Keith Bruce Evans & Anor v Stuart James Lindsay

Some research establishes a recognition distance of 50.4 metres for an object on the left and 24.8 metres for an offside object. The data assumes a 10% reflectivity factor.

Other research had concluded that an average driver response distance to a darkly clad pedestrian on the left is about 46 metres. An additional 5 metres would be travelled while the driver responded to seeing the pedestrian.

Accordingly both researchers found an average detection distance of about 50 metres. These studies did not include the effects of street lighting or silhouetting (being the background lighting of the plaintiff from light on the roadway).

The first defendant should have seen the plaintiff when the plaintiff was 50 metres away. An allowance is then made for the time taken firstly to perceive the plaintiff and then react. Mr Jamieson allowed two seconds. If the truck had been travelling at 45 kph then the vehicle would have travelled 25 metres in that two seconds. He then would have taken 2.6 seconds to stop and in that time would have travelled 16 metres.

This is a total stopping distance of 41 metres which means that the first defendant travelling at 45 kph would have come to a stop well before hitting the plaintiff." (Emphasis added) 21 Her Honour also referred to Mr Jamieson's cross-examination, in which he agreed that it would not necessarily have been wrong to have used a reaction time of two and a half seconds but that it would have been erroneous to have used a time lag of three seconds, as a reaction time of that length would mean that a person would run into vehicles at traffic lights, because by the time they reacted to a yellow light they would have crashed. 22 Her Honour therefore accepted Mr Jamieson's conclusion, that had the first appellant been travelling at 45km per hour, he would have had ample time to react and bring his vehicle safely to a halt before hitting any object within the range of his headlights. 23 Her Honour thereby concluded that at the time of the accident, the safe speed for the road conditions was around 45km per hour in order for a motor vehicle to be able to stop in time within the area illuminated by headlights on low beam. Her Honour reiterated that she had found that the first appellant was travelling at 60km per hour. 24 Her Honour further found that the first appellant was not keeping a proper lookout. She found that the first appellant first saw the respondent well after Mr Pieremont had seen him. Mr Pieremont had given evidence that he had seen a dark figure on the roadway approximately 30m ahead and that the figure was approximately two or three feet to the left of the centre line. He said that he "very quickly" realised that what he had seen was a figure that was coming towards the vehicle and he said to the first appellant "there's something on the road". On his evidence, the first appellant then put his foot on the brake. He estimated that four to five seconds had elapsed between seeing the figure and the first appellant first braking. 25 Her Honour found that the first appellant's sighting of the respondent after Mr Pieremont had seen him was not fully explained by their different perspectives. By "different perspectives" I understand her Honour to mean that the fact that Mr Pieremont was in the passenger's seat and the first appellant in the driver's seat did not explain why Mr Pieremont saw the respondent before the first appellant saw him. Her Honour then concluded: "[I]t [that is, the fact the first appellant was not keeping a proper lookout] is consistent with his record of interview where he told the police that he had not seen the plaintiff until he was three to five metres away."

Ground 1: Breach of duty 26 The appellants contend that her Honour's findings that the first appellant was travelling at an excessive speed and failed to keep a proper lookout, were against the weight of the evidence.

Was the first appellant travelling too fast in the circumstances? 27 Her Honour found that the safe speed for the road conditions was around 45km per hour, in order for a motor vehicle to be able to stop in time within the area illuminated by headlights on low beam. 28 The appellants contend that this finding is erroneous for two reasons. First, it was submitted that in the circumstances of this case, that finding of a safe speed was not one available to her Honour, because it did not take into account that there was no perceptible danger to which a responsible motorist ought to have adjusted. It was submitted that where a motor vehicle was being driven within the speed limit, the correct test was whether there was some perceivable danger in respect of which the responsible motorist had to adjust or accommodate, before a finding of negligence could be made. It was submitted that this was established by the High Court in Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48. 29 In Derrick v Cheung, a young child aged 21 months moved suddenly from the footpath, in a busy suburban area, onto the roadway between two parked vehicles into the path of oncoming traffic. She was struck by the vehicle being driven by the appellant at about 40-50km per hour, the speed limit being 60km per hour. The High Court held that there was no basis upon which any finding of negligence on the part of the appellant could be made. The Court accepted the reasoning of Davies AJA, who had dissented in the Court of Appeal, that the appellant's driving was appropriate in all of the circumstances, those circumstances including that there "was no particular perceivable risk which the appellant should have taken into account but did not". Davies AJA observed that the appellant was keeping up with the general flow of traffic, which itself was travelling at a modest speed, well under the speed limit, in circumstances where no particular danger was observable. His Honour found that was "a reasonable and proper response to the traffic conditions on the day". 30 In the High Court, their Honours commented that, even if the inference that the trial judge drew, that if the appellant's speed had been slower even by a few kilometres per hour she would have been able to avoid the collision, was one that could be drawn, "it was not an inference upon which a finding of negligence could be based". Their Honours emphasised that the possibility that a different result could have occurred should the relevant parties have acted differently, is not the test. Rather, the test (stated at [13]) is "whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care". 31 The appellants submitted that applying that test to the circumstances in this case, where there was no perceptible danger, her Honour erred in finding that the first appellant was negligent in failing to drive at a speed less than the speed limit. In particular, it was submitted that there was no principle of law or test of negligence that required a driver to drive so as to stop within the area illuminated by a vehicle's headlights on low beam as found by her Honour. It was submitted that to the extent that any such "principle" had ever had any currency, it had been completely debunked by the decision of the Full Court of the Supreme Court of Western Australia in Grove v Elphick (1985) 2 MVR 74, where Burt CJ observed (Wallace and Kennedy JJ agreeing): "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: see Morris v Luton Corporation [1946] 1 KB 114 at 115-116." 32 In Morris v Luton Corporation, Lord Green MR referred to what he described as the "well-known passage" in Baker v Longhurst & Sons Limited [1933] 2 KB 461 at 468, where Scrutton LJ had appeared to lay down "a sort of general proposition that a person riding in the dark must be able to pull up within the limits of his vision". Lord Green pointed out that that was not a proposition of law but, rather, a finding of fact dependent upon the circumstances of the particular case. Lord Green stated that the observation of Scrutton LJ could not affect: "… other cases where the circumstances are different [and] that this suggested principle may rest peacefully in the grave in future and not to be resurrected with the idea that there is still some spark of life in it". 33 In South Tweed Heads Rugby League Football Club Limited v Cole & Anor (2002) 55 NSWLR 113; [2002] NSWCA 205, Ipp AJA (as his Honour then was) also rejected the proposition that there was any principle of law "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". His Honour referred to the ceremonial burial of that principle in Morris v Luton Corporation, and the due respect paid to its demise in Grove v Elphick. 34 In South Tweed Heads Rugby League Football Club v Cole, the plaintiff, who was highly intoxicated, was struck by a vehicle driven by the defendant, Mrs Lawrence, who was driving on her correct side of the road at about 70km per hour, with her headlights illuminated on low beam. The speed limit was 80km per hour. Ipp AJA at [60] rejected the notion that Mrs Lawrence's speed was excessive. He said: "[t]here was no reason to expect pedestrians in the vicinity and Mrs Lawrence's speed was below the legal limit … 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."

His Honour referred to Derrick v Cheung in support of this conclusion. The Court of Appeal's determination in relation to the liability of Mrs Lawrence was not the subject of appeal to the High Court. 35 South Tweed Heads Rugby League Football Club v Cole was different from this case. There, the accident occurred on a roadway, which was probably an expressway, where the speed limit was such that pedestrians would not be expected to be on the roadway, even if they were keeping a proper lookout for themselves. Here, the accident occurred in a built-up area, where, even in the early hours of the morning, pedestrians might have been in the vicinity. 36 If, by her conclusion that 45km per hour was the safe speed at which the first appellant could stop in time within the area illuminated by his headlights, her Honour was intending to follow or apply a principle of law, she was in error, as I have explained. I am not satisfied, however, that this was her intention. Rather, I consider that she was making an ultimate finding of fact based on her earlier finding that the accident occurred at a place where visibility extended only to the area of the road illuminated by a vehicle's headlights. However, if I am wrong and her Honour was intending to apply a principle of law, she erred in so doing. I will refer later to what, if anything, flows from this error. 37 The liability of a driver to a person lying on the carriageway in the early hours of the morning was considered by the High Court in Manley v Alexander (2005) 80 ALJR 413; [2005] HCA 79. In that case, the respondent had been struck by a tow truck driven by the appellant at about 4.15am, whilst he was lying on the carriageway. The respondent was intoxicated and had no recollection of how he came to be on the roadway. However, shortly before the accident, the respondent had been in the company of a housemate and they had decided to walk home together. The appellant saw the housemate standing on the side of the road, "moving around a fair bit like he had been drinking", so that the appellant kept his eye on him. In doing so, the appellant did not slow down, but maintained a speed of 55-60km per hour. Rather, the appellant started to veer to the centre of the road. It was then that he saw something lying on the road. 38 The majority, Gummow, Kirby and Hayne JJ, in accepting that the appellant's attention had been drawn to the housemate's figure at the side of the road, behaving in a way that may have called for a reaction, stated (at [11]) that the recognition of one possible source of danger did not abrogate the responsibility of a driver to give "reasonable attention to all that is happening on and near the roadway that may present a source of danger". Their Honours also accepted that the possibility that someone would be found lying on the roadway at 4am was remote. Their Honours continued, however: "[12] … 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 … 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 60m 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. 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." 39 Callinan and Heydon JJ dissented. Their Honours considered that it was reasonable for a motorist to give attention to another potentially dangerous situation "in priority to an apparently benign one". They remarked that the situation on the road itself appeared benign, because it was extremely unlikely that a person would be lying in the centre of a wet roadway, drunk or sober. This case of course is different as the situation on the roadway was not "benign". The respondent was walking along it in circumstances where he could be seen at a distance of about 50m, so that even had their Honours' determination had any application here, that particular comment is not relevant to the resolution of the respondent's claim. Rather, the content of the duty of a driver at night is that expressed by the majority in the High Court in Manley v Alexander at [12]-[13]. The driver has to have regard to all of the circumstances, including how well the road is illuminated, and not only by the headlights. 40 That then leads to the question of what Mr Jamieson's evidence established and how that evidence corresponds with the findings made by her Honour. 41 Mr Jamieson, in his report, referred to accepted road safety studies undertaken so as to establish recognition distances of objects under low beam and average driver response times. He referred first to data published in Grimes' Handbook of Road Safety Research (1987) that gives a recognition distance of objects under low beam on a straight road of 50.4m to a nearside object and 24.8m to an offside object, taking into account a ten per cent refractivity factor. As I have indicated above, her Honour referred to that material. Mr Jamieson next referred to Olsen, Forensic Aspects of Driver Perception and Response (1996), where studies undertaken showed that the average driver response distance to darkly-clad pedestrians is about 46m under low beam illumination with the pedestrian positioned to the left. 42 Mr Jamieson said that it could be deduced from the Olsen studies that "about five metres should be added to the response distances to determine the detection distance" to darkly-clad pedestrians. Mr Jamieson next stated that, as he understood the factual circumstances here, the respondent was "near the centre" of the roadway. In that circumstance, he considered that there was a direct headlight illumination range of about 35-40m. He added that that distance did not include the effect "of the silhouetting of the pedestrian against the lit road background". He then added: "[t]he site inspection suggested a sighting range (allowing for the silhouetting effect) of over 50 metres." 43 Mr Jamieson confirmed this in his conclusion where he stated: "It was noted that the visibility to the pedestrian would have been created by two sources which were:

• the direct illumination from the truck's headlights, and - a silhouetting effect of the pedestrian's form against the lit road background.

It was considered that these two factors combined, would have yielded a likely minimum 'sighting' range to the pedestrian of about 50 metres - a figure which was confirmed at the site inspection (although the inspection was undertaken in dry conditions)." 44 It is apparent, therefore, that her Honour's finding and the evidence of Mr Jamieson did not precisely coincide. Her Honour's finding was that the first appellant could see to the distance of his headlights. On Mr Jamieson's evidence, the throw of the first appellant's headlights to a person walking in about the middle of the southbound lane was approximately 35-40m. However, Mr Jamieson's evidence was that in fact, given the silhouetting effect of the surrounding street lights, the first appellant should have been able to see the respondent at about 50m and stop within 41m, travelling at a speed of 45km per hour. 45 The appellants contended that it became apparent from Mr Jamieson's cross-examination that he did not think that silhouetting had any significance in the circumstances of this case, so that at best, the illumination range was 35-40m, not 50m. It followed, on the appellants' submission, that even had the first appellant been travelling at 45km per hour, it was problematical as to whether his vehicle could have been brought to a stop or not. 46 This submission depends upon whether Mr Jamieson was successfully challenged in cross-examination that the silhouetting effect provided by the otherwise surrounding lighting, had no impact on the illumination of the respondent as an object on the roadway. Senior counsel for the appellants submitted that the cross-examination revealed that Mr Jamieson did not consider that silhouetting was of importance in the factual circumstances here. 47 The relevant cross-examination appears between pp 78-80 of the transcript of 6 December 2004. It was in these terms: "Q. … in answering Mr Lidden's question that on the basis of your sight-stopping distance you would have stopped 9 metres short of the pedestrian, or the driver would have, you are necessarily relying upon the fourth last paragraph, namely, the 50 metres, from silhouetting , aren't you? A. Yes.

Q. Because if you go back to what your best estimate was in the fifth paragraph from the bottom, you were saying headlight illumination 35 to 40 metres? A. Yes …

Q. … So, in answering Mr Lidden's question that a driver could have pulled up 9 metres short of a pedestrian, you weren't dealing with your 35 to 40 metres; you were dealing with the 50 metres of silhouetting, were you not? A. Yes, that's correct.

Q. And because, if you were dealing with the 35 to 40 metres, on that analysis, the driver would not have pulled up in time: the collision would have occurred? A. Based on the 35/40 metres, that's correct …

Q. Street light can create as much problems as it solves by having dark spots in between, can it not? A. Well, no, I don't agree with that proposition.

Q. The account given by the driver of the truck was of sighting the pedestrian just after the driver came through the light of one light stand; is that right? A. Yes.

Q. So that's not an unusual description of somebody passing from a lighted area into a darkened area who then makes an observation? A. That's correct.

Q. You have encountered that many times? A. Yes.

Q. And in broad lay terms it's not dissimilar to the stepping outside a lighted house into a darkened area and then waiting for some adjustment to take place? A. Yes, I understand the question, but that is an overstatement of the effect.

Q. Sorry? A. That is an overstatement of the effect.

Q. I accept it's an overstatement, but it gives some indication - well, the fact that a driver has come through a lighted area into a less-lighted area is significant in terms of his ability to make observations in the less-lighted area? A. As a general proposition, I would agree. You can ignore the silhouetting effect, yes.

Q. Putting silhouetting to one side, have you taken that prospect into account in the estimates that you have given? A. No, I didn't believe it was significant.

Q. That's the sort of thing that could affect individual people, some individuals more than others? A. Well, the proposition presupposes that this local lighting was producing some significant glare and that a driver experienced a glare as they approached and then drove into a dark patch. Given the proximity of the roundabout just to the north of the site, I didn't think it was a significant effect." 48 Mr Jamieson's responses in the last three answers reproduced above mean, clearly, in my opinion, that he did not believe that in this case the effect of coming from a lighted area into a less-lighted area was significant, not as contended by senior counsel for the appellants, that Mr Jamieson had said that it was the silhouetting that was insignificant. 49 In further cross-examination, Mr Jamieson agreed that whether and if so the extent to which silhouetting may have played a role depended upon how close the point of impact was to the next street light. Having said that, however, I am of the opinion that Mr Jamieson's evidence in relation to silhouetting and his evidence that the sighting distance was 50m, was not discredited by that last answer. 50 That does not, however, resolve the matter. As I have indicated, her Honour's express finding and Mr Jamieson's evidence were inconsistent. I say "express finding" because although she found that the first appellant could see to the distance of his headlights, her Honour also said that she accepted Mr Jamieson's evidence. She certainly accepted his conclusion that had the first appellant been travelling at 45km per hour, he would have stopped before hitting the respondent. That conclusion was based on a sighting distance of about 50m. There was no evidence to contradict Mr Jamieson's evidence and it was not effectively challenged in cross-examination. 51 In my view, it is difficult to sustain the reasoning of a trial judge which is internally inconsistent, unless that it can be said that the inconsistency is irrelevant to the matter in issue. In this case, the inconsistency goes to the heart of her Honour's finding on this aspect of breach. If her finding was that the first appellant could only see within the distance of his headlights and the safe speed was 45km per hour, then the respondent would not have proved that the first appellant was travelling too fast in the circumstances because, on Mr Jamieson's evidence, travelling at that speed, it would have taken him 41m to bring his vehicle to a stop. 52 However, to "reconstruct" her Honour's reasons so that her "intended" finding was to accord with the evidence of Mr Jamieson, namely, that the first appellant should have seen the respondent at a distance of 50m so that he should have been able to stop in a distance of 41m and thus avoid a collision, involves this Court making a finding that is inconsistent with her Honour's primary finding of fact, namely that the sighting distance was 35-40m. That finding was based upon the first appellant's own evidence and was not dependent upon the analysis of Mr Jamieson that, with the silhouetting effect of the street lighting, the sighting distance was likely to be about 50m. 53 In this regard two things should be observed. Mr Jamieson's evidence of sighting distance within the throw of the headlights was itself an estimate that, of its nature, contained a margin of error, depending precisely upon where the respondent was on the roadway in relation to the line of the truck and the respective distance of light from the nearside and onside headlight. A slight difference in the actual distances and speed in this case was likely to have made a difference in a finding of negligence or not. Secondly, Mr Jamieson's evidence in relation to the silhouetting effect was one based upon an assessment made in dry conditions. On the morning of the accident it had been raining and the road was still wet. Mr Jamieson appears to acknowledge that this would have made some difference, although he did not indicate how such a difference affected the estimates he made. 54 The courts are familiar with this type of evidence and it does provide some assistance to the often difficult task that a trial judge often has in determining whether an accident occurred in circumstances that bespeak negligence. Such evidence has to be assessed in conjunction with the other evidence in the case. The difficulty in this case, is that her Honour appears to have accepted the conclusion of Mr Jamieson that the first appellant, if driving at 45km per hour, should have been able to stop in time to avoid colliding with the respondent without, so it would seem, appreciating that her finding in relation to the sighting distance did not accord with the estimates that underlay Mr Jamieson's conclusion. This is the inconsistency to which I have referred above. That is sufficient, in my opinion, to demonstrate that her Honour's finding on this is unsatisfactory. 55 It is also apparent, in my opinion, that her Honour engaged in hindsight reasoning in reaching her conclusion that the first appellant was travelling too fast in the circumstances. Her Honour reached a conclusion that the safe speed was 45km per hour by relying upon Mr Jamieson's evidence that at that speed the first respondent could have stopped in time to avoid a collision. This required the first appellant to be driving at 15km per hour below the speed limit. In coming to that conclusion, her Honour did not take into account other possibilities, such as driving at a speed that was sufficient to take avoiding action. The result reached by her Honour was such that the conclusion as to the safe speed coincided with the finding that needed to be made if negligence was to be established on one version of the facts. Such an approach to legal reasoning is impermissible: see Vairy v Wyong Shire Council (2005) 80 ALJR 1; [2005] HCA 62 and Neindorf v Junkovic [2005] HCA 75 per Hayne J at [93] 56 I should add that the appellants also argued that the effect of Mr Jamieson's evidence was that as the respondent was walking two or three feet to the left of the centre line and the extent of illumination of the offside headlight was 24.8m, then it was unlikely that the first appellant would have seen the respondent at a distance of greater than about 24.8m. This submission does not accurately reflect Mr Jamieson's evidence. His evidence was that the headlight on the nearside projects light for a distance of about 50.4m and that on the offside of about 24.8m. That meant that the illumination in between the offside and the nearside was not as great as 50.4m and not as little as 24.8m. He estimated that the sighting distance was 35-40m between those two extremes. That evidence was not effectively challenged in cross-examination. But, in any event, as I have already explained, Mr Jamieson's evidence was that the first appellant should have seen the respondent at a distance of about 50m. 57 Had the success of the respondent's claim been dependent upon this part of her Honour's reasoning, I would have considered that her Honour's reasoning was unsatisfactory and that there should have been a new trial. That result would have then appropriately taken account of the potential error to which I have referred at [36]. However, her Honour also found that the first appellant failed to keep a proper lookout and for that reason was also negligent. That finding was also challenged.

Failure to keep a proper lookout 58 The appellants contend that her Honour's finding that the first appellant failed to keep a proper lookout was affected by a number of errors, including that her Honour failed to consider all of the evidence and failed to give reasons for choosing certain evidence, rather than other evidence on the same issue. It was also submitted that the combination of the findings that her Honour made could not reasonably relate one to the other. As I understand this submission, it was that there was an underlying problem with her Honour's fact-finding process, such as to disclose appealable error. It is necessary to review her Honour's findings and the other evidence in some detail, to understand how this ground of appeal was sought to be made out. 59 Her Honour held that she was not satisfied that the first appellant was keeping a proper lookout. She said: "[The first appellant] first saw [the respondent] well after Mr Pieremont had seen him. This is not fully explained by their different perspectives. It is consistent with his record of interview where he told the police that he had not seen the plaintiff until he was three to five metres away." 60 In his statement to the police taken on 27 February 2000, the first appellant was asked to estimate how far the respondent was in front of his vehicle the first time the first appellant saw him. The first appellant responded, "I don't know, few metres probably, no more than five metres … maybe three to five metres". 61 The appellants contend that it would have been literally impossible for the first appellant to have seen the respondent four to five metres in front of him and then be able to react and brake and then to hit the respondent whilst the vehicle was braking. The "point of impossibility" as I understand it, is that if the first appellant was travelling at about 57-60km per hour then, with a normal reaction time of two seconds, he would have travelled 31m before he commenced to apply his brakes. 62 The appellants submitted that, if in fact there was a lapse of four to five seconds after Mr Pieremont had drawn the first appellant's attention to the presence of something on the road, then, travelling at about 60km per hour, he would have travelled nearly 100m before he applied his brakes. It was submitted that that hypothesis did not make sense for two reasons. First, the first appellant would not have had sufficient time to react and commence braking before he hit the respondent. This would lead to a contrary conclusion to that reached by her Honour, that the first appellant hit the respondent somewhere along the skid. 63 Secondly, and it followed, he could not have first seen the respondent from a point three to five metres away. It was submitted that her Honour had made a finding to that effect. The appellants further contend that the position is no different if, as the first appellant said in his evidence, as opposed to his statement to the police, that he first saw the respondent 20m away. In re-examination, he said that the estimate of distance that he gave to the police in respect of first seeing the respondent was wrong. 64 It was submitted that it was not apparent what evidence her Honour accepted or rejected to come to the conclusion that the first appellant saw the respondent "well after Mr Pieremont had seen him". 65 The difficulty with each of these submissions is that her Honour did not actually make a finding that the first appellant first saw the respondent three to five metres away. Nor did she make a finding that the first appellant saw the respondent four to five seconds after Mr Pieremont saw him. Rather, her Honour's finding was that the first appellant saw the respondent well after Mr Pieremont had seen him. This was a finding available on the evidence. 66 The appellants make a further challenge to this part of her Honour's reasoning. Senior counsel for the appellants acknowledged that her Honour appears to have accepted Mr Pieremont's evidence in chief, where he said that four or five seconds elapsed between seeing the figure on the road and the first appellant putting his foot on the brake. The appellants contend, however, that in accepting that evidence, her Honour appears to have not accepted Mr Pieremont's evidence given later, when he said that when he drew the first appellant's attention to the fact that there was a figure on the road, the first appellant put his foot on the brake straight away. 67 The complaint, as I understand this submission, is that her Honour only accepted certain aspects of Mr Pieremont's evidence, without having regard to it as a whole, or did not express her reasons for accepting one version of the evidence over the other. It was submitted that if it was correct that the first appellant did not react to Mr Pieremont's comment about someone being on the road for four or five seconds then, travelling at 60km per hour, he would have proceeded a further 100m down the road. It was submitted that "that just doesn't make sense". 68 On whatever version of the evidence is accepted, Mr Pieremont saw the respondent before the first appellant. Mr Pieremont, as a passenger, was not required to keep a proper lookout. The first appellant was. Had he been keeping a proper lookout, the evidence was that the respondent would have been observable at a distance of about 50m. 69 The first appellant had conceded in cross-examination that if he had seen the respondent 20m away, he could have moved onto the other side of the road and avoided hitting him. He also said that there was no traffic so that there was no danger in doing so. The trial judge recorded the first appellant's concession but did not direct any finding to it. Rather, her finding was that the first appellant "was not keeping a proper lookout". 70 A driver's duty of care 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": Manley v Alexander at [12]. 71 When a driver is confronted with a situation where there is a risk of injury there may be a range of steps that might be taken by way of a reasonable response. Should authority be needed for this proposition, it can be found in the majority judgment of the High Court in Anikin v Sierra (2004) 79 ALJR 452; [2004] HCA 64. See also Pledge v RTA (2004) 78 ALJR 572; [2004] HCA 13 at [32], where Callinan and Heydon JJ refer to the judgment of Dunford J at first instance. The possible range of responses has to be assessed, not in the reflective calm of a judge's chambers, but in the context of the dynamics that confront the driver that usually calls for quick decision making in circumstances of quite some stress. It will not always be negligent if a driver, in what is virtually split second decision making makes what, on later reflection, was the wrong decision. However it may be negligent if a driver was failing to keep a proper lookout so that she/he, in real terms, deprives her/himself of the ability to make decisions, other than the immediate reaction of "slamming on the brakes". 72 In my opinion, that is what happened here. The first appellant admitted that he could probably have avoided the accident if he had seen the appellant 20m away. This answer was given in circumstances where the first appellant maintained in his evidence that he was travelling at 40km or perhaps 50km per hour. 73 Whether the correct position in relation to the sighting distance is 35-40m as found by the trial judge, or 50m as Dr Jamieson's evidence established, it is self-evident that the first appellant could have seen the respondent at a distance of 20m and on his evidence at trial that is when he did see the respondent. If he could have taken steps to avoid the collision at a sighting of 20m, by swerving or both swerving and braking so as to slow down his speed, then he could have taken the same steps, and more readily so had he seen him at 35-40m or at 50m. The first appellant's concession does not involve a finding that the safe speed at which the first appellant should have been travelling was 45km per hour. Rather, the concession was that at the speed that the first appellant was in fact travelling he could have avoided the collision had he seen the respondent at a distance of 20m. 74 On that basis, her Honour's finding that the first appellant failed to keep a proper lookout is supported by the uncontested evidence at trial, and is not dependent on hindsight reasoning. In those circumstances, I am of the opinion that it has not been demonstrated that her Honour's conclusion on this aspect of negligence was appealably wrong.

Ground 2: Contributory negligence 75 The trial judge assessed contributory negligence at 15 per cent. Her Honour was not persuaded that the evidence as to the respondent's behaviour earlier on the evening of the accident was relevant to the issue of contributory negligence. Her Honour said that whilst he may have appeared intoxicated many hours earlier, she was not persuaded that the appellants had established any relevance of that observation to the accident itself. Her Honour likewise considered that the police officer's observations of the respondent about an hour and a half prior to the collision were not relevant. She observed that, at that time, the respondent was considered to be "mildly affected by intoxicating liquor". The features that her Honour considered relevant to the question of contributory negligence were that the first appellant was driving a heavy vehicle capable of inflicting severe harm on a pedestrian on the one hand, and on the other, that the respondent was walking near the centre of a badly-lit road at about 4.45am and was not keeping a proper lookout. 76 Section 138 of the Motor Accidents Compensation Act 1999 (NSW) provides, relevantly for present purposes, that the common law as to contributory negligence applies in respect of a motor vehicle accident and that where there is a finding of contributory negligence, the damages awarded must be reduced by such percentage as the court considers just and equitable: s 138(1) and (3). Under s 138(2), the court must in certain circumstances make a finding of contributory negligence. The appellants contend that, not only was her Honour obliged by the provisions of s 138 to make a finding of contributory negligence, the respondent should bear the major proportion of responsibility for the accident. Although the question of whether there was contributory negligence was a question of fact to be determined by her Honour, and such a finding was not compelled in this case by the provisions of s 138 (none of the provisions of s 138(2) being applicable), the respondent conceded that a finding of contributory negligence was inevitable and did not cross-appeal against the finding of 15 per cent. 77 The appellants submitted that the first appellant was driving within the speed limit, whereas the respondent was walking along the middle of the road, in the dark, wearing dark clothing, and not looking ahead. It was submitted that there was no reason for the respondent to be on the roadway, as there was ample room on the shoulders of the road and nearby footpaths on the western side of the road. It was submitted that the respondent appears to have had no regard for his own safety, as demonstrated by the fact that he did not attempt to avoid the collision by moving off the road in circumstances when he should have been alerted, by the truck's headlights and the noise of its engine. 78 I have referred above, in the discussion of the facts, to the fact that the respondent had been drinking on the night prior to the accident and was described as being inebriated and moderately affected by alcohol by, respectively, the witnesses who saw him after he left the hotel and the police officers. The appellants made some reference to the respondent's inebriation as an explanation as to why the respondent was on the road, rather than being on the footpath, but did not otherwise appear to rely upon it. 79 The lightness of touch with which the question of intoxication was addressed by the appellants initially seemed surprising, given that, according to the submissions made at trial the respondent had a blood alcohol reading of 0.235. Even more surprising was the failure to consider the respondent's blood alcohol reading relevant to the question of contributory negligence. The reason for this muteness may be due to the way the matter was handled at trial. It appears that there was no dispute between the parties that there had been a blood alcohol reading of 0.235. However, the appellants did not tender a certificate of analysis. It is not clear why, but it may be that they had not obtained it and were relying upon secondary evidence to prove the reading. In this regard, there was a reference to the blood alcohol reading in the report of Mr Jamieson. However, her Honour indicated that she would not accept secondary evidence of matters that ought to be subject of proof. 80 It then appears that the respondent later took the point that although he did not dispute the blood alcohol level of 0.235, the appellants had not adduced any evidence of the blood alcohol reading or the affect of a reading of that level upon behaviour. Accordingly, her Honour was left with the only evidence of appearances sometime before the accident. 81 In Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492, the High Court stated at 493-4: "A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." 82 Podrebersek has been consistently applied: see Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 at [157] per Hayne J; Liftronic Pty Limited v Unver (2001) 75 ALJR 867; [2001] HCA 24 per Gleeson CJ. 83 Notwithstanding the observation by Hayne J in Joslyn v Berryman that a finding as to contributory negligence will not be lightly disturbed, I am of the opinion that in this case, her Honour's assessment of contributory negligence was so outside an appropriate discretionary determination as to call for appellate interference. As was pointed out by the High Court in Podrebersek, a question of contributory negligence is an evaluative exercise, in which matters of proportion, balance, emphasis and the weighing up of different considerations play a part. When regard is had to that principle and the provisions of s 138 of the Motor Accidents Compensation Act, I am of the opinion that the respondent's departure from the standard of care, as compared to that of the appellants, was such that he should bear the major portion of responsibility for the accident. 84 In addition to the matters considered as relevant by her Honour, and leaving aside the question of the respondent's possible state of intoxication, the fact is that walking along a roadway without any apparent regard for oncoming traffic demonstrates a high level of failure to have regard to one's personal safety. There was a footpath, even if not fully paved, upon which the respondent could have walked. He was not crossing the roadway, and there was no apparent reason why he should have been walking along it. If his conduct is explained by a high level of intoxication, the result is the same. In my opinion, contributory negligence should be assessed at 75 per cent.

Ground 3: Appeal on damages 85 The appellants made four complaints in respect of her Honour's assessment of damages. The first relates to her Honour's use of an actuarial multiplier based on a period of 34 years. The multiplier was applied to future economic loss, future out-of-pocket expenses and future care. In allowing a period of 34 years, it appears that her Honour made a mathematical mistake. She found that the respondent's life expectancy was such that he would live to his early- to mid-60s. On that basis, her Honour considered that it was appropriate to make allowances for the future on the basis that the respondent would live to age 65. Her Honour then used a multiplier derived from the 5 per cent actuarial tables of 865.9. That is a multiplier applicable to 34 years. However, at the time of her Honour's judgment given on 24 March 2005, the respondent was one week from his thirty-second birthday. On that basis, the appropriate multiplier should have been based upon a period of 33 years. The difference is not insignificant, being an amount of approximately $80,000, prior to taking into account any finding of contributory negligence. 86 The Court indicated to the parties during the course of argument that this was a matter that should have been dealt with under the slip rule. Senior counsel for the respondent conceded that the correct multiplier for future economic loss should have been based on 33 years. He indicated, however, that in respect of future care, her Honour's finding of a life expectancy of 65 years should not be applied rigidly and that perhaps the correct approach might be to allow a mid-point between 33 and 34 years for the purposes of selecting the correct multiplier. He indicated that the parties could work that matter out. 87 It is not necessary, therefore, for this Court to make any further finding in relation to this Ground of appeal.

Ground 4: Attendant care 88 The trial judge found that the respondent requires full-time care. Since being discharged from hospital on 31 October 2000, the respondent has been in full-time nursing care at Carrington Nursing Home. Her Honour noted the issue between the parties was as to the suitability of care provided at Carrington. 89 Carrington is an aged-care facility, but has three young residents. Otherwise, 96 of its residents are in high care and only ten can walk. Some of the patients have dementia. 90 Dr Hodgkinson, director of the Brain Injury Rehabilitation Unit at Liverpool Hospital, had overseen the respondent's rehabilitation since the accident up until the trial. Dr Hodgkinson's view was that the respondent needed 24 hour care, so as to provide nursing care and assistance and supervision with recreational activities. She considered that the most appropriate environment for the respondent was individualised care in supported accommodation. 91 Her Honour preferred Dr Hodgkinson's opinion to that of Dr Voss, the rehabilitation expert retained by the appellants. Dr Voss was of the opinion that Carrington provided an appropriate continuing care environment. There is no challenge to her Honour's preference of Dr Hodgkinson's view as to the appropriate ongoing accommodation for the respondent. However, what is in issue is the level of care that is required, and in particular, whether the respondent requires "vigilant care". Her Honour was not persuaded that "a sleep-over carer" was appropriate. Her Honour observed that that type of care only made allowance for a carer to sleep at the respondent's residence and wake once or twice a night. That type of care made no allowance for the respondent being ill, having difficulty sleeping, or requiring more frequent attention during the night. Her Honour was not satisfied that that was sufficient to meet the respondent's reasonable needs. 92 The appellants submitted that this finding is not supported by any of the evidence. 93 Dr Hodgkinson had indicated a preferred regime of the respondent being cared for in his own accommodation by having a 24 hour carer spaced over either three shifts of eight hours or two shifts of 12 hours. In cross-examination, Dr Hodgkinson agreed that the night time shifts could be "passive" shifts, or "sleep-over" shifts. She accepted that, provided that a sleep-over shift involved getting up "perhaps to turn him once or twice a night", then that was the preferred option, as compared to having a full-time carer on a permanent basis, which, apparently, causes problems with "burn-out". 94 Dr Voss considered that if was accepted that the appropriate accommodation was to place the respondent "in his own home", then he would require the constant attendance of a carer. Dr Voss' view was that whilst the respondent needed full-time overnight care, "that need not be vigilant beyond the point of sleeping near the sound of his buzzer and rising once or twice during the night to turn him". 95 The evidence of the cost of such care was given by Ms Danielle Robertson, a director and chief executive officer of Dial an Angel Pty Limited. Dial an Angel is an agency which provides a wide range of care, including care for people with gross disabilities. The agency caters for all types of care, including live-in and live-out care. 96 In the costing of the care required for the respondent, Ms Robertson had costed the night time shift involving a person sleeping over and getting up a couple of times a night as an "active" shift. Ms Robertson agreed that there were such things as "passive" shifts, by which it is apparent was meant "sleep-over" shifts, which was the terminology used by the medical witnesses. 97 Ms Robertson said a "passive" shift would be one where the carer would get up once or twice a night only. She said if any more than that was involved, it would become an "active" shift, in respect of which a higher rate of pay applied. Ms Robertson said that if someone engaged on a "passive" shift was required to get up more than once or twice a night, and if this occurred more than, for example, once a week, then the shift rate would be renegotiated. 98 The respondent contended that in circumstances where Dr Voss was not called to give oral evidence, then no complaint could be made as to her Honour's acceptance of Dr Hodgkinson and Ms Robertson. However, the issue as it relates to the cost of attendant care, does not depend upon her Honour's acceptance of Dr Hodgkinson and Ms Robertson. As I have said, her Honour accepted Dr Hodgkinson's recommendation for supported independent accommodation. Having made that choice, the question was what was appropriate to provide adequate care in such accommodation. 99 The issue on this ground of appeal effectively became distilled to one simple question, namely whether there was evidence to support the need to provide for an overnight shift of either eight or 12 hours at the rate that applies for "vigilant" care or the rate for "passive" care. Ms Robertson had not assessed the respondent's needs. Her evidence therefore was only relevant to the cost of such care. 100 In my opinion, the appellants' submission is correct. There was no evidence that the respondent required "vigilant" care for the night time shift, at least on a constant basis. In that circumstance, there was an error in her Honour's assessment of the extent of care required and the cost of that care, which requires appellate intervention.

Grounds 5 and 6: Hospitalisation/care overlap 101 The appellants next contended that her Honour erred in quantifying the costs of future care, in that she failed to take into account that the respondent would, from time to time, have periods of hospitalisation, at which time the need for 24 hour home care would not be required. Alternatively, the appellants contend that her Honour's finding as to future hospitalisation was not in accordance with the evidence and that she failed to give adequate or sufficient reasons as to the basis of her finding. 102 Her Honour found that the respondent was likely to need two weeks each year in hospital for the treatment of respiratory tract infections up to the age of 45 and four weeks a year thereafter. Her Honour said that both Dr Hodgkinson and Dr Voss agreed that this level of care would be needed. Her Honour noted that the appellants did not contend to the contrary. 103 The appellants now argue, however, that the respondent was "overcompensated" by her Honour's award, in circumstances where her Honour failed to deduct from the cost of ongoing attendant care, a period of two weeks in each year up until the age of 45 and four weeks thereafter in which the respondent would be in hospital and therefore not in need of attendant care. 104 The respondent contended, however, that the appellants failed to cross-examine Ms Robertson to suggest that as a matter of practicality the carers could be suspended for a period of two or four weeks per year, nor was the submission which is now put raised in the submissions of senior counsel who appeared for the appellants at first instance. It was submitted that it is too late to do so now. In addition, the respondent contended that as a result of the failure of this issue to be explored at trial, it could not be assumed, as the Ground of appeal requires, that the hospital care would be required in one block per year. It could arise urgently on a short term basis of two or three days at a time. In those circumstances, there was no cross-examination of Ms Robertson as to whether carers, who might have been engaged for that period, would need to be paid or not. 105 In my opinion, there is merit in the respondent's submission, and in circumstances where this particular matter was not raised before her Honour, I am of the opinion that it should not be raised now. It involves questions of evidence and there is nothing in the transcript which might provide the answer. 106 The appellants contend that if Ground 5 is not allowed, then it still seeks to advance Ground 6. Under this ground, it was submitted that her Honour's finding that the respondent needed two weeks hospitalisation a year up to age 45 and then four weeks a year thereafter, was not supported by the evidence. 107 The evidence relevant to this issue is that of Drs Voss and Hodgkinson. Dr Voss' evidence was that although it was difficult to make a prospective estimation, it was likely that the respondent may require hospitalisation if complications arose relating to the shunt in his brain and further, that severe respiratory tract infections may require hospitalisation of possibly one or two weeks per year, and more so in later life. It is clear from the manner in which Dr Voss expressed himself that the assessment of one or two weeks per annum related to the respiratory tract infections, so that it was possible that additional hospitalisation might be required if complications arose with the shunt. 108 In her evidence in chief, Dr Hodgkinson, who had not referred to the need for future hospitalisation in her reports, gave this evidence: "Q. … Dr Voss thinks that in later life, probably from 45 on, he might need a couple of weeks a year in hospital for those types of infections. What is your opinion about that? A. Well, as best you can see, that is a reasonable assumption." 109 In my opinion, her Honour was entitled to make a finding for the need of two weeks hospital care per annum up until the age of 45. 110 The question arises, however, whether there was evidence upon which her Honour could base a finding of four weeks hospitalisation after the respondent turned 45. It will be recalled that Dr Voss' evidence was that from 45, it was likely that the respondent would need more than two weeks per year. In his written submissions to the trial judge, the respondent specifically put forward the contention that Dr Hodgkinson said the respondent would require hospitalisation of four weeks per year for the balance of the respondent's life expectancy. The appellants did not challenge that submission, as her Honour recorded. It was submitted that, in those circumstances, it was too late for the appellant to challenge the period or rate required. 111 I agree with this submission. A trial judge in a difficult case such as this, who is required to make a number of assessments in respect of different heads of damages, is significantly reliant upon the cases that are advanced by each party. In this case, both parties put forward extensive written submissions, upon which her Honour was entitled to rely without cross-checking every word of evidence herself. In circumstances where the specific submission was made in relation to hospital care, which was not challenged by the appellants, and which is not inconsistent with the medical evidence, I am of the opinion that this Ground ought to be dismissed.

Ground 7: Funds management 112 The respondent was entitled to an award of damages to compensate him for the costs of management by the Protective Commissioner of his award of damages. Her Honour, in a separate judgment, considered whether an amount of $300,000 should be notionally deducted from the award of damages that was to otherwise constitute the fund to be invested by the Protective Commissioner, so as to ascertain the quantum of the award for the cost of funds management. The amount of $300,000 was the likely cost of the house that the respondent would buy once the judgment moneys had been paid. It was argued that if a house was bought for that amount it would not constitute any part of the fund that would be required to be managed by the Protective Commissioner. Her Honour, in accepting the submission made on behalf of the respondent, that the common law does not concern itself with the manner in which a plaintiff is likely to spend an award of damages, refused to make the deduction. She noted that the appellants had not provided her with any authority to the contrary. 113 The appellants accept, as a general principle, that the common law is not concerned with the manner in which a plaintiff expends an award of damages. However, they submit that her Honour's task was to determine, as a question of fact, the likely amount of the judgment that was likely to be subject to funds management as it was the cost of management of that account that was under consideration. They observed that that was the point of principle and was why, for example, past out-of-pocket expenses and the respondent's social security payback liability were deducted from the proposed fund. It had been accepted by the parties at the hearing that the cost of suitable housing for the respondent was in the order of $300,000. 114 The respondent contended, however, that the question whether or not a house would be bought for the respondent was a decision that would have to be made by the Protective Commissioner and that the appellants had not called evidence from the Commissioner. It was submitted that the analogy sought to be drawn by the appellants in relation to out-of-pocket expenses and past social security payments was inappropriate, as both of those items were subject to statutory charges. It was submitted that no error of principle had been demonstrated in the failure to deduct the sum of $300,000 on the amount on which the cost of funds management had been calculated. 115 In his oral submissions on the appeal, senior counsel for the respondent also pointed out a further difficulty with the appellants' suggestion that the amount of $300,000 should be proposed. It was submitted that there was no evidence that, from the Protective Commissioner's perspective, that amount would be quarantined from the value of the estate that the Protective Commissioner had under management. It was pointed out, for example, that there would undoubtedly be ongoing "management" functions, even if a house was purchased. For example, it was submitted that there would be a management function associated with ongoing maintenance of the home, the paying of periodical bills and the like. 116 I agree with the respondent's submissions. In circumstances where the fund that will be paid to the Protective Commissioner for management is the whole of the damages award, and it is undoubted that there will be ongoing costs associated with that part of the "investment" of the fund attributable to the house, I am of the opinion that costs of the management fund should be on the total cost of the award made, subject to the deductions required in respect of past medical expenses and social security payments. 117 It follows from the above that the appellant has been successful in relation to Ground 3, in that her Honour used the wrong multiplier. That is a matter, however, that ought to have been attended to under the slip rule. There is also an error in the quantum of damages that her Honour awarded for attendant care: Ground 4. That will require a reassessment of the quantum of the award for that head of damage. Finally, the appellants have been successful in relation to contributory negligence. However, the respondent has been successful in maintaining the verdict in his favour, and the ground of appeal relating to liability subsumed the significant part of the hearing time, although it was necessary to have an understanding of all liability issues in order to understand the challenge made to her Honour's finding on contributory negligence. The respondent has also been successful in resisting the challenge made under Grounds 5, 6 and 7. In all of the circumstances, I am of the opinion that the appellants should pay 80 per cent of the respondent's costs of the appeal. The parties should bring in short minutes of order reflecting these reasons. 118 Accordingly, I would propose the following orders:

2. The judgment of the trial judge to be varied so as to take account of the assessment of contributory negligence and the variations to the award of damages that are required by the conclusions I have reached on Grounds 3 and 4;

3. The parties to bring in short minutes of order within seven days of the date of this judgment in accordance with the reasons for judgment;

4. The appellants are to pay 80 per cent of the respondent's costs of the appeal. 119 IPP JA: I agree with Beazley JA. 120 BRYSON JA: I agree with Beazley JA. **********

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