Consideration
31At the outset, it should be pointed out that the Divisions 1 - 4 and 8 of Part 1A (Negligence) of the Civil Liability Act applied to this accident: s 3B(2)(a), Civil Liability Act. In an unedifying exchange, counsel for the appellant at trial informed the primary judge to the contrary, while counsel for the respondents at trial agreed with her Honour's statement that "the liability sections apply", but said he had forgotten the name of the authority. Neither counsels' statement indicated an adequate knowledge of the legislation whose operation has been central to most common law cases conducted in this State since 2002, let alone provided the assistance the primary judge was entitled to expect from them: cf rule 31(c), New South Wales Barristers' Rules.
32Counsel should also have drawn the primary judge's attention to s 138 of the Motor Accidents Compensation Act 1999, which provides that, except as provided by that section, the common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident (s 138(1)), and, relevantly, that the damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case (s 138(3)) and that the court must state its reasons for determining the particular percentage (s 138(4)). The enacted law of contributory negligence includes s 5R of the Civil Liability Act: Nominal Defendant v Meakes [2012] NSWCA 66; (2012) 60 MVR 380 (at [79]) per Sackville AJA (McColl JA agreeing); see also Basten JA (at [9]).
33Section 5R of the Civil Liability Act provides:
"5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."
34Section 5R(2)(a) reflects the position under the common law as stated by McHugh J in Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 (at [32] - [33]): Smith v Zhang [2012] NSWCA 142; (2012) 60 MVR 525 (at [22]) per Meagher JA (Tobias AJA agreeing). The correct legal question in determining the issue of contributory negligence in accordance with s 5R is "whether a reasonable person in the position of the respondents, i.e. having the knowledge which the respondents had or ought to have had, was negligent": Origin Energy LPG Ltd v BestCare Foods Ltd [2012] NSWCA 407 (at [217]) per Hoeben JA (Macfarlan and Ward JJA agreeing); see also Council of the City of Greater Taree v Wells [2010] NSWCA 147; (2010) 174 LGERA 208 (at [107] - [108]) per Basten JA.
35In Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Reports ¶81-731, I summarised the principles concerning the review of a finding of contributory negligence as follows:
"[44] A finding of contributory negligence is no different to a finding of negligence and may be reviewed on appeal. While an appeal court must pay appropriate deference to the advantages the trial judge enjoyed in deciding whether or not a person was guilty of contributory negligence, it must not shirk its statutory obligation to conduct a rehearing and, where error is found, must substitute its own conclusion on the issue: s 75A(5) Supreme Court Act 1970 (NSW), see Fox v Percy [2003] HCA 22; (2003) 77 ALJR 989 at 993-994, esp at [27], [29] per Gleeson CJ, Gummow and Kirby JJ; Callinan J at 1015-1017 [145] - [148]. As was said in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 552 per Gibbs ACJ, Jacobs and Murphy JJ, '[T]here is ... no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge': see also Fox v Percy at 1005 [87] per McHugh J.
[45] Appellate review of a trial judge's apportionment of liability as between respectively culpable parties, however, is governed by the stringent tests which limit appellate review of discretionary decisions.
[46] In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493 - 494 Gibbs CJ, Mason, Wilson, Brennan and Deane JJ in their joint judgment said: '[a] finding on the issue 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' ... such a finding, if made by a judge, is not lightly reviewed.'
[47] This Court has frequently reminded itself of the necessity to exercise restraint in reviewing a trial judge's decision on apportionment. As Sheller JA (with whom Powell and Heydon JJA agreed) said in Mousa v Marsh [2001] NSWCA 317 at [12]:
It is well established that since a court's apportionment of the degree of liability due to the plaintiff's contributory negligence is 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 all of which involve an individual choice or discretion as to which there may well be differences of opinion by different minds (see British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201), such a finding, if made by a judge, is not lightly reviewed.
[48] To set aside an apportionment of liability it must be shown that the failure to exercise the discretion involved in the apportionment exercise properly was unreasonable or plainly unjust: Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd (2001) 53 NSWLR 626 at 637 [60] per Stein JA with whom Davies A-JA agreed (655 at [189]). Fitzgerald A-JA was of the view that an appeal court was not entitled to interfere 'if the trial judge's apportionment was reasonably open.' (653 at [172]). Rolls Royce was appealed to the High Court as Amaca Pty Ltd v State of New South Wales [2003] HCA 44; (2003) 77 ALJR 1509. As Tobias JA (with whom Sheller and Foster AJA agreed) recently observed, the appeal was allowed on an issue which did not affect the correctness of Stein JA's statement of principle: Rexstraw v Johnson [2003] NSWCA 287."
36I would add to the observations from Ghunaim v Bart (at [48]) a reference to Basten JA's recent statement in Nominal Defendant v Green [2013] NSWCA 219; (2013) 64 MVR 354 (at [48]) recognising the importance of the principle of restraint, but emphasising that its operation may vary depending on the circumstances. As his Honour also said, where an apportionment finding "is outside an appropriate range, this Court, on an appeal governed by s 75A of the Supreme Court Act 1970 (NSW), should usually intervene."
37The appellant concedes that the primary judge did not err in concluding that he had been guilty of contributory negligence but, in essence, argues that the apportionment exercise miscarried, both because of errors in the fact-finding process which underpinned the primary judge's decision and because her Honour failed to apply the correct analytical process to found facts.
38Thus, the appellant contends that the fact-finding process miscarried because her Honour erred in finding that the overall effect of the appellant's evidence was that none of the parked vehicles to his left or right protruded into the through road, that he chose not to slow down as much as possible and that he over-corrected to the right because there were parked cars to his left.
39The second alleged error is that her Honour erred in failing to undertake the comparison required in determining the issue of contributory negligence to determine the degree of departure from the standard of care of the reasonable person of each culpable party, and the relative importance of their acts or omissions in causing the damage.
40The thrust of the complaint in ground 1(a) is that the appellant's evidence was that the trucks on the left obscured his vision. There is no doubt the appellant complained frequently in his evidence about the trucks which were parked on the left as he entered the parking bay. He complained they obscured his vision into the parking bay itself, meant that he had to "come across to the right hand side a bit more" and "force[d] [him] out a bit further". He also said that the semi-trailers on the left hand side were "straddling the white line that goes into the parking bay", were "out on the lane as well" and "pretty much took most of the roadway going in there". However when read in context, in my view, the overall effect of it, as the primary judge effectively held, was that those trucks were straddling the line, rather than protruding into the through road.
41In any event, the exercise in which the primary judge had to engage was to determine the relative culpability of the appellant and the second respondent. The drivers/owners of the trucks on the left were not parties to the proceedings - their culpability for the accident, if any, was not in issue. Insofar as the second respondent is concerned, the appellant said that his vehicle did not protrude from the area where it was parked into the lane in which he was driving. This evidence accords with the second respondent's evidence that after he parked his semi-trailer on the right hand side, he got out of the cabin, walked around it to make sure it was in the right position and "clear enough to go through", then went to bed. He was not cross-examined to suggest that his vehicle was parked in the through road.
42The primary judge's finding that the appellant chose not to slow down as much as possible was consistent with the evidence. The appellant said that he tried to slow his vehicle down "without making much noise because there was people sleeping in their trucks". He tried to bring the speed down without having to "screech [his] brakes or lock it up", the latter being a reference to the danger of the brakes locking up and the trailer jack-knifing. When he saw the respondents' semi-trailer, he put the brakes on "even harder". The appellant was travelling at about 70 kilometres per hour when he struck the rear of the respondents' vehicle, a speed which was manifestly excessive in an area where it could be expected that there would be parked vehicles on either side of the through road, and through which a large vehicle such as the appellant's would have to navigate carefully.
43Finally I turn to the challenge to her Honour's finding that the appellant over-corrected to the right. I have already set out the relevant evidence concerning the effect on the appellant's steering of the vehicles on the left. On the unchallenged evidence, the respondents' vehicle while in the chevroned area was not protruding into the through road. It was the trucks on his left which made the appellant move to his right. It is apparent that he moved too far to the right, that is to say, off the through road, because he collided with the rear of the respondents' vehicle. Whether it is described as an over-correction, or steering onto the chevroned area, it led to the appellant travelling at high speed on an area not indicated for travel, and, failing to see the respondents' vehicle in sufficient time to stop.
44I turn then to the appellant's contention that the primary judge erred in failing correctly to compare the liability of the appellant and the respondents. The appellant does not challenge her Honour's reference in this context to Podrebersek. While s 5R of the Civil Liability Act required the primary judge to apply ss 5B - 5E of the same Act in determining whether the appellant had been guilty of contributory negligence, the question of how the apportionment exercise is to be undertaken requires the court to determine what is just and equitable in the circumstances of the case, as was the position when Podrebersek was decided.
45The primary judge analysed Mr Collins' breach of his duty of care immediately prior to considering the issue of contributory negligence. In that passage of her reasons her Honour referred to Mr Collins' concession that there was a real risk in parking on the chevroned area, that the purpose of that area was to warn people not to park there and that as the through road swung slightly to the left there was some risk of semi-trailers going a bit wider than the path of the through road so that parking there was a dangerous thing to do. Her Honour then turned to the issue of apportionment and the appellant's culpability in the circumstances. In that context her Honour concluded that the appellant's driving was the "primary cause of the accident". Her Honour then summarised the matters to which she had already referred in making findings earlier in her reasons, namely the fact that the appellant was distracted as he approached the fork in the road and drove into the truck parking bay by mistake, even so did not slow down as much as he could have in the circumstances and then steered to the right onto the marked chevron area where the second respondent had parked.
46In the light of those findings, it was, in my view, inevitable that the appellant's conduct would be found to be the primary cause of the accident. It cannot, in my view, be said that the primary judge's determination, in those circumstances, that the appellant's contributory negligence should be assessed at 66 percent was "unreasonable or plainly unjust", or outside an appropriate range.
47The complaint in the notice of appeal that the primary judge erred in law when she failed to give reasons, or adequate reasons, for making the contributory negligence findings was not supported by more than a bare assertion of that proposition in the written submissions. As I have said, s 138(4) of the Motor Accidents Compensation Act requires the court to state its reasons for determining the particular percentage by which the damages recoverable in respect of the motor accident are to be reduced. I do not understand that provision to impose any greater obligation upon the primary judge than to give reasons which explain why a point critical to the contest between the parties is resolved, do justice to the issues posed by the parties' cases and are adequate for the exercise of the facility of appeal: see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (at [56] - [59]) per McColl JA (Ipp JA and Bryson AJA agreeing). In my view the primary judge's apportionment reasons complied with that obligation.
48I would dismiss the appeal with costs.
49BASTEN JA: I agree that the appeal in this matter must be dismissed with costs, for the reasons given by McColl JA and those which follow.
50There are two significant factors which bear on the responsibility of the appellant, which were not adequately emphasised below. The first is that the appellant's mistake in driving onto the side road was not the result of a momentary lapse in concentration. The appellant must have missed a "REST AREA 2km" sign, a "REST AREA 500m ON LEFT" sign, four arrows on the roadway indicating that the left lane merged right and a "Form 1 lane" sign shortly before the entry to the rest area. Assuming that the appellant was travelling at a steady 90kmh, as he was when he entered the rest area slip road, his failure to concentrate on the roadway must have extended over a period in excess of one minute.
51Secondly, his evidence indicated that when he realised his mistake he had an opportunity to return to the main highway. While he may not have been negligent in keeping to the slip road, the fact that he still had a choice indicates that he had a reasonable distance to slow down before entering the rest area, which he knew he was approaching. (Although the submissions made much of the point that he did not have time to "stop", it was not necessary for him to stop.)
52The other issue which received little attention either at the trial or in this Court, was the precise characterisation of the respondent's negligence. No doubt Mr Collins should not have parked where he did. However, the real risk associated with his conduct arose from the presence of trucks parked against the curb on the left hand side of the slip road. It was those trucks which caused the appellant to deviate to his right and collide with the respondent's vehicle. It was accepted that Mr Collins walked around his vehicle after stopping to see that it was safe. He did not say there were any vehicles parked on the left hand side of the slip road at that time, nor was he asked in cross-examination whether there were trucks on the other side of the road. On any view, it was the trucks on the left hand side of the road that were as much to blame as Mr Collins. If they were not there when he parked his vehicle and if he should not reasonably have expected later arrivals to park where they did, his conduct would not have warranted a significant level of contributory negligence. Because the appellant could not prove those two elements as against the respondents, he could not establish a significant level of negligence on the part of the respondents.
53In these circumstances, it is apparent that the trial judge's attribution of 34% of the responsibility to the respondents was not only within a legitimate range, but was at the high end of the range. On the known facts, the appeal was misconceived.
54MACFARLAN JA: I agree with McColl JA.