Hawthorne v Hillcoat [2007] NSWSC 1018 | Case summary

Hawthorne v Hillcoat [2007] NSWSC 1018 | Case summary | Zoe

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JUDGMENT Introduction 1 On 30 July 1999 the plaintiff and some work associates, including a Mr Gary Sanderson, went to the George IV Inn at Picton, where they drank a quantity of beer brewed on the premises, from about 8 p.m. to 11:30 p.m. The plaintiff, who was grossly intoxicated, and Mr Sanderson (also very intoxicated) left the hotel shortly after 11:30 p.m. and commenced to walk in a southerly direction in Argyle Street towards Tahmoor, where the plaintiff then lived. The plaintiff was wearing a blue check shirt and light blue denim jeans. 2 Within a relatively short distance of the hotel, the plaintiff and Mr Sanderson passed through a tunnel, known to locals as "the hole in the wall" because of its narrow and confined nature, and negotiated a sharp left-hand turn before ascending a relatively steep slope. It was necessary for them to walk on the roadway proper for some distance, given that there was no footpath on either side of the road for this part of their journey. Both men overlooked or ignored an alternative route, a pedestrian overpass, which was indicated by signage at the northern approach to the tunnel. A footpath commenced on both sides of Argyle Street, after passing through the tunnel, at about 70 metres south of the tunnel. 3 At about 12:20 a.m. on 31 July 1999, the defendant was driving her Mazda MX-5 sedan in Argyle Street in a northerly direction, that is, towards the tunnel, within the prevailing speed limit of 60 kph. The plaintiff was struck by the defendant's vehicle whilst he was standing in the single northbound lane, approximately 240 m from the southern end of the tunnel. The night was fine with light cloud cover. How he came to be in that position at that time, and the quality of the lighting in the immediate area have a considerable bearing on the question of liability. The plaintiff's blood alcohol reading on admission to hospital was 0.226 (Ex 2). 4 The only witnesses to the accident, other than the plaintiff and the defendant, were Mr Sanderson and a Ms Sheen. Ms Sheen was driving south on Argyle Street. She maintained that she saw two pedestrians on the roadway and that one of them crossed in front of her vehicle shortly before the plaintiff was hit. The plaintiff remembers nothing after leaving the hotel. The defendant gave an account of suddenly seeing a person standing on the roadway in front of her car, immediately prior to impact. 5 Mr Sanderson's account was broadly consistent with the plaintiff's presence in the middle of the road for some period of time before the defendant's vehicle struck him. Mr Sanderson said that he was on the eastern footpath, and that the plaintiff was some distance behind him. In a statement provided to police about three months after the accident, Mr Sanderson stated that the plaintiff was in the middle of the road and that he was telling the plaintiff to get off the road.

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The Physical Features of the Accident Site. 8 Argyle Street, Picton, is a sealed main rural road running generally north-south in a moderately built-up area. The road width is approximately 12.75m from kerb to kerb. There is one northbound lane and two southbound lanes. Only the northbound carriageway includes a parking lane, which is separated from the traffic lane by a continuous white line. The northbound carriageway is approximately 5.95m wide, of which 3.65m constitutes the traffic lane. The southbound carriageway is approximately 6.7m wide, with one lane measuring approximately 3.55m and the lane closest to the centre line measuring approximately 3.1m. The north and southbound carriageways are divided by a continuous double white barrier line in the centre of the roadway, but for a gap at the intersection of Argyle Street and Lumsdaine Street, to allow for vehicles entering and leaving Argyle Street. 9 The relevant portion of Argyle Street emerges from the railway underpass for a vehicle travelling in a southerly direction at a sharp (almost) 90° angle and climbs at a gradient of approximately 7% for a distance of approximately 150 m. Vehicles then negotiate a slight right-hand bend, at which point the road flattens out and proceeds at a gradient of approximately 4% for a further 150 m to the intersection of Argyle Street with Lumsdaine Street. At this point, for vehicles travelling in a southerly direction, the road sweeps to the left and continues at a gradient of approximately 4% for a further 200m to the crest of the hill. 10 A vehicle travelling in a northerly direction descends Argyle Street and negotiates the sweeping right-hand bend at the intersection with Lumsdaine Street before straightening up for the approach to the railway underpass. Street lighting along this stretch of Argyle Street is only provided on alternate poles along the western side of the roadway, that is, adjacent to the northbound lane. The exhibits and the evidence at trial referred to light poles numbered 120, 121, 122 and 123, moving from north to south. Pole 123 was on the western kerb immediately opposite Lumsdaine Street, pole 122 was approximately 48m to the north, pole 121 was approximately 45m to the north of pole 122, and pole 120 was a further 52m north of pole 121. 11 On the night of the accident there was a functional light on pole 123, no light affixed to pole 122, a non-functioning light affixed to pole 121, and a functional light affixed to pole 120. There was also a street light at the south-eastern corner of Lumsdaine street, which combined with pole 123, provided a pool of light at that intersection. Therefore, a vehicle travelling in a northerly direction approached a lit area at the right-hand bend adjacent to Lumsdaine Street, then emerged into an unlit area extending downhill for a distance in excess of 100m. In other words, the distance between functioning streetlights on the night of the accident was approximately 145 m between pole 123 and pole 120. 12 With the exception of a school approximately 150m south of Lumsdaine street on the eastern side of Argyle street, the buildings consisted of domestic dwellings on both sides of the road, and some vacant lots. Bushes and other foliage bordered the footpaths on both sides of the road. There was a large overhanging pepper tree approximately 15m south of pole 122 on the eastern side of Argyle street that extended almost into the centre of the roadway. 13 Pole 122 was adopted as "the reference pole" for the purposes of measurements relating to the length of the skid marks and ascertaining the point of impact between the vehicle and the plaintiff. According to Exhibit A, a scaled diagram taken from police measurements recorded on the night of the accident, the defendant's vehicle left skid marks on the northbound lane, commencing 2.6m and extending 18.2m north of pole 122. At approximately 9m north of pole 122, the skid marks deviated to the left, that is, towards the western kerb. At 28m north of pole 122, and approximately 7m east of the western kerb, there was a quantity of blood on the road surface within the southbound lane closest to the dividing centre line. 14 This plan and the measurements thereon were uncontentious, however the conclusions to be drawn from the skid mark deviation and the point at which the plaintiff came to rest on the roadway, demonstrated by the blood, was a significant area of dispute between the plaintiff's expert (Mr Johnston) on the one hand and the defendant's expert (Mr Keramidas) on the other. The principal area of contention concerned the point of impact, namely whether the impact between the plaintiff and the defendant's vehicle explained the deviation of the skid marks (according to Mr Keramidas), or whether the point of impact correlated with the commencement of the skid marks and the deviation was explained by nothing more than cross-fall on the road surface (according to Mr Johnston). 15 Before returning to this issue, the accounts given by Ms Sheen (called in the plaintiff's case), Mr Sanderson and the defendant (both called in the defendant's case) deserve consideration. In addition, the evidence of Constable Bain, the accident investigation officer who attended the scene that night, assumes considerable importance.

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The Evidence of the Accident - Ms Sheen, Mr Sanderson, the Defendant and Senior Constable Bain. 16 Ms Sheen was a resident of Tahmoor, to the south of Picton, who was returning home from work at about midnight. Ms Sheen was driving a Ford Falcon in a southerly direction in Argyle Street. Ms Sheen estimated her speed at 40 kph through the hard left-hand bend under the railway line before accelerating to approximately 60 kph as she climbed up the steeper part of Argyle Street. Her car was in the outside lane. Approximately half way up the hill at the point where the road turned slightly to the right, approximately 100m from the accident site, Ms Sheen noticed two persons on the roadway, about 50m away, walking in a southerly direction in the northbound lane. Ms Sheen's vehicle lights were on low beam and the area was "pretty dark". Ms Sheen immediately slowed to approximately 20 kph or less, in anticipation that the pedestrians might move into her path. 17 Some short time later, one person ran from west to east across the road in front of Ms Sheen's car. This event coincided with the approach of another car (the defendant's) travelling down the hill from the Lumsdaine street intersection in a northerly direction. According to Ms Sheen, the person remaining in the middle of the northbound lane was struck by the oncoming vehicle and thrown into the air, landing on the roadway in front of Ms Sheen's car, causing her to swerve to the left to avoid hitting that person (the plaintiff). Apart from hearing the impact between the vehicle and the plaintiff, Ms Sheen did not hear the screeching of tyres or the sound of skidding. When swerving to the left, Ms Sheen became aware of the other man (Mr Sanderson) on the eastern footpath, near what she took to be a bus stop. Ms Sheen pulled into Lumsdaine Street at the top of the hill then continued on her journey home. She contacted police the following day, but did not provide a statement until 10 September1999. 18 The plaintiff relies heavily upon Ms Sheen's evidence to demonstrate negligence on the part of the defendant. It was contended that if Ms Sheen was aware of the presence of the plaintiff and Mr Sanderson on the roadway from a distance of 50m, and took appropriate remedial action to avoid an accident, so too should the defendant have been aware of their presence and the risks inherent in it. The irresistible inference to be drawn, according to the plaintiff, was that the defendant had failed to keep a proper look-out and had been driving at an excessive speed in all the circumstances. 19 Mr Sanderson's evidence and the defendant's evidence differed in a material respect from Ms Sheen's evidence. In particular, Mr Sanderson denied being on the roadway after emerging from the railway tunnel and the defendant saw no other car travelling uphill in the southbound lane, or anyone else on the roadway immediately prior to seeing the plaintiff. 20 Mr Sanderson provided a statement to police on 21 October 1999 (Ex 5). At the time of giving evidence, he could not remember speaking to police or the contents of the statement, although he accepted that his memory in October 1999 was better than in 2007. There were some discrepancies between the statement and Mr Sanderson's evidence, but they were ultimately of a relatively peripheral nature.

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21 He acknowledged that when he left the hotel with the plaintiff, he (Mr Sanderson) was "pretty gone", in that he "had the wobbly boot on". Mr Sanderson knew of the existence of the footbridge but forgot about it on the night in question and decided to walk through the tunnel. After passing through the tunnel, Mr Sanderson said he was walking on the footpath on the eastern side of Argyle Street approximately 10m ahead of the plaintiff. 22 According to his evidence at the hearing, on the last occasion he looked towards the plaintiff, the plaintiff was in the gutter on the eastern side of Argyle Street and Mr Sanderson probably said to him "get away from the road". However, the statement records that Mr Sanderson was on the footpath and the plaintiff was in the middle of the road. Mr Sanderson told police that he yelled at the plaintiff "get off the road, you will get run over" or words to that effect. Mr Sanderson heard a bang, turned around and saw a car stopped in the middle of the road with its headlights on and the plaintiff lying on the roadway. Mr Sanderson told the young female driver (the defendant) that it wasn't her fault, and that he had been telling the plaintiff to get off the road. 23 Mr Sanderson firmly refuted the suggestion that he was on the roadway at any time after passing through the railway tunnel (T 681). Nor was it put to him in cross-examination by the plaintiff's counsel that he was walking in the roadway with the plaintiff. Nothing in his statement to police suggests that he left the eastern footpath, or moved at any time to the western side of Argyle street. The plaintiff's submission that Ms Sheen's evidence should be accepted and Mr Sanderson's evidence rejected as less reliable, because of his intoxication that night, overlooks the fact that Mr Sanderson remains unchallenged on that aspect of his evidence. In so far as Mr Sanderson's evidence placed the plaintiff in the eastern gutter of Argyle street at some stage, Mr Sanderson acknowledged that the plaintiff must have drifted onto the roadway after Mr Sanderson last saw him prior to the accident. 24 The defendant gave evidence that she was licensed for four years as at the date of the accident. She was familiar with Argyle Street in that she drove along it each day. She very rarely saw pedestrians on the western side of this part of the street during the day, although she was aware that pedestrians more commonly used the footpath on the eastern side. She had seen no pedestrian activity along Argyle street at night. The defendant acknowledged that she noticed before the date of the accident that the streetlights immediately to the north of Lumsdaine street were not working. 25 On the night of the accident she was travelling between 50 and 60 kph in a northerly direction, probably with the headlights on low beam. There were no cars in front of her or behind her. One car passed her, travelling in the opposite direction, near the school south of the intersection with Lumsdaine Street.

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26 As the defendant came around the sweeping right-hand bend at the intersection with Lumsdaine Street, the area beyond it was very dark. She was conscious of the headlights of her car sweeping from the western kerb of Argyle street to the centre of Argyle street, as she negotiated the bend at the intersection with Lumsdaine Street. As her car straightened up, she saw a person standing on the roadway in front of her car. There were no headlights coming towards the defendant at this time. She said she did not know where the person came from. She slammed on the brakes, skidded and about a second later, the plaintiff hit her car, right in front of her. The plaintiff rolled off her car to her right hand side and came to rest on the other side of the road, with his feet towards her car and his head extending towards the western footpath. 27 The defendant saw no other person, or any movement on the roadway. She was not sure if the plaintiff was moving before she hit him. After the impact, she got out of the car and saw a man walking towards her from the eastern footpath further up the hill (Mr Sanderson). The defendant said that Mr Sanderson told her that he had been telling the plaintiff to get off the road. The defendant noted the damage to her car caused by the impact with the plaintiff. The driver's side headlight was pushed back into its housing, the windscreen immediately in front of the driver's seat was shattered and there was a dent in the roll-bar at the top of the windscreen. The defendant was not aware that any damage had been caused to her number plate. 28 The plaintiff's senior counsel in the latter part of the hearing, when cross examining the defendant, attempted to suggest that the defendant's headlights ought to have been on high beam. The defendant was unable to say with certainty that they were not, merely that she believed her headlights were on low beam. The difficulty with the submission that the failure to operate the defendant's headlights on high beam was a particular of her alleged negligence is that it was never pleaded. An application made very late in the trial to amend the pleadings was refused. 29 More importantly, when the plaintiff's case was opened (by different senior counsel) it was accepted that the defendant was right to have had her headlights on low beam, given the presence of Ms Sheen's car on the opposite side of the road, according to the plaintiff's case (T 5.20). The fact that Ms Sheen's car approached the defendant's vehicle from the opposite direction at some time proximate to the accident was never disputed. In those circumstances, I accept the defendant's best recollection in this regard and reject the proposition that the defendant was thereby negligent. 30 If Ms Sheen's evidence is to be accepted in its entirety, both the defendant's and Mr Sanderson's account must be rejected in a particular respect, namely that Mr Sanderson was not in the northbound lane with the plaintiff shortly before the defendant's car struck the plaintiff.

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31 Accepting that Mr Sanderson's reliability must be compromised to some extent by his intoxication on the night, Ms Sheen and the defendant were not so compromised. Each of them appeared to strive to give honest and accurate evidence, although it must be said that both of them were obviously traumatised by the events of that night. It was submitted by the plaintiff that the defendant's evidence was suspect, on the grounds that she was in effect tailoring her evidence to meet the demands of her case. However, the defendant's evidence contained no relevant departure from the terms of the statement she provided to police the day after the accident (Ex D). 32 There are a number of features of Ms Sheen's evidence that are difficult to reconcile with the objective facts. The defendant's expert regarded Ms Sheen's estimate of the distance at which she first observed pedestrians on the roadway as probably unreliable, and that it was unlikely Ms Sheen saw all the events she claimed to have seen, particularly in the light of her estimates regarding her vehicle's speed and the likely perception/reaction times leading up to the accident (see Appendix F to Ex 6). The plaintiff's expert agreed that there were problems accepting everything that Ms Sheen said she had observed in the time that was available to her (T 762), so that either Ms Sheen was wrong about her vehicle speed, or she was wrong about those observations. 33 Ultimately, the significance of Ms Sheen's account resides in the proposition advanced by the plaintiff that what Ms Sheen was able to see, the defendant was also able to see, if she had been paying attention. Of course, the plaintiff's case may be on stronger ground were it to be accepted that Mr Sanderson ran across the roadway in the manner described by Ms Sheen, because it might then be reasonably inferred that the defendant's attention should also have been drawn to the presence of pedestrians on the road. However, even Ms Sheen's account described Mr Sanderson's movement and the approach of the defendant's car from the crest at the intersection with Lumsdaine street as almost simultaneous. In addition, the plaintiff's own expert acknowledged that the plaintiff's presence on the road was visible to Ms Sheen before he was visible to the defendant (T 763.5). 34 I regard factors such as the slope and curvature of the road, the quality of the available artificial light for vehicles approaching in opposite directions, and the variable illumination of the road by the headlights of the respective vehicles as more decisive of this issue. A number of important concessions were made in the course of Mr Johnston's cross-examination, which canvassed these factors. Further analysis of that expert evidence appears below. It is sufficient to note here that I do not accept that Mr Sanderson was in the northbound lane with the plaintiff, such a finding being against the weight of the evidence. 35 Senior Constable Bain was at the time of the accident an officer stationed at the Greater Hume Region Crash Investigation Unit. He arrived at the accident site at 1:30 a.m. He described the night as overcast, that is, light cloud cover. He was able to walk about, but required torchlight in order to read measurements from the measuring wheel. It was Senior Constable Bain's measurements that ultimately found their way on to Exhibit A. The offside skid mark, which was half a metre from the double centre lines, commenced 2.6m north of pole 122, while the nearside skid mark commenced 4.7m north of that pole. At 8.9m north of pole 122, both sets of skid marks deviated by half a metre to the west and to a point approximately 14.5m north of pole 122. The single offside skid mark continued to a point 18.2m north of pole 122. The single nearside skid mark continued to a point 17.1m north of pole 122.

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39 At the time Senior Constable Bain gave his evidence as a witness in the plaintiff's case, it appeared uncontroversial. It was never suggested that Senior Constable Bain lacked the relevant expertise to arrive at the conclusions that he did, or that those conclusions were not open to him. Nonetheless, by the time Mr Johnston came to give evidence, Senior Constable Bain's opinion as to the point of impact was disavowed. 40 As the following analysis of Mr Johnston's evidence demonstrates, there was inadequate consideration given to Senior Constable Bain's evidence for the purposes of justifying Mr Johnston's conclusion that the point of impact was at, or close to, the beginning of the skid marks. This internal contradiction in the plaintiff's case constituted a considerable obstacle to proof of the defendant's negligence on the balance of probabilities, even disregarding the evidence of Mr Keramidas. 41 Brief reference should be made to the evidence of Mr Hayes, a fireman who had been at the George IV Inn earlier in the evening and had observed the plaintiff's behaviour. Mr Hayes did not consume any alcohol that night. When standing on the veranda of the hotel, he saw the plaintiff walk out onto the centre of the roadway and stand in the path of cars coming down the hill, seemingly in an attempt to flag them down. A number of cars slowed down and went around the plaintiff. The last time he saw the plaintiff was when he and Mr Sanderson were walking through the tunnel on Argyle street. 42 Approximately 10 minutes later, Mr Hayes was driving his Ford Bronco south along Argyle street when he came upon the plaintiff lying in the roadway. He stopped and rendered assistance. He described the roadway as dark at that spot and the street lighting as poor. 43 In summary, it is established by Ex A and the evidence of those who were present at the scene on the night of the accident that the plaintiff was standing alone, about 1m west of the double centre lines in the northbound lane of Argyle street, in darkness, as the defendant drove northwards with her headlights on low beam, within the speed limit, through the right hand bend adjacent to Lumsdaine street. At about the same time, Ms Sheen was driving south in Argyle street, uphill on a relatively straight stretch of the road, with her headlights on low beam. To the extent that the plaintiff was moving at all, he was walking in a southerly direction, towards the defendant's oncoming car. There is no reliable evidence to suggest that the plaintiff was moving laterally across the road. On emerging from the bend, the defendant saw the plaintiff in the vehicle's headlights, applied the brakes and skidded approximately 8-9m before striking the plaintiff. 44 It should be noted at this point that nothing turns on the defendant's speed immediately prior to impact with the plaintiff. Mr Johnston was of the view that the defendant was travelling at between 50 and 55kph while Mr Keramidas adopted 53kph as the likely speed. I turn to the dispute relating to the point of impact, whether and to what extent the plaintiff was visible to the defendant, and at what distance.

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46 The circumstances under which Mr Johnston arrived at these conclusions deserve further examination. Mr Johnston was first instructed on 13 October 2003. Over the following months he was provided with further material, including parts of a document compiled by MDK and Associates dated 1 December 2000. The pages with which Mr Johnston was supplied contained photographs and descriptions of the scene of the accident, some of which referred to it as very dark. 47 Ultimately, Mr Johnston produced a report in August 2004 that set out a number of assumptions made for the purposes of the opinions expressed within that report. A number of those assumptions that related to significant physical features of the site were wrong, including the number of northbound and southbound lanes in Argyle Street, the fact that the defendant travelled through a left hand curve approaching the point of impact instead of a right-hand curve, the length of the skid marks from the defendant's vehicle being 13.5m rather than 15.6m, and the ambient lighting conditions along the relevant stretch of Argyle Street. With regard to the latter, it appears that, despite having access to police photographs of the scene of the accident taken on the night in question, Mr Johnston only became aware that the light on pole 121 was not operating until some time after the preparation of his first report. 48 Mr Johnston's first report accepted that the point of impact was between 4m and 14m north of pole 122 and contained the opinion that the impact with the plaintiff occurred around 4 m north of pole 122 (T 511). Moreover, Mr Johnston accepted by the time he came to give evidence that Senior Constable Bain had correctly measured the full length of the skid marks at 15.6m. Notwithstanding these concessions and the erroneous assumptions upon which the conclusions expressed in the first report were based, Mr Johnston maintained that he was always of the view that the point of impact was at the commencement of the breaking of the defendant's vehicle. 49 The defendant's objection to the tender of the first report on the basis that so many of its critical assumptions were demonstrated to be incorrect resulted in the rejection of that report and the allowance of some further time to enable Mr Johnston to furnish an amended report, based upon the correct physical features of the site, and to determine whether his conclusions would be correspondingly affected. In the interim, Senior Constable Bain gave evidence in the proceedings in the terms set out above. 50 The cross-examination of Mr Johnston following the tender of Exhibit M exposed serious flaws in both Mr Johnston's methodology and his conclusions. In July 2006, Mr Johnston noted that "Constable Bain presumably had more contemporaneous and better evidence as part of his original police investigation" when dealing with the point of impact, yet Mr Johnston resolutely refused to accept that Senior Constable Bain's evidence, that the point of impact was in the vicinity of the deviation of the skid marks, should in any way affect the conclusion maintained in Mr Johnston's report of February 2007. 51 Mr Johnston initially said that that was not his understanding of Senior Constable Bain's evidence, based upon a conversation Mr Johnston had with Senior Constable Bain at the conclusion of the latter's evidence in the precincts of the court. Somewhat paradoxically, Mr Johnston was provided with a transcript of Senior Constable Bain's evidence but maintained that he had not read it and in any event he disagreed with it. To the extent that he was provided with a transcript of the evidence in order to make allowances for his earlier erroneous assumptions, Mr Johnston apparently relied exclusively on Ms Sheen's evidence. When it was brought to Mr Johnston's attention that Senior Constable Bain's opinion coincided with that of Mr Keramidas, Mr Johnston's reply was "but that doesn't make it correct. It is not correct. … I don't exclude it as a point of impact but the deviation of the tyre marks are indicative of the point of impact." (T 517) 52 Mr Johnston's reasons for rejecting the deviation of the skid marks as the point of impact were less than coherent. He proffered the opinion that the cross fall in the roadway was a more common explanation for deviation of skid marks, yet nowhere in any of his reports did he advance the opinion that the divergence in the skid marks was caused by the cross fall. Moreover, he acknowledged that deviation of skid marks from cross fall, absent any impact with an object, produces curved skid marks from the rear wheels of the vehicle, as opposed to the straight skid marks seen in this case. Mr Johnston then sought to discount the depiction of the skid marks on Exhibit A as not necessarily accurate, notwithstanding the fact that he had not asked Senior Constable Bain about that feature of the plan. 53 He conceded that he could not say exactly what did cause the deviation, but that he was of the firm view that it was not caused by pedestrian impact. (T 518) The foundation of that opinion was that the impact between the plaintiff and defendant's vehicle was, according to Mr Johnston, a central impact. The only feature of the damage to the defendant's vehicle that supported the conclusion that the impact was a central one was the damage to the number plate. 54 In the absence of any cogent evidence that the number plate was damaged solely as a result of impact with the plaintiff and in the light of the defendant's evidence that the number plate was flimsy and was prone to flexing, I place no reliance upon that aspect of Mr Johnston's opinion. There was overwhelming evidence of substantial damage to the driver's side of the vehicle. Yet, when the remainder of the damage to the defendant's vehicle (offside windscreen and offside headlight) was put to Mr Johnston as consistent with the plaintiff striking that side of the vehicle, Mr Johnston maintained that he was unable to say how the headlight sustained that damage. In short, he selectively relied upon the damage to the number plate and the windscreen to support his opinion that the plaintiff struck the centre of the car and was bounced diagonally over the bonnet. 55 Lastly, possibly the most telling aspect of Mr Johnston's evidence in respect of the point of impact was that the deviation of the skid marks indicated a possible point of impact, but that such a finding depended on other factors, including the pedestrian throw distance. It was apparent from Mr Johnston's calculations set out in Exhibit M that the pedestrian throw distance posits a point of impact. Mr Johnston's argument in this regard was therefore entirely circular. 56 Mr Keramidas acknowledged that it was relatively rare for pedestrian impact to give rise to a deviation in skid marks. By the same token, the physics of the phenomenon are reasonably straightforward. Given that the deviation had occurred, some force must have been applied in order to create it. In the absence of curved tyre marks (both front and rear wheels) and anything on the road surface that might generate a rotation of the vehicle, and given that the wheels were locked and sliding, by a process of elimination the deviation of the rear wheels was caused by impact between the offside of the defendant's vehicle and the plaintiff. (T 858) Whilst Mr Keramidas was cross-examined extensively on this topic, he remained unshaken. His evidence and the contents of his report (Exhibit 6) were internally consistent and withstood searching enquiry. 57 Even in the absence of a contrary expert opinion from Mr Keramidas, I would reject Mr Johnston's opinion as to the point of impact. There is an abundance of reliable evidence, namely from Senior Constable Bain and the defendant, together with objective evidence, that establishes the most likely point of impact as proximate to the deviation of the skid marks left by the defendant's vehicle. The Visibility of the Plaintiff to the Defendant 58 In Exhibit M, Mr Johnston determined that, taking into account the visibility of a pedestrian under low beam at a distance of 50m, coupled with the likelihood that the plaintiff was silhouetted on the roadway before the defendant's headlights illuminated him, the defendant's reaction time was at least 1.3 to 2.1 seconds later than a reasonably alert driver. Accordingly, Mr Johnston was of the view that the defendant should have been able to stop prior to impact with the plaintiff, if she had been maintaining a proper lookout. 59 Each of these underlying conclusions, namely that a pedestrian would have been visible under low beam at a distance of 50m and the silhouetting of the plaintiff on the roadway, were shown to be tenuous at best. 60 Mr Johnston ultimately accepted that the 50m of visibility to which he referred was only applicable to an object on the near-side of the roadway, as opposed to an object on the off-side of the roadway. In the latter case the visibility was 24.8m. Significantly in the circumstances of this case, the distance from the tangent point on the right-hand bend at Lumsdaine street (the tangent point being the last point on the curve) to pole 122 was approximately 35m. Mr Johnston would not concede that the headlights of a vehicle emerging from the right-hand bend at Lumsdaine Street would not illuminate the road ahead until it reached that tangent point. He maintained that vehicles would substantially straighten before reaching the tangent point. 61 However, given that the near-side of the road is the primary focus of headlights on low beam, a pedestrian standing close to the double centre lines (off-side) would only be illuminated at the very conclusion of the vehicle's emergence from a right-hand bend. In addition, disability glare from the oncoming headlights of an approaching vehicle (Ms Sheen) was a relevant factor, which would have reduced visibility available to the defendant. Mr Johnston agreed that if disability glare was present, it may have reduced visibility of an object in the centre of the road to as little as 20m. 62 Mr Johnston relied upon primary source material on the subject of visibility that dealt with white objects rather than grey or blue objects. He agreed that there was no direct illumination from a street light in the area where the plaintiff stood. He also agreed that the defendant's vision would have necessarily adjusted when passing out of the lit area underneath pole 123 into the unlit area in the vicinity of pole 122 and extending to pole 121. 63 With regard to the silhouetting effect said to be present, Mr Johnston agreed that any silhouetting effect depended on the distance of the light source behind the pedestrian. Most importantly, he had assumed in August 2004 that there was an operative streetlight on pole 121, that is approximately 40m behind the plaintiff as the defendant approached. Notwithstanding this assumption, he had made no mention of silhouetting in his original report. Having acknowledged in his evidence that the only streetlight capable of silhouetting the plaintiff was 90m away (pole 120), it defies explanation how silhouetting could acquire a significance in February 2007 that it did not merit in August 2004. The defendant suggested that was because silhouetting received some attention in Mr Keramidas' report and Mr Johnston sought to respond to it. Whatever the explanation, Mr Johnston's opinion in Exhibit M on this topic has very little credibility. 64 In so far as Mr Johnston attempted to deal further with the subject of silhouetting in his report in reply to Mr Keramidas (Exhibit N), I reject the method adopted by Mr Johnston as a reliable demonstration of the silhouetting of a pedestrian at various distances along the relevant stretch of Argyle Street. Mr Johnston carried out what he described as "further tests" on 28 April 2007 and took a number of photographs which appear as figures 6, 8 and 10 in Exhibit N. The photographs purport to demonstrate how a pedestrian is silhouetted at 40m, 50m and 60m with the light on pole 121 disabled (in an attempt to replicate the lighting conditions on the night of the accident), but in re-examination it became apparent that Mr Johnston took the photographs from a static position on the roadway and caused the pedestrian to move further away from the camera on each occasion. Such a method is not consistent with the conditions that were prevailing at the time of the accident, namely that the defendant's vehicle was moving towards a relatively stationary pedestrian. 65 Mr Keramidas canvassed the subject of visibility in some detail at pages 26 to 30 of Exhibit 6. Of the seven factors capable of affecting "detection distance" from a driver's position to that of a pedestrian at night, all but one were of little or no assistance to the defendant. There was very little ambient light, or artificial light (either as direct illumination or as background light), no detectable motion from the plaintiff (in that he was walking towards the defendant's vehicle), and his clothing, whilst not dark, was not at the lighter end of the spectrum. 66 Mr Keramidas concluded that the primary source of visibility to the plaintiff from the defendant's perspective would have been the headlights of the vehicle. According to the relevant literature, there is a reduction in the recognition distance for right-hand curves of unspecified radius to approximately 22m. The reduction in the detection/recognition distance as a result of the curve arises out of the focus of the headlight beam, being at an angle downwards with a bias towards the nearside in its low-beam operation. Based on the expected headlight throw of the defendant's vehicle, the detection/recognition distance would be somewhere below 40m. (Exhibit 6 , p28) 67 There were, according to Mr Keramidas, two complicating factors, namely the existence of a pool of light at the intersection with Lumsdaine Street and disability glare occasioned to the defendant by the approach of Ms Sheen's vehicle. The former would require the defendant's eyes to readjust to a relatively low lighting level on emergence from the right-hand bend. The latter would have been augmented by the fact that the defendants eye level would have been lower to the ground than a person driving a standard sedan, given that the Mazda is approximately 150 to 200 mm lower than the standard sedan's roof height. These complicating factors, in Mr Keramidas' opinion, potentially reduced the visibility of the plaintiff to a range of between 25 and 35 m. 68 In these circumstances, Mr Keramidas was of the view that the defendant's reaction time and the application of her brakes were within those of a reasonable driver and that there was nothing that the defendant could reasonably be expected to have done in order to avoid impact with the plaintiff. Mr Johnston agreed that the area was not one of high pedestrian activity, particularly after midnight, and that it would be reasonable to expect pedestrians to be on the footpath. He agreed it would be quite unexpected for a driver to see someone standing in front of them or even walking towards them on that stretch of Argyle Street. He conceded that if the point of impact was indeed at the deviation of the skid marks, then he could not disagree with Mr Keramidas' conclusions, in particular that the defendant's reaction time was within or close to the normal reaction time in such circumstances.

[22]

Has the Plaintiff Established Liability in the Defendant ? 70 The plaintiff must prove on the balance of probabilities that the defendant, who owed him a duty of care, has breached that duty of care, that is, that she did not act in accordance with reasonable care : Derrick v Cheung (2001) 181 ALR 301 at 305. In terms of how the plaintiff pleaded his case, the plaintiff bears the onus of proving that the defendant failed to keep a proper lookout and drove at a speed that was excessive in all the circumstances, such that if she had kept a proper lookout, she would have seen the plaintiff in sufficient time to avoid the accident. 71 To state the plaintiff's case in that way does not mean that the defendant owed a duty to "drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or [a duty] to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey" : Knight v Maclean [2002] NSWCA 314 [68] ; South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 at 125. In so far as a failure to do one or more of these things may constitute a breach of the duty to take reasonable care, they are not themselves legal duties for the purpose of the law of negligence : Vairy v Wyong Shire Council (2005) 80 ALJR 1 at 9. 72 It is critical to keep firmly in mind that the onus of proof cannot be discharged by the mere fact of the accident. As Hayne J stated in Vairy v Wyong Shire Council at 27, When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgement must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.

[23]

See also Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 at [65] ; Knight v Maclean at [69]. 73 Whilst it was said in Manley v Alexander (2005) 80 ALJR 413 at 415 that "the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events", that statement should be placed in the context within which it was made. The driver of the vehicle in that case had his attention drawn to the side of the road by a stationary pedestrian. The driver kept his attention on that person for two to three seconds, continued to drive his vehicle at the same speed and changed direction by veering to the centre of the road. In that sense, the driver failed to take reasonable care with respect to the presence of a person on the roadway, albeit the risk of the occurrence of injury to such a person at 4 am was described as remote. 74 Similarly, in Evans v Lindsay [2006] NSWCCA 354, Beazley JA (with whom Ipp JA and Bryson JA agreed) in referring to Manley v Alexander went on to note that :- When a driver is confronted with a situation where there is a risk of injury there may be a range of steps that might be taken by way of a reasonable response. …. The possible range of responses has to be assessed, not in the reflective calm of a judge's chambers, but in the context of the dynamics that confront the driver that usually calls for quick decision-making in circumstances of quite some stress . It will not always be negligent if a driver, in what is virtually split-second decision-making makes what, on later reflection, was the wrong decision. However it may be negligent if the driver was failing to keep a proper lookout so that he/she, in real terms, deprives her/himself of the ability to make decisions, other than the immediate reaction of "slamming on the brakes". [71] (bold not in original) 75 Once again, the facts underpinning the decision in Evans v Lindsay must be borne in mind. The plaintiff at trial established a clear case of failing to keep a proper lookout, in circumstances where the passenger in the defendant's vehicle saw and notified the defendant of the presence of something on the roadway, some 4 to 5 seconds before the defendant applied the brakes. Moreover, the area was unfamiliar to the defendant and consisted of hotels and resort accommodation on both sides of the road, making the possibility of pedestrian activity on the roadway more likely. 76 The circumstances of the instant case are of quite a different order. The defendant had no reason to think that there would be any pedestrian activity at that time of the night in Argyle Street, let alone that she would encounter a pedestrian in the middle of the roadway. Accepting her evidence as I do, she was driving at an appropriate speed and was in full control of the vehicle as she approached the intersection of Argyle Street with Lumsdaine St. There could be no negligence in the defendant maintaining her headlights on low beam, given that she was not challenged in respect of having passed a vehicle travelling in the opposite direction near the school in Argyle street and Ms Sheen's vehicle approached the defendant from the south at some stage prior to impact with the plaintiff. 77 The physical conditions prevailing at the accident site are of considerable significance in assessing the range of reasonable responses available to the defendant. After the defendant negotiated the right-hand bend at Lumsdaine St, she emerged from a relatively well lit area into a dark area that extended in excess of 100 m, her headlights only illuminating the left side of the road for some distance before illuminating the road ahead where the plaintiff stood. Coupled with the need for the defendant's eyes to adjust to the changed light conditions, together with the likelihood of the disability glare produced by Ms Sheen's headlights, the defendant had little or no time within which to register that the object on the roadway was a pedestrian, before applying the brakes. 78 As the evidence of Mr Keramidas explains, at a pre-impact speed of 53 kph, the defendant was travelling at 13.7m per second, yet she had less than 35m within which to avoid impact with the plaintiff (taking the outer limits of the visibility range). A reasonable reaction time of between 1.5 and 2.5 seconds in these circumstances effectively means that the defendant had already travelled between 20.5m and 34m before she could reasonably be expected to apply the brakes.

[25]

Contributory Negligence and Damages 82 It is appropriate that I indicate in brief terms what my findings would have been on the issues of contributory negligence and damages, had the plaintiff succeeded in proving negligence in the defendant. As to the former, having regard to the plaintiff's gross intoxication, the dangerous conduct in which he engaged over the course of the night, and in particular on a dark stretch of Argyle street in disregard of Mr Sanderson's pleas to get off the road, and his failure to respond to the approach of the defendant's vehicle, I would assess contributory negligence at 80%. 83 The plaintiff was born on 30 June 1970. He grew up in Tumut where he attended secondary school, leaving at the end of year 10 to pursue an apprenticeship. He has been in regular employment throughout his life, on occasions leaving Tumut to undertake employment in other country towns where he lived independently. In February 1999 he obtained employment as a linesman with Picton Power Lines Pty Ltd at Tahmoor. 84 Throughout his life the plaintiff was healthy, fit and sociable. He enjoyed fishing, touch football, skiing, netball and cricket. He travelled extensively overseas and enjoyed moderate success as an amateur shooter. 85 Following the plaintiff's admission to hospital on 31 July 1999, he remained hospitalised until 17 February 2000. He suffered a traumatic brain injury and was deeply unconscious on admission, with fixed dilated pupils and blood in both ears. He had an acute large left parieto temporal subdural and extradural haematoma, consistent with markedly raised intracranial pressure. His facial fractures included the right eye socket and the mandible. On admission he had a Glasgow coma score of three and lacerations to the scalp, chin and injuries to his teeth. He suffered fractures of the CT vertebrae, a disk protrusion at C6/7 of the thoracic spine and a fracture at T6. He had fractures to the mid-spine and an injury to the lower spine. He fractured the right and the left tibia, the latter being an open fracture. 86 He underwent a craniotomy, the extradural and subdural haemorrhages were evacuated and the bone flap that had been removed was not replaced. His intracranial pressure was monitored over the ensuing days leading to a second craniotomy and a lobectomy on 5 August 1999. The fractures to the tibia were internally fixed. He underwent a tracheostomy. His lacerations were sutured and on 6 September he underwent a cranioplasty and the insertion of a plastic plate in his skull. The plate was removed on 10 September because of haemorrhaging and re-inserted on 1 November 1999. 87 As at 16 August his Glasgow coma score had improved to eight or nine. He was in the intensive care ward between 31 July and 18 August, then in the neurosurgical ward. From 31 August to 10 January 2000 he was in the brain injury rehabilitation unit and from 10 January through to 17 February 2000 he was in the transitional living unit. He was then sent home to the care of his parents. His father was employed but stopped work in order to dedicate his time to the care of the plaintiff. His mother was not employed. 88 He has been on medication in order to control seizures, the last of which was in October 2002. His brain injury has been described as dementia, secondary to traumatic brain injury, with an organic personality disorder with apathetic traits, otherwise known as diminished motivation. The plaintiff does not complain of any ongoing chronic pain. 89 Damages are to be assessed according to s 79A of the Motor Accidents Act 1988. The most significant dispute for the purposes of assessing damages is the extent to which the plaintiff's admitted neurological deficits, arising out of the accident, require the provision of ongoing care, and the level of that care. The majority of the plaintiff's case was taken up with expert witnesses, including a rehabilitation medicine specialist, occupational therapist and a psychiatrist, in addition to evidence from the plaintiff's parents, sister, uncle and the plaintiff himself, seeking to establish the extremely limited nature of the plaintiff's capacity to care for himself, unassisted by others, compared with his pre-accident lifestyle. 90 Ultimately, the plaintiff's counsel submitted that the expert evidence was not decisive of the issue, rather the level of care required by the plaintiff stood to be assessed on the evidence of the plaintiff's parents. That evidence was said to establish that the plaintiff functions at a rudimentary childlike level, requiring prompting to undertake basic tasks such as the preparation of simple meals and manifesting an inability to initiate routine daily activities, such as shopping, cleaning and cooking. The fact that the plaintiff was able to apply for and obtain his driver's licence and retain his shooter's licence after the accident was not, it was submitted, indicative of the plaintiff's present capacity. 91 The plaintiff can, however, attend to his own grooming, dressing and toileting. He is able to use a mobile phone. He still participates in some competitive shooting, although not at a high level. He can prepare toast, use a computer at a basic level, send emails that he has written down the night before in longhand, go to the shops and buy the paper and the bread without a list, go to the supermarket with his father and assist with shopping, and drive a Ford manual car without difficulty. He drives around Tumut once or twice a week. He drops in to see friends and has occasionally driven to Wagga and Gundagai with other people in the car. He goes fishing once or twice a month with his father or friends, buys his own clothes in the company of one of his parents and has his own bank account. He can prepare a sandwich, make coffee, wash up and, with direction, take care of his own laundry. He keeps his room neat and tidy and makes his own bed. He enjoys reading the sports page of the newspaper and fishing and shooting magazines. He can use a phone book and can jog his memory by writing notes to himself, which he places in the middle of the kitchen table.

[26]

92 The plaintiff's sleeping patterns were particularly significant, it was submitted, in supporting the need for 24-hour per day care in the home environment. The plaintiff had failed to wake on at least two occasions when loud, penetrating noises (gunfire in the street and a fire alarm) had woken others in the premises. There was some possibility raised on the evidence that this was as a result of his medication and might be ameliorated by the removal of Deptran from that medication. In addition, the plaintiff's naive and trusting disposition was said to make him a target for the exploitative behaviour of others. 93 A number of expert witnesses spoke of the availability of the "Vital Call" system, used by many people in early dementia who have frontal lobe impairment. There was no compelling reason why the plaintiff was unsuitable to such a system. The plaintiff is not regarded as a danger at night, in so far as he does not sleepwalk. The plaintiff is capable of getting up at night and walking around the house without the need of a torch. The psychiatrist called in the plaintiff's case agreed that, absent an emergency, there was no need for the plaintiff to have overnight care. In the event of an emergency, the Vital Call system allows the plaintiff to notify others of his distress. 94 In addition, Valmar Support Services Limited in Tumut provides acquired brain injury clients, such as the plaintiff, with a range of support services that allow those clients to remain in their own home. The staff of Valmar are available to visit clients at critical times during the day, such as meal times, to assist with cooking, shopping, and medication, as well as provide, if necessary, packaged or frozen meals on a daily basis. They operate a fleet of vehicles that provide transport when needed. There is also a callout service at night. Whilst the plaintiff has not been assessed by Valmar staff, he appears to fall within the criteria for that service. 95 The plaintiff requires a structured, settled routine which has been provided since the plaintiff's discharge from the living skills unit by his parents in their home at Tumut. The plaintiff's mother suffers from asthma and his parents did not expect to be able to continue the present level of care for many more years. In effect, the plaintiff's parents, particularly his mother, did everything for him. However, it is questionable, in my view, that the plaintiff's present regime at home is a product of the effects of his injuries, rather than a product of "learned helplessness". 96 The plaintiff demonstrated a higher degree of independent living skills within the living skills unit immediately before he returned to the home of his parents than he now demonstrates. The plaintiff's mother has always provided every domestic service to the plaintiff when he has been in her home, even before the accident. It appears that the plaintiff's mother, understandably, has continued to do that at the expense of allowing the plaintiff to develop and reinforce his own domestic skills. 97 Taking these matters into account, I am not persuaded that the plaintiff's disabilities require the provision of ongoing 24 hour a day care by way of a full-time live-in carer. Fortunately for the plaintiff, there are excellent support services available in the plaintiff's home town, in addition to his extended supportive social network. The provision of some further occupational therapy to assist the plaintiff to improve his independent living skills will augment the plaintiff's opportunities in that regard. 98 Taking into account the effect of the injuries suffered by the plaintiff as outlined above, and acknowledging the remarkable recovery that the plaintiff has made, given the severity of his head injury, I regard the plaintiff's non-economic loss as 75% of the statutory maximum, that is $274,500:00. 99 I would allow $750 per week since the date of the accident for past economic loss and $850 per week to age 65 for future economic loss. This assessment takes account of the fact that the plaintiff worked as a linesman at the time of the accident and was earning approximately $800 net per week. However, for the 1999 financial year, he earned approximately $500 per week. Picton Power Lines ceased employing linesman on 16 January 2002. I accept that the plaintiff has no residual earning capacity. 100 Past out-of-pocket expenses are agreed at the sum of $114,418.30. I note that $34,980:90 has been paid by the insurer. For future out-of-pocket expenses I would allow the following amounts :- GP consultations, brain injury specialist review and orthopaedic specialist review, $9,666:00 Occupational Therapy, $5,000:00 Physiotherapy services, $15,000:00 Dental services, $10,600:00 Medication, $1500:00 Travel (provision of a carer), $60,000:00 101 As for past care and domestic services provided by the plaintiff's parents since he returned to their home following his discharge from the living skills unit, I accept the assessment carried out by Ms Beaver (Ex 4, p 17 of Ms Beaver's report). I would allow $62,205:00 for past gratuitous care. 102 Accepting the regime recommended by Ms Beaver for the plaintiff's future care (Ex 4), albeit some of the plaintiff's requirements might be met by Valmar in the future, I would allow for 9 hours of domestic assistance and supervision per week ($317,877:00), 25 hours per year for handyman assistance ($9,670:00) and 18 hours of case management per year ($43,497:00). 103 I make an order for costs in the Defendant's favour. 104 I grant leave to apply within fourteen days from this date. **********

Hawthorne v Hillcoat

At a glance

Court

Decision date

Before

Source

Judgment (28 paragraphs)

Parties

Cases Cited (7)

Cited By (1)