Janette & Nicholas Mobbs v Cosmo Joel Kain by his tutor Shirlee Kain
Judgment
1 GILES JA: I have had the considerable advantage of reading the reasons of McColl JA in draft. I agree generally with her Honour's reasons, but with a qualification and different path to the orders she proposes. With the benefit of her Honour's reasons, I briefly explain that path.
2 The trial judge did not find a particular speed at which, in the exercise of reasonable care, the second appellant should have been travelling when passing the bus. He found at [69] that the second appellant drove at a speed which was excessive in the circumstances. By this I understand him to have meant the speed to which he had referred earlier in that paragraph as "a speed which would have permitted the second defendant to stop if the plaintiff had emerged from behind the bus in the way he did".
3 There is a problem with a finding so expressed. It is self-fulfilling as to breach of duty - because there was an accident, the speed was too great. More important, it does not fit the facts as found. The respondent collided with the side of the second appellant's motor vehicle, and this occurred although the second appellant was keeping a proper lookout. A speed which would have permitted the second appellant to stop if the respondent emerged had no causal relationship with the occurrence of the accident.
4 In any event, as McColl JA explains, it is not the law that a driver must drive at such speed as to be able to avoid any risk of an accident if a pedestrian suddenly emerges, nor was this a case in which the possibility that a child might emerge from in front of the bus meant that the second appellant had to slow down to such speed that he could in any circumstances stop and avoid an accident. As her Honour observes, the reasonable care required by the trial judge would mean absolute or strict liability rather than taking reasonable care, and involved looking backward to identify what would have avoided the accident. Hence breach of duty as found by the trial judge cannot stand.
5 On the basis on which the trial judge came to his decision, whether there was causation from failing to drive at a particular speed below 40 kilometres per hour did not arise. The measure of a reasonable speed taken by his Honour was not a particular speed, or a speed related to 40 kilometres per hour. The measure taken was self-fulfilling also as to causation: the breach of duty as found necessarily brought causation. That no doubt explains why his Honour did not address causation beyond saying at [70], using passages cited from Stocks v Baldwin (1996) 24 MVR 416, that if the second appellant had been driving more slowly he could have stopped in time and could have avoided "striking the plaintiff" (although it was not a case of striking the respondent). That, indeed, points to the error of looking backward to identify what would have avoided the accident.
6 The second appellant drove at 40 kilometres per hour. The respondent submitted on appeal that the exercise of reasonable care required the second appellant to drive below 40 kilometres per hour, although not necessarily at such speed that he could stop if the respondent emerged from behind the bus in the way he did. This raised the related questions of what speed, measured not as the speed which would have avoided the accident, and whether that speed would have avoided the accident.
7 The qualification to my general agreement with the reasons of McColl JA is that I refrain from deciding that the exercise of reasonable care did not require that the second appellant drive at less than 40 kilometres an hour. So far as her Honour considers that the legislation had prescribed 40 kilometres per hour as a speed limit and it was necessary to find matters which took the case outside that as a reasonable speed, I respectfully depart from her. In my view, it is inappropriate to start with a speed limit and look for matters calling for a lesser speed. The prescribed speed limit was a maximum, not the measure of a reasonable speed, and in the relatively quiet suburban street and with no passengers visible having alighted from the school bus a reasonable speed could have been less than 40 kilometres per hour.
8 What lesser speed was not decided by the trial judge, other than in the manner I have indicated, or urged with particularity on appeal. That may well have been because of the causation difficulty once a speed was nominated. For the reasons that follow, in the manner the accident occurred any breach of duty in failing to drive at a particular speed less than 40 kilometres per hour was not shown to have caused the respondent's injury.
9 To repeat, the respondent collided with the side of the second appellant's motor vehicle, and the second appellant was keeping a proper lookout. Stopping from a speed did not matter in the manner the accident occurred. As McColl JA has noted, the respondent effectively abandoned reliance on Mr Johnson's calculations. If the motor vehicle was there, the respondent would have suffered his injury whether the motor vehicle was travelling at the time at (say) 20 kilometres per hour or at 40 kilometres per hour. Hence the respondent argued that, had the second appellant slowed below 40 kilometres per hour before reaching and while passing the bus, his motor vehicle would not have been where it was at the time the respondent ran out, and so the respondent would not have collided with the motor vehicle and been injured.
10 In my opinion, causation is not made out in this way. It is not enough that, had the second appellant driven more slowly, his motor vehicle would not have been there for the respondent to collide with its side.
11 In March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 the High Court rejected a "but for" test as the exclusive test of factual causation. As was said by Mason CJ and Deane and Toohey JJ in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 412-3 -
"In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense [ Fitzgerald v Penn (1954), 91 CLR 268, at pp 277-278 , per Dixon CJ, Fullagar and Kitto JJ; March v Stramare (E & MH) Pty Ltd (1991), 171 CLR 506, at p 515, per Mason CJ; pp 522-523, per Deane J]. In resolving that question, the 'but for' test, applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude [ March v Stramare (E & MH) Pty Ltd ]."
12 The difficulties in the notion of common sense causation have been recognised, see Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 at [96]-[97] per Gummow, Hayne and Heydon JJ and the observation in ACQ Pty Ltd v Cook [2009] HCA 28; (2009) 83 ALJR 986 at [27] (French CJ and Gummow, Heydon, Crennan and Bell JJ) that "[n]ot every lawyer has found the analysis of causation in March v Stramare helpful". The entry of policy considerations does not make causation into a question of whether the defendant ought to be held liable to compensate for the injury, see Travel Compensation Fund v Tambree [2005] HCA 69; (2005) 224 CLR 267 at 643 per Gummow and Hayne JJ (but note s 5D of the Civil Liability Act 2002). It remains, however, that "but for" causation may not suffice.
13 The well-known illustration given by Lord Hoffmann in Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 at 213, although given in a different context, illustrates where "but for" causation falls down -
"A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee."
14 His Lordship considered that the doctor was not liable. He put it in the terms that "[t]he injury has not been caused by the doctor's bad advice because it would have occurred even if the advice had been correct". Since the climber would not have gone on the expedition if the doctor had given good advice, Lord Hoffmann meant that the "but for" of not going on the expedition if the doctor's advice had been correct was insufficient, so that the occurrence of the injury was not causally related to the doctor's bad advice.
15 It is well recognised that answers to questions of causation may differ according to the purpose for which the question is asked. The question is asked in the present case for the purpose of attributing legal responsibility for the injury to the respondent, according to the law of negligence whereby the risk against which the second appellant was obliged to take care by driving at a reasonable speed was the risk that his motor vehicle would run into a person emerging from in front of the bus. The mountaineering illustration given by Lord Hoffmann can also be put in terms that the risk against which the doctor was obliged properly to examine the knee was the risk of continued injury to, or injury by reason of unfitness of, the knee. Had the climber's knee given way on the expedition, causing injury, there may have been causation. The risk of the climber being swept away by an avalanche, because he went on the expedition, was not the doctor's concern. The risk of a pedestrian running into the side of a motor vehicle, because the motor vehicle is there, is ordinarily not the driver's concern.
16 To similar effect is Windeyer J in Faulkner v Keffalinos (1971) 45 ALJR 80. The plaintiff was injured in a motor vehicle accident, and before trial was injured in a second motor vehicle accident which would independently have been incapacitating. His Honour said at 86 -
"The consequences that flow from the second accident cannot I think be regarded as caused, in any relevant sense, by the defendants' tort. I realise that philosophers and casuists may see these as indirect consequences. But for the first accident, the respondent might still have been employed by the appellants, and therefore not where he was when the second accident happened: but lawyers must eschew this kind of "but for" or sine quo non reasoning about cause and consequence".
17 The Full Federal Court (Tamberlin, Mansfield and Allsop JJ) in Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256; (2005) 148 FCR 68 was concerned with damage to a coal loader when a bulk carrier struck a bulk coal berth at the point where the loader happened to be parked. It was alleged that the owner of the loader had been contributorily negligent in parking it where it was. Upholding the trial judge (Hely J), the Full Court considered that there was no causal relationship between the alleged negligence and the damage to the loader because (in the trial judge's encapsulation, (2004) 140 FCR 445 at [479]) the circumstances in which the carrier collided with the berth "were outside the class of risk against which a sound strategy for loader placement is designed to afford protection". Although the loader would not have been damaged had it been parked elsewhere, "in the circumstances of this case that is entirely fortuitous" (Hely J at [498]).
18 The passages from the trial judge's reasons set out by the Full Court at [223] included an example from Trindade and Cane, The Law of Torts in Australia, 3rd ed. (1999) at 565 -
"In Jones v Livox Quarries [1952] 2 QB 608] Denning LJ said [at 616] that the negligence of the plaintiff in riding on the tow-bar of a vehicle would be a cause of injury to P whether P was thrown off the tow-bar or crushed when another vehicle collided with it. But there would be no (attributive) causal link between P's injuries and P's negligence if P was shot by a negligent sportsman, and the bullet would not have hit P if P had been in the cab rather than on the tow-bar."
19 The Full Court observed at [230] that the relationship of the conduct to the nature of the rule is fundamental to causation, referring to the High Court authority and also to Glanville Williams, Joint Torts and Contributory Negligence, (1951) at 365-7. There the learned author said that the (former) defence of contributory negligence only avails if the damage was contributed to by that feature of the plaintiff's conduct that is regarded as negligent, and continued -
"Another way of putting this rule is to say that the plaintiff's failure to exercise reasonable care for his own safety does not raise the defence unless his injury results from the particular risk to which his conduct has exposed him. The rule has received less attention in England than in America, where it was settled as a result of the Connecticut case of Smithwick v Hall & Upson Co (1890) [59 Conn 26, 21 Atl 924, 12 LRA 279, 21 Am St Rep 104], There the plaintiff, a workman employed by the defendant, had been instructed not to stand on a certain platform because of the absence of a guard rail. He nevertheless used the platform, and while he was there part of the wall above him, which through the negligence of the defendant was in bad repair, fell on him. It was held that although the workman was guilty of negligence in using the unguarded platform, he was not for that reason barred from recovering, because the injury had no connection with the lack of a guard. The reason why it was negligent to work on the unprotected platform was the risk that the plaintiff might fall from it, not the risk that bricks might fall upon him from above. The negligent act of using the platform did not put the plaintiff beyond the protection of the law as regards an injury that had nothing to do with the negligent quality of his act.
A more frequent illustration as applied to original negligence would be as follows. D is driving a vehicle without keeping a proper lookout. P, driving negligently, collides with him. The facts are such that even if D had been keeping a proper lookout he could not have avoided P, and the accident would have happened just the same. Here D's driving the vehicle is a cause of the accident, for had he not been at that spot at that time the accident would not have happened. But D's negligent failure to keep a proper look-out cannot be assigned as a cause of the accident. Therefore there is no negligence on the part of D causing the accident and an action by P against D must fail, whether before or after the Contributory Negligence Act".
20 Other illustrations were given. The illustration as applied to original negligence, while not identical to the present case, is pertinent. D being at the spot at the time was not in law a cause of the accident. Even if the second appellant had been driving more slowly, the respondent would have collided with the side of his motor vehicle. Driving at 40 kilometres per hour was a "but for" cause, whereby the second appellant's motor vehicle was where it was. But any negligence in driving at an excessive speed "cannot be assigned as a cause of the accident".
21 One may postulate that the second appellant had driven at an unsafe speed fifteen minutes earlier, or had driven contrary to a red light at an intersection a few kilometres before coming up to the bus, and that his motor vehicle would not have been where it was but for the failure to drive reasonably. I do not think it could be suggested that there would be causation in law. Indeed, the second appellant's motor vehicle would not have been where it was had he sped past the bus at 100 kilometres per hour: cf Draxton v Katzmarck (1938) 280 NW 288 (Minn), cited in Hart and Honoré, Causation in the Law, 2nd ed. (1985) at 122 in considering the American courts' rejection of causation where the accident would not have happened but for earlier speeding. So in the present case, the fact that the second appellant's motor vehicle would not have been where it was at the time the respondent ran out, had he slowed to below 40 kilometres per hour before reaching and while passing the bus did not, in the present case, make out causation in law.
22 I agree with the orders proposed by McColl JA.
23 McCOLL JA: The respondent, Cosmo Joel Kain (then aged 10), was injured on 5 April 2001, when he alighted from, and crossed the road in front of, a stationary school bus and was struck by a motor vehicle owned by the first appellant, Janette Mobbs, and driven by her son, the second appellant, Nicholas Mobbs.
24 The respondent's mother, Shirley Kain, brought proceedings as his tutor against the first and second appellants as the owner and driver of the motor vehicle, and also against the owner and operator of the school bus and its driver.
25 The matter was heard by Harrison J on the issue of liability alone. His Honour found that the appellants were negligent, on the basis that at the time of the accident the second appellant was travelling at an excessive speed in the circumstances. His Honour apportioned 15 per cent contributory negligence to the respondent. He dismissed the respondent's claim against the owner and operator of the school bus and its driver: Kain v Mobbs [2008] NSWSC 383. There is no appeal from that part of the decision.
26 The appellants originally filed an appeal as of right, but realised that as Harrison J did not make final orders, leave to appeal was required. The respondent did not oppose leave being granted.
27 The appellants challenge the primary judge's findings on liability. In the alternative, they argue that the primary judge erred in apportioning only 15 per cent contributory negligence to the respondent.