Law v Pinkerton and Anor [2002] VSCA 20

5. It was not in dispute that a car being driven by the first defendant, Leon Pinkerton, struck Law in Thompsons Road, Bulleen, when he was close to the nearside front of a taxi which had stopped in the middle of the road and which was being driven by the second defendant, Paul Rodda. Law was seriously injured, suffering a fractured femur and injuries to his right leg, hip and knee. Law had ongoing difficulties associated with his injuries, particularly with respect to his employment. The defendants admitted the accident but denied negligence on their part and alternatively alleged contributory negligence on the part of the plaintiff.

8. After a trial lasting a week the judge put various agreed questions to the jury, and the jury found in answer to the first two questions that the plaintiff had failed to prove negligence on the part of either defendant. Judgment was accordingly entered for the defendants on 9 October.

11. The plaintiff now appeals to this Court on a number of grounds, claiming that the judge erred in his charge to the jury by failing to relate his summary of the evidence to the legal issues to be tried; and that the judge should have directed the jury that the relevant evidence capable of establishing negligence against Pinkerton was (a) the opportunity which he had to observe the plaintiff on the roadway; and (b) the speed of impact being such that the plaintiff was propelled through the air and came to rest some 15 metres away. A further ground claims that the judge misdirected the jury in his statement of the fundamental issue in the case. A ground based on the first defendant's failure to adduce evidence as to the nature and extent of the damage to his vehicle was abandoned during the hearing of the appeal. Leave was granted by the Court to add an additional ground claiming that no reasonable jury, properly instructed, could fail to find that the first defendant's negligence was a cause of the plaintiff's injuries.

14. It is necessary now to return in more detail to what occurred in Thompsons Road, Bulleen on the night of 2 June 1990. At the site of the accident Thompsons Road has two lanes travelling in each direction, and for the purposes of the case the roadway was treated as running in an east-west direction. At the time of the collision, which was approximately 10 p.m., Law and a companion, Adrian Croft, were walking in an easterly direction on the northern kerb of the road, and both defendants' vehicles were travelling in a westerly direction on the southern half of the roadway.

17. According to Law's evidence, he and Croft had been drinking beer with other friends at a primary school on the northern side of the road, (he said he had consumed two or three cans or stubbies and was "tipsy" at the time), and had left the group to buy some more beer. They were seeking a taxi to take them to a bottle shop, and hailed the car driven by Rodda, which was using the lane next to the centre to the roadway and which stopped when hailed by them. Law and Croft came across the road, with Law going around the back of the taxi to the front door on the passenger's side, moving between the taxi and the white line on the road surface separating the two southern lanes of the roadway. Croft spoke to Rodda through the driver's window. Rodda told Croft that the taxi was booked, but that he would radio for another taxi. Law's last recollection before the accident was of touching the door handle of the taxi, before finding himself on the road, having been struck by Pinkerton's car. In cross-examination Law agreed that if Pinkerton's car was proceeding in a normal position in the southern of the two westerly lanes, and if he was against the door of the taxi, then Pinkerton's car could not have hit him.

20. Croft's evidence confirmed the account of the accident given by Law. Croft said that when the taxi pulled up he went to the driver's window and was told the taxi was booked. His evidence was that when Law was hit he heard the sound of the impact, but no sound of brakes until afterwards. Croft estimated that Law was thrown approximately 15 metres by the impact.

23. The taxi driver, Rodda, gave evidence that he was driving in a westerly direction having had a fare booked, when the plaintiff and Croft ran across the road into the path in which he was travelling, forcing him to come to a stop to avoid hitting them. While he was talking to Croft who was at his window on the driver's side, Law moved across the front of his vehicle to come around to the passenger side, and then stumbled into the oncoming car driven by Pinkerton. Rodda said he heard the squeal of tyres and then saw Pinkerton's car hit Law. Rodda also said that Pinkerton's car when he first saw it was not travelling particularly quickly.

26. Lisa Bremner was a passenger in Pinkerton's car at the time of the impact. Ms Bremner said that their car came around a slight bend and down a dip in the road about 40 metres from the scene of the accident, at which time it was travelling in the left lane at about 60 kph. On coming around the bend she saw the taxi in the right-hand lane with its reversing lights on, at which point their vehicle slowed. As their car got closer to the taxi, she observed two people, one standing at the driver's window and one at the passenger side window. As they went past the taxi, the person at the passenger window turned around to his right and stepped back into their lane and the collision occurred. Under cross-examination, Ms Bremner said that upon coming around the bend the first thing she saw was the stationary taxi and the two men. She said that their car slowed to 40-45 kph.

29. Evidence was given that the skid marks from the vehicle of the first defendant were 15 metres long and the majority of them occurred before impact. The speed limit in the area was 60 kph. Pinkerton was unable to give evidence during the trial, he having recently left the country to live for 12 months in South America. But his answers to interrogatories were tendered in which he swore that he first saw the taxi, which was stationary, about 50 metres away. He said Law stepped towards the southern kerb across the path of his vehicle and then appeared to hesitate. He also swore that at the time of the collision Law was facing the southern kerb.

32. The judge, in his charge, gave the jury an explanation of the law of negligence in the following terms -

"Was there negligence on the part of either defendant which was a cause of the plaintiff's injuries? Firstly, what is negligence as mentioned there? I direct you that negligence is the breach of a duty of care owed by one person to another. As a matter of law at the time this accident occurred, both the plaintiff and the defendants owed a duty of care to each other. That duty required them to exercise reasonable care. We are considering in question 1[1] whether either of the defendants was in breach of the duty of care imposed upon him. The law is that on that evening in Thompsons Road the defendants were under a duty to exercise reasonable care in the driving and management, each one of them, of their cars, so that they wouldn't injure the plaintiff. In determining whether or not either of the defendants was in breach of that duty of care, the test is to ask yourselves: did either of the defendants do something which a reasonably prudent driver would not have done in the circumstances as they existed that evening? Or: did either defendant fail to do something which a reasonably prudent driver would have done on that evening? The standard is an objective one, an impersonal one, and you measure the behaviour of each defendant by the standard that you would expect of a reasonable person in the circumstances as they prevailed on that evening. So you ask yourselves did either of the defendants fail to come up to the standard of a reasonably prudent driver or of someone having control of a vehicle on that evening? In other words, has the plaintiff's evidence established on the balance of probabilities that either of the defendants committed a breach of the duty of care that the law imposed upon them? There is nothing very complicated about this concept of the duty of care. It is of general application, and the law imposes on people generally the duty to exercise reasonable care for the safety of other people who might be in the vicinity. Where that duty has not been complied with, well then the law says that that person who had failed to comply with the duty imposed upon him has been negligent."

36. The judge then turned to other issues, and began to discuss the evidence which had been given during the trial. His Honour had finished approximately half of the charge when the hearing was adjourned on Friday 6 October and before his Honour recommenced the charge on Monday 9 October counsel for the plaintiff submitted that the judge should tie the evidence to the issues and the law and made the point that the plaintiff's case was that Pinkerton had the opportunity from a long way back, that is from the bend, to assess an unusual situation which had developed in that there was a man on the road "straddling somewhere near the two lanes and that he ought to approach that scene at a speed that if something unusual happened he could avoid injuring that person". When his Honour resumed the charge, he briefly mentioned to the jury the evidence given by Ms Bremner, but did not otherwise comply with the request just made by the plaintiff's counsel.

39. At 11.30 on Monday morning, 9 October, the jury were given a short break, and on the resumption asked the question, "why is there no facility to distinguish between the two defendants with regard to negligence?" His Honour answered the question in a way which drew no exception from counsel, and then turned to questions of damages. At the end of the charge his Honour reminded the jury of counsel's arguments. In putting the arguments of counsel for the plaintiff as to the negligence of the defendants, his Honour said -

"He then put it to you, well assuming the best case for the defendants, even if you assume - which he says of course that you shouldn't - but even assume that the two boys forced the taxi to stop, even on that scenario that there was negligence on the part of the defendants there, and he submitted to you that when Mr Pinkerton came around the bend where he saw a taxi in the middle of the road with its reverse lights on and two men on the road, a prudent driver would obviously see that something was going on and would act accordingly. He put it to you that well, he must have been going fast enough to throw the plaintiff a considerable distance down the road and even if you accept that the plaintiff stumbled back in to the path of his vehicle, well then Mr Pinkerton should have been assessing the situation as he approached the taxi and these two men and have thought well something might happen here and take appropriate action and approach the scene as to where the accident occurred, approach the taxi with more caution than he did. That was very much how [counsel] put the plaintiff's case against Mr Pinkerton, the first defendant, that in approaching the scene of the accident he failed to approach at a speed whereby he could take appropriate evasive action if one of the people on the road should move into the path of his vehicle."

43. When the charge ended shortly afterwards, the plaintiff's counsel took one exception only, that the plaintiff's case against Pinkerton was made not only on speed but also the fact that he was not keeping a proper lookout because his answers to interrogatories showed that he had Law facing the wrong way at the moment of impact, a fact said to be established by Law's injuries being to his right leg rather than his left. The judge then gave the jury a brief redirection in response to this exception, and no further complaint was thereafter made on behalf of the plaintiff that his Honour's charge had been inadequate.

46. In opening the appellant's case to this Court, Mr Curtain said that the appeal raised a short point, whether the judge had properly discharged his duty to direct the jury to the issues by explaining to them how the law was to be applied to the facts of the case. Counsel vigorously attacked the judge's statement of the law in the first passage quoted above as "motherhood stuff", which gave the jury little or no assistance as to how to apply the law to the facts of the case. The argument was that Pinkerton was approaching an unusual and potentially very dangerous situation, with a stationary car in the middle of the road, at night, with its lights on. On the basis of Ms Bremner's evidence and the answers to interrogatories, Pinkerton either knew or ought to have known, at least 40 metres away from the taxi, of all the relevant circumstances. But, it was said, the judge had given the jury no analysis of how Pinkerton on that particular night might be said to have been negligent. He argued that the judge should have explained the case against each defendant, bearing in mind that in the case of each defendant's particulars of contributory negligence a situation of danger in the circumstances had been expressly acknowledged. Mr Curtain relied on Sir Leo Cussen's great guiding rule[2] and what had been said of it in Alford v. Magee[3] by Dixon, Williams, Webb, Fullagar and Kitto, JJ. as follows -

"And it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are. If the case were a criminal case, and the charge were of larceny, and the only real issue were as to the asportavit, probably no judge would dream of instructing the jury on the general law of larceny. He would simply tell them that if the accused did a particular act, he was guilty of larceny, and that, if he did not do that particular act, he was not guilty of larceny. It may be that the issues in a civil case tend, generally speaking, to be more complex than in a criminal case. But the same principle is applicable, and looking at the matter from a practical point of view, the real issues will generally narrow themselves down to an area readily dealt with in accordance with Sir Leo Cussen's great guiding rule."

See also Bellizia v. Meares[4]; Markovic v. Ford Motor Co. of Australia[5]. Mr Curtain submitted that the charge lacked detail and did not tie the law to the evidence. Furthermore, when the judge discussed negligence, his Honour failed, so it was argued, to distinguish the cases made against the two defendant drivers, notwithstanding that the jury's question was directed specifically to this point.

51. Mr Curtain also submitted that the judge should have said that it was open to the jury to find Pinkerton negligent in breaching his duty of care to the plaintiff by failing to see him earlier and drive at a slower speed, particularly knowing that a man was standing to the left of the taxi in front of him, and by not driving at a speed to enable him to come to a halt if necessary as he reached the taxi. This was a matter, said Mr Curtain, on which the facts bespoke negligence, but the facts should have been laid out to the jury to enable them to see whether Pinkerton had breached his duty to the plaintiff. In Mr Curtain's submission the gist of the case was whether reasonable care in the circumstances required Pinkerton to have slowed down more than he did, or to have been able to come to a stop or cope with any emergency which might arise, and required a particularly careful appraisal in the unusual circumstances then obtaining. Mr Curtain submitted that there should be a retrial on all issues, but accepted that no case of negligence had been made out against the second defendant, Rodda, and that any retrial should only be against the first defendant, Pinkerton.

54. The judge's statement of the law quoted above[6] was, in my view, with respect, not very helpful to the jury. In the first place, contributory negligence consists primarily in failing to take care for one's own safety rather than a breach of a duty of care owed to another[7]. Secondly, the judge was under an obligation to tell the jury what the real issues were, which will, as was said in Markovic[8], usually require the judge to relate the evidence to the issues so that the jury may decide them. In this passage the legal issues were certainly not related to the unusual circumstances of the case in such a way as to give the jury much assistance in performing their task of deciding these issues. I would accept the appellant's argument to this extent at least, that this first passage from the charge lacked detail and did not tie the law to the evidence.

57. But the matter did not rest there, for the judge later set out the arguments made by the plaintiff's counsel, and the way in which the plaintiff's case in negligence was put, in a manner the accuracy of which is not now challenged. In so doing, the second passage quoted from the charge above demonstrates that the jury's attention was clearly drawn to the ways in which the plaintiff's case was put, in terms of the speed at which Pinkerton's car was travelling and his failure to slow down to a speed at which he could take appropriate action if someone moved into his path. Then, in the redirection, the question of failing to keep a proper lookout was also clearly drawn to the jury's attention.

60. Although the fact situation was unusual, it was nonetheless not complex. The facts were largely not in dispute and the issues were reasonably straightforward. It

seems to me that after the judge had set out the arguments made by the plaintiff's counsel the jury cannot really have been in any doubt as to what were the acts and omissions on the part of Pinkerton that were said to be capable of establishing negligence on his part, or that it was open to them to find Pinkerton negligent in any of these respects. In my view, the judge was not obliged in this case expressly to direct the jury that it was open to them to find Pinkerton to have been negligent in any of the ways specifically put forward on the plaintiff's behalf.

64. What has already been said is sufficient to dispose of Mr Curtain's principal argument for the appellant. Ground 4(a) (that the judge misdirected the jury by stating that the fundamental issue with respect to Questions 1, 2 and 4 was "Just what happened at Thompsons Road that evening and why the taxi stopped, how the plaintiff got hit by Mr Pinkerton's vehicle and what happened just before he was hit.") was not separately argued. In any event, the comment was, as the respondent submitted, an incomplete extract from the judge's charge taken out of context. When placed in context it is clear that his Honour was not directing the jury that these were the only issues fundamental to the case.

67. The added ground 4(b), that no reasonable jury properly instructed could fail to find that the first defendant's negligence was a cause of the plaintiff's injury, was mentioned but not vigorously pressed. The evidence allowed a conclusion that Pinkerton reduced speed when the taxi came into his range of vision, again as he approached the taxi and the plaintiff, and that he applied brakes when Law moved suddenly into his path. This ground also was not in my view made good.

75. It would have been advantageous to the appellant, in the circumstances of this case, if the jury had been expressly directed that it was open to them to find negligence on the part of the first respondent, but that that was open was made clear by the charge. The judge was not obliged to go further. It may be that his Honour

could have related the law more directly to the facts, but the jury would have been in no doubt as to the issues that they had to decide. Accordingly, if there was misdirection, of which I am not persuaded, no substantial wrong or miscarriage was thereby occasioned.[9] For these reasons and for those given by the other members of the Court, I, too, would dismiss the appeal.

80. In this well argued appeal I gratefully adopt the statement of facts in the reasons for judgment of Charles, J.A., which I have had the benefit of reading. I agree with his Honour, but shall state my reasons on the main points in my own words.

83. In my opinion, it was not necessary for the judge to direct the jury that the relevant evidence capable of establishing negligence against the first respondent was, first, the opportunity that he had to observe the appellant on the roadway as evidenced by Mrs. Bremner and, secondly, the fact that the speed of impact of the first respondent's vehicle was such that the appellant was propelled through the air and came to rest some 15 metres from the point of impact, thereby suffering considerable injury. Variations of that direction were mentioned in the appellant's written and oral argument, such as an invitation to the jury to find negligence on the basis of that evidence and a direction that it was open to them to do so. Directions in any of the forms mentioned are not, as I understand it, given, at least ordinarily, and certainly were not required here when regard is had to the judge's charge as a whole. That his Honour, by summarising it, left the case made by the appellant's counsel to the jury must have made it clear to the jury that they were entitled to find for the appellant in accordance with the case so made. That case relied on the two items of evidence set out earlier. Moreover, an invitation to find in a certain way would, in my opinion, for obvious reasons be quite impermissible. A direction in either of the other forms, if given, would, because of its suggestive nature, require to be

neutralised by some such statement as that the judge was not suggesting that the jury should so find.

87. The more difficult question is whether, elsewhere than in his summary of counsel's arguments, his Honour should have told the jury in his own words what the issues were and explained to them how the law applied to the facts of the particular case. On consideration in the light of the whole of his Honour's charge, I have concluded that he was not required to do so. It must have been obvious to the jury from his Honour's summary of the respective cases put by counsel what the issues they had to decide were. I do not think that the judge was bound, at any rate in this case, to explain during his directions as to the law how it applied to the facts of the case. It is to be noted that his Honour's directions as to the law themselves asked the jury to consider what a reasonably prudent driver would have done in the circumstances on the evening in question. Moreover in his summary of the case put by counsel for the appellant his Honour again raised the question of what a prudent driver would have done. It was said for the appellant that the case was unusual in that a car was stationary in the outer lane of a carriageway. But, whilst it may be unusual to find a car in such a position, the car's position was simply the source of the particular danger which, as with so many traffic accidents, confronted the first respondent.

[1] The first question was later divided into two by agreement with counsel.

[2] Holford v. Melbourne Tramway and Omnibus Co. Ltd. [1909] VicLawRp 89; [1909] V.L.R. 497 at 526-527.

[3] [1952] HCA 3; (1952) 85 C.L.R. 437 at 466.

[4] [1971] VicRp 78; [1971] V.R. 641 at 644.

[5] [1998] 1 V.R. 235 at 238 per Tadgell, J.A.

[7] Nance v. British Colombia Electric Railway Co. [1951] A.C. 601 at 611; Froom v. Butcher [1975] EWCA Civ 6; [1976] Q.B. 286 at 291.