Hawthorne v Hillcoat

Hawthorne v Hillcoat - [2008] NSWCA 340 - NSWCA 2008 case summary — Zoe

[15]

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.

[42]

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.

[43]

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.

[44]

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.

[59]

[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.

[61]

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)

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