travelling at that speed she could have stopped well before impact. 25 Further, on diagrams prepared by Mr Schnerring, which the primary judge accepted (and upon which Mr Morris also sought to rely) four seconds prior to impact the second appellant's car was approximately 25 metres from the Seymour Street intersection and had not commenced to turn. It confounds commonsense to suggest that had she seen the respondent at that point, even if travelling at more than 20 km per hour, she would have commenced her turn into Seymour Street, a manoeuvre which would (as turned out to be the case) have taken her straight across the respondent's path. 26 Mr Morris resisted, as a doctrine of perfection, the proposition that, assuming his thesis was correct, the second appellant's reasonable response would have been not to turn, but to continue in the same path so as to miss the bicycle. I do not accept that that is so. Even assuming, contrary to the primary judge's finding, that the second appellant had seen the respondent four seconds prior to the accident it would not, in my view, have been a reasonable reaction on her part to continue the turn into Seymour Street after she had slowed down commencing about 20 metres from the intersection. 27 In my view the appellants have not demonstrated any error on the primary judge's part in finding the appellants had breached their duty of care. The challenge to the primary judge's finding on liability must fail. 28 Turning to contributory negligence, the appellants submitted that the primary judge's apportionment exercise miscarried because of his erroneous finding "that the owner of the motor vehicle was in a superior position". 29 Mr Morris complained that the primary judge had failed to undertake an appropriate comparison of the parties' culpability for the damage: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 (at 16). Contrary to the primary judge's conclusion that it was the second appellant who was in a superior position, Mr Morris submitted that it was the respondent in the superior position because he must have been aware of the motor vehicle's presence, his relative invisibility having regard to the absence of lights on his bicycle and his appreciation, therefore, that he would have been difficult to detect on the roadway, so that there was a real risk the driver of a car might not see him. He submitted that, in the circumstances, the second appellant had reacted "as best she could, inadequate though it may be found to be" but that the respondent had done nothing on the objective facts to avoid her. 30 Mr Toomey defended the primary judge's apportionment exercise, contending his Honour had properly applied Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452 at [50] - [51] where, in essence, Gleeson CJ, Gummow, Kirby and Hayne JJ in their joint judgment accepted that in the Pennington v Norris exercise, the driver of a motor vehicle with its "far greater capacity to cause damage" may properly be regarded as bearing greater culpability in a motor vehicle accident than a pedestrian. 31 Although factual comparisons are often of little use, it is worth recalling, in this context, that in Pennington v Norris the plaintiff was injured when struck by the defendant's car at about 10.20pm on a misty wet night while crossing a road. The defendant did not see the plaintiff and a friend with whom he was crossing the road (at 13) "until there was not the slightest possibility of avoiding them". The plaintiff could not recall the accident but his friend, who noticed the lights of a car (apparently the defendant's) approaching from the north, thought it was about a hundred yards away when he and the plaintiff started to cross the road. The High Court (at 14) was of the view that it was a fair inference that neither man had looked to the left (the direction from which the defendant's vehicle came) when crossing the road and that that was negligent on their part. The trial judge had apportioned responsibility for the accident equally between the plaintiff and the defendant. The High Court set aside that finding and substituted one which attributed with 80 percent of responsibility to the defendant and 20 percent to the plaintiff. Their finding of 80 percent on the defendant's part was based on their conclusion that the trial judge had overlooked the defendant's speed and the fact that having regard to the weather conditions, visibility must have been impaired so that to drive in those circumstances was (at 17) "an obviously dangerous thing, and to have amounted to negligence of far greater culpability than anything that can possibly be attributed to the plaintiff." 32 In Anikin the plaintiff was seriously injured when he was struck by a bus on a slightly downhill section of a four-lane roadway at a position where the streetlights nearest the point of impact were not illuminated. The plaintiff was dressed in dark clothing, except for a white strip on the toe of his shoes. The bus driver was driving at about 70 to 80 km per hour. The primary judge found the plaintiff to have been guilty of contributory negligence to the extent of 25 percent. The Court of Appeal (Santow JA dissenting) set aside the primary judge's finding that the bus driver was negligent. On the issue of contributory negligence the primary judge had accepted that the plaintiff had the capacity to see the approaching bus, to which the joint judgment added (at [53]) that his capacity "may have been greater than that of the bus driver who was approaching at a greater speed, an object which was both unexpected and less readily visible." Accepting (at [50]) that the primary judge's decision was "not lightly reviewed" (Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494; Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 75 ALJR 867 at 868; Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 (at [84], [157]), the High Court was of the view that there was no basis for appellate intervention in the apportionment for contributory negligence. 33 The primary judge was clearly entitled to regard the second appellant as being in a superior position to the respondent. In my view the appellants have not established any basis for appellate intervention in the primary judge's apportionment of responsibility for the accident. 34 The appeal should be dismissed with costs. **********

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