Lu v Transport Accident Commission [2003] VSCA 195

10. The sole evidence in the case was that of the appellant, whose evidence was given through a Chinese interpreter. He said that on 16th January 1998 he intended to see a surgeon in relation to injuries to his right arm sustained in 1996. The surgeon had rooms near the St Albans Shopping Centre. Shortly before 4 p.m. the appellant was driving north in St Albans Road. The weather was very good and he was alone in his vehicle. He said that there were two lanes available for traffic going north and that he was driving in the left lane. He noticed a truck in the right lane, which came alongside and then began to turn in front of him. It was a medium sized, silver/white truck with an enclosed back. It cut into the left lane close to the appellant's vehicle. The plaintiff turned his wheel to the left and then heard a big bang. His next recollection was at the hospital.

13. In cross-examination it was put to the appellant that there were not in fact two northbound lanes. He maintained his position but was unclear whether the two lanes were divided by a line and, if so, whether that line was broken. He said that he did not brake when the truck came in front of him because he was frightened and tried to avoid it. I shall refer to this evidence again later. He was cross-examined as to credit and in particular as to an ambulance report which contained information that could only have come from the appellant and was inconsistent with his evidence that he was unconscious and did not answer any of the ambulance officers' questions.

16. The driver of the truck being unidentified, the jury were asked the following questions:

"1. Q. Immediately before the plaintiff's vehicle left the road, and collided with a tree, was there another vehicle in its close vicinity? A. Yes. 2. Q. If yes to question 1, was there any negligence on the part of the driver of the other vehicle which was a cause of the plaintiff's vehicle leaving the road and colliding with a tree? A. Yes. 3. Q. If yes to question 1, was there contributory negligence on the part of the plaintiff which was a cause of his injury? A. Yes. 4. Q. By what percentage is it just and equitable that the plaintiff's total damages should be reduced having regard to his own share in the responsibility for his injury? A. The plaintiff 75 per cent. The driver of the other vehicle 25 per cent."

20. The grounds of appeal as argued raise two questions only: first, whether it was open to the jury to find any contributory negligence on the part of the appellant; and, secondly, if so, whether it was open to them to assess his share of responsibility for his injury at 75%.

23. Mr Fox submitted that the jury's answers to questions 1 and 2 showed that they must have accepted that the truck overtook the appellant's vehicle and "cut in" on it negligently. The onus was on the respondent to establish contributory negligence and it had failed to do so. The appellant was confronted with an emergency in which perfect judgment was not required.[1] It was, in any event, a reasonable response to steer clear of the danger. If the appellant had applied his brakes, he might have been struck in the rear by a following vehicle. Accordingly, the evidence did not sustain the jury's answer to question 3.

26. Alternatively, counsel submitted, if it was open to the jury to find that the appellant was contributorily negligent, his departure from the requisite standard of care was to be judged in the setting of an emergency. The jury's task was to compare the appellant's and the truck driver's degree of departure from the standard of care of a reasonable person.[2] The truck driver departed from that standard of care, so the submission proceeded, to a far greater degree than did the appellant. He had for no apparent reason cut dangerously across the appellant's path and the appellant, driving normally and prudently to that point, had responded to the emergency thus created.

29. Mr Ruskin joined issue with those submissions. He submitted that there was ample evidence to support the jury's answer to question 3: the appellant had not been driving normally and prudently; he was not aware of the movement of traffic in the opposite direction or of any reason why the truck cut in; he was unsure whether the two north-bound lanes were divided by a white line, broken or not; he admitted that he did not pay attention[3] to the distance between the truck and his vehicle prior to swerving; and he was unsure how far the truck turned in towards his vehicle.

32. So far as the attack on the apportionment was concerned, counsel reminded us of the caution that an appellate court should exhibit before it intervenes. There is much authority to that effect. It is sufficient to refer to the following passage in the judgment of Gibbs, C.J., Mason, Wilson, Brennan and Deane, JJ. in Podrebersek v. Australian Iron & Steel Pty. Ltd.[4]. At the same time I shall set out another passage, two paragraphs later in that judgment[5], that is relevant to Mr Fox's submissions about the comparison to be made. The two passages read:

"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 p 201. Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury: Zoukra v. Lowenstern [1958] VicRp 94; (1958) VR 594.

...

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, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 C.L.R. 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) V.R. 208, at p 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."

36. It was clearly open to the jury, counsel submitted, to find that the appellant should have braked, slowed down, allowed the truck access and made no more than a modest adjustment to his position and speed on the roadway. It was to be borne in mind that some of the appellant's evidence appeared to be reconstruction. In examination in chief, for example, he said that the truck was "only a little bit" ahead of him but, in cross-examination, he said that "half the vehicle" moved into the left lane. Unhelpfully to his case, it was only then that he realized that he was in danger.

39. In my opinion it was open to the jury to find that the appellant was contributorily negligent. It is true that it was for the respondent to prove contributory negligence and to lay an appropriate foundation in the evidence, but the jury were entitled to conclude from the appellant's own evidence that he was not in as much danger as he thought and that he had acted inappropriately. He responded to an everyday event that was less than a dire emergency in a fashion very different from that of an ordinary prudent driver. Instead of applying his brakes, he swerved off the road into a tree that he had not seen.

42. The appellant was given an opportunity in cross-examination to say that he did not brake because there was a vehicle behind him, but he did not take that opportunity. He was asked whether he touched his brakes at all when the truck came in front of him. He answered, "No." He was asked why not. He answered, "Because once the vehicle get [sic] close, I was frightened. I tried to avoid it." The cross-examiner was not required to go further and to suggest an explanation that the appellant had not volunteered.

45. There are two difficulties about Mr Fox's submissions regarding apportionment. So far as departure from the standard of care is concerned, there was only meagre evidence that the truck driver was in fact negligent but there was abundant evidence that the appellant, who was already inattentive, panicked and overreacted. So far as the second limb of the comparison required by Podrebersek[6] is concerned, it was open to the jury to consider that the appellant's conduct was relatively far more important than the truck driver's. The driver frightened the appellant. The appellant swerved and crashed his car.

48. Mr Ruskin also submitted that it was significant that counsel for the appellant had not sought leave to move non obstante on the defence of contributory negligence.[7] In Tan v. General Motors Holden Ltd.[8] Kaye, J., with whom Murphy and Brooking, JJ. agreed, said that a similar omission may have been an indication that counsel for the plaintiff, in the discharge of his professional duty, considered that it

was open to the jury to find that there was contributory negligence on the part of his client. Although I have thought a good deal about it, I express no opinion on this point because it has not influenced my conclusion. I would dismiss the appeal for the reasons I have already expressed.

53. I agree with Callaway, J.A. that the appeal should be dismissed for the reasons stated by his Honour.

[1] See, for example, Sungravure Pty. Ltd. v. Meani [1964] HCA 16; (1964) 110 C.L.R. 24 at 37 per Windeyer, J. and Leishman v. Thomas (1957) 75 W.N.(N.S.W.) 173 at 175 per Street, C.J.

[2] Counsel referred to Liftronic Pty. Ltd. v. Unver (2001) 179 A.L.R. 321 at [28] per McHugh, J.

[3] The interpreter twice represented the appellant as saying, "I did not pay attention." I do not attach much importance to that. It is more than likely that there was a shade of difference between the Chinese original and the translation.

[4] [1985] HCA 34; (1985) 59 A.L.R. 529 at 532.

[7] County Court Act 1958, s.70(2) and (3).

[8] Unreported, Full Court, 22nd March 1990 at 8.