TORT - NEGLIGENCE - Jury trial - Motor vehicle accident - Duty of care - Jury directions - Whether judge erred in directions as to existence and scope of relevant duty - Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540; Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, applied - Jury directions appropriate - Appeal dismissed.

1 Ms Sonia Ibrahim was born on 22 April 1986 to Italian born migrant parents who lived in Preston. On 4 October 1988 she was being pushed in a stroller by her mother on a shopping trip in Edwardes Street, Preston near its 'T' intersection with Spring Street. As her mother pushed the stroller in a generally southerly direction across Edwardes Street at that corner the stroller came into contact with a very large 1981 Kenworth semi-trailer driven by Peter Davis.

2 As a result of the accident Ms Ibrahim was injured. She was treated appropriately at hospital and appeared to recover. However, many years later, she began to suffer gynaecological, psychological and associated problems said to be the long term sequelae of the accident. By a Writ filed on 12 September 2011 Ms Ibrahim sought damages for those injuries from Mr Davis, claiming that the accident in which she was injured was caused by his negligence.

3 Following a trial before a jury in the County Court, on 3 September 2012 Ms Ibrahim's claim was rejected, the jury having found that there was no negligence on the part of Mr Davis which was a cause of Ms Ibrahim's injuries. From that verdict and the subsequent judgment of the County Court entered in accordance with it, Ms Ibrahim now appeals.

4 Although her Notice of Appeal contains six numbered grounds, counsel at the hearing in this Court conceded that there were, in effect, only two. They may be restated as follows:

Grounds 1 to 4: That the jury verdict was perverse; on the evidence, they were bound to find that Mr Davis' negligence was a cause of Ms Ibrahim's injuries; and

Grounds 5 and 6: That the trial judge's directions to the jury with respect to the question of the standard and duty of care were inadequate.

5 These grounds require an examination of the evidence before the Court which, the appellant contends, compelled the jury to find in her favour. In order to succeed she must demonstrate that, on the view of the evidence most favourable to the respondent, a reasonable jury, properly directed and confining itself to the relevant considerations, could not have arrived at such a verdict.[1]

6 Unsurprisingly, Ms Ibrahim had no relevant recollection of the events of 4 October 1988. Her mother, Mrs Rosalba Rinaldi, gave evidence that on that date, at about 10.30 or 11.00am, she was with the plaintiff, shopping for gloves for herself in the vicinity of the intersection of Edwardes Street and Spring Street. When she completed that task she began to return to her car, walking generally east in Edwardes Street on the northern footpath towards its 'T' intersection with Spring Street.[2]

7 Mrs Rinaldi described getting to the pedestrian crossing which would enable her to cross Edwardes Street and proceed generally south on the western side of Spring Street. She said there was a wire fence about 2 metres long leading up to the pedestrian crossing in Spring Street and a similar one in Edwardes Street. She said that when she got to the corner the lights on the pedestrian crossing applicable to her were red and so she stopped. Whilst she was stopped traffic was turning left from Edwardes Street into Spring Street. There were two people in front of her also waiting for the lights to change.

8 Mrs Rinaldi said that whilst she waited, the truck driven by Mr Davis, which was also travelling east in Edwardes Street, came to the pedestrian crossing at the intersection and stopped with its front tyres over the white lines. It was in the left hand of the two lanes for east bound traffic in Edwardes Street. She described Mr Davis' truck as being very big. Referring to the two pedestrians in front of her, Mrs Rinaldi said:

Those two people started to walk in front of me and I gave them way because I had a stroller and the next minute the truck hits my stroller.

9 Mrs Rinaldi said that the impact with the truck was on the crossing and that somebody pulled her back and pulled the stroller out of her hands. She was looking at the traffic lights applicable to her at the time of the impact and saw that they were green. She denied that she had walked across against a red light and said that she was on the pedestrian crossing, three or four steps from the kerb when the impact occurred.

10 When asked specifically which wheel of the truck struck the stroller Mrs Rinaldi said she could not say, although later she said that the stroller did not make contact with the back wheels of the truck. She thought the truck had moved about one metre when the impact occurred. She said that after she was pulled back the truck kept going and the stroller 'disappeared from my hands'.

11 Mrs Rinaldi could not say where the truck finally stopped. Someone told her to go into a nearby shop called 'Oggi' which was on the corner of Edwardes Street and Spring Street. She referred to a person she called 'Paul' as being the man who pulled her back. Her description of being in the shop until an ambulance arrived included a reference to her having heard someone in the shop scream 'my God, my God, what have I done?'. This person was not identified, even as to sex. She said she had never had any discussion with the truck driver.

12 In cross-examination Mrs Rinaldi said she had no recollection of the truck; all she remembered was 'seeing these two big wheels in front of me' and she confirmed that the truck was stopped in the left-hand lane prior to the collision, that the lights applicable to her were green and that two people walked across the pedestrian crossing in front of her. She said traffic was moving in Spring Street. She did not see the truck collide with any pedestrians or with vehicles she said were proceeding along Spring Street.

13 No other evidence was called by the plaintiff as to the happening of the accident. It was agreed that the two people referred to in a police report as witnesses were unable to be of assistance; one could not be found and the other had no recollection of the accident. Put simply, the plaintiff's case was that the defendant's truck had struck her stroller on a pedestrian crossing over which her mother was pushing her with a green light; the truck having stopped at the crossing in obedience to a red light then moved forward whilst that light was still red.

14 The defendant, now a man aged 49, who was still a truck driver at the date of trial, said he was driving his employer's Kenworth 'Cab-Over' semitrailer in Edwardes Street at the relevant time. The truck was unloaded as he had discharged its load of concrete beams in the city shortly before the accident. He identified photographs of similar trucks which were tendered; the actual truck apparently being unable to be obtained.

15 Mr Davis said he was very familiar with the intersection, having driven through it 'probably hundreds of times'. He said it was a fairly busy area as there are shops on the northern side of Edwardes Street for a couple of hundred metres before the corner. He said that as he came up Edwardes Street to the intersection with Spring Street the lights applicable to him turned red. He activated his left turning indicator and stopped in the left lane as far to the right as he could, preparatory to turning left to travel north in Spring Street. Asked what his state of attentiveness was whilst sitting at the red light he said:

Well, as most drivers sort of do, you're just looking in front, checking mirrors, just making sure everyone's where they're supposed to be, yes, just paying attention really.

Well, when the lights went green, I put the truck in second gear, which is - because it was empty you don't have to take off in first gear - I let my foot off the clutch and just idled forward. When you're making a left-hand turn in an articulated vehicle, you must go straight into the intersection before you can turn, otherwise the trailer will hit lights and footpaths and all the other stuff, so I was just edging forward, idling with the clutch out, in second gear.

Mr Davis said that a car to his immediate right turned right at Spring Street. Asked what he was aiming for when he began to move he said:

I'm aiming for a point directly straight ahead before I can actually turn to get around the corner without hitting anything on the side of the road with the back of the trailer, so I'm just edging forward and, yes, checking for that point where I can turn.

Once I'd let my foot off the clutch and the truck was edging forward on idle, I just checked in the mirrors and saw movement in my left-hand spotter mirror and I jammed the brakes on straightaway because there should have been no movement there because there shouldn't have been anyone there because I had the green light. So I jammed the brakes on and put the park brake on and jumped out.

16 Mr Davis was asked to describe his 'spotter mirror'. By reference to a photograph of a Kenworth truck he explained such a mirror in these terms:

You have the external mirror here. Just in front of that window you can see a frame comes out and there is a big square, like an oblong or a rectangle mirror that goes down the whole length of the door pretty much where the glass is and then you'll see a small, round one at the bottom, that's a spotter mirror. The mirror is actually domed, it's so you can see different angles and it's sort of a little bit bigger, so what you can't see with the external standard mirror, you can see back further, so that's what a spotter mirror is. There's one on either side.

You'll have to make that a bit clearer, what you're describing there. So you're pointing to the mirror itself? --- Yes, so you can see from approximately halfway down the cab back and maybe a little bit of the tank and the start of the trailer there, but you can't actually see lower with the standard mirror. That's what the spotter mirror is for.

17 Mr Davis said that for anyone to have been visible to him in the spotter mirror they would have had to have been on the pedestrian crossing or 'in that vicinity'. Upon seeing the movement he described he 'jammed the brakes on and put the park brake on instantly'. He opened the cab door, jumped out and ran around the front of the truck to the left hand side. His evidence continued:

So you've gone around the front of your truck and where have you gone to? --- Just to the left-hand side. That's when I saw a young fellow and a lady and he was pulling them backwards, towards the footpath, as I ran around the front of the truck.

He said they were both on the road. He said the pusher was in between the two rear drive axles or driving wheels of his truck. The centre of the rear wheels he described as being right on the pedestrian crossing - 'the middle of the pedestrian crossing'.

18 Mr Davis described the stroller as being pushed together as if it was folded up. He said he pulled it apart to release the child. He said he saw no pedestrians on the road or on the pedestrian crossing before he picked up the reflection in his spotter mirror which caused him to stop. He said that very shortly after the incident he was directed by a police officer to shift his truck as it was impeding traffic. Mr Davis described the operation of the intersection as including a flashing pedestrian sign directing drivers turning left into Spring Street from Edwardes Street to give way to pedestrians crossing Spring Street.

19 In cross-examination Mr Davis said he would not necessarily have seen Mrs Rinaldi and the stroller in the area of the intersection if he had been looking in that area. He said he was not expecting anyone to push a pram into his truck. He said:

Well, I had a green light. I wasn't expecting anyone to push a pram into my truck. I wasn't looking for that one person standing on the thing. I was checking the lights around, check the mirrors, took off.

Later he described his visual observations and awareness as he was driving:

Well, you're not just looking to that point on the pedestrian crossing where they're going to cross, you're looking at the whole area. The cabin has blind spots in front of the mirror, there's a dash that's higher than the actual bottom of the windscreen, so that sticks up. There's certain blind spots in a truck, so you're just looking in the general area, lights, mirrors, just generally.

20 The jury clearly rejected Mrs Rinaldi's version of what happened in the incident in which her daughter was injured. Her version could not sit consistently with Mr Davis' account of having seen the stroller in between the two sets of driving wheels at the rear of the prime mover. It would have been highly unlikely that the stroller was struck by the front wheel of the prime mover (as seems to be implied by Mrs Rinaldi's evidence) and subsequently got into a position between the rear wheels as Mr Davis described. The stroller could not have been run over by any of the truck wheels - either the front left wheel or the left-hand leading driving wheel. Had that occurred, the appellant's injuries would almost certainly have been fatal and the stroller would not have been folded or partly folded as Mr Davis said.

21 Having regard to Mr Davis' description of his driving - as to what he did, the observations he made and the position in which he found the stroller when he left his cabin, it is entirely feasible that the jury took the view that Mrs Rinaldi left the footpath to cross the road against a red light after Mr Davis had begun to move and that she pushed the stroller into the side of the truck between its driving wheels just as it stopped. At that time, having regard to the size of the prime mover and the distance between its front and its driving wheels - perhaps five or six metres - Mr Davis would have been properly engaged in looking out for driving hazards and dangers within the intersection and on or in the vicinity of the pedestrian crossing over Spring Street - including being aware of the status of the 'Give Way to Pedestrians' sign which he described. It is not in any way surprising that the jury were not satisfied that the appellant had proved a case in negligence against Mr Davis.

22 In this Court the appellant's argument on grounds 1 to 4 is based upon the proposition that because the respondent did not see the appellant's mother and her stroller 'at the corner of Edwardes and Spring Streets waiting to cross' (emphasis added) and before he saw something in his mirror which caused him to stop, he had failed to keep a proper lookout. But on a view of the evidence most favourable to the respondent, Mrs Rinaldi might not have been there when Mr Davis moved off. She might have never been stationary there at all. It is a not unreasonable interpretation of Mr Davis' evidence that the point of impact between the stroller and the prime mover was five or six metres behind Mr Davis' driving position, which must have been, by the time of impact, well within the intersection as he was about to commence a left turn across another pedestrian crossing. A jury would be entitled to conclude that a pedestrian walking off the kerb (perhaps quickly) against a red light was outside the area of appropriate surveillance of a reasonably careful driver in Mr Davis' position. Certainly it could not be said that a jury, on this scenario, was bound to find that Mr Davis had failed to keep a proper lookout and was, accordingly, relevantly negligent.

23 Even assuming that Mr Davis had seen Mrs Rinaldi stationary on the approach to the pedestrian crossing as he was about to move off, what was he required to do in the exercise of reasonable care? He had a green light; she had a red light. Had he not moved because she was there, would the accident have been avoided? The appellant's case was that he should have stopped. But on one available view of the evidence, it is likely that the prime mover had either stopped or almost stopped at the moment of impact. Mr Davis' evidence that he saw a blur in his spotter mirror and immediately applied the brake, the slow speed of the vehicle when he did so and, particularly, the minimal damage to the stroller, supports that view. If there had been even one revolution of the driving wheels whilst the stroller was between them, or even when it was in contact with one of them, damage to the stroller and injury to the plaintiff would have been almost certainly far greater than it was.

24 In argument the appellant relied upon Gui v Weston[3] where this Court overturned a jury verdict against a plaintiff, holding that the jury had acted irrationally in not finding him negligent when the respondent did not see the appellant and gave no explanation for not doing so. But that is not this case where, as already discussed, the appellant's mother may never have been in a position where the exercise of reasonable care by the respondent would have required him to have seen her. Likewise, Manley v Alexander[4] to which the appellant also referred, which concerned a failure to look out where the injured plaintiff was 'within the vicinity' of the respondent's vehicle. Here the appellant's mother may only have come into the vicinity of the respondent when she was about to collide with the rear end of the respondent's prime mover, and when he was quite properly concerned with controlling his vehicle and exercising reasonable care for those pedestrians and other road users to whom he was then proximate.

25 There was nothing irrational about this jury's verdict. These grounds should not be upheld.

26 In his charge to the jury the trial judge gave what could be described as a standard direction in a motor vehicle case as to the law the jury must apply to the facts they were satisfied had been proved to the relevant standard.

27 The specific complaints made by the appellant with respect to the adequacy of the judge's direction as to the duty and standard of care arose out of the refusal of his Honour to redirect the jury on those matters following an exception taken by the appellant's counsel at the trial. Counsel took the exception because of what she perceived as the failure of the trial judge to direct the jury as to 'the law relating to how [the] standard is interpreted in the context of collisions between drivers and pedestrians'. She argued that the jury ought to have been directed:

Along the lines that your Honour has just articulated, that the standard of care for a driver in the context of a driver who may come into contact with pedestrians is that he has a duty to know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events, so that's just straight out of Manley v Alexander.

28 The trial judge refused to redirect the jury because to do so would, in effect, usurp the function of the jury by imposing upon them a view as to the nature of the duty, which was a matter for them to determine within the parameters of the duty as he had already expressed it: a duty to take reasonable care in all the circumstances. The trial judge was correct in his conclusion.

29 The appellant's argument in this Court, and in the court below, was to the effect that the trial judge was obliged to instruct the jury, not only that the respondent had a duty to take reasonable care not to expose other road users to an unreasonable risk of injury by the way in which he drove his truck, but also as to what he should have done in order to discharge that duty. In particular, of course, the appellant placed particular emphasis on 'keeping a proper lookout', having regard to the respondent's evidence that he did not see the appellant's mother with her stroller waiting at the kerb in Edwardes Street.

30 Whether a duty of care is owed in any particular case is a question of law. That a driver of a motor vehicle on a public road owes a duty of reasonable care to other road users is trite law. However, whether a duty of care has been breached in any particular case is a question of fact.[5] It is of fundamental importance that the two questions be kept clearly distinct. The first is the province of the judge; the second that of the tribunal of fact - in this case, the jury.

31 In recent times the High Court and intermediate courts of appeal have been critical of attempts to 'particularise' the elements of a duty of care in order to 'elevate considerations that properly concern the breach element of the tort of negligence into the evaluation of the existence or absence of a duty of care'.[6] The case law makes clear that the inquiry into whether a duty of care is owed takes place at a 'relatively general level of abstraction'.[7] It is a 'notional pattern of conduct' which 'arises in the context of a relationship between individuals' and imposes a legal obligation on one for the benefit of another.[8] Its content is typically no more than a duty to take reasonable care.[9] In the context of road users, the relationship arises from the fact that one or both are engaged in a foreseeably dangerous activity - the driving of a motor vehicle.

32 The separate nature of a duty of care and its breach has been examined in a number of cases involving activities not concerned with road traffic. For example, in Graham Barclay Oysters,[10] McHugh J held that the duty of care owed by a manufacturer to a consumer is a duty to take reasonable care to avoid injury to the consumer. His Honour stated that '[t]o formulate the duty in more specific terms invites error because it is likely to mix a question of law (whether a duty existed) with a question of fact (whether a breach occurred)'.[11] Similarly, in Jones v Bartlett, Gleeson CJ said:

There is no ground in principle for imposing upon the respondents an obligation greater than an obligation to take reasonable care to avoid foreseeable risk of injury to their prospective tenants and members of their household. The critical question is as to what is reasonable. The judgment of the Full Court, with which I agree, to the effect that there was no failure to take reasonable care, was a judgment of fact. It cannot be circumvented by an attempt to formulate the legal duty with greater particularity, in a manner which seeks to pre-empt the decision as to reasonableness.[12]

33 The distinction between duty and breach was also considered in the case of Vairy.[13] In that case, the plaintiff was injured after diving into a shallow body of water. The Council's duty of care was held to be a duty to do what was reasonable, not a specific duty to warn divers of the risk of injury.[14] The giving of such a warning might be what reasonable care ultimately called for (and, therefore, failure to do so could constitute breach), but the obligation to give such a warning was not part of the content of the duty owed by the Council. McHugh J considered the distinction between duty and breach in terms which are apposite to the present case:

[T]he duty owed by motorists to other users of the highway, for example, is expressed in terms of the duty to take reasonable care for the safety of other users of the highway having regard to all the circumstances of the case. The duty is not subdivided into categories such as a duty to keep proper lookout or sound a warning or to keep a safe distance away from the car in front. In the particular circumstances of the case, failure to do one or more of these things may constitute a breach of the duty to take reasonable care. But they are not themselves legal duties for the purpose of the law of negligence. If they were, a trial judge would be bound to direct a jury in the circumstances of a particular case that the defendant had a duty to keep a proper lookout or sound his or her horn, as the case may be. Given such a direction, the only question for the jury would be whether or not a motorist had complied with the duty specified by the judge. But it is the jury, not the judge, that determines whether reasonable care required the motorist to keep a proper lookout or to sound the horn.[15]

34 In Neindorf v Junkovic,[16] Kirby J dealt extensively with the issue of conflating duty of care and breach.

[It] is becoming all too common in this area of law ... [to attempt] to elevate considerations that properly concern the breach element of the tort of negligence into the evaluation of the existence or absence of a duty of care.

It is true that it is neither possible nor desirable to attempt to consider the duty of care issue independently of the breach element or, indeed, the other elements relevant to a decision on liability for negligence. The questions that the successive stages of negligence doctrine pose are not entirely free standing. They are interrelated. Negligence is a unified concept. Its subdivision into issues is adapted for convenience and to promote consistency of approach and accurate analysis. The parts should not divert attention from the whole. Thus, in deciding whether or not a duty of care exists, it is necessary to ask what the scope of the purported duty is. However, by and large, the relevant inquiries in this regard are conducted at a relatively general level of abstraction. Identifying the scope of an alleged duty of care requires consideration of, among other things, the nature of the damage suffered and whether the damage was caused by a third party or results from pure omission on the part of the defendant.

The appellant, while admitting that she owed a duty of some kind to the respondent, denied that the duty included within its ambit an obligation to take reasonable care to protect against the risk of physical injury occasioned by the unevenness in her driveway. However, defining the scope of the duty with this degree of specificity is likely to raise serious problems.

Professor Fleming advanced two reasons why defining the scope of the duty of care in an overly specific fashion should be avoided:

The general standard of conduct required by law is a necessary complement of the legal concept of 'duty'. There is not only the question 'Did the defendant owe a duty to be careful?' but also 'What precisely was required of him to discharge it?' Indeed, it is not uncommon to encounter formulations of the standard of care in terms of 'duty', as when it is asserted that a motorist is under a duty to keep a proper lookout or give a turn signal. But this method of expression is best avoided. In the first place, the duty issue is already sufficiently complex without fragmenting it further to cover an endless series of details of conduct. 'Duty' is more appropriately reserved for the problem of whether the relation between the parties (like manufacturer and consumer or occupier and trespasser) warrants the imposition upon one of an obligation of care for the benefit of the other, and it is more convenient to deal with individual conduct in terms of the legal standard of what is required to meet that obligation. Second, it is apt to obscure the division of functions between judge and jury. It is for the court to determine the existence of a duty relationship and to lay down in general terms the standard of care by which to measure the defendant's conduct; it is for the jury to translate the general into a particular standard suitable for the case in hand and to decide whether that standard has been attained.

The first reason identified by Professor Fleming for rejecting the appellant's approach to the duty issue is compelling. As an element of the tort of negligence, the duty of care is already overworked. It is problematic enough without imposing the additional burden of particularising, in a detailed fashion, all of the specific risks against which defendants must take care.

In relation to the second reason, while it is now uncommon, in most parts of Australia, for juries to decide negligence cases, it is still desirable that questions of law and questions of fact should be properly quarantined, so far as that is practicable. One reason why this is so is because different principles apply to appellate review of determinations regarding questions of law and decisions turning on the facts.

There is a third reason, not identified by Fleming, that militates against the appellant's approach. Generally speaking, each of the constituent elements of the tort of negligence - duty, breach and damage - considered seriatim, progressively increases the specificity of the inquiry into how the incident occurred and the way in which damage was sustained. The broadest and most general level of analysis occurs at the duty stage. Here, the inquiry is primarily concerned with whether injury to the plaintiff or a class of persons to whom the plaintiff belongs, was reasonably foreseeable. With respect to the breach element, the inquiry is directed, in part, to whether a reasonable person in the defendant's position would have foreseen the risk of injury to the plaintiff. Finally, the damage element is the most specific. The issue here is whether the damage sustained as a result of the breach of duty was of a kind which was reasonably foreseeable. Attempts to force more content into the duty element, by defining the obligation created with greater specificity, turns the traditional analysis of the tort of negligence on its head. It blurs the distinction between its constituent elements. It may also lead to the decision as to breach being pre-empted. This Court should avoid such an error.

... A relevant duty of care existed in this case. It is firmly established that an occupier owes a duty of care to entrants in respect of risks of physical injury arising out of the condition of the occupier's premises. There is no need for the scope of this duty to be defined with any greater precision than this in the instant case. This Court has said on several occasions that, in so far as cases involving physical injury are concerned, provided that the test of reasonable foreseeability is satisfied, the elusive additional element needed to establish the existence of a duty of care will also be satisfied. There is no suggestion in this case (and it could not be suggested) that the 'undemanding' requirement of reasonable foreseeability was not met by the respondent's case.[17]

35 Maintaining a clear distinction between duty and breach is consistent with the well known case of Wyong Shire Council v Shirt,[18] which established that the exercise of determining whether a breach of duty has occurred is a 'balancing' act for the tribunal of fact.[19] In that case, Mason J said:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

... the existence of a foreseeable risk of injury does not of itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.[20]

36 'Standard of care' is relevant to the question of breach. Once duty of care was established, the jury then had to determine what the standard of care was for a reasonable driver in the position of the respondent in the circumstances that prevailed at the time. Then, the jury was required to balance the totality of the circumstances and determine whether the defendant failed to meet that standard. Directing the jury in the manner contended for by the appellant would have served only to usurp the jury's function in this regard. The trial judge recognised this when he stated that to give such a direction would result in his 'effectively telling them there's a breach'.

37 In support of her case on these grounds the appellant again relied on Manley, where Gummow, Kirby and Hayne JJ said:

[T]he 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.[21]

38 But the High Court was not there concerned with the distinction between the question of the existence of a duty of care and the question of breach of that duty. It was reviewing a decision of the Full Court of Western Australia, which had upheld an appeal from a District Court judge, sitting alone, who had dismissed the plaintiff's claim. The Full Court had conducted that appeal, as it was required by law to do, 'as a rehearing'.[22] As such, it overturned the trial judge's decision on the facts. Thus it, and then the High Court, were concerned with questions of fact. In the passage relied upon by the appellant, Gummow, Kirby and Hayne JJ were discussing the factual conclusions which were of significance to the appeal in explaining why the Full Court decision in the then respondent's favour should not be overturned. Their Honours were not laying down principles of law, rather they were reviewing questions of fact. The Court's findings as to the 'reasonable care' expected of the driver in the particular circumstances of Manley cannot be relied upon to support an argument that the judge in this case ought to have directed the jury, as a matter of law, that the standard of care discussed in Manley must be adopted in the present case.

39 The appellant also relied on Clarke v Freund.[23] Her written submission refers to the following passage from the judgment of Beazley JA:

This court has consistently held that the standard of care for drivers of motor vehicles is high. The standard, of course, always remains that of the reasonable driver, but in this court's decision in Stocks v Baldwin,[24] the then president of the court, Mahoney P, set out why the standard of care is a high one and why it must take into account the fact that there is a likelihood, for example, that pedestrians will suddenly come into the path of an oncoming vehicle.[25]

40 This case, and that of Stocks to which the above passage refers, were also each judge-alone cases in which the New South Wales Court of Appeal was reviewing findings of fact made by trial judges and deciding whether it should permit those findings of fact to stand. In Clarke it overturned the District Court on the facts; in Stocks it did not.

41 That Stocks was concerned with the facts of the case is made clear by Mahoney P's statement that:

... it is for the driver ― and, if necessary, the court - to decide how the reasonable person to whom Mason J referred [in Shirt] will act in each case.[26]

[T]he determination of what a duty of care requires in such circumstances is not to be determined by a syllogistic process from facts to conclusion. It involves the kind of value judgments to which Mason J referred in [Shirt] and involves taking into account not merely the matters to which I have referred but all of the circumstances of the case.[27]

42 Value judgments are questions of fact - in this case, questions for the jury which they answered adversely to the appellant. Grounds 5 and 6 should also be dismissed.

[1] Pujick v Savic, Cox and Cudgewa Dairy Co Ltd [1971] VicRp 76; [1971] VR 632 and cases there cited.

[2] A number of times in her evidence Mrs Rinaldi referred to Spring Street to the north of Edwardes Street as 'High Street', although the plan of the relevant intersection as at 1988 tendered in evidence clearly shows the whole street as being called Spring Street. It is referred to as Spring Street in this judgment.

[3] [2011] VSCA 265.

[4] [2005] HCA 79; (2005) 80 ALJR 413 ('Manley').

[5] See, eg, Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, 430 [21] ('Vairy'); Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, 585 [106] ('Graham Barclay Oysters').

[6] Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341, 352 [49] (Kirby J). See also Amaca Pty Ltd v AB & P Constructions Pty Ltd [2007] NSWCA 220, [48]-[49] ('Amaca').

[7] Amaca [2007] NSWCA 220, [47], citing Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341, 352 [50].

[8] Vairy [2005] HCA 62; (2005) 223 CLR 422, 431 [22].

[9] Amaca [2007] NSWCA 220, [51]-[52].

[10] [2002] HCA 54; (2002) 211 CLR 540.

[11] Ibid 585 [106]. See also Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469, 487 [56].

[12] Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166, 184-5 [57].

[13] [2005] HCA 62; (2005) 223 CLR 422.

[14] Ibid 426 [6] (Gleeson CJ and Kirby J), 430-1 [20]-[22], 432-4 [25]-[29] (McHugh J), 459-60 [118]-[119] (Hayne J).

[16] [2005] HCA 75; (2005) 80 ALJR 341.

[17] Ibid 352-4 [49]-[56] (citations omitted).

[18] [1980] HCA 12; (1980) 146 CLR 40 ('Shirt').

[19] This consideration of the totality of the circumstances is sometimes referred to as the 'Shirt calculus'.

[20] Shirt [1980] HCA 12; (1980) 146 CLR 40, 47-8 (Mason J with Stephen and Aickin JJ concurring).

[21] Manley [2005] HCA 79; (2005) 80 ALJR 413, 415 [12].

[22] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Rules of the Supreme Court 1971 (WA) O 63, r 10(2) (now repealed).

[23] [1999] NSWCA 197; (1999) 29 MVR 361 ('Clarke').

[24] (1996) 24 MVR 416 ('Stocks') (footnote added).

[25] Clarke [1999] NSWCA 197; (1999) 29 MVR 361, 363 [14], approving Stocks (1996) 24 MVR 416.

[26] Stocks (1996) 24 MVR 416, 418.