Scott v Williamson; Picken v Williamson

The trial judge's reasons 19The trial judge found that James Picken lifted Ms Scott over the fence and had placed her on the roadway by the time the accident happened. 20His Honour held that Mr Williamson was not driving at an excessive speed and the presence of the minibus on the road with its hazard lights flashing was not such as should have caused Mr Williamson to slow down before he did. His Honour accepted that Mr Williamson's attention was directed to observing Alan Picken cross the road and the presence of the minibus on the side of the road. By the time he directed his attention back to the roadway, the appellants were on the roadway, at which point he braked hard, but nonetheless collided with them. His Honour assessed Mr Williamson's speed at the point of impact to be approximately 45 kph and possibly less. There was no challenge to this finding. His Honour concluded that a number of seconds must have elapsed between the time that Mr Williamson observed Alan Picken crossing the road and when he saw James Picken immediately in front of him. 21His Honour found that if the appellants were not observed until 50 m from the point of impact, there was no chance of avoiding a collision. His Honour considered that the only chance of avoiding the collision was if Mr Williamson had observed the appellants well before 50 m and had observed them stepping over the median strip barrier fence. His Honour commented that even if Mr Williamson had seen the appellants stepping over the fence, he would have had to assume that they would step onto the roadway. His Honour considered that Mr Williamson would not have expected them to do that and, in any event, he did not see them do so. 22His Honour concluded that the appellants had not discharged the burden of proof of establishing that Mr Williamson failed to take reasonable care in not observing the appellants in time to stop his vehicle to avoid a collision. In coming to that conclusion, his Honour had regard to the Civil Liability Act, s 5F to s 5H. In general terms, the effect of those sections is that a person does not have a duty of care to warn of an obvious risk to another person. 23His Honour found that a reasonable person in the position of the appellants would have been aware of the obvious risk of stepping over the chain fence into the line of traffic travelling along the roadway. Strictly, that finding was not necessary, as pursuant to s 5G, a person is presumed to be aware of an obvious risk unless the person, on the balance of probabilities, proves otherwise. 24Leaving that aside, however, his Honour's reliance on these provisions was misplaced, as they are directed to the duty to warn. Mr Williamson's relevant duty was to keep a proper lookout. His Honour's finding, to which I have referred at [22] above, was a finding in respect of that duty, a duty to which s 5F to s 5H do not apply. 25His Honour found that if he was wrong in relation to his findings on negligence, he would have assessed contributory negligence on James Picken's part to be "in the order of sixty-five per cent" and that of Ms Scott "within the vicinity of thirty per cent". 26In a second judgment, dated 28 November 2011, the trial judge dealt with his provisional assessment of damages. However, relevant to his Honour's liability findings, he said: "I consider it appropriate that I state that in my reasons for judgment as to liability that there be an expressed finding that [the appellant] James Picken immediately prior to stepping over the wire fencing on the western side of the median strip whilst holding [the appellant] Rebecca Scott in his arms did not look to see the whereabouts of approaching vehicles." 27His Honour made further reference to James Picken's evidence. In particular, he referred to James Picken's evidence that he had looked to see if there were any cars before he had put Ms Scott over the fence and that there was no traffic going either way on Windsor Road. He also referred to James Picken's evidence that, after having placed Ms Scott on the roadway, he looked up the road and saw that there were no cars coming. 28His Honour next stated: "On the evidence before me [the appellants] were hit by the vehicle driven by the [the first respondent] within seconds of both [appellants] standing on the roadway. [The appellant] James Picken [in] his evidence said that probably six or seven seconds had elapsed between the time that he looked and saw no oncoming traffic. He said that after getting over the cable fencing he took one step and heard the howling of tyres. I consider it appropriate that there be the express finding that [the appellant] James Picken immediately prior to stepping over the wire fence on the western side of the median strip whilst holding [the appellant] Rebecca Scott in his arms did not look to see the whereabouts of approaching vehicles." 29The appellants complained that his Honour had made these further findings without notice that he intended to do so and in circumstances where it was only expected that his Honour would deal with a provisional assessment of damages only. The appellants recognised that there was difficulty in their complaint, in that the orders made by his Honour were not entered in the court's computerised record system until 4 April 2012. 30It has long been recognised that a judge may review the reasons for judgment that have already been given in Court, either orally or by the publication of a written judgment provided that the judgment has not been entered: see DJL v Central Authority [2000] HCA 17; 201 CLR 226 where the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) stated, at [34]: "The common law courts, as superior courts of record, had 'full power to rehear or review a case until judgment [was] drawn up, passed, and entered'. That statement, with citation of supporting authority, was made by Starke J in Texas Co (Australasia) Ltd v Federal Commissioner of Taxation." (citation omitted) 31Thus, up until the point of time immediately prior to entry of a judgment or order, there is no prohibition on the court reviewing its reasons or amending orders it has pronounced. 32His Honour's first judgment, given on 16 November 2011, whilst not an ex tempore judgment, was given orally in Court. It would seem that his Honour reviewed his reasons given on 16 November 2011 and realised that he had not made a finding as to whether or not James Picken looked before he lifted Ms Scott over the fence and placed her onto the roadway. In my opinion, that finding was open to his Honour on the evidence. It was consistent with the evidence that he had otherwise accepted and was also consistent with his rejection of Mr Picken's evidence on all essential aspects of his claim. 33In my opinion, there is no appealable error in the trial judge reviewing his reasons for judgment. The amendment of his Honour's judgment amplified his reasons in the earlier judgment in a way that made his findings clearer than they had been. The amplified portion did not introduce any new matter or issue that had not been the subject of disputation in the hearing. His Honour made no alteration to his findings and no change to the orders that he had pronounced in court on 16 November 2011.

Case as argued on the appeal 34The central allegation of negligence against Mr Williamson was that he ought to have observed the appellants on the median strip in sufficient time to stop should they have entered upon the roadway and followed Alan Picken across the road. 35As the liability of Mr Williamson was significantly dependent upon whether he should have seen the appellants in sufficient time to stop, there was considerable emphasis in the appellant's argument on the appeal as to the various distances at which Mr Williamson either saw, or should have seen, the appellants, and whether he could have stopped within those distances so as to avoid the collision. In the end result, as I explain below, the evidence as to distances and stopping times was either non-contentious or, when considered in its entirety, was reasonably consistent. However, it needs to be surveyed in sufficient detail for the purposes of determining whether his Honour erred in finding that the appellants had not established negligence against Mr Williamson. It is convenient to deal first with the expert evidence.

Expert evidence as to distance and stopping times 36The appellants and Mr Williamson called expert evidence. Mr Joy, who was retained by the appellants, is a civil engineer and a member of the Australian Institute of Traffic Planning and Management. Mr Hall, who was retained by Mr Williamson, is a mechanical engineer specialising in accident reconstruction. They gave evidence as to reaction times, visibility and stopping distances. 37Their evidence was that the reaction time of a driver, between the observation of an event on the road and taking some action in respect of that event, varies from 0.5 seconds to 2.5 seconds. Mr Hall estimated that Mr Williamson's reaction time was approximately 2.1 seconds and both parties accepted that a mean of 2 seconds was an appropriate estimation of the reaction time for the purposes of an assessment as to whether Mr Williamson could have brought his vehicle to a stop before colliding with the appellants. His Honour did not make a specific finding as to whether that was the reaction time to which he had regard in determining whether Mr Williamson should have been able to stop so as to avoid a collision. 38Mr Joy described the visibility on Windsor Road at the site of the accident as good. He said that headlights on a vehicle provide 50 to 60 m of illumination and that, from his experience from driving on this road, there would be vision of 100 m or more of a person either just inside the chain fence or crossing the road. Although Mr Hall's assessment of the likely visibility was something less than that, he accepted in cross-examination that the appellants would have been visible at about the distance assessed by Mr Joy. It will be recalled that Mr Hall conceded that he had been provided with the wrong location as to the point of impact, so that much of his report had been based upon a wrong premise: see [8] above. 39Mr Joy calculated the following stopping distances at various speeds of the vehicle: (i) Assuming a reaction time of between 0.5 and 1.0 seconds, a vehicle travelling at 75 kph would stop at a distance of between 41 to 57 m; (ii) Assuming the same reaction time, a vehicle travelling at 60 kph would stop at a distance of between 27.2 to 38.5 m. 40Mr Hall used different figures both as to reaction times and deceleration rates from those used by Mr Joy. Relevantly, however, in his cross-examination Mr Hall calculated that the distance in which a vehicle travelling at 60 kph could be brought to a stop, based on a reaction time of 1.5 seconds, was about 43 m. He also agreed that with a reaction time of 2.5 seconds, a vehicle travelling at 60 kph could be brought to a complete stop in a distance of less than 50 m. 41It is apparent, therefore, that once the experts gave their oral evidence and were cross-examined, there was no real conflict in their testimony.

Evidence of the other witnesses relating to distances and visibility of the appellants 42There was an intersection approximately 200 m prior to the point of impact through which Mr Williamson had travelled. The evidence was that the minibus, with hazard lights flashing, would have been visible from that intersection. Mr Williamson accepted this was so, although he did not see the minibus until he was 150 m past the intersection, that is, 50 m from the point of impact. 43Mr Williamson initially said that he was 100-150 m through the intersection when he noticed movement on the road in front of him. He said that the figure he observed was "probably in the centre of the road". This was a reference to Alan Picken, who had crossed the road ahead of the appellants. He also said he did not notice the minibus before seeing the man crossing the road. Later, in cross-examination, he agreed that he was 150 m through the intersection before seeing either the person crossing the road or the minibus. On that evidence, he would have been approximately 50 m from the minibus. He said that he applied slight pressure to his brakes and his speed reduced to about 60 kph. 44Mr Williamson said that he was only "10, 15, 20" m from James Picken when he first observed him and then applied greater pressure to his brakes. His evidence was that he "[p]ut [his] foot harder on the brake ... and hung on". 45Notwithstanding Mr Williamson's evidence that he was 50 m away when he saw Alan Picken and the minibus, his senior counsel accepted that this could not be correct and conceded that Mr Williamson saw the minibus at a distance of about 80 m. He said, "it might have been 90 but it was probably 80". 46Mrs Williamson said that having observed the first person cross the road, she saw "another form coming from the bushes" which "looked like a male [and] it looked like they were carrying something". She then saw the male step "over something [and] the next second he was on the car". Mrs Williamson said she heard "some yelling" between when she first saw the other person crossing the road and when she saw the figure on the median strip. 47Mrs Williamson said after she saw the first figure walk across the road she had told her husband to "slow down". She said the car "had slowed down anyway" and was "still slowing" when the appellants were hit. 48Mr Pastega first observed Mr Williamson's vehicle when it was a distance of 150-200 m away. Mr Pastega said that as James Picken was stepping over the chain fence holding Ms Scott, he observed that Mr Williamson's vehicle was 70-80 m away. Later in his evidence, he said that 80 m was "fairly accurate". Mr Pastega estimated that before James Picken picked Ms Scott up, the appellants were standing adjacent to the chain fence on the median strip for 4-5 seconds. He saw James Picken put Ms Scott down on the bitumen strip between the fence and lane 2. In a statement given to police six weeks after the accident, Mr Pastega estimated that the appellants were standing on the roadway for 1-2 seconds before they were struck by Mr Williamson's vehicle. On this evidence, the appellants were adjacent to the chain fence and on the roadway for a period of 5-6 seconds before they struck. On the assumption that Mr Williamson was travelling at 60-65 kph, he would have been some 80-90 m away at that time from the point of impact. 49Alan Picken saw Ms Scott flying though the air as he stepped onto the minibus. He had walked a distance of at least 10 m, comprising the width of lane 1 (3.3 m on Mr Joy's measurement), the width of the minibus (2 m), and part of the length of the minibus (5 m). Senior counsel for the appellants calculated, therefore, that Mr Williamson must have first seen Alan Picken 7-8 seconds before the collision. This calculation was based on an average walking speed of 1.4 m per second.

Appellants' submissions 50The primary factor upon which the appellants relied to establish that Mr Williamson was negligent was his evidence that he first saw the appellants when he was some 10-20 m away. The appellants submitted they only needed to establish that they would have been visible to Mr Williamson at a distance of 50 m in order for him to have sufficient time to stop so as to avoid colliding with them. They contended, however, the evidence established that Mr Williamson should and would have seen them earlier if he was keeping a proper lookout. The appellants submitted that the evidence established that they would have been visible to Mr Williamson for a period of 5-6 seconds. This meant that travelling at a speed of 60 kph, they should have been visible to Mr Williamson at a distance of at least 80-90 m away. 51The appellants submitted that this assessment of the distance at which they were visible derived from the evidence of various witnesses and the expert evidence. It also accorded with Mr Pastega's evidence that he saw Mr Williamson's vehicle when it was about 80 m away, at which time he had observed James Picken pick Ms Scott up and step over the chain fence. The appellants pointed to the concession at trial by senior counsel for Mr Williamson, Mr Rewell, that ranges of vision were not in issue and that the case being advanced for Mr Williamson was that "it did not register in his consciousness" that the appellants were on the median strip. The appellants contended that the effect of this concession was an acknowledgment that Mr Williamson would have seen them had he been having regard to what was occurring in front of him. 52The appellants submitted that once there was some unusual activity on the roadway, a reasonably careful driver was under an obligation to slow down. They pointed out that Mr Williamson acknowledged this was the obligation of a reasonably careful driver in that, having observed Alan Picken crossing the roadway and the minibus flashing its hazard lights, he said that it had occurred to him that it was possible other persons might come onto the roadway. The appellants submitted that Mr Williamson, after seeing Alan Picken on the road, breached his duty of care to users of the roadway in not, at that point, commencing to slow down sufficiently so as to be able to stop before hitting the appellants. The appellants also contended that, in any event, Mr Williamson had already failed in his duty to keep a proper lookout in that he did not see the minibus as or shortly after he came through the intersection, given the evidence established that with its hazard lights flashing it was visible from a distance of 150-200 m away. 53The appellants submitted it was apparent from the evidence that Mr Williamson had been distracted by the presence of the minibus on the side of the road. In allowing himself to become distracted, he had breached his duty of care to keep a proper lookout. They relied on the statement of Hayne J in Pledge v Roads and Traffic Authority [2004] HCA 13; 78 ALJR 572 at [12]: "To say that the driver was distracted by the vehicle coming out of the parking bays and the consequent reaction of the oncoming vehicle, is no more than a particular and positive statement of the negative proposition that he was not keeping a proper lookout. What attracted his attention was, as the Court of Appeal said, an event of an otherwise unremarkable kind, namely, the entry of one vehicle on to the carriageway from a point outside the bounds of that carriageway and the reaction of another vehicle into the path of which the first vehicle was moving. It was not suggested that the driver of either of those other vehicles caused or contributed to the happening of the accident. Rather, the trial judge found that the authority which had permitted cars to be put in the position from which the first vehicle had come was to some extent responsible for the accident." (original emphasis) 54Similar observations were made by the High Court in Manley v Alexander [2005] HCA 79; 80 ALJR 413. In that case, the respondent was lying on the roadway in the early hours of the morning. His companion was on the side of the road "moving around a fair bit like he had been drinking". The appellant, who was driving along the road at a reasonable speed and with the headlights of his vehicle illuminated, watched the companion on the side of the road for a number of seconds. By doing so, he failed to see the respondent lying on the roadway in time to avoid running over him. 55The Court stated, at [11]-[12]: "No doubt the appellant's attention was drawn to the figure of Mr Turner standing at the side of the road and behaving in a way that suggested that he might act in some way that would require the appellant to respond. But recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path. It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Road at 4am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events." (emphasis added) 56Mr Rewell submitted that Mr Williamson had not breached his duty of care to the appellants. As I have already indicated, Mr Rewell conceded that Mr Williamson in fact saw Alan Picken and the minibus at a distance of about 80 m. Senior counsel contended that at that point, Mr Williamson acted reasonably in braking and thereby reducing his speed. Mr Rewell contended that it was implicit from the evidence that Mr Williamson continued to brake lightly. 57Mr Rewell accepted that the evidence established that the appellants were visible but submitted that the question was whether Mr Williamson ought to have been looking straight ahead, as his wife was, at that time, so as to see the appellants from the time they became visible to someone in Mr Williamson's position on the roadway. In making this submission, senior counsel accepted that Mr Williamson had retained a predominant focus at least slightly to his left, towards the minibus. Senior counsel submitted that Mr Williamson had not breached his duty of care in doing so and that it was not unreasonable for him to maintain some attention to what was occurring on the left hand side of the road. He contended that there were good reasons for him having done so, namely, the prospect of some activity occurring around the minibus. 58The approach postulated by Mr Rewell, considered though it was, fails to deal with a number of matters which lead, in my opinion, inevitably to the conclusion that Mr Williamson was not keeping a proper lookout. First, Mr Williamson did not see the appellants until he was 20 m or less from them. Even on Mr Rewell's calculation, the appellants had been visible for some seconds before that. The only reason Mr Williamson did not see them was because he was not looking at the roadway in front of him, but was looking to the left. 59Secondly, the submission fails to acknowledge that had Mr Williamson been looking in front of him, he would have had time to stop. 60Thirdly, as the High Court stated in Pledge v Roads and Traffic Authority, the failure to see the appellants, as Mr Williamson would have done had he maintained attention to the roadway in front of him, meant he had, in fact, failed to keep a proper lookout. Mr Williamson was thus in breach of his duty of care to persons who might be on the roadway. See also the observations in Manley v Alexander referred to at [55] above. 61Finally, there is the fundamental difficulty that the reason suggested as to why it was reasonable for Mr Williamson to have his attention to the left and not to the road in front of him, was not, in my opinion, supported by the evidence. Mr Rewell submitted that Mr Williamson was "faced with a real and observed potential hazard to his left which was the bus". This was not correct. The presence of the stationary minibus in the breakdown lane did not pose any danger to Mr Williamson driving in lane 2. It was, however, a sign that there was some activity occurring on the roadway. There was, in fact, other activity occurring on the roadway, which was of more immediate concern, namely, Alan Picken's conduct in crossing the road in front of Mr Williamson, albeit at a distance that did not place Alan Picken in danger. It was activity, nonetheless, sufficient to alert a driver taking reasonable care that there may have been others on or about the road. Mr Williamson conceded as much. 62In my opinion, the evidence established that Mr Williamson was not keeping a proper lookout. Had he done so, he would had sufficient time to stop so as to avoid colliding with the appellants. It follows that there should be a judgment for the appellants on the claim.

Claim against Mr Pastega 63The claim of alleged negligence of Mr Pastega was based upon two propositions. Both the appellants and Mr Williamson alleged that Mr Pastega was negligent in creating a dangerous situation in pulling over to the side of the road. They also contended that he was negligent in failing to sound his horn as a warning to the appellants when, at a distance of about 80 m, he realised that Mr Williamson was approaching, and also knowing that the appellants were coming across the median strip with the intention of crossing the road to the minibus. 64In respect of the claim against Mr Pastega, his Honour did not consider it unreasonable for Mr Pastega to bring the minibus to a stop in the breakdown lane. His Honour held that although Mr Pastega may have had a duty to see that passengers got on the minibus safely, the appellants suffered harm because of their own decision to cross the roadway. 65Had James Picken's evidence that he told Mr Pastega that Alan Picken and Ms Scott were "at the servo" been accepted, there would have been merit in the appellants' contention that Mr Pastega should have taken a route that would have enabled him to pull up outside the service station so as to enable Alan Picken and Ms Scott to get on the minibus without having to cross the carriageway. However, James Picken's evidence was rejected by the trial judge and the appellants did not seek to reinstate it on the appeal. 66The appellants and first respondent submitted that Mr Pastega created a dangerous situation by pulling to the side of the road when he knew the appellants would have to, and would, cross the road to get to the minibus. The difficulty with propounding that argument was that the trial judge held, in a finding not challenged by the appellants, that: "I do not consider that [Mr Pastega] acted unreasonably in bringing his vehicle to a stop in the breakdown lane. I accept that he was told by Mr James Picken to stop the mini-bus. I also accept that he was unaware where Rebecca Scott and Alan Picken were when he was told to stop." 67The absence of challenge by the appellants to that finding caused their senior counsel to focus the argument on two matters. First, that Mr Pastega should not have stopped the minibus on that part of the carriageway in any event, because it was not a safe place to do so. The contention was that it was a no stopping area where Mr Pastega knew that the appellants would have to cross the road to reach the minibus. Second, Mr Pastega should not have opened the door of the minibus after he stopped and should have counselled James Picken not to get out because it was not safe to do so. This argument was essentially predicated on Mr Pastega knowing that Alan Picken and Ms Scott were on the other side of the road. 68The evidence upon which the first of these submissions was based differed in a significant way between James Picken and Mr Pastega. James Picken's evidence was that he was sitting in the middle of the minibus and, when he saw his brother and Ms Scott, he said, "[t]here they are over there". Mr Pastega said, however, that James Picken was seated behind him. His evidence was that James Picken was yelling, "[s]top the fucking bus". Mr Pastega said he considered he had no choice but to do so. As he explained: "First of all, when you do your - when you do your coach management course and you do your accreditation there are - you're informed that if - if a passenger has a reasonable request to get off the bus you can't hold them on the vehicle ... Second of all, if they stand up in a bus, it's dangerous especially in the stairwell area because it's more dangerous to drive the bus at all. And third, when Mr Picken ... grabbed the handle ... it more or less puts me in a position where I can't drive again for a few - unless I reset the door ... So there was quite a few - and if he's - and when somebody is insisting on - insisting to that point and they say - we were instructed when we're taught that if you pull up next to a kerb and it's safe to put someone on a - on the kerb, then that's - that's - overrides other - other circumstances, you know. So I was put in a position." 69His Honour did not refer to Mr Pastega's evidence as to James Picken standing on the minibus steps and speaking and acting in what can only be described as an aggressive manner. I am, however, of the opinion that, in circumstances where on every essential aspect of the case his Honour rejected James Picken's evidence and accepted Mr Pastega's evidence, the Court is entitled to and should accept the detail of the evidence given by Mr Pastega. 70In my opinion, it was not established that Mr Pastega had created a dangerous situation. He pulled to the side of the road and parked in the breakdown lane and activated his hazard lights. He did so in response to James Picken's aggressive demands to which I have referred. He permitted James Picken to exit because he considered that James Picken was likely to have damaged the door's safety mechanism and that it was, in any event, dangerous to drive with him in the stairwell. The door mechanism, if opened by James Picken, would have required Mr Pastega to reset it, otherwise he would not be able to operate the minibus. Mr Pastega said that although he heard James Picken say, "[t]here they are", he did not know where Alan Picken and Ms Scott were until he stopped and James Picken had exited, walked in front of the minibus and crossed to the other side of the road. 71As to the second basis of Mr Pastega's alleged negligence, Mr Pastega said that as Alan Picken commenced to cross the road, he checked his outside mirror to see if any cars were coming. He looked back to the median strip and saw James Picken and Ms Scott near the fence. He checked his mirror again. Observing Mr Williamson's car, he called out, "Hang on. Hang on". He did not assess the situation to be dangerous at that stage. 72Mr Pastega said he saw James Picken on the median strip picking Ms Scott up and realised they had not seen Mr Williamson's approaching vehicle. He said James Picken had his back to the oncoming vehicle and was stepping over the fence. When he was cross-examined as to why he did not sound his horn at that stage, he said: "Yeah, well, my head was sort of half out the window. I started to yell. I thought it was - I was making choice over the other and that was the - the quickest thing to do." 73Pressed again that he could have sounded the horn at that time, Mr Pastega said: "Yeah, well, it's very - the horn on - on those buses are very small buttons. To save time, I had - my head was already out the window. I'd - and I'd already began to yell so I screamed even louder and I thought at that point, you know, sometimes you - you don't - you take the choice of putting my head back in and reaching for the horn rather than screaming louder; that's the choice I made. Yes, that's right." 74The cross-examination continued: "Q. You see, if you had blasted the horn at that point with a lengthy blast, they could have stopped before they stepped into lane 2 and into the path of a vehicle, couldn't they? A. Well, yes, they - I yelled. They could have stopped when I yelled as well, but - I yelled very loud; very loud. Q. If you had blasted the horn, that would have had the other advantage that perhaps the - just wait - perhaps the oncoming driver would hear a loud long horn blast and alert he or she? A. I don't know about that." 75Mr Pastega's evidence as to his shouting out to the appellants was not contradicted. Indeed, it would seem that others in the minibus were also shouting out at that time, as it became apparent that the appellants were in imminent danger. The extent of the shouting is supported by Mrs Williamson's evidence that she heard yelling. 76In my opinion, Mr Pastega was not under a duty to take some action to warn the appellants that there was a risk of harm if they proceeded to cross the road. In the first place, the provisions of the Civil Liability Act, ss 5F-5H would apply, as I discuss below. Further, given my conclusion that the trial judge was correct in determining that Mr Pastega did not create a situation of danger, he was, in effect, in the position of a bystander. In the absence of any circumstances giving rise to an obligation to render assistance, by way or warning or otherwise, to a person to whom the bystander does not otherwise owe a duty of care, there is no duty on the bystander to do so: see Prue Vines, Peter Handford and Carol Harlow, "Duty of Care", Fleming's The Law of Torts, Carolyn Sappideen and Prue Vines (eds) 10th ed (2011) Lawbook Co at [8.90]. However, the matter was not defended on that basis. 77The trial judge held that Mr Pastega, not having been negligent in stopping in the breakdown lane, was not otherwise negligent. He stated that although Mr Pastega may have been under a duty of care to see that the passengers entered into the minibus safely, the appellants had come to harm because of their own decision to cross the road. His Honour referred to both limbs of the Civil Liability Act, s 5D and ss 5F, 5G and 5H. 78His Honour's reference to ss 5F-5H in the case of Mr Pastega was appropriate. As I have already noted, these provisions provide that a person does not have a duty of care to warn of an obvious risk to another person. An obvious risk is defined in s 5F(1) as a "risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person". In this case, the appellants stepped onto the roadway from a chained-off median strip in the early hours of the morning, onto a major roadway where the speed limit was 80 kph. In my opinion, that was an "obvious risk" in the circumstances of this occurrence. On that basis, there was no duty upon Mr Pastega to warn the appellants of the approach of Mr Williamson's vehicle: see s 5H(1). 79But in any event, I am of the opinion that Mr Pastega did take steps to warn the appellants in circumstances in which he assessed they were potentially in danger. His explanation as to why he shouted out to the two people on the roadway, rather than sounding his horn, was plausible and convincing. In the circumstances with which he was confronted, which were circumstances of some urgency and immediacy, his action in shouting rather than sounding the horn was reasonable. Accordingly, even if it could be said that there was a duty to warn, Mr Pastega did not breach that duty, because he took the precaution of warning the appellants of a foreseeable risk of harm that was not insignificant: see Civil Liability Act, s 5B(1). 80Accordingly, I am of the opinion that Mr Pastega either did not owe a duty of care to the appellants at all, or did not owe a duty of care to warn them of an obvious danger in crossing the road in the circumstances in which they were doing so. Alternatively, I consider that there was no breach of duty. 81The claim against Mr Pastega should be dismissed.

Contributory negligence 82As I have indicated, the trial judge made a provisional assessment of the contributory negligence of each of the appellants. In the case of James Picken, his Honour considered that contributory negligence should be assessed in the order of 65 per cent. In the case of Ms Scott, his Honour considered that the appropriate deductions for contributory negligence was in the order of 30 per cent. 83Although Mr Williamson contended that the assessment in respect of Ms Scott's contributory negligence was very low, he did not challenge the trial judge's assessment on the appeal. Ms Scott submitted that an appropriate assessment was 20 per cent contributory negligence. 84James Picken contended that an assessment of 65 per cent contributory negligence by him was excessive and that this Court should determine contributory negligence at a much lower percentage. He suggested that an appropriate assessment was 30 per cent contributory negligence. Mr Williamson submitted that the trial judge's provisional assessment of about 65 per cent was correct and ought to be confirmed by this Court. 85James Picken submitted that his lack of care for his own safety should be assessed in circumstances where he looked to see if there was any oncoming traffic before he lifted Ms Scott over the barrier fence and, at that point, perceived no danger. This evidence was contrary to Mr Pastega's evidence and was not accepted by the trial judge. No express challenge in the form required by the Uniform Civil Procedure Rules 2005 was made to that finding other than the complaint that it was contained in the second judgment, dealt with above at [29]-[33]. Even had Mr Picken looked before he lifted Ms Scott over the fence, he must have done so with such a high degree of inattention as to be tantamount to a failure to look at all. Had he looked, he would clearly have seen Mr Williamson's vehicle some 80 m away. These matters are dealt with further below. 86It was submitted by the appellants that James Picken's failure to look a second time, that is, after he had placed Ms Scott over the barrier fence and himself stepped over it, had to be weighed against the following aspects of Mr Williamson's driving: his failure to observe the minibus with its flashing hazard lights earlier than he did; his failure to react more positively when he saw Alan Picken cross the road; his failure to see the appellants until they were 10-20 m away and in the lane in which he was driving; the fact that he was driving a car which is potentially lethal to pedestrians; and the fact that he ought to have known that there was every possibility that other pedestrians would follow Alan Picken. 87The appellants' claim for damages was governed by the Motor Accidents Compensation Act, so that s 138 of the Act applied. Relevantly, that section provides that the common law and statutory law as to contributory negligence applies to an award of damages in respect of a motor vehicle accident. There are exceptions to that provision which are not relevant to this case. 88In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529 the Court stated, at 532-533: "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. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." 89In my opinion, the trial judge's provisional assessment of contributory negligence was appropriate in each case. As to Ms Scott, it is apparent that she was not keeping a proper lookout immediately prior to allowing James Picken to lift her over the fence. I do not consider the Court should accept that James Picken looked to see whether any vehicles were on the road before he lifted Ms Scott over. Had he done so, he would have seen Mr Williamson's vehicle. In addition, according to Mr Pastega, James Picken stepped over the median strip fence with his back facing the direction of traffic. In any event, it was conceded in the written submissions that James Picken had not looked a second time to see if there was any traffic. Had he done so, he would have observed Mr Williamson's vehicle and, taking reasonable care for his own safety, not have stepped over the fence.

Damages 90In the separate judgment, given on 28 November 2012, the trial judge made a provisional assessment of damages. The appellants complain that his Honour did not make any factual findings to support his assessment of the various heads of damages with which he dealt and omitted to deal with certain heads of damage and evidence in support of those claims. 91The appellants submitted that it would not be possible for this Court to assess damages and it would be necessary for the matter to be remitted for a new trial on damages. 92Mr Williamson suggested to the Court that his Honour's approach to damages reflected Mr Williamson's submissions at trial, but recognised that his Honour did not give explicit reasons for following those submissions. Mr Williamson accepted that if the Court was not satisfied with his Honour's provisional assessment, the appropriate course was for the matter to be remitted for a new trial on damages. Counsel for Mr Pastega also submitted that this ought to be the case. 93Having regard to the substantial body of medical evidence that was tendered, together with James Picken's own evidence and that of his witnesses, particularly relating to gratuitous care, I have come to the conclusion that the trial judge failed to sufficiently explain his reasons, by reference to evidence, for assessing the various heads of damage in the amounts he did. As will be apparent from what I have said to date, there were credit issues in respect of James Picken's evidence as to the liability aspect of the judgment. Counsel for Mr Williamson informed the Court that there were also substantial credibility issues relating to damages, including the consideration of surveillance evidence. 94Although there was no particular submission as to the appropriate order that should me made in respect of Ms Scott, I am of the opinion that given the inadequacy of the trial judge's reasons, her claim also should be remitted to the District Court for the assessment of damages. 95In those circumstances, I am of the opinion that each appeal should be remitted to the District Court for the assessment of damages. 96Accordingly, I propose the orders set out below. In making the order for costs of the day of the hearing against Mr Williamson in favour of each appellant, I have done so on the basis that only one fee should be allowed to senior counsel for appearing for both appellants on the hearing of the appeal. The effect of the order for costs is that Mr Williamson should be liable for the entire costs of the day's hearing but those costs are to be divided equally between each claim. I have also concluded that Mr Williamson should bear part of the costs of the appeal against Mr Pastega. He supported the case against Mr Pastega and made submissions in respect of it. I consider that the appropriate proportion of the costs he should bear is 20 per cent. 97In the appeal of James Picken v Michael John Williamson and Stephen Pastega CA 2012/47273: (1) (a) Appeal allowed as against the first respondent/first defendant Michael John Williamson; (b) Appeal dismissed as against the second respondent Stephen Pastega; (2) Set aside verdict in favour of the first respondent/first defendant Michael John Williamson; (3) Set aside the order for costs in the Court below in favour of the first respondent/ first defendant Michael John Williamson; (4) Judgment for the appellant/plaintiff James Picken against the first respondent/first defendant Michael John Williamson; (5) Remit the claim of the appellant James Picken to the District Court for the determination of damages; (6) Order that the award of damages assessed by the District Court on the remitted hearing on the claim against the first respondent/first defendant Michael John Williamson be reduced by 65 per cent for the contributory negligence of the appellant/plaintiff, James Picken; (7) Order that the first respondent/first defendant Michael John Williamson pay the appellant/ plaintiff James Picken the costs of the proceedings in the court below heard and determined by Puckeridge ADCJ; (8) Order that the first respondent Michael James Williamson pay to the appellant James Picken his costs of the appeal as follows: (a) All costs of the preparation of the appeal as related to the appeal against the first respondent; (b) 50 per cent of the costs of the hearing of the appeal; (9) Order that the appellant James Picken pay to the second respondent Stephen Pastega 80 per cent of his costs of the appeal, such liability for costs to be a joint and concurrent liability with the appellant Rebecca Scott in proceedings CA 2012/47286; (10) Order that the first respondent/first defendant Michael John Williamson pay to the second respondent Stephen Pastega 20 per cent of his costs of the appeal. In the appeal of Rebecca Scott v Michael John Williamson and Stephen Pastega CA 2012/47286: (1) (a) Appeal allowed as against the first respondent/first defendant Michael John Williamson; (b) Appeal dismissed as against the second respondent Stephen Pastega; (2) Set aside verdict in favour of the first respondent/first defendant Michael John Williamson; (3) Set aside the order for costs in the Court below in favour of the first respondent/first defendant Michael John Williamson; (4) Judgment for the appellant/plaintiff Rebecca Scott against the first respondent/first defendant Michael John Williamson; (5) Remit the claim of the appellant Rebecca Scott to the District Court for the determination of damages; (6) Order that the award of damages assessed by the District Court on the remitted hearing on the claim against the first respondent/first defendant Michael John Williamson be reduced by 30 per cent for the contributory negligence of the appellant/plaintiff, Rebecca Scott; (7) Order that the first respondent/first defendant Michael John Williamson pay the appellant/plaintiff Rebecca Scott the costs of the proceedings in the court below heard and determined by Puckeridge ADCJ; (8) Order that the first respondent Michael James Williamson pay to the appellant Rebecca Scott his costs of the appeal as follows: (a) All costs of the preparation of the appeal as related to the appeal against the first respondent; (b) 50 per cent of the costs of the day of the hearing of the appeal; (9) Order that the appellant Rebecca Scott pay to the second respondent Stephen Pastega 80 per cent of his costs of the appeal, such liability for costs to be a joint and concurrent liability with the appellant James Picken in proceedings CA 2012/47273. (10) Order that the first respondent/first defendant Michael John Williamson pay to the second respondent Stephen Pastega 20 per cent of his costs of the appeal. 98McCOLL JA: I agree with Beazley P's reasons and the orders her Honour proposes. 99BARRETT JA: I agree with Beazley P.

Amendments 31 May 2013 - Order (1) in both appeals amended pursuant to UCPR, r 36.17 Amended paragraphs: Coversheet, [97] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2013