Contributory Negligence
113I should say at the outset of considering the argument concerning contributory negligence that the Appellant dealt with contributory negligence, in both the written submissions and the oral submissions, in the briefest fashion. Mr Rewell said in oral submissions that contributory negligence was "a very minor part of this appeal" . However, submissions were made concerning it, and so they must be dealt with.
114Once it is accepted that the Respondent's accident was caused by an unidentified motor vehicle, it is a "motor accident" within the meaning of s 3 Motor Accidents Compensation Act 1999 (" MAC Act "). Section 138(1) MAC Act provides:
"The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section."
115The only difference to the common law and enacted law that is applicable in the present case arises under s 138(2)(d) MAC Act :
"(2) A finding of contributory negligence must be made in the following cases:
...
(d) where the injured person or the deceased person was, at the time of the motor accident, not wearing a protective helmet when required by law to do so."
116Sections 138(3) and (4) MAC Act provide:
"(3) 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.
(4) The court must state its reasons for determining the particular percentage."
117The principles in accordance with which a plaintiff's damages are reduced by reason of the plaintiff's contributory negligence, under the relevant enacted law as to contributory negligence (the Law Reform (Miscellaneous Provisions) Act 1965 )) were stated by five members of the High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494:
"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."
118These principles were reiterated by Hayne J (with whom Gaudron, McHugh, Gummow and Kirby JJ agreed) in Wynbergen v Hoyts Corporation Pty Ltd [1995] HCA 52; (1997) 72 ALJR 65 at 68.
The Judge's Decision on Contributory Negligence
119In the present case the Respondent was not wearing a helmet at the time of the accident, as he was required to do, and hence it was essential for a finding of contributory negligence to be made. However, the judge found (and it is not challenged):
"... any damage that flows from not wearing a helmet, is miniscule as I will refer to later when I deal with the question of the head injury and did not attract a finding by the MAS assessor of anywhere near a matter that would attract general damages on its own. The economic loss is principally attributed to the back injury, the need for care is attributed to the back injury, so there is little damage that flows from the failure to wear a helmet."
120The type of carelessness for a plaintiff's own interests that is involved in contributory negligence is carelessness concerning the type of risk that in fact was a cause of the particular damage that the plaintiff has sustained. If a plaintiff has been careless concerning some matter, such as his or her economic interests, but that carelessness has not actually caused him or her damage, it is irrelevant to any assessment of contributory negligence: Monie v Commonwealth of Australia [2007] NSWCA 230 at [99]. Thus, even though s 138(2)(d) required that a finding of contributory negligence be made, the judge's view was that the evidence was not such as to require the damages to be reduced significantly by reason of the failure to wear a helmet. It was by reason of the Respondent's failure to wear a helmet that the judge reduced to damages by 5%.
121The judge continued at 14-15 of his judgment:
"As to the significant degree of intoxication, if there is any evidence to indicate the plaintiff should have been aware of the approach of the vehicle earlier than what he was, or could have responded in any other way than being forced from the roadway by the contact with the motor vehicle, then there would be a very strong case for a substantial finding of contributory negligence against the plaintiff. The difficulty for the defendant in this area is that the defendant has the onus of proving contributory negligence and that that contributory negligence is causative of the plaintiff's injuries. There is no evidence on the facts of the case as I find it, that would support the defendant's contention. The only matter being the question of failing to wear a helmet and I am of the view that the plaintiff's damages should be reduced by five per cent because of the limited affect that has on the damages and that I propose to do.
Principles for Appellate Review of Apportionment Decisions
122Concerning the principles for appellate review of first instance decisions on the amount of apportionment there should be for contributory negligence, I venture to reiterate the principles I collected (with the agreement of Beazley JA and Pearlman AJA) in Manly Council v Byrne [2004] NSWCA 123 at [103]-[105]:
"103 In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 532 Gibbs CJ, Mason, Wilson, Brennan and Deane JJ said:
'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.'
In Phillis and Another v Daly (1988) 15 NSWLR 65 at 78 McHugh JA said:
'Determining the apportionment of responsibility for damage is a task upon which minds notoriously differ. Appellate courts are reluctant to interfere with an an assessment of responsibility unless the judge or jury has acted upon a wrong principle or the apportionment is manifestly erroneous.'
See also at 75 per Mahoney JA.
104 In Australian Breeders Co-operative Society Ltd v Jones and Others (1997) 150 ALR 488 at 546-7 Wilcox and Lindgren JJ say:
'The law reports contain many warnings about appellate courts interfering with determinations of trial judges regarding apportionment of culpability. Perhaps the leading statement on the subject is that of Lord Wright in British Fame (Owners) v MacGregor (Owners) [1943] AC 197, a case concerning relative culpability for a collision at sea. At 201 his Lordship said:
"... it would require a very strong case to justify any such review of or interference with this matter of apportionment where the same view is taken of the law and the facts. It is a question of the degree of fault, depending on a trained and expert judgment considering all the circumstances, and it is different in essence from a mere finding of fact in the ordinary sense. It 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. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. It is for that reason, I think, that an appellate court has been warned against interfering, save in very exceptional circumstances, with the judge's apportionment. The accepted rule was clearly stated by Lord Buckmaster, with the assent of the other Lords, in Kitano Maru (Owners) v Otranto (Owners) (The "Otranto'') [1931] AC 194 at 204, in these words: 'Upon the question of altering the share of responsibility each has to take, this is primarily a matter for the judge at the trial, and unless there is some error in law or in fact in his judgment it ought not to be disturbed'."
That statement has been adopted in the High Court of Australia: see Pennington v Norris (1956) 96 CLR 10 at 16 and Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532. In Macquarie Pathology Services Pty Ltd v Sullivan (CA (NSW), 28 March 1995, unreported) Kirby P observed that "[a]n apportionment will only be set aside and redetermined if the trial judge has either obviously proceeded on a misunderstanding of the evidence or, alternatively, has clearly assessed the evidence incorrectly in evaluating the parties' comparative blameworthiness''. Clarke JA said:
'It is well established that a trial judge is invested with a very wide discretion in making his apportionment and that he must be allowed much latitude in arriving at a judgment as to what is just and equitable. In these circumstances the onus cast on an appellant who seeks to disturb an apportionment is a high one ... Obviously where one party can point to an error of fact or of law on the part of the trial judge it may not be difficult to argue that his or her determination as to what is just and equitable may be flawed.'
105 For more recent reiterations of an appellate court's reticence in altering a trial judge's assessment of proportions of contributory negligence see Tabvena v Oag [2002] NSWCA 61 at [8], Sierra v Anikin [2003] NSWCA 11 at [14], [17], [97], [105]."
123The Court of Appeal decision in Sierra v Anikin was reversed by the High Court after the decision in Manly Council v Byrne was given ( Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452), but the High Court accepted that a trial judge's decision concerning apportionment for contributory negligence was "not lightly reviewed" : ibid at [50], citing Podrebersek, Liftronic Pty Ltd v Unver (2001) 179 ALR 321 at 322 [2]; 75 ALJR 867 at 868; and Joslyn v Berryman (2003) 214 CLR 552 at 578-9 [84], 601-2 [157].
Wrong Apportionment for Failure to Wear a Helmet?
124Mr Rewell's first submission concerning contributory negligence is that the head injuries that the Respondents suffered are in themselves sufficient to justify a finding of greater than 5% contributory negligence by reason of failure to wear a helmet. Two arguments are put towards that conclusion. The first is that in the Statement of Particulars the Respondent alleged that he suffered a severe traumatic brain injury resulting in numerous cognitive deficits. I place no weight on that argument - it is what is proved, not what is alleged, that matters for the purpose of assessing contributory negligence.
125Mr Rewell's written submissions continue:
"Whilst the Primary Judge found that the Respondent's main disabilities resulted from an injury to the thoracic spine, the Primary Judge referred to, and apparently accepted, opinions of Dr O'Neill, a Neurologist [Red 94D] and Mr Cussack, a Psychologist [Red 93D] that the Respondent did suffer a traumatic brain injury, with some consequences. That alone warranted a finding of contributory negligence greater than 5%."
126In the part of his judgment dealing with quantum the judge quoted the opinion of Dr Spira that the Respondent's main problem was diffuse mid back pain, and continued:
"Doctor opined that,
'Although there had been some improvement in Mr Rooskov's status since he was last seen by him three years before his symptom complex remains active, thoracic fractures are there, to persistent back discomfort with which he is dealing to the best of his ability. There is a further issue of the possibility of traumatic brain injury, although there is no evidence of such in initial CT scans it is clear that Mr Rooskov lost consciousness for an uncertain period at the scene of the accident, had a significant post traumatic amnesia, although the estimation of its duration is rendered difficult by repeat interruptions to the testing. According to the information Mr Rooskov's hospital records it appears that the official ..(not transcribable).. should be recorded at twelve days making it likely that there was indeed traumatic brain injury present. The memory difficulties with which Mr Rooskov now describes are relatively settled, but almost certainly is sequel to traumatic brain injury. At no stage did I gain the impression that he was in any way embellishing his symptomatology.'
Doctor went on to say that Mr Rooskov was fit for work and currently employed in his pre-accident form of work. Nevertheless, he indicates that this involves less in the way of physical effort than his previous job did, and he is in fact looking for work in a managerial rather than physical capacity once he completes his course. Doctor said he believed that he should be spared physically demanding tasks which involve a great deal of lifting and truck flexion."
127After referring to the fact that the Respondent had been assessed by various MAS assessors (of whom Dr O'Neil was one), the judge said:
"Dr O'Neil formed a view that the plaintiff did suffer traumatic brain injury caused by the motor vehicle accident, however was of the view that there was a no per cent whole person impairment when he applied the appropriate tables. It is for this reason that I have dealt with the contributory negligence in the manner I have, notwithstanding the views expressed by Dr Spira."
128Of the damages that the judge awarded, $150,000 was for general damages. The rest were for out-of-pocket expenses, future medicals, past economic loss, loss of earning capacity, loss of superannuation and past and future domestic care.
129I am not persuaded that, in the light of this state of the evidence, the judge was in error in failing to apportion more than 5% contributory negligence by reason of the Respondent's failure to wear a helmet.
Wrong Apportionment Concerning Intoxication?
130Mr Rewell submits that the gross intoxication of the Respondent should have led to a finding of contributory negligence considerably greater than 5%. The evidence of Dr Starmer, which was unchallenged, calculated the blood alcohol content of the Respondent at the time of the accident as being very nearly four times the legal limit of 0.05 g / 100 ml for driving a motor vehicle (at the bottom of the range that Dr Starmer calculated) or well over four times that limit (at the top of the range that he calculated). Dr Starmer gave some general evidence (also unchallenged) about the manner in which alcohol impairs a person's facilities ([80] above).
131After (realistically) recognising the difficulty that the Appellant had in running this argument by reason of there being no evidence from any driver or witness as to what in fact occurred, Mr Rewell's written submissions continued:
"[h]owever, the Appellant submits that the level of intoxication of the Respondent was such, that it is reasonable to infer that the Respondent was unable to make any proper judgment, or to take any appropriate action at all, to avoid a collision. The photographs demonstrate that it was unnecessary for the Respondent to ride within the traffic lane in which he asserts the collision occurred. There was a sealed shoulder, albeit of variable width.
There was no reason why the Respondent should have failed to hear the approach of a motor vehicle from behind, in time to move outside the fog line and away from the traffic lane. Yet it was the Respondent's evidence that he heard only a 'whistling' sound very soon before he heard the sound of brakes, at the same time as the collision occurred. This is consistent with decreased alertness due to alcohol consumption, to which Professor Starmer refers [p 5]."
132The appeal was conducted as though there was no problem in the court drawing conclusions about the nature of the shoulder from the photographs. The argument included the following exchange:
"REWELL: ... The plaintiff was so grossly intoxicated that he obviously failed to hear the motor vehicle approaching, if there was one and could have heard it at a much earlier stage no doubt had he been less affected and there was opportunity for him to respond by simply moving himself off the traffic lane for a short distance.
CAMPBELL JA: It was a very narrow shoulder.
REWELL: It was and it was affected by grass. The photographs make that clear."
133If it were legitimate to rely on photographs to reach conclusions of fact rather than as an aid to understanding other evidence concerning facts (cf Blacktown City Council v Hocking [2008] NSWCA 144 at [7]-[13], [167]-[173], [240]) the photographs of the road show that
- there are places (presumably relevant to this case, if they are included in the photographs at all) where the sealed surface of the shoulder of the road has either eroded away or become covered with dirt or gravel; and
- there are places where grass has grown over the shoulder, sometimes covering its entire width.
134In light of the photographs, I would not conclude that it was practicable for the Respondent to ride in the shoulder of the road.
135An expert report of Dr Short, that was not the subject of cross-examination, recalled that when he attended the collision site on 1 July 2009 there were:
"... no sealed shoulders, with grass directly adjacent to the road surface. This means that a cyclist on this piece of road has to ride on the road surface together with other traffic."
136While Dr Short's inspection was over four years after the date of the accident it is, at least, not inconsistent with the impression obtained from the contemporaneous photographs.
137Even if it were not legitimate to rely on the photographs, it was never put to the Respondent that it was practicable for him to ride in the shoulder of the road rather than in the carriageway. The topic of where the Respondent was riding on the road surface was gone into specifically in cross-examination:
"Q: I take it that when you were riding down on this particular day, you were keeping as far to the left as possible?
A: Mm-hmm
Q: Is that right?
A: I was keeping to the left but not as far as possible, but I was keeping to the left yeah I wasn't -- I didn't want to take up the road, put it that way
Q: Well how far close to the edge of the road as in the line marking, you understand there's a fog line marking?
A: Yeah it would've been within a metre probably
...
Q: Anywhere within a metre, is that what you say?
A: Probably close to a metre, I wouldn't - I wasn't close to the edge but I wasn't close to the centre you know, I was on the left-hand side of the road. The left-hand side of the left-hand lane."
138That passage of evidence has the Respondent putting himself somewhat closer to the centre of the road than the cross examiner was suggesting he had been, and the practicability of riding in the shoulder was not mentioned.
139Nor have I found any place where it was submitted to the judge that the practicability of riding in the shoulder of the road was a matter that he should take into account in assessing contributory negligence.
140The failure to put the possibility of riding in the shoulder to the Respondent or submit it to the judge, has the effect that it would not be appropriate for this court to review the judge's assessment of contributory negligence on that basis. Thus the court cannot accept the Appellant's submission that the Respondent failed to take reasonable care for his own safety because he should have heard the car earlier, and then moved "outside the fog line and away from the traffic lane."
141I would accept that the Respondent is likely to have had decreased alertness due to his degree of intoxication. I would accept that anyone who rides a bicycle on a public road in the extreme state of intoxication that the Respondent was in is placing himself at serious risk of injury. However, that the Respondent placed himself at serious risk of injury by venturing onto a public road at all that afternoon does not answer the question of whether the Appellant has discharged the onus of showing that the Respondent's intoxication actually caused or contributed to his injuries.
142Another part of the "enacted law" that s 138(1) MAC Act makes applicable in determining contributory negligence for the purpose of this case is the Civil Liability Act 2002 . Section 5R(1) of that Act provides:
"The principles that are applicable in determining whether a person has been negligent also apply in determining whether a person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm."
143One such principle "applicable in determining whether a person has been negligence" is s 5D Civil Liability Act 2002 :
"(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( scope of liability )."
144Thus, the Appellant will succeed in establishing that there was contributory negligence arising from the intoxication of the Respondent only if the Appellant establishes that the intoxication was a necessary condition of the injuries that the Respondent sustained.
145The Respondent's unchallenged evidence was that he was riding "within a metre" of the fog line, "probably close to a metre" . That is not in itself an unsafe place for a cyclist to ride. There are no unbroken lines in the middle of the road, which would have inhibited a motorist approaching from behind in steering around the Respondent in a way that gave him a wide berth. For the reasons I have already given, it is not open to this court to find that it would have been practicable for the Respondent to ride on the shoulder. In all these circumstances I am not persuaded that the judge was in error, in a way that can be corrected on appeal, in concluding that the Appellant had not made out a case of contributory negligence based on the manner in which the Respondent reacted in the short period of time before the car hit him.
146After judgment had been reserved in this matter the High Court delivered its decision in Strong v Woolworths Ltd [2012] HCA 5. As Strong turned on the construction and application of the principles for causation in s 5D Civil Liability Act the parties were given the opportunity to make any additional submissions that they wished that arose from the High Court decision. However, neither of them submitted that the High Court decision made any difference to the argument that had been presented.