Hawthorne v Hillcoat

Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 Evans v Lindsay [2006] NSWCA 354 CASES CITED: Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 South Tweed Heads Rugby League Football Club Limited v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113 Vale v Eggins [2006] NSWCA 348

PARTIES: David Anthony HAWTHORNE (Appellant) Simmone HILLCOAT (Respondent)

COUNSEL: B W WALKER SC/ E G ROMANIUK (Appellant) P J DEAKIN QC/ R H WEINSTEIN (Respondent)

SOLICITORS: Farrell Lusher (Appellant) Sparke Helmore Lawyers (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT DATE OF DECISION: 6 September 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Hawthorne v Hillcoat [2007] NSWSC 1018

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40671/07 SC 20333/02

HODGSON JA IPP JA GYLES AJA

8 DECEMBER 2008 David HAWTHORNE v Simmone HILLCOAT Judgment 1 HODGSON JA: On 6 September 2007, Latham J gave judgment for the respondent in proceedings in which the appellant had sued the respondent for damages for personal injury, arising out of a motor vehicle accident that occurred at Picton shortly after midnight on the morning of 31 July 1999. The appellant appeals from that decision.

Circumstances 2 The accident occurred in Argyle Street, Picton about 60 metres or thereabouts north of the intersection of Argyle Street and Lumsdaine Street. 3 It was clearly established that, just before the impact of the respondent's vehicle with the appellant, the appellant was in the north-bound lane of Argyle Street, about one metre or thereabouts west of the continuous double white lines that separated the north-bound lane from the two (uphill) south-bound lanes. Although there was only one north-bound lane, there was a narrower parking lane adjacent to it. 4 It is also clear that there were street light poles near the western edge of the north-bound parking lane, at approximately 45 metre intervals. One pole approximately opposite the intersection with Lumsdaine Street (referred to as pole 123) had a functioning light. The next pole to the north, pole 122, had no light affixed to it. The next one to the north, pole 121, had a non-functioning light. The next one, pole 120, had a functioning light. The appellant was approximately 10 metres or thereabouts to the north of pole 122 when he was struck by the respondent's car. 5 It is clear also that, prior to the accident, the respondent was travelling north along Argyle Street in her Mazda MX-5 sedan, at a speed in the order of 55 kilometres per hour. She went through a shallow right-hand curve that began just before the intersection with Lumsdaine Street and finished just after that intersection, about 35 metres south of pole 122. 6 Skid-marks on the road commenced about 2.6 metres north of pole 122. At a point about 8.9 metres north of pole 122, the skid-marks from the rear wheels deviated slightly to the left of those from the front wheels, indicating that from that point the car rotated slightly clockwise. The skid-marks ended about 18.2 metres north of pole 122. A pool of blood on the road indicated that the appellant came to rest about 28 metres north of pole 122. 7 The impact between the appellant and the respondent's car shattered the driver's side of the windscreen. The appellant suffered severe injuries. When admitted to hospital, he was found to have a blood alcohol reading of 0.226. 8 The appellant had no recollection of the accident. Accounts of the accident were given by an associate of the appellant who was in the vicinity (Mr Sanderson), a south-bound driver (Ms Sheen) and the respondent. Although there were some differences in these accounts, these differences were in the end only of minor significance. 9 The respondent's evidence was summarised as follows by the primary judge: [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.

[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. 10 Expert evidence was given by Mr Johnston for the appellant and Mr Keramidas for the respondent. There were differences between them, particularly concerning the visibility of the appellant to the respondent and, most importantly, the point of impact. According to Mr Johnston, the impact occurred at about the time the skid-marks began, and (accepting that the front of the car was about three metres from its rear wheels) this would put the impact about six metres north of pole 122. According to Mr Keramidas (and also according to a police officer Senior Constable Bain, who attended the scene), it was the impact that caused the car to rotate, thus putting the point of impact at about 12 metres north of pole 122.

Decision of primary judge 11 The primary judge was critical of the evidence of Mr Johnston, and accepted the evidence of Keramidas in relation to the visibility of the appellant and the point of impact. 12 She referred to a number of cases, including Evans v Lindsay [2006] NSWCA 354, and concluded: [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 St, 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 St 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.

[79] Once the defendant had applied the brakes and the wheels of her vehicle had locked, the defendant had no means of changing the direction of travel. The defendant applied the brakes as soon as she was reasonably able to do and there was nothing that she could have done thereafter to avoid impact with the defendant. In other words, adopting Beazley JA's formulation in Evans v Lindsay , the dynamics confronting the defendant did not allow for any other reasonable response on the part of the defendant and I am therefore not satisfied that the plaintiff has succeeded in establishing negligence on the defendant's part. 13 The primary judge then indicated that, if she had found the respondent negligent, she would have assessed contributory negligence at 80 per cent; and she assessed damages.

Grounds of appeal 14 The appellant's notice of appeal specified the following grounds: 1 The trial judge erred in finding a verdict for the respondent.

2 The trial judge erred in factual findings as to the circumstances of the motor vehicle accident the subject of the appellant's claim for personal injury damages.

3 The trial judge erred in failing to find that respondent's negligence caused the appellant's injury, loss and damage.

4 The trial judge erred in failing to accord sufficient weight to the evidence of an independent witness (Sheen).

5 The trial judge erred in factual findings made in respect of the evidence of independent witnesses (Sheen, Sanderson, Hayes and Senior Constable Bain).

6 The trial judge erred in factual findings made in respect of the evidence of the respondent.

7 The trial judge erred in factual findings made in respect of the physical evidence (the damage to the respondent's motor vehicle, the skid marks, lighting and sources of lighting).

8 The trial judge erred in factual finding made as secondary findings of fact (point of impact, position on roadway, lighting, illumination and visual detection).

9 The trial judge erred in rejecting the evidence of an expert witness (Johnston) and erred in finding that an expert witness (Johnston) was not a witness of credit.

10 The trial judge erred in failing to permit an expert witness (Johnston) to provide an oral exposition of the expert's opinion that was set out in a written report.

11 The trial judge erred in failing to properly understand the relevance of an expert witness (Johnston) as to the circumstances of the motor vehicle as that expert opinion related to other evidence including other expert evidence.

12 The trial judge erred in the procedural decisions concerning the adducing of the evidence of an expert witness (Johnston) and evidence as to liability matters, including a failure to grant an adjournment of the hearing, so as to cause a substantial miscarriage of justice, including the failure to afford the appellant the opportunity of presenting the appellant's evidence as to liability in a manner appropriate to the complexities of the evidence and the liability circumstances.

13 The trial judge erred, as a consequence of the matters referred to in paragraphs 2, 4, 5, 6, 7, 8, 9, 10, 11 and 12 above, in failing to properly, or at all, understand the proper relevance of the expert and non-expert evidence as to the liability circumstances.

14 The trial judge erred in finding that certain allegations of negligence required amendment to the pleadings (failure to operate headlights on high-beam) and erred in refusing to grant the appellant leave amend the pleadings accordingly.

15 The trial judge erred in the application of Manly v Alexander (2005) 80 ALJR 413.

16 The trial judge erred in the assessment of contributory negligence at 80%.

17 The trial judge erred in the assessment of damages.

18 The trial judge erred in failing to state proper reasons in the assessment of damages.

19 The trial judge erred in factual findings, including factual findings arising from expert evidence as to quantum matters, in the assessment of damages. 15 Not all of these grounds were pursued. In relation to liability, the matters raised by the appellant can be dealt with under the following headings: (1) Alleged errors in relation to evidence generally. (2) Errors in relation to expert evidence. (3) Errors in the application of legal principles. 16 The appellant's submissions also raised two further matters: (4) Contributory negligence. (5) Damages. 17 I will consider these matters in turn.

Errors in relation to evidence generally 18 The appellant provided extensive written submissions on this matter (Orange 18-15) which were not elaborated on orally. It was submitted that the primary judge erred in failing to resolve certain differences in the evidence and also in coming to the wrong conclusions on certain matters. 19 It was submitted for the appellant that the primary judge should have made the following findings of fact: (1) The respondent was aware prior to the accident of pedestrian traffic along this stretch of road at night-time as well as day-time. (2) The respondent was aware prior to the accident that there were street lights not working in the vicinity of the collision and that the area was therefore particularly dark. (3) The respondent did not have actual recollection of the area illuminated by her headlights on the night of the collision as she navigated the bend in the road. (4) The respondent could have had her lights on high beam. (5) A reasonable reaction time was 1.5 to 2 seconds. (6) Mr Sanderson was on the roadway but moved off it to the east prior to the collision. (7) Mr Sanderson and Ms Sheen did not hear any screeching of tyres or skidding prior to the bang caused by the respondent's car hitting the appellant. 20 In my opinion, there was no material error by the primary judge in respect of any of these matters. 21 Point (1) was referred to by the primary judge (Judgment [24]) and there is no reason to think it was not adverted to by her. 22 As regards point (2), the respondent's evidence was to the effect that she had seen pedestrians on the footpath at night (2 Black 797), so if there was any error in what the primary judge said at [24], it was immaterial. 23 As regards points (3) and (4), it was a reasonable inference that the respondent's lights were on low beam, in circumstances where the respondent recalled just having passed a car coming in the opposite direction and in circumstances where the area generally had street lights. Certainly, there was no basis on which an inference could be drawn that the respondent had her lights on high beam. A conclusion that the illumination provided by the respondent's lights, on low beam, would have moved from the left of the roadway towards the centre as the respondent came through and out of the curve was a reasonable and correct inference. 24 As regards point (5), the primary judge's conclusion did not depend upon any finding that a reasonable reaction time was longer than two seconds. 25 As regards point (6), Ms Sheen's evidence, which supported a finding that Mr Sanderson had been on the roadway, was not such as to support a conclusion that he had been on the roadway at a time when he should have been seen by the respondent. For that reason, even if Ms Sheen's evidence had been accepted entirely, in preference to that of Mr Sanderson, it could not have affected the result of the case. 26 As regards point (7), neither witness was asked whether they heard any screeching of tires or skidding after the bang, so their evidence does not give significant support to a finding that there could not have been skidding for a very short time prior to the bang.

Expert evidence 27 It was submitted for the appellant that there were errors by the primary judge in reaching an adverse view of the evidence given by Mr Johnston, and not accepting that evidence, particularly in the following respects: (1) The primary judge was not justified in considering that Mr Johnston had belatedly tailored his opinion to challenge Senior Constable Bain's evidence as to the point of impact (Judgment [51]). (2) The primary judge was not correct to say that the foundation of his opinion as to the point of impact was that the impact was a central impact (Judgment [53]). (3) The primary judge was not correct to say that Mr Johnston's reasoning based on throw distance was circular (Judgment [55]). 28 I note that the primary judge also said (Judgment [69]) in relation to Mr Johnston that his demeanour was at times defensive, evasive and argumentative, and that he adopted a partisan approach to the preparation of the report which was admitted into evidence after he became aware of serious deficiencies in his original report. 29 It is not possible from the transcript to get a full impression of Mr Johnston's demeanour; but in my opinion, the content of the transcript amply supports these views of the primary judge. To take three examples: (1) Mr Johnston's attempt (1 Black 503LM) to minimise the importance of his earlier serious mistake as to the direction of the curve. (2) Mr Johnston's evasion (1 Black 518) of questions concerning the omission from his report of any explanation of the divergent skid-marks. (3) Mr Johnston's attempts (1 Black 521) to maintain that the impact by the appellant on the car was a central impact. 30 In my opinion also, Mr Johnston's attempt (1 Black 534) to minimise the effect on the respondent's car of the impact of the appellant on the windscreen is damaging to his expertise. The question at lines 13 to 15, referring to absorption of energy from the pedestrian, was not aptly expressed; but in my opinion, an expert attempting to assist the court should have provided a response that was helpful and not misleading. It was correct to say there was no transfer of energy from the pedestrian to the motor vehicle: what there was, in terms of energy, was a transfer of energy from the motor vehicle to the pedestrian, resulting in a loss of kinetic energy in the motor vehicle corresponding with a slowing of the motor vehicle's speed. It would have been more helpful and relevant to analyse the matter in terms of the forces involved: when the car applied sufficient force to accelerate the appellant from being stationary to a speed in the order of 40 to 50 kilometres per hour, Newton's third law shows that the same force was applied in the opposite direction by the pedestrian onto the car. Accepting, as did Mr Johnston, that the appellant had about one-tenth of the mass of the car, this force would plainly be substantial. Since the major damage to the car was to the driver's side of the windscreen, it is reasonable to infer that very substantial force was applied to this part of the windscreen. 31 As regards the three matters raised by the appellant, there is, having regard to the matters I have just discussed, no substance in the first two of them. However, as regards the third of them, I accept the submission that Mr Johnston's argument based on throw distance was not circular, and did give some rational support to his view that the impact occurred at about the same time as the skidding commenced. However, the other matters to which I have referred gave adequate ground for placing little weight on the expertise of Mr Johnston; and the contrary evidence of Mr Keramidas (2 Blue 686-696) is to my mind persuasive. 32 Accordingly, in my opinion, the primary judge was correct to conclude that it was the impact with the appellant that initiated the divergence of the skid-marks, and accordingly that the impact occurred after the car had been skidding for about six metres. 33 As regards the visibility of the appellant, in my opinion the primary judge was plainly correct to hold that, by reason of the state of the street lighting, the appellant would not have been silhouetted or otherwise visible to the respondent until picked up by her headlights, by which time he was only about 25 to 35 metres away.

Application of legal principles 34 The primary contention of the appellant, which was supported by oral submissions from Mr Walker SC, was that, even on the view of the facts taken by the primary judge, the respondent failed to exercise reasonable skill and care. In substance, his submission was that, accepting that the respondent could not have seen the appellant on the road until she was within about 25 to 35 metres of him, when it was too late to avoid colliding with him given her speed of about 55 kilometres per hour, the respondent should have been travelling at a slower speed because of the particular combination of circumstances. 35 Mr Walker relied particularly on the High Court decision in Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413, and particularly on the second sentence of par [12] in the joint judgment of Gummow, Kirby and Hayne JJ: [12] …… But 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. 36 Mr Walker submitted that the circumstance that the look-out and speed of the respondent was such that the collision could not be avoided meant that she was in breach of her duty of care, which required that she keep a look-out and adjust her speed so that she was able to see a pedestrian on the road in time to be able to avoid colliding with him. He submitted that the respondent knew of the inadequacy of street-lighting, and yet did not put herself in a position to be able to avoid colliding with a person in the unlit area. 37 I note that the quoted statement from Manley v Alexander has been referred to and applied by this Court in Vale v Eggins [2006] NSWCA 348 at [15] and [59] and Evans v Lindsay [2006] NSWCA 354 at [38] and [70]. 38 I do not of course question the correctness of this quoted statement. However, in my opinion the statement needs to be understood in the light both of generally accepted principles of negligence (there being no suggestion that there was any intention to depart from those principles), and the particular facts of Manley. 39 As regards generally accepted principles of negligence applicable to drivers of cars, these are relevantly illustrated in cases such as Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301, and South Tweed Heads Rugby League Football Club Limited v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113. 40 In Derrick, the defendant was driving along Victoria Avenue, Chatswood at 40-50 kilometres per hour, keeping up with traffic, when the plaintiff, a child of about 21 months, suddenly emerged in front of her from between two parked vehicles. The plaintiff was struck by the defendant's car. The primary judge found the defendant negligent, and this finding was upheld by a majority of the Court of Appeal. The High Court unanimously allowed the defendant's appeal, saying this: [11] The submission of the appellant was that the Court of Appeal should have intervened to reverse the decision of the trial judge because there was no basis upon which his Honour could properly hold that there had been any want of care on the part of the appellant. There was no relevant dispute about the facts of the accident and it was common ground that this was not a case which turned upon the impression made on the trial judge by any particular witness or witnesses. Nor was it a case where the incident occurred near to a school or bus stop or other place where reducing speed or special caution in driving might be required or prudent.

[12] The substance of the appellant's contention in this Court is that the reasoning of Davies AJA is correct and that both the trial judge and the majority in the Court of Appeal erred, the latter in particular in effectively holding that driving at a speed which was "'reasonable' in one sense [did] not mean [that] it [was] not a breach of duty [by the driver] to other road users."

[13] The appeal to this Court must be upheld. There was no basis upon which any finding of negligence on the part of the appellant could be made. That the facts of the case are tragic, and the collision a parent's worst nightmare, as the trial judge accurately described them, did not relieve his Honour of his obligation to determine the issues according to law: in this case, by not finding an absence of care in circumstances in which reasonable care was, as Davies AJA correctly held, in fact being exercised. Even if the inference which the trial judge drew, that if the appellant's speed had been slower by a few kilometres per hour she would have been able to avoid the collision, was more than mere speculation, it is still not an inference upon which a finding of negligence could be based. Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care. To offer, as the majority in the Court of Appeal did, its consolation that the appellant does not bear any moral, as distinct from legal, responsibility for what occurred is to obscure that issue.

[14] Stocks v Baldwin , to which the Court of Appeal referred, depended on its own facts. The observations of Mahoney P were made with particular reference to the facts under consideration in that case. In any event, even if his Honour's remarks were intended to lay down general rules, they were not ones to be applied here. 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.

[omitting footnote] 41 In Cole, the plaintiff became grossly intoxicated and came to be on Fraser Drive, Tweed Heads at about 6.20 pm (at which time it was dark, the month being June). A car driven by one of the defendants in the case was proceeding along that road at about 70 kilometres per hour, the speed limit being 80 kilometres per hour, with lights on low beam. There were no houses nearby and no street lighting, and the plaintiff was in dark clothing. The driver first saw the plaintiff when she saw part of her face, two to three metres away from the front of the vehicle; and the car collided with the plaintiff. The evidence did not establish the whereabouts or movements of the plaintiff prior to the time she was seen by the driver. 42 The primary judge found the driver negligent on the basis that her "speed was too high for the level of visibility or, more probably, that she was not keeping a proper look-out". The driver's appeal was upheld by the Court of Appeal. Ipp JA (Heydon JA and Santow JA agreeing) said this at [57]-[62]: [57] It follows that it is not possible to know whether, shortly before Ms Cole was seen by Mrs Lawrence, she was directly in front or on the offside or nearside of the vehicle. This is of fundamental importance. As mentioned, the recognition distance of nearside objects under low beam was accepted as being 50.4 metres, and on the evidence the recognition distance of offside objects was 24.8 metres (both being subject to a 10% reflectivity factor). As the onus of proof was upon Ms Cole, the case has to be approached on the basis that she was visible to Mrs Lawrence only for 24.8 metres. This distance, furthermore, has to be reduced having regard to the reduced reflectivity factor applicable.

[58] I repeat that a vehicle travelling at 70 kilometres per hour travels at 19.4 metres per second. Thus, assuming that Ms Cole was visible for say 20 metres, even if it is accepted that a reaction time of only one second should be allowed, it would not have been possible for a vehicle travelling at 70 kph to have avoided colliding with her. This is the case even though, as Hulme J found, when Mrs Lawrence saw Ms Cole she was "opposite the left hand end of the vehicle's bull bar".

[59] In any event, simply on the basis put by Mr Hislop, I accept that Ms Cole did not establish that had Mrs Lawrence kept a proper look out she would have seen Ms Cole in sufficient time to be able to avoid the collision. That is, the "pitch black" area, the black road, Ms Cole's dark clothing and dark hair, the veiling effect of the lights of the Club behind her, and the remote prospect of pedestrians being at that particular place, combined to set up an acceptable explanation, consistent with keeping a proper look out, for Mrs Lawrence seeing Ms Cole at the last moment. That being so, it was for Ms Cole to lead evidence to show that that explanation should not be accepted. Evidence of that kind was not forthcoming.

[60] I do not accept that the speed at which Mrs Lawrence was travelling was excessive. There was no reason to expect pedestrians in the vicinity and Mrs Lawrence's speed was below the legal limit. There was no particular reason for her to slow down to an even lower speed. There was no particular perceivable risk which Mrs Lawrence should have taken into account but did not. She was driving at a modest speed when there was no particular danger observable; driving at that speed with her lights on dim was a reasonable and a proper response to the traffic conditions prevailing at the time: cf Derrick v Cheung (2001) 181 ALR 301 at 304- 305.

[61] Underlying the reasoning of the learned Judge is the proposition that, "absent some good reason to the contrary, one is supposed to drive within what one knows to be the limits of visibility and control". In this respect, in Grove v Elphick (1985) 2 MVR 74, Burt CJ (with whom Wallace and Kennedy JJ agreed) said (at 75): "The trial judge appeared to have adopted a principle that a person travelling in the dark must be held to be negligent if he is driving at such a speed that he is not able to pull up safely: that principle rests peacefully in the grave". I agree; see also Morris v Luton Corp [1946] KB 114.

[62] In the circumstances, I conclude that the evidence was not capable of establishing facts from which it could properly be inferred that Mrs Lawrence drove her vehicle negligently. I would uphold her appeal. 43 In Manley itself, the plaintiff was struck and injured by a tow truck driven by the defendant. At the time, the plaintiff was lying on the carriageway of Middleton Beach Road, Albany. He had been drinking, and had set out to walk home with a house-mate Mr Turner. The defendant's evidence was summarised thus in the majority judgment of the High Court: [5] The appellant said, in the evidence he gave at the trial, that he was driving along Middleton Beach Rd when he saw a man standing on the side of the road. (It has always been accepted that the man the appellant saw was Mr Turner.) Because the man that the appellant saw was "moving around a fair bit like he had been drinking", the appellant kept his eye on him. The appellant did not slow down; he maintained his speed of about 55 to 60 kilometres per hour. Rather, the appellant started to veer to the centre of the road. When he looked back at the roadway ahead of his truck, he saw something lying on the road. He said he "went to brake … thought I shouldn't brake, so I lifted my foot … and then I felt that I ran over something". 44 The primary judge held the driver not to be negligent. The Full Court of Western Australia upheld the plaintiff's appeal for reasons stated as follows by the majority judgment of the High Court: [9] The principal reasons of the Full Court in relation to the issue of negligence were given by Le Miere J. The steps in that reasoning were as follows: (a) the trial judge made no express finding about when the respondent moved onto the road;

(b) because movement attracts attention, and the appellant did not see the respondent move onto the road, it should be inferred that the respondent was already on the roadway when the appellant saw Mr Turner standing on the side of the road;

(c) the appellant having continued to drive at the same speed, changing the direction of his vehicle while taking his eyes off the road, and having taken his eyes off the road for some two to three seconds, the appellant failed to take reasonable care in breach of his duty to other road users who might, however unexpectedly, happen to be on the road.

[omitting footnotes] 45 The driver appealed to the High Court. His appeal was dismissed by a majority (Gummow, Kirby and Hayne JJ) with Callinan and Heydon JJ dissenting. At [11]-[14] the majority said this: [11] No doubt the appellant's attention was drawn to the figure of Mr Turner standing at the side of the road and behaving in a way that suggested that he might act in some way that would require the appellant to respond. But recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path.

[12] It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Rd at 4.00 am is properly to be described as remote. But 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.

[13] When driving at night, the driver must take account of how well the road is illuminated: both by the vehicle's lights and by any street or other lighting. In the present case, there was a street light close to where the respondent lay on the road. Its light illuminated the area where the respondent was. Of course, it is important to remember that the respondent was wearing dark clothing and lying down, generally parallel with the direction the appellant's truck was travelling. The contour of the road gave the appellant an uninterrupted view of the road ahead for a distance considerably greater than the light cast by his low beam headlights. The light cast by those headlights extended about 60 metres ahead of his vehicle. The respondent, even clad in dark clothing and lying parallel to the direction of travel, could have been seen as some form of obstruction to be avoided at least by the time the headlight beams illuminated where he was. But the appellant did not see him. For two to three seconds the appellant continued to look to the side of the road rather than to the roadway over which his vehicle would travel and he maintained his vehicle's speed while veering towards the centre of the road.

[14] It was well open to the Full Court to conclude, as it did, that the appellant had failed to exercise reasonable care. In this appeal, this Court's function is to correct any error that has been shown in the decision and hence the resulting orders of the Full Court. It is not, as such, to exercise for itself the powers of the Full Court, absent demonstrated error. The very large discount that the Full Court allowed for contributory negligence on the respondent's part was not challenged in this Court. 46 It is apparent that the negligence found by the majority was that the driver looked away for two to three seconds rather than looking where he was going, while all the time maintaining a speed of 55-60 kilometres per hour. 47 In my opinion, in the second sentence of par [12] of the majority judgment, it is noteworthy that their Honours used the words "may know" and not "knows" or "will know". I do not suggest that, in their context, the words "may know" mean merely "might possibly know". However, the words certainly do not mean "knows" or "will know". In my opinion, the best understanding of the words can be expressed as "is in a reasonable position to know". The standard in respect of the position a driver should be in so as to be able to take reasonable steps to react to events is itself a standard of reasonable skill and care; and although the standard of reasonable skill and care required of drivers is a high standard (because cars are so dangerous, and can so easily cause serious injuries), it is not a standard measured by success or perfection assessed with the wisdom of hindsight. 48 In the present case, with the wisdom of hindsight, it can be recognised that if the respondent had slowed significantly below her speed of about 55 kilometres per hour, she could have seen the appellant in the darkened area in time to avoid colliding with him. However, this does not mean that she was negligent. In my opinion, to say that the respondent was negligent because (i) she did not appreciate that the deficiency of street-lighting, coupled with the effect of the curve in the road and her headlights being on low beam, meant that, in the event that a pedestrian was standing in this darkened area paying no attention to traffic, she might be unable to see him in time to stop or steer so as to avoid hitting him, and because (ii) she did not accordingly slow down to a speed such that, in that event, she could avoid hitting such a pedestrian, would be to apply an unreasonably and unrealistically high standard, and not the standard of reasonable skill and care. 49 Accordingly, in my opinion, the appellant's appeal on liability should be dismissed.

Contributory negligence and damages 50 Having regard to my view on liability, these issues do not arise. 51 However, I would comment that, if the respondent was negligent, the degree of her negligence and responsibility for the accident was on any reasonable view very small indeed in comparison to that of the appellant. An assessment of 80 per cent contributory negligence was generous to the appellant. 52 As regards damages, there is force in the appellant's contention that the reasons given by the primary judge were inadequate, especially in relation to future care. Had the appeal in relation to liability succeeded, I am inclined to the view that a new trial on damages would have been necessary.

ORDER 53 For those reasons, in my opinion, the appeal should be dismissed with costs. 54 IPP JA: I agree with Hodgson JA. 55 GYLES AJA: I have had the advantage of reading the judgment of Hodgson JA in draft. I agree that the appeal ought to be dismissed with costs and I agree with his Honour's reasons for that conclusion. 56 I venture to add some remarks concerning the decision of the High Court in Manley v Alexander [2005] HCA 79; 80 ALJR 413; 223 ALR 228 because of the significance placed upon it by counsel for the appellant and because of the somewhat surprising importance it seems to have assumed in motor vehicle cases of this kind. There is nothing in the majority judgment to indicate that it was intended to lay down any new and higher standard of care in the driving of a motor vehicle upon a public road than hitherto, or, indeed, any new general principle. None of the authorities relevant to those issues were considered or even cited in the majority judgment. 57 The issue for the High Court was whether the Full Court of the Western Australian Supreme Court had been correct in setting aside the verdict at first instance for the defendant and substituting a verdict for the plaintiff. The contention of the appellant/defendant, which fell for decision appears from the following passage from Manley at [10]: "…In particular, the appellant did not contest the findings that he continued to drive his vehicle at the same speed, changing direction by veering to the centre of the road, while taking his eyes off the road for some two to three seconds. Rather, the appellant contended that it had not been open to the Full Court to conclude from those facts that the appellant had failed to take reasonable care." (emphasis added) 58 The ratio of the decision of the majority on that contention is found in Manley at [14] as follows: "It was well open to the Full Court to conclude, as it did, that the appellant had failed to exercise reasonable care. In this appeal, this Court's function is to correct any error that has been shown in the decision and hence the resulting orders of the Full Court. It is not, as such, to exercise for itself the powers of the Full Court, absent demonstrated error. …" (emphasis added)

In my opinion it is unsound to regard any part of the discussion of the facts which led to that conclusion as making any positive finding or as laying down any rule or general standard. The case has attracted attention because, as the difference of judicial opinion shows, the result, on the facts, was debatable and, perhaps, surprising. However, as the majority judgment in Manley makes clear, that result was a decision of the Western Australian Full Court not of the High Court. **********

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