BETWEEN : TELISHA LEE O'CONNOR by her next friend COLIN O'CONNOR and LEVI DAVID O'CONNOR by his next friend COLIN O'CONNOR

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : O'CONNOR by his next friend COLIN O'CONNOR ­v­ McGREGOR [2015] WADC 30

Tort - Fatal Accidents Act 1959 (WA) - Motor vehicle accident - Pedestrian - Negligence - Contributory negligence - Apportionment of liability

Civil Liability Act 2002 (WA), s 5B, s 5K, s 5L

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 4

Allianz Australia Insurance Ltd v Swainson [2011] QCA 136

Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452

Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139; (2014) 86 NSWLR 393

British Fame (Owners) v Macgregor (Owners) [1943] AC 197

Davis v Swift [2014] NSWCA 458; (2014) 69 MVR 375

Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217

Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102

Gordon v Truong [2014] NSWCA 97; (2014) 66 MVR 241

House v The King [1936] HCA 40; (1936) 55 CLR 499

Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552

Marien v Gardiner [2013] NSWCA 396; (2013) 66 MVR 1

Nominal Defendant v Meakes [2012] NSWCA 66; (2012) 60 MVR 380

Nominal Defendant v Ross [2014] NSWCA 212; (2014) 87 NSWLR 238

Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

Rankilor v City of South Perth [2016] WASCA 29

Smith v Zhang [2012] NSWCA 142; (2012) 60 MVR 525

Steen v Senton [2015] ACTCA 57; (2015) 302 FLR 440

T & X Co Pty Ltd v Chivas [2014] NSWCA 235; (2014) 67 MVR 297

Verryt v Schoupp [2015] NSWCA 128; (2015) 70 MVR 484

Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65

2 BUSS JA: The appellants appeal from a judgment of Braddock DCJ after a trial in the District Court of the appellants' action under the Fatal Accidents Act 1959 (WA).

3 The appellants are the children of Allan William O'Connor (the Deceased). The Deceased was born on 26 March 1978.

4 On 22 March 2009, at about 1.30 am, the Deceased was a pedestrian on Layman Road, Geographe near Busselton. He was struck and killed by a Nissan bus (the Bus) driven by the defendant in the District Court action, Wallace Nathaniel McGregor.

5 The trial judge found that the collision between the Deceased and the Bus was caused by Mr McGregor's negligence. Her Honour also found that the Deceased had been contributorily negligent. She entered judgment for the appellants, but reduced their damages by two-thirds on account of the Deceased's negligence.

6 On 21 July 2015, Newnes JA ordered that the Insurance Commission of Western Australia be substituted for Mr McGregor as the respondent in the appeal, pursuant to s 7(2) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA).

7 The appellants' grounds of appeal allege, in essence, that her Honour erred in apportioning liability two-thirds/one-third against the Deceased.

8 I would dismiss the appeal. My reasons are as follows.

Overview of the relevant facts and circumstances

9 An overview of the relevant facts and circumstances, as found by the trial judge or not in dispute, is as follows.

10 At about 1.30 am on 22 March 2009, the Deceased was walking along Layman Road. He was struck from behind by the Bus driven by Mr McGregor. The Deceased was killed.

11 On the night of 21 March 2009, the Deceased had been a guest at a wedding at the Abbey Beach resort in Busselton. The Deceased's blood alcohol level at the time of his death was 0.127%. He was wearing black clothing, apart from a white tie and white shoes. Mr McGregor admitted that he did not see the Deceased before the collision.

12 Layman Road is a standard two-lane bitumen road with a broken white line in the middle. The edges of the bitumen are marked with unbroken white lines. The area where the collision occurred is semi-rural. On the northern side there is a new residential development. On the southern side there are fields and some scrub. There is no footpath on either side of the road and there is no street lighting.

13 The Bus was in good condition. It had six lights at the front, comprising four headlights and two side lights. At the time of the collision the headlights were on full beam. The Bus struck the Deceased on the left hand side. He came to rest in a ditch on the left hand side of the road. At the time there were seven passengers on the Bus.

14 The Deceased was struck about 100 m to the west of the intersection of Layman Road with Willmott Street. It was a dark night. The moon was not visible. The Deceased was walking with his back towards oncoming traffic. It appears that, when he was walking along Layman Road, the Deceased was having intermittent mobile telephone conversations with his girlfriend. At the point of impact between the Deceased and the Bus there is a slight left hand curve in the road.

15 The particulars of Mr McGregor's alleged negligence, as set out in the appellants' statement of claim, were, relevantly, that he:

(b) failed to brake, swerve, steer, manoeuvre or otherwise drive the Bus in a manner to avoid the accident;

(c) failed adequately to control the Bus so as to avoid the accident;

(e) failed to exercise increased caution in the absence of street lights and moonlight at the time of the accident.

16 Mr McGregor denied that the accident or the Deceased's death was caused by his negligent driving, as alleged or at all.

17 Mr McGregor pleaded that the accident and the Deceased's death were caused solely, or alternatively contributed to, by the Deceased's negligence. The particulars of negligence alleged, relevantly, that the Deceased:

(a) wore dark clothing in an area which was unlit by any street lighting;

(c) walked while having a conversation on his mobile telephone;

(e) by s 5L of the Civil Liability Act 2002 (WA) (the Civil Liability Act), is presumed to have been contributorily negligent by having a blood alcohol level of 0.127%;

(f) did not keep a proper lookout for approaching traffic; and

(g) in all the circumstances, failed to exercise reasonable care for his own safety.

The issues for decision identified by the trial judge

18 The issues for decision identified by the trial judge were these:

(b) If Mr McGregor had seen the Deceased, would he have been able to avoid the accident?

(c) If the answer to questions (a) and (b) is 'yes', to what extent did the Deceased's conduct contribute to the accident?

(a) question (a) involved consideration of where the Deceased was walking, the distance between the Deceased and the Bus, the lighting from the Bus, the contrast between the Deceased and the road, the curve in the road and whether there were any obstructions; and

(b) question (b) involved consideration of the actual distance between the Deceased and the Bus when Mr McGregor ought to have seen the Deceased, the speed at which the Bus was travelling, the time available for Mr McGregor to react and what, if any, evasive action could have been taken to avoid the collision [11] - [12].

20 Counsel for the appellants called Stewart Ipsen (who was a passenger on the Bus at the time of the accident) and Professor Stephen Dain (an optometrist who has taught occupational and environmental optometry at the University of New South Wales).

21 Mr Ipsen gave evidence as to his recollection of the accident. Professor Dain prepared reports and gave evidence of an expert nature on various issues including the distance from which Mr McGregor should have been able to see the Deceased.

22 Counsel for the appellants tendered photographs of the road in the vicinity of the place where the accident occurred, photographs of the Bus and the Deceased, an affidavit of Stewart Budd (a motor vehicle investigator) and five interrogatories answered by Mr McGregor.

23 Mr McGregor was born on 3 February 1944. He was aged 65 at the time of the accident and was 70 when the trial occurred. He suffered from serious ill health and was unable to give evidence in person. By consent, his witness statement was tendered.

24 Counsel for Mr McGregor called Leola Crosswell (a friend of the Deceased) and Professor David Joyce (a pharmacologist and toxicologist at the University of Western Australia).

25 Ms Crosswell gave evidence that she spoke to the Deceased at about midnight on the night in question. He was upset, having had a 'fight with his father', and having been ejected from his sister's motor vehicle. At about 1.30 am the Deceased told Ms Crosswell that he was 'okay' and would be walking to Mandurah.

26 Professor Joyce gave expert evidence about alcohol intoxication and the extent to which a blood alcohol level of 0.127% in a person would be accompanied by an impairment of motor skills and a disturbance of judgment.

27 Counsel for Mr McGregor tendered a report on the accident prepared by Constable Potts and a report on the Deceased's death prepared by the Coroner.

28 Dr Steven Chew is a chartered engineer and ergonomist.

29 Dr Chew was retained by Mr McGregor's legal representatives. He prepared reports and took photographs of the road in the vicinity of the place where the accident occurred.

30 Professor Dain's reports referred to and commented on a number of contentions made in Dr Chew's reports.

31 Dr Chew was listed as an expert witness of Mr McGregor in the papers for the judge, and the book of Mr McGregor's expert reports contained Dr Chew's reports.

32 However, counsel for Mr McGregor did not call Dr Chew. The trial judge therefore disregarded his reports [62].

Mr McGregor's negligence: the trial judge's findings of fact and reasoning

34 The trial judge found that '[b]ut for the fact that [Mr McGregor] did not see the [Deceased] before impact at all, [Mr McGregor] was otherwise driving in an appropriate and careful manner on Layman Road' [71]. Her Honour elaborated:

From his own statement it is clear that [Mr McGregor] was familiar with the road, the conditions were good, he drove with high beam headlights, and he was not exceeding the speed limit. He was mindful of the risk that there could be objects or stray animals on the side of the road, as he was aware that there were cattle grazing in the paddocks on the left hand side. Whilst the likelihood of pedestrians might have been small there was no suggestion that his manner of driving was inappropriate or too fast in the circumstances. He was looking straight ahead [71].

35 Her Honour then said that, '[n]otwithstanding the otherwise careful manner of his driving', Mr McGregor did not see the Deceased and it was her Honour's finding that 'the [Deceased] was there to be seen' [71]. Her Honour added:

That much is obvious from the fact that the [Deceased] was struck by the bus, in circumstances where the bus was travelling more towards the centre of the road than the verge. I accept Professor Dain's evidence as to the ability to see a dark figure at 60 - 100 m in headlights along this road. It is impossible to conclude anything other than the fact that [Mr McGregor] was not keeping a proper lookout, from the admitted fact that he failed to see the [Deceased] at any time before impact [71].

36 The trial judge rejected as 'fanciful and unsupported by any evidence' the scenario that the accident was caused by the Deceased 'running out into the path of the [Bus]' [73].

37 Accordingly, her Honour was satisfied that Mr McGregor was 'negligent in his manner of driving in that he failed to keep a proper lookout' [73].

Mr McGregor's negligence and the issue of causation: the trial judge's findings of fact and reasoning

38 Next, the trial judge examined the issue of causation. Her Honour posed the following question:

Could [Mr McGregor] have avoided [the] collision with the [Deceased] if he had been properly looking [74]?

39 According to her Honour, the answer to that question depended upon 'the distance at which the [Deceased] would have become visible, the speed at which [Mr McGregor] was travelling, and a driver's reaction time' [75].

(a) noted it was common cause that 'the only useful lighting at the location at the time was from the headlights of the bus' [76];

(b) accepted Professor Dain's evidence that 'the visibility distance would have been, at worst, closer to 100 m than distances suggested by Dr Chew' in the reports to which Professor Dain responded [76];

(c) accepted Professor Dain's view that 'visibility was over the "worst" case 60 m and on balance of probabilities closer to 100 m' [79];

(d) found that Mr McGregor's speed would have been about 50 km per hour 'as he came around the last roundabout, prior to the accident location' [80];

(e) found that the location of the impact was about 100 m west of Willmott Street [81];

(f) accepted Professor Dain's evidence that 'a range of 1 - 1½ seconds' is a 'typical reaction [time]' [83];

(g) found that, after the subtraction of the range of 1 - 1½ seconds as the typical reaction time, 'the mean time available [to Mr McGregor] to act was between approximately 3 and 6 seconds, on the basis, as I have found, of a speed of 50 km per hour' [83];

(h) found that two or three seconds was, 'applying common sense and general experience', sufficient time for Mr McGregor to take some evasive action; for example, swerving with minimal slowing of the Bus in circumstances where '[t]here were no other vehicles on the road at that time according to all the available information' [84];

(i) found that had Mr McGregor seen the Deceased 'at the time he became visible in the headlights at conservatively 60 m ... urgent evasive action would have been able to avoid impact' and, in failing to see the Deceased, Mr McGregor 'lost the opportunity to take emergency evasive action' [84]; and

(j) held that Mr McGregor's negligence was 'a necessary condition for the occurrence of the impact which caused the harm that led to the death of the [Deceased] as required by s 5C(1)(a) [of the Civil Liability Act]' and, therefore, 'the accident and the [Deceased's] death were caused by the negligent driving of [Mr McGregor] albeit not exclusively by that driving' [85].

The Deceased's contributory negligence: the trial judge's findings of fact and reasoning

41 The trial judge noted that counsel for the appellants had conceded that 'there would be some contributory negligence' pursuant to s 4(1) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) (the Law Reform Act). Her Honour then made these findings and observations:

The [Deceased] clearly would have known that he was wearing dark clothing, walking on a dark country road at night, unlit, with his back to the oncoming traffic. In my view, that the [Deceased] was walking on the left hand side is a significant factor in this case. Had he walked on the right hand side of this two lane carriageway, he would not have been struck by [Mr McGregor]. His walking in that position on the road was aggravated considerably by the colour of his clothing and the absence of any form of street lighting. All of these would have been obvious matters, which the [Deceased] would or should have known. The need to exercise reasonable care in these circumstances for his own safety is obvious and should have been so to him.

In my view, his failure to take reasonable care for his own safety, either by walking on the other side of the road, or not walking on that road at that time in that manner at all, is a glaringly obvious failure by him to take reasonable care. The conduct of the [Deceased] in this manner of walking was reckless. And that is not the end of the matter. [Mr McGregor] was driving a school bus and the [Deceased] should have been alerted to its approach by either the engine noise or the lights of the vehicle or both, even if he had his back to it. There was no constant flow of traffic on this road at that time of the morning to obscure the sound and light upon its approach.

I have no doubt that the intoxicated state of the [Deceased] directly contributed [to] his decision to walk in that way on that night. Section 5L of the [Civil Liability] Act would therefore mean that he is also presumed to be contributorily negligent. I have no doubt that his intoxication contributed to him being less aware of the dangers in which he placed himself and less able to properly respond to them. The [appellants] have not sought to argue that the [Deceased's] intoxication did not contribute in any way to the harm [87] - [89].

42 Accordingly, the trial judge found that the Deceased was negligent and that his negligence contributed to the accident.

43 Her Honour characterised Mr McGregor's negligence as involving 'a brief deficit of attention resulting in his failure to see the [Deceased] until after he struck him' [92]. By contrast, the Deceased was 'engaged in ongoing conduct on the road that night, which was obviously dangerous to himself and other road users' [92]. Her Honour found that the Deceased was 'reckless' in the manner he walked along the road [88], [94].

44 Next, the trial judge gave attention to 'the respective contributions to the harm in this case' [90]. Her Honour made this analysis as to 'what is just and equitable regarding the relative shares of responsibility of both the person harmed and the other party' [96]:

[Mr McGregor] was not driving at excessive speed. His only fault was that he did not see the [Deceased] and take steps to avoid hitting him. He was alive to the possibility of cattle on the road and was in all other respects driving carefully. The [Deceased] for his part made significant departures from what a reasonable person would do to be as safe as possible in the circumstances. Had he been paying attention he might have had the opportunity to, for example, take action to save himself, by jumping into the ditch. I have to assess these respective departures from the proper standard of care.

In my view, [Mr McGregor] made a tragic error, a brief deficit of attention resulting in his failure to see the [Deceased] until after he struck him. The [Deceased] was engaged in ongoing conduct on the road that night, which was obviously dangerous to himself and other road users. He had even, in conversation with Ms [Crosswell], been told by her to stop walking along the road and to go and sleep on the beach.

In submissions, the court's attention was drawn to various cases relevant to the standard of care for drivers in charge of 'lethal machines'. The damage that a motor vehicle can do to a pedestrian is potentially much greater than the damage a pedestrian can do to the driver of a vehicle. The harm that can be done by any activity is recognised as relevant for the purposes of determining and assessing a breach of a duty of care. A driver of a motor vehicle in busy traffic or in suburban side streets may have to be aware of the erratic or careless behaviour of pedestrians or children in order to adjust the manner of driving accordingly. I do not consider that these authorities have any direct bearing on the facts of this case. [Keeping] a constant and proper lookout is a basic requirement in all driving circumstances. As I have already found, [Mr McGregor] was driving his bus otherwise in an exemplary fashion.

The [Deceased's] conduct in walking down the road in the way that he did was reckless, and in my view contributed to the accident to a greater extent than the fault of [Mr McGregor]. The [Deceased] created a situation of danger to himself on that road on that night. This was not a case of a driver travelling at excessive speed in circumstances where there were pedestrians likely to cross the road. It is necessary to take into consideration that the chances of a pedestrian walking along that road at night in that way were unlikely, for good reason: - it was dangerous. Moreover, the [Deceased] was inattentive and remained on the road way as the vehicle approached [91] - [94].

45 Her Honour referred in her reasons to s 4(1) of the Law Reform Act, but did not mention s 5K of the Civil Liability Act.

Apportionment of liability between Mr McGregor and the Deceased: the trial judge's conclusion

46 The trial judge said the Deceased was 'significantly more to blame' than Mr McGregor 'for bringing about circumstances in which this tragic event occurred, and failing to react to save himself' [97]. The Deceased 'created a situation where an accident would happen unless [Mr McGregor] took swift emergency action to avoid it' [97]. Mr McGregor's fault was, in those few seconds, 'failing to see the [Deceased]' [97].

47 As I have mentioned, her Honour apportioned liability two-thirds/one-third against the Deceased.

49 Ground 1 alleges that, given the trial judge's findings of fact, the apportionment of liability two-thirds/one-third against the Deceased was 'contrary to authority and outside the range of a sound discretionary judgment'.

50 Ground 2 alleges that her Honour erred in failing properly to compare 'the respective contributions and/or culpability of the parties in relation to the causation of the accident and in particular the relative risk of harm likely to be caused by the driver of a large bus as opposed to the harm likely to be caused by the actions of the Deceased'.

51 Ground 3 alleges that her Honour erred in failing properly to consider and compare 'the respective degrees of departure from the standard of care of the reasonable person and in particular [failing] to consider the extent of the departure from the relevant standard of care by [Mr McGregor] in the circumstances of the accident which occurred'.

The appellants' submissions on their grounds of appeal

52 As to ground 1, counsel for the appellants submitted:

(a) This was not a case of a driver failing to see a pedestrian 'too late to be able to react'. It was a case in which the driver did not see the pedestrian at all, and this was a 'serious omission' for which no explanation was provided.

(b) It was not possible to understate the gravity of the departure from the reasonable standard of care required of a driver in Mr McGregor's position.

(c) In driving along Layman Road at night, 'all [Mr McGregor] was realistically required to do was to look where he was going'. His failure to see the Deceased at all constituted 'serious negligence', which had to be compared to 'the negligence of the Deceased who was walking along Layman Road slightly out from the scrub and ditch to his left with his back to traffic, but who was nonetheless there to be seen'.

(d) The trial judge erred in failing properly to recognise the extent of Mr McGregor's departure from the relevant standard of care.

53 As to grounds 2 and 3, counsel for the appellants submitted:

(a) The decisions in Nominal Defendant v Meakes [2012] NSWCA 66; (2012) 60 MVR 380 and Smith v Zhang [2012] NSWCA 142; (2012) 60 MVR 525 are authority for the proposition that 'the damage likely to be done by the potential negligence of a driver of a vehicle is great and the fact that the negligence of the pedestrian could not endanger the driver of the vehicle or anyone else, is [a material consideration] in the apportionment of responsibility'.

(b) In Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10, the negligence of a motorist who was speeding in wet conditions, with poor visibility, in a busy street was said to involve negligence of a significantly higher order than the failure of the pedestrian to keep a proper lookout. See also Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452.

(c) The decision in Nominal Defendant v Ross [2014] NSWCA 212; (2014) 87 NSWLR 238 'largely confirmed' that, as a matter of principle, where a finding is made that the driver of a motor vehicle should have seen a negligent pedestrian, the apportionment between the driver and the pedestrian 'will always be in favour of the pedestrian because a motor vehicle has the capacity to do more damage' (appeal ts 15).

(d) In the present case, the Deceased, being a 'pedestrian in dark clothing walking along a road at night who had ample opportunity to see an on-coming bus', was considerably less negligent than Mr McGregor, being a 'bus driver who failed to take remedial action when he should have seen the pedestrian approximately ... 60 m before the accident'.

(e) Mr McGregor's failure to see the Deceased at all constituted, on any 'common sense' basis, the principal cause of the accident, and 'the contributions should have been allocated accordingly'.

The appellants' grounds of appeal: their merits

Whenever in any claim for damages founded on an allegation of negligence the court is satisfied that the defendant was guilty of an act of negligence conducing to the happening of the event which caused the damage then notwithstanding that the plaintiff had the last opportunity of avoiding or could by the exercise of reasonable care, have avoided the consequences of the defendant's act or might otherwise be held guilty of contributory negligence, the defendant shall not for that reason be entitled to judgment, but the court shall reduce the damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such extent as the court thinks just in accordance with the degree of negligence attributable to the plaintiff. (emphasis added)

55 By s 4(2) of the Act, relevantly, the provisions of s 4(1) apply to actions brought under the Fatal Accidents Act and, for that purpose, those provisions shall be read and construed as if the following words were inserted in the following relative positions in s 4(1):

(c) after the words 'notwithstanding that the plaintiff' insert the words 'or the deceased person in respect of whose death or for the benefit of whose estate the claim is brought or some other person for whose acts the deceased person was responsible';

(d) after the words 'recoverable by the plaintiff' insert the words 'or by the persons for whose benefit the claim is made or by the estate of the deceased person in respect of which the claim is made'.

56 The relevant principles governing apportionment of liability under s 4(1) of the Law Reform Act, in the context of the common law of negligence, are as follows.

57 The law which regulates the circumstances in which an appellate court may review the exercise of a judicial discretion applies to an appeal from a trial judge's decision on apportionment of liability under s 4(1).

58 The role of this court, in examining the appellants' grounds of appeal, is to determine whether the trial judge made an error in exercising her discretion, error being understood, in this context, as it was explained in House v The King [1936] HCA 40; (1936) 55 CLR 499:

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred (505).

59 So, an appellate court will not interfere with a trial judge's decision on apportionment unless the judge has made the kind of error that would justify an appellate court setting aside a discretionary decision. See Pennington (15 - 16). Error may be inferred from the outcome if it is outside the range of a reasonable judgment. See Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102 [73].

60 The trial judge's conclusion that the Deceased was guilty of contributory negligence involved findings that he had failed to take reasonable care for his own safety in that his behaviour constituted a 'departure from the standard of care of the reasonable man': Pennington (16).

61 An assessment of the culpability of a plaintiff and a defendant, for the purposes of apportionment, requires a consideration of the relative importance of the conduct of each party in causing the damage. The whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination. See Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65, 68.

62 A finding on a question of apportionment, as between a defendant who has been found to be negligent and a plaintiff who has been found guilty of contributory negligence, 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, 201. It is well-established that such a finding, if made by a judge, is not lightly reviewed. See Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, 494; Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 [84], [157]; Anikin [50].

63 Ordinarily, the driver of a motor vehicle has, as a matter of fact, a greater capacity to cause damage than a pedestrian. See Pennington (16); Anikin [46], [48] - [52]; Smith [14]; Ross [46] - [47].

64 However, counsel for the appellants' submission in the present case that, as a matter of principle, where a finding is made that the driver of a motor vehicle should have seen a negligent pedestrian, the apportionment between the driver and the pedestrian 'will always be in favour of the pedestrian because a motor vehicle has the capacity to do more damage', should be rejected.

65 In Allianz Australia Insurance Ltd v Swainson [2011] QCA 136, Fraser JA (Ann Lyons & Martin JJ agreeing) observed:

All other things being equal, a driver of a car should ordinarily bear the lion's share of the responsibility where the driver's negligence results in injury to a pedestrian whose negligence contributes to the collision, because the driver has a far greater capacity to cause damage than the pedestrian. In this case, however, all other things were far from being equal [31]. (emphasis added)

66 In my opinion, the appropriate apportionment in a particular case between a negligent driver and a contributorily negligent pedestrian will depend on the facts and circumstances of the case; in particular, the whole conduct of the driver and the pedestrian in relation to the accident and a comparative examination of each party's conduct, including the relative importance of each party's conduct, in causing the damage. This task involves findings of fact, the evaluation of conduct and the making of a value judgment based on those matters and the circumstances as a whole. The fact that, in a particular case, the pedestrian's conduct, although involving contributory negligence, did not endanger the negligent driver or anyone else is ordinarily a relevant factor to be taken into account in determining the appropriate apportionment. However, the significance of that factor, and the weight to be given to it, will no doubt vary from case to case. See Pennington (16); Smith [13]; Marien v Gardiner [2013] NSWCA 396; (2013) 66 MVR 1 [49].

67 I turn to consider whether the relevant principles governing apportionment of liability under s 4(1) of the Law Reform Act, in the context of the common law of negligence, have been modified or superseded by the Civil Liability Act.

68 Section 5B of the Civil Liability Act provides:

(1) A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -

(a) the probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that creates the risk of harm.

69 Section 5B relates to breach of a duty of care and does not modify or supplant the common law principles which determine whether a duty of care exists or not. See Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217 [77]; Rankilor v City of South Perth [2016] WASCA 29 [43].

(1) The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person 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.

71 In Gordon v Truong [2014] NSWCA 97; (2014) 66 MVR 241, Basten JA considered s 5R of the Civil Liability Act 2002 (NSW) and s 5B of that Act. Section 5R is, relevantly for present purposes, identical to s 5K of the Western Australian Civil Liability Act. Section 5B of the New South Wales Civil Liability Act is similar to s 5B of the Western Australian Act. His Honour said [15] - [18]:

The principles applicable in determining whether a person has been negligent include the 'General principles' set out in s 5B. Applying these principles as required by the statute is not without its difficulties. Where the plaintiff and defendant are both drivers in control of similar vehicles, questions of negligence and contributory negligence can readily be assessed according to the same broad standards. However, where the plaintiff is a pedestrian and the defendant a driver of a vehicle, the negligence of the defendant is to be assessed against the risk of harm to the plaintiff, while the contributory negligence of the plaintiff is, generally, to be assessed against a risk of harm to him - or herself. (It is possible that the carelessness of a pedestrian may create a risk of harm to other drivers, for example, if a car is forced to swerve to avoid a pedestrian, but that is not this case.) The harm which the motor vehicle is likely to cause to the pedestrian is, on one view, precisely the same harm which should have been foreseeable to the pedestrian. However, the precautions which each should reasonably take will be different in kind.

The purpose of s 5R may be gleaned from the recommendations in the Review of the Law of Negligence: Final Report (September 2002) which are, in this case, reflected in the statute. At para 8.7, the Report stated:

'Should the law allow people to take less care for their own safety than it requires others to take for their safety? ... Another way of putting this question is to ask whether the standard of care applicable to victims of the negligent conduct of others should be different from that applicable to the negligent person merely because they are victims?'

'Leading text book writers have asserted that in practice, the standard of care applied to contributory negligence is lower than that applied to negligence despite the fact that, in theory, the standard should be the same. There is a perception (which may reflect the reality) that many lower courts are more indulgent to plaintiffs than to defendants. In some cases judges have expressly applied a lower standard of care for contributory negligence. This may result, for example, in motorists being required to keep a better lookout than pedestrians. In the Panel's view, this approach should not be supported.'

The penultimate sentence was supported by reference to three judgments in the High Court and two in the South Australian Supreme Court. The comments of Murphy J in Watt v Bretag (1982) 41 ALR 597 at 602; 56 ALJR 760 at 762 - 3, are in point. Referring to the South Australian equivalent of the s 9(1)(b) of the 1965 Act, Murphy J stated:

'The speed and size and weight of the vehicles in contributing to the severity of the damage should be taken into account, not merely those factors which contributed to the collision. ... For example, where the collision is between a semi-trailer or other juggernaut vehicle and a pedal bicycle, even if the driver and the plaintiff rider each made an equal contribution to causing the collision, it would generally be just and equitable to reduce the plaintiff's damages not by half, but by much less. Similarly, excessive speed may greatly increase the damage, even though the fault of the other driver was the major cause of the collision.'

72 In Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139; (2014) 86 NSWLR 393, Basten JA (Emmett JA agreeing) considered the extent to which the High Court's approach to contributory negligence in Pennington continues to apply notwithstanding the enactment of s 5R of the New South Wales Civil Liability Act (which is, as I have mentioned, the equivalent of s 5K of the Western Australian Civil Liability Act). His Honour observed:

Assuming that the requirement that people should take responsibility for their own lives and safety is now reflected in s 5R, and was intended to override the approach of Murphy J in Watt, there is a question as to whether the statements in Talbot-Butt still reflect the law in this state. The potential dangerousness of heavy machinery and fast vehicles can no doubt be applied universally, although the consequence of its application will vary depending on whether one, both or neither party is in control of such a vehicle. On the other hand, applying the general principles in s 5B(2) one could approach the matter differently. Thus, the probability that harm would occur if care were not taken and the likely seriousness of the harm would operate differentially with respect to the driver of the forklift and the pedestrian, but with the same result. That is, no distinction is made between the fact that from one perspective the driver is in control of a vehicle that could cause serious harm to a pedestrian, whilst from the perspective of the pedestrian, it was the likelihood of serious harm which was to be considered. If the plaintiff were aware, or ought to have been aware, of the presence of a large forklift operating in the area and if the forklift driver were aware, or should have been aware, of the likely presence of pedestrians, and if each were equally careless, liability should be shared equally.

A purposive approach to the operation of s 5R (and s 5B) requires that this approach be adopted [99] - [100].

73 In T & X Co Pty Ltd v Chivas [2014] NSWCA 235; (2014) 67 MVR 297, Basten JA (Barrett JA agreeing) again considered s 5R of the New South Wales Civil Liability Act, and said:

The significant, if subtle, change of emphasis which arises from the enactment of the Civil Liability Act raises a doubt as to the emphasis in past cases placed on the capacity of a motor vehicle to cause far greater damage, when compared with the capacity of a pedestrian to cause damage. That factor should be understood from the perspective of both the driver and the pedestrian, rather than as an independent consideration. To treat it as an independent consideration may lead to the conduct of the driver being judged against a higher standard than that of the pedestrian. Each should be equally conscious of that factor and adjust his or her behaviour accordingly: the driver by taking greater care for the pedestrian; the pedestrian by taking greater care for his or her own safety [54].

See also Davis v Swift [2014] NSWCA 458; (2014) 69 MVR 375 [29]; Verryt v Schoupp [2015] NSWCA 128; (2015) 70 MVR 484 [20].

74 In Steen v Senton [2015] ACTCA 57; (2015) 302 FLR 440, Refshauge, Penfold and Rangiah JJ reviewed the line of cases in the Court of Appeal of New South Wales to which I have referred. The New South Wales Civil Liability Act applied to the litigation in Steen. Their Honours made these comments:

It may be seen that in each of Chivas and Cosmidis, a majority held that s 5R of the CLA requires that the approach taken in cases such as Pennington v Norris is no longer to be applied. In each case, the majority held that the driver and pedestrian should be equally conscious of the capacity of a motor vehicle to cause damage to a pedestrian and each should adjust his or her own behaviour accordingly. In Cosmidis, the majority also held that the same result is reached when the general principles in s 5B(2) of the CLA are applied and the probability that harm would occur if care were not taken and likely seriousness of the harm is considered. The consequence is that the fact that the driver is in charge of a motor vehicle capable of causing great damage does not, of itself, mean that the driver's culpability is relatively greater than that of the pedestrian. The dissenting judge in each of Chivas and Cosmidis took the opposite view [36].

75 Refshauge, Penfold and Rangiah JJ said there was 'considerable force in the reasons of the majority in Chivas and Cosmidis, and they cannot be considered to be plainly wrong' [38]. Accordingly, there was no basis for the Court of Appeal of the Australian Capital Territory to depart from the views of the majority in those cases [38]. Their Honours held that the approach in Pennington should not be followed in applying s 5R of the New South Wales Civil Liability Act in assessing contributory negligence [39].

(1) This section applies when it is established that the person whose harm is the subject of proceedings for the recovery of damages for that harm was intoxicated at the time of the act or omission that caused the harm.

(2) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.

(3) If this section applies, it is to be presumed that the person was contributorily negligent unless the plaintiff establishes, on the balance of probabilities, that the person's intoxication did not contribute in any way to the cause of the harm.

(4) In this section -

intoxicated means affected by alcohol or a drug or other substance capable of intoxicating a person to such an extent that the person's capacity to exercise reasonable care and skill is impaired.

77 In the present case, counsel for the appellants conceded at trial that there was 'some contributory negligence' by the Deceased [86]. Nevertheless, the trial judge referred to s 5L of the Act and said she had 'no doubt that the intoxicated state of the [Deceased] directly contributed [to] his decision to walk [in the manner he did] on that night' and, therefore, the Deceased was 'also presumed to be contributorily negligent' by virtue of s 5L [89].

78 It is unnecessary, in the present case, to express an opinion on the correctness, with respect, of the line of cases in the Court of Appeal of New South Wales as to whether the relevant principles governing apportionment of liability under the New South Wales equivalent of s 4(1) of the Law Reform Act, in the context of the common law of negligence, have been modified or superseded by the New South Wales equivalent of the Civil Liability Act.

79 I will determine the merits of the appellants' grounds of appeal on the assumption, favourable to the appellants, that the relevant principles governing apportionment in this case are those applicable under s 4(1) of the Law Reform Act in the context of the common law of negligence. As I have mentioned, that was the basis on which the trial judge proceeded.

80 I am satisfied, for the following reasons, that her Honour did not make any material express or implied error in apportioning liability and that the appellants' grounds of appeal are without merit.

81 First, the appellants have not challenged any of the trial judge's findings of fact.

82 Secondly, as I have mentioned, counsel for the appellants' submission that, as a matter of principle, where a finding is made that the driver of a motor vehicle should have seen a negligent pedestrian, the apportionment between the driver and the pedestrian 'will always be in favour of the pedestrian because a motor vehicle has the capacity to do more damage', is misconceived.

83 Thirdly, as I have mentioned, the fact that, in a particular case, the pedestrian's conduct, although involving contributory negligence, did not endanger the negligent driver or anyone else is ordinarily a relevant factor to be taken into account in determining the appropriate apportionment. However, the significance of that factor, and the weight to be given to it, will no doubt vary from case to case.

84 Fourthly, in the present case, her Honour expressly noted the cases which have held that, ordinarily, the driver of a motor vehicle has, as a matter of fact, a greater capacity to cause damage than a pedestrian [93]. In my opinion, her Honour was correct in holding that, in the circumstances, the cases in question did not have 'any direct bearing on the facts of this case' [93]. In the present case, there were numerous factors, to which I will refer at [85] below, which made it appropriate for her Honour to apportion liability in the manner she did.

85 Fifthly, in the circumstances, it was open to her Honour to apportion liability in the manner she did having regard, in particular, to the following:

(b) Her Honour's unchallenged finding that the Deceased's conduct was 'reckless' [88], [94].

(c) Her Honour's unchallenged findings that Mr McGregor's breach of duty involved 'a brief deficit of attention' and that, by contrast, the Deceased was engaged in 'ongoing conduct on the road' that was 'obviously dangerous to himself and other road users' [92].

(d) The Deceased walked on the road when there was adequate room for him to walk off the road.

(e) The Deceased walked on the wrong side of the road; that is, with his back to oncoming traffic.

(f) The Deceased wore black clothing: his white tie would not have been visible and his white shoes would have been very difficult to see even if Mr McGregor had been keeping a proper lookout.

(g) The Deceased should have heard the Bus and been aware of its headlights in sufficient time to take evasive action.

(h) There was a curve in the road at the point of the collision and this would have made it more difficult for Mr McGregor, if he had been keeping a proper lookout, to see the Deceased in sufficient time to take evasive action.

(i) At night and with no moon or street lighting and no other traffic, it should have been easier for the Deceased to hear the Bus and be aware of its headlights than it would have been for Mr McGregor, if he had been keeping a proper lookout, to see the Deceased.

(j) A reasonable person in the position of Mr McGregor would not readily anticipate encountering a pedestrian who was walking on the road, in black clothing and with his back to the oncoming traffic, at about 1.30 am.

86 Grounds 1, 2 and 3 of the appellants' appeal fail.

88 The respondent contended that the trial judge 'applied common law rules in determining the apportionment of contributory negligence' and, had her Honour applied s 5K of the Civil Liability Act, then 'the apportionment as determined by her can be additionally supported on the basis that [s 5K provides for a greater equivalence in] the standard of care between the tortfeasor and the injured person'.

89 It is unnecessary to deal with the respondent's notice of contention.