Serrao by his Tutor Serrao v Cornelius

Court of Appeal (NSW)|2016-03-10|Before: Leeming JA, Mr P

Background

The following background facts are taken from the Primary Judgment or are not in dispute.
In the evening of 13 August 2010, the appellant and his friend, Mr Schneider attended a 21st birthday party for Ms Newton. The party was held at the Masonic Hall, which is located near the corner of Homestead Road and Cross Road in Orchard Hills. The party concluded at about midnight.
At the conclusion of the party, the appellant and Mr Schneider were part of a group of about 20 or so young people waiting for taxis to respond to calls. No taxis having arrived after about an hour, the appellant and Mr Schneider decided to walk west along Homestead Road to The Northern Road, to see whether a taxi could be found there.
While walking along the southern side of Homestead Road in company with Mr Schneider, the appellant was struck from behind by a Ford Laser vehicle driven by the respondent. Both the appellant and Mr Schneider were wearing dark clothing, including black jeans and black (or nearly black) hoodies. The appellant wore ankle length white shoes with yellow trimming. Mr Schneider wore black shoes with green trimming.
The accident occurred at a point about 300 metres east of the intersection of Homestead Road and The Northern Road and about 200 metres west of the entrance to the Masonic Centre. The location is semi-rural and at the time of the accident (about 1.40 am) it was extremely dark. There was a street light near the site of the accident, but it was not working. Thus the only source of lighting was from oncoming vehicles. The weather was fine and the road surface was dry.
Homestead Road is a local road which travels essentially in a straight line between Cross Road and The Northern Road, in an east-west direction. In the area of the accident, the bitumen surface of Homestead Road was 6.12 metres wide. There was provision for one lane in each direction, separated by a broken painted centre line. The bitumen was bounded on each side by a gravel shoulder of variable width, leading to a grass shoulder. The speed limit on the section of Homestead Road where the accident occurred was 70 kph.

Some Procedural Issues

The appellant's amended statement of claim (ASC) pleaded a cause of action founded on the respondent's breach of duty. The particulars of negligence alleged that the respondent drove her vehicle while having a prescribed concentration of alcohol above zero, contrary to s 9 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW). [2] The particulars also alleged that the respondent failed to keep a proper lookout, failed to take steps to avoid a collision with the appellant and drove her vehicle without the headlights illuminated. The ASC pleaded that at the time of the accident the appellant was walking along the southern side of Homestead Road in a westerly direction, but did not say whether he was walking on the bitumen surface of the road or on the adjacent verge.
As will be seen, the primary Judge found that although the respondent had a high alcohol blood reading, her intoxication was not causally related to the respondent's failure to stop in time to avoid the accident. He also found that none of the other particulars of negligence had been made out. Nonetheless his Honour found that the respondent was negligent in that she drove her vehicle off the bitumen road surface onto the gravel verge. Her negligence caused the vehicle to collide with the appellant who (on his Honour's findings) was walking along the gravel verge near the bitumen surface of the road. His Honour therefore found that the respondent's actions in driving her vehicle partially on the gravel verge caused the injuries sustained by the appellant.
The respondent took no point at the trial about the appellant relying on an unpleaded case. Mr Deakin QC, who appeared with Mr Wilson SC for the respondent on the appeal, pointed out that the appellant had not pleaded the point on which he succeeded. However, Mr Deakin did not dispute that it was too late for the respondent to complain on the appeal about the failure of the appellant to plead the case on which he ultimately succeeded.
The appellant pleaded an alternative to his cause of action founded on negligence. His statement of claim pleaded that if no finding of negligence was made, his injuries had been sustained in a "blameless motor accident" within the meaning of s 7A of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act). He further alleged that pursuant to s 7B of the MAC Act, his loss and damage from the accident were deemed to have been caused by the fault of the respondent and thus he had a statutory entitlement to compensation.
Since the primary Judge found that the respondent was negligent and that her negligence caused the appellant's injuries, his Honour did not address the appellant's alternative case. The notice of appeal did not refer to the appellant's blameless accident case and his written submissions in this Court did not advance any argument supporting that case.
Mr Laughton SC, who appeared with Mr Boyd for the appellant, sought and was granted leave during the hearing of the appeal to amend the notice of appeal by including Ground 5, as follows: "The trial Judge erred in failing to find in the alternative that this was a blameless accident". Mr Deakin, while not opposing the leave to amend, indicated that, if necessary, the respondent wished to be heard on the issues raised by the amendment.
Mr Laughton and Mr Deakin agreed that whatever the outcome of the cross-appeal, it is desirable, if possible, to avoid remitting the matter to the District Court. They therefore proposed that if the cross-appeal succeeds, the parties should be given an opportunity to make submissions on the appellant's alternative blameless accident case. At that point, they would have the benefit of this Court's factual findings, insofar as they differ from those made by the primary Judge. The presiding Judge indicated to counsel that, if necessary, the Court was prepared to adopt this approach.
The appellant filed a notice of contention prior to the hearing of the appeal challenging the primary Judge's finding that the respondent, even if she had not been affected by alcohol, had insufficient time after seeing the appellant to avoid colliding with the appellant. This finding was fatal to a central plank of the case advanced by the appellant at trial.
The appellant's written submissions did not include any arguments in support of the notice of contention. In response to an inquiry from the Court, Mr Laughton stated that the appellant did not intend to rely on the notice of contention and that it should be treated as withdrawn. It follows that there is no challenge on the appeal to the factual finding identified in the notice of contention.
It follows from what has been said that the appellant does not seek to uphold the Primary Judgment on any basis other than that relied on by the primary Judge. It also follows that if the cross-appeal succeeds, the parties must be given an opportunity to make submissions on the appellant's alternative blameless accident case.

The Primary Judgment

The primary Judge identified seven issues the resolution of which would "inform questions of breach of duty and/or contributory negligence", as follows: [3] "(a) whether the [respondent's] headlights were activated in the moments prior to the collision and if so, whether at the relevant time, they should have been on high beam; (b) the [respondent's] visibility at the time of the accident and whether she was able to bring her vehicle to a stop in a way that would have avoided the collision; (c) the path of the [respondent's] vehicle; (d) the [respondent's] speed and perception reaction in the circumstances; (e) the point of impact relative to the westbound lane of Homestead Road; (f) the collision dynamics, the path of the [appellant's] travel prior to the point of impact and in particular if there was any lateral velocity at the time of impact. (g) the role played by alcohol."
In the course of addressing those issues, his Honour made findings of fact. Some findings are not now in dispute and need be referred to only briefly. Others are of direct relevance to the appeal and, more particularly, to the cross-appeal. The sub-headings below reflect the approach taken in the Primary Judgment and do not correspond precisely to the seven issues identified by his Honour.

Activation of Headlights

The primary Judge was satisfied that the respondent had her low beam headlights activated at the time of and in the moments leading to the accident. [4] The headlights were turned off at some point after the vehicle had come to a stop. [5]
His Honour considered that, bearing in mind the proximity of Ms Sandstrom's vehicle (the headlights of which were on normal beam), he could not conclude that the respondent's failure to activate functioning high beams was a breach of duty. [6]

Respondent's Visibility

The primary Judge accepted the evidence of Mr Stuart-Smith, a Consulting Traffic Engineer who prepared a report tendered on behalf of the respondent. Mr Stuart-Smith calculated that, on the assumption that the appellant was standing in line with the left hand side of the vehicle, the visibility distance from when the respondent could have seen the appellant was about 31 metres (this being a figure for the 50th percentile of the sample used). [7] The time the respondent had available to avoid the collision was the time it would have taken her to travel this distance. His Honour accepted that the colour of the appellant's shoes made little difference to this analysis.

Path of the Respondent's Vehicle

The evidence established that there were two parallel skid marks deposited on the road surface by the front tyres of the respondent's vehicle as she applied the brakes. The skid marks, which were the subject of photographic evidence, were 10.5 metres in length on the near side and 10.8 metres in length for the off side tyre. [8] The vehicle came to a stop 47 metres from the end of the skid marks. [9]
The primary Judge accepted the evidence of Sergeant Neal, [10] who attended the scene about an hour after the accident occurred. Sergeant Neal saw a tyre tread mark in the gravel and dirt verge at the southern edge of the westbound lane on Homestead Road, which joined up with the skid marks on the surface of the road. His Honour accepted Sergeant Neal's estimate that he paced out the tread on the gravel and dirt surface over a distance of between 15 and 20 metres. His Honour was also satisfied that the tread marks were from the respondent's vehicle. [11]
Unfortunately, no photographs were taken of the entirety of the tyre marks on the gravel surface, although Sergeant Neal marked an approximation of the location of the marks on a photograph which depicted the skid marks on the road. Dr McIntosh, who has qualifications in biomedical engineering, used digital enhancement of the photograph to demonstrate the presence of the tread line on the gravel shoulder. The primary Judge accepted Dr McIntosh's conclusion expressed in a report tendered on behalf of the appellant that: [12] "[t]he likely position of travel of the vehicle in relation to the edge of the roadway prior to the point of impact was … at least the width of the near side tyre on the dirt/gravel shoulder. In other words, the vehicle was travelling partially off the edge of the roadway prior to the point of impact". As the primary Judge recorded, although Dr McIntosh could not say how far back the mark extended, he thought that the tyre marks and skid marks were almost in a straight line. [13]
In the light of the physical evidence, the primary Judge did not accept Ms Newton's evidence that at no stage did her vehicle leave the bitumen surface as it travelled in a westerly direction. [14]

The Respondent's Speed

On the basis of the expert evidence, his Honour found that the impact speed was 45 kph, plus or minus 5 kph. This was consistent with the respondent's evidence. Accordingly, there was no evidence to support a finding that the respondent's speed was excessive. [15]

Perception Reaction

The primary Judge accepted the opinion expressed by Mr Jamieson, a Consulting Forensic Engineer called on behalf of the appellant, that the expected reaction time in the circumstances confronting the respondent would have been two seconds. Based on a pre-skid speed of 50 kph and an impact speed of 45 kph, the respondent would have travelled 13.8 metres per second. Given the visibility distances and the length of the skid marks, his Honour considered that the respondent, once she could see the appellant, would not have had sufficient time in which to bring her vehicle to a stop without colliding with him. [16]

Collision Dynamics

The primary Judge accepted that the respondent and Mr Gallagher first became aware of the presence of the appellant when Ms Newton, who was in the back seat, screamed. At that time, his Honour was satisfied that the respondent was driving partially off the carriageway. He also accepted that the respondent and Mr Schneider were walking "in the gravel area when first sighted in the [respondent's] vehicle [sic] left headlight. To reach this conclusion, his Honour accepted Mr Gallagher's evidence and noted that it was consistent with Mr Schneider's evidence as to the positioning of the appellant immediately before the accident. [17]
The primary Judge also accepted Mr Gallagher's evidence that the vehicle braked and then spun to the left. The precise location where this occurred could not be determined, although his Honour considered that it was in the early stages of braking before the vehicle track marks and skid marks were produced. His Honour did not regard the absence of physical evidence of spinning as determinative, apparently because there was some disturbance to the tread marks. [18]
His Honour was satisfied that the vehicle, when partially off the roadway, veered towards the right, as demonstrated by the track and skid marks on the gravel and roadway. He also rejected the evidence of Ms Newton and the respondent that the appellant was in the middle of the left hand lane of Homestead Road when the respondent first saw him. Their evidence was inconsistent with that of Mr Gallagher and Mr Schneider. [19] The fact that Mr Schneider moved to the left towards the grass verge (as Mr Gallagher testified) added weight to the appellant's contention that the respondent's vehicle was driven partially off the roadway.
The primary Judge considered that after the respondent saw the appellant, she attempted to brake, spun to the left and then veered to the right before skidding. His Honour accepted Mr Gallagher's evidence that the appellant moved to the right to avoid the respondent's vehicle. It was this movement that accounted for the point of impact between the appellant and the vehicle. Accordingly, his Honour was satisfied that if the appellant and respondent had maintained their respective paths without alteration, there would have been a collision. The collision that in fact occurred followed the appellant's movement to the right which placed him on the roadway at the point of impact. [20]

Lateral Movement by the Appellant

The primary Judge restated his finding that the appellant had moved to his right to avoid the collision. His Honour was unable to determine the precise nature and extent of the movement, but he found that it occurred within a relatively short space of time. He took into account that the appellant had only to move a short distance from the edge of the gravel shoulder to the point of impact with the vehicle.
His Honour then made this finding: "In the circumstances, I am satisfied that but for the conduct of the [respondent] in driving the vehicle off the road surface, the collision with the [appellant] would not have occurred. In the circumstances I find the [respondent] negligent". [21]

The Point of Impact

The primary Judge accepted the evidence of Dr McIntosh that the likely point of impact between the [respondent's] vehicle and the [appellant] was close to the point where the skid marks on the road surface commenced. This finding was consistent with the evidence of the lay witnesses. [22]

The Role of Alcohol

The primary Judge accepted expert evidence as to the likely effect on the appellant and respondent of the amount of alcohol each had consumed. Dr Douncey, a pharmacologist, opined that because of the appellant's level of intoxication, he would not have remained vigilant for traffic and would have been unable to judge with accuracy the distance of any approaching car and the time available to make it to safety. Dr Perl, from the NSW Police Clinical Forensic Medicine Unit, expressed the view that the respondent's blood alcohol concentration indicated that her driving ability would have been very significantly impaired. The impairment would have affected her cognitive, motor and visual functions including reaction skills, judgment, motor co-ordination, glare resistance and peripheral vision. [23]

Contributory Negligence

The primary Judge expressed the following conclusions in relation to contributory negligence: "[175] Overall I am satisfied that the [appellant], in walking along the gravel verge adjacent to the roadway in the direction of the west-flowing traffic, was a failure to have regard for his own safety that contributed to the accident. The [appellant] should not have been walking in such close proximity to the roadway and in the same direction as the traffic. In evidence he accepted that to do so would be "a death wish" … [176] I am also satisfied that the effects of alcohol affected the [appellant's] vigilance and perception reaction to the [respondent's] vehicle coming behind him, although I accept that his movement to the right was brought about in circumstances of an emergency response when he may not have had a full appreciation in darkness of the position of the [respondent's] vehicle, having had only seconds to notice. [177] Insofar as the [respondent] is concerned, she was a relatively inexperienced driver at the time and in view of her age was inexperienced in appreciating the effects of consumption of alcohol. Her decision to drive a motor vehicle in the early hours of the morning while so affected … was a factor which affected her ability to drive and in my view led her vehicle to travel as I have found. [178] … Bearing in mind the assessment of the relevant culpability as required, I was satisfied that the weighty factor was the [respondent's] driving in the circumstances that I have described. Under the circumstances I would assess the [appellant's] contributory negligence at 40%."

The Appellant's Submissions

The appellant contended that the primary Judge erred in finding that the appellant's conduct contributed to the accident. According to Mr Laughton, the key findings were that the appellant was proceeding on foot on the gravel verge and that the collision would not have occurred but for the respondent's conduct in driving off the roadway. Since the appellant was on the gravel verge, which was not designated for use by vehicles, the fact that he was intoxicated had no causative relationship with the accident. The responsibility was attributable solely to the respondent's negligence in driving off the bitumen surface of the road. In any event, even if the appellant had failed to exercise reasonable care for his own safety, a deduction of 40 per cent for contributory negligence was excessive and indicative of error.

The Respondent's Submissions

The respondent submitted that the primary Judge overlooked some matters which increased the extent of the appellant's responsibility for the accident beyond the 40 per cent found by his Honour. In particular, the primary Judge erred in finding that the appellant had been walking on the gravel shoulder. At the least, so Mr Deakin argued, the primary Judge should have found that immediately before the accident the appellant was on the roadway, rather than the gravel verge. Mr Deakin submitted that the objective evidence, notably the part of the vehicle which first struck the appellant, supported the evidence of the respondent and Ms Newton that, when they first saw the appellant, he was on the road surface directly in front of the vehicle.
Mr Deakin also submitted that the primary Judge's finding that the appellant moved to his right immediately before the accident (thereby accounting for the point of impact with the car) was inconsistent with the opinion of Mr Stuart-Smith, who had concluded that the appellant had "virtually no velocity in a lateral direction". According to Mr Deakin, his Honour gave no reasons for rejecting Mr Stuart-Smith's opinion. Once that opinion was accepted, there was no basis for finding that immediately before the accident the appellant was on the gravel verge, rather than the roadway. Mr Deakin further submitted that if the appellant had been on the gravel verge, there was no rational reason for him to move to his right, in order to avoid the respondent's vehicle. The obvious avoidance movement, so Mr Deakin argued, was to the appellant's left, further away from the road.

The Cross-Appeal

Both Mr Laughton and Mr Deakin recognised that it was necessary to resolve the cross-appeal before addressing the appeal, although they accepted that the issues overlapped to some extent. Since the cross-appeal involved an attack on the findings of the primary Judge underpinning his Honour's conclusion that the respondent breached her duty of care, most attention in argument was directed to the cross-appeal.

The Respondent's Submissions

The respondent (the cross-appellant) submitted that the primary Judge had failed to engage with significant expert and lay evidence. When that evidence was taken into account, so Mr Deakin argued, his Honour should have concluded that there was no basis for finding a "breach causative of the negligence" against the respondent. Mr Deakin reiterated the contention that the preponderance of evidence showed that the appellant was on the roadway in the position described by the respondent and Ms Newton in their evidence. Even if not in the centre of the left hand lane (as their evidence suggested), the appellant must have been on the roadway immediately before the accident and not on the gravel verge.
Mr Deakin also submitted that the primary Judge should have accepted the respondent's evidence that the vehicle had never left the bitumen surface of the road. To this end, Mr Deakin contended that the evidence given by Sergeant Neal was unreliable and did not provide a sound basis for the finding that the vehicle's offside wheels had left the bitumen surface of the road. In the absence of any reliable evidence of tread marks on the gravel, there was nothing to suggest that the vehicle had left the road at any stage prior to the collision with the appellant.
Mr Deakin also submitted that even if the primary Judge was correct to find that the near side wheels of the vehicle had moved onto the gravel verge, as suggested by Sergeant Neal, the physical evidence was inconsistent with his Honour's finding that the vehicle spun to the left and then veered to the right in order to regain the bitumen surface. At worst, the near side wheels of the vehicle had protruded marginally onto the gravel verge for a distance that was likely to have been no more than 20 metres or so.
Mr Deakin criticised the primary Judge's reasoning on the ground that his Honour did not explain why the "conduct of the [respondent] in driving the vehicle off the road surface" [24] constituted a breach of her duty of care when the movement onto the gravel verge was so limited both as to distance and time. There was nothing to indicate that the respondent, who was driving well under the speed limit, should have been aware that any pedestrians would be in the vicinity of the road, much less that they would be walking in pitch darkness in the same direction as her vehicle. Indeed, he submitted that the respondent's driving, despite her level of intoxication, was "impeccable".
In his reply submissions on the cross-appeal, Mr Deakin pointed out that Mr Stuart-Smith had given evidence that it was to be expected that a driver seeing a vehicle approaching from the opposite direction at night, on a road only 6.1 metres wide with no edge lines, would move to the left, out of its regular alignment. Mr Deakin submitted that the primary Judge failed to address an alternative explanation for the vehicle moving onto the gravel verge for a short distance, namely that the respondent was responding cautiously to the approach of Ms Sandstrom's vehicle from the west. Thus, even if his Honour was entitled to reject the respondent's evidence that her vehicle never left the road surface, he needed to explain why a marginal movement onto the gravel verge constituted a breach of her duty of care.

Appellant's Submissions

The appellant (cross-respondent) submitted that the primary Judge was entitled to accept the evidence of Sergeant Neal and to find that the respondent's vehicle had been partially off the surface of the bitumen. Sergeant Neal's evidence was supported by the experts who discerned tread marks on the gravel verge from the digital enhancement of photographs taken at the scene. Furthermore, the primary Judge was in the best position to assess the reliability of the witnesses and was therefore entitled to accept Mr Gallagher's evidence that the appellant was on the gravel verge immediately before impact. Moreover, his Honour was entitled to find that the respondent's vehicle spun to the left and then veered to the right, as Mr Gallagher had suggested. These findings suggested that the vehicle was being driven erratically.
Mr Laughton did not dispute that, in retrospect, it may have been better for the appellant to move to the left and not to the right when he (presumably) realised that the respondent's vehicle was almost upon him. But the appellant was responding to an emergency and it was entirely plausible that he reacted "in the agony of the moment" in the manner that Mr Gallagher had described. Therefore, the fact that the appellant was struck by the vehicle at a point near its centre (rather than on the left hand side) was not inconsistent with him walking on the gravel verge immediately before being struck.
According to Mr Laughton, the findings made by his Honour justified the conclusion that the respondent breached her duty of care by driving off the roadway. Causation was established since if she had not been negligent, the accident would not have occurred.

Reasoning

As both Mr Deakin and Mr Laughton accepted, it is convenient to deal first with the cross-appeal.

The Cross-Appeal

The question of whether the respondent was negligent is to be determined in accordance with s 5B of the Civil Liability Act 2002 (NSW) (CL Act). [25] As Mr Deakin pointed out, the primary Judge dealt with the question without referring to the provision and without expressly considering the criteria it identifies.
It is not necessarily indicative of error for a trial Judge to omit express reference to s 5B in proceedings to which the CL Act applies. [26] In the present case, despite the absence of any such reference and the somewhat cryptic reasons given for the finding of negligence, [27] the primary Judge's reasons for finding that the respondent had been negligent emerge with reasonable clarity when the judgment is read as a whole. As Mr Deakin accepted in argument, his Honour found that the respondent was negligent because she drove her vehicle partially on the gravel verge, thus giving her little or no opportunity to avoid colliding with the appellant who was walking in pitch darkness along the gravel verge in the same direction as the respondent's vehicle.

Grounds Not Established

I consider, contrary to Mr Deakin's submissions, that it was open to the primary Judge to accept Sergeant Neal's evidence that he observed tread marks on the gravel verge and that they were made by the respondent's vehicle. Sergeant Neal arrived at the accident scene within an hour of the accident. His observations were recorded, albeit briefly, in a statement he signed three years before the District Court trial, in connection with a charge brought against the respondent. Constable Vassallo, who attended the accident scene with Sergeant Neal, corroborated his account. The fact that she was inexperienced at the time does not mean that her evidence should have been discounted by the primary Judge. Moreover, the existence of the tread marks on the gravel verge was confirmed by Dr McIntosh and not disputed by Mr Stuart-Smith, both of whom based their opinions on digital enhancement of the photograph taken at the scene.
Mr Deakin did not point to any cogent evidence suggesting that the tread marks came from any vehicle other than that driven by the respondent. It is true that Senior Constable West said that he had not noticed tread marks when he walked from the accident scene towards the Masonic Hall. But he arrived 90 minutes after Sergeant Neal and his failure to observe tread marks (as his Honour found) does not mean that they were not there or that Sergeant Neal did not see them as he described.
Once Sergeant Neal's evidence is accepted, there is no foundation for the contention that his Honour should have found that the vehicle never left the bitumen surface of Homestead Road. There was ample physical evidence to support the finding that the near side wheels of the vehicle came in contact with the gravel verge immediately before the accident, albeit only marginally. It follows that his Honour was entitled to reject the evidence of the respondent that the vehicle at no stage left the roadway.

Veering of the Respondent's Vehicle

While not all the appellant's criticisms of the Primary Judgment are warranted, there are significant difficulties with his Honour's reasoning. One difficulty concerns the finding that the respondent's vehicle veered to the left and then to the right as the respondent attempted to brake, and then skidded on the bitumen surface. The primary Judge found that the respondent's vehicle spun to the left and then veered to the right in the early stages of braking, before the point at which the tread marks or the skid marks commenced. It is not clear how this finding can be reconciled with the location of the tread marks on the gravel surface and the skid marks on the roadway.
Dr McIntosh said in his report that: "The photographs show a consistent and unbroken tyre mark and trajectory from the gravel shoulder back onto the road leading into the skid. The skid mark for the far-side (right or driver) tyre is consistent with this trajectory. These tyre marks show the vehicle moving in a slight south to north direction from partially off the road back onto the road while the vehicle travelled west. Some metres east of the marker 'A' [where the skid marks on the roadway commenced] the tyre mark in the gravel is disturbed and it is not possible from the photographs to estimate how far the tyre mark extended east from this point in the gravel or the extent of the southern displacement of the vehicle." This evidence, which is consistent with that of Mr Stuart-Smith and with the photographic evidence, does not suggest erratic movements of the kind described by the primary Judge.
The primary Judge seemed to recognise this difficulty, but found that the spinning to the left and veering to the right occurred before either the tread marks or the skid marks commenced. [28] The evidence on which he relied for that finding is that of Mr Gallagher, but he said that the vehicle spun to the left and veered to the right after he "felt the brakes come on". Mr Gallagher's evidence does not suggest that if the vehicle spun and then veered to the right, it did so before the brakes were applied.
For these reasons, it is difficult to support the primary Judge's finding that the respondent's vehicle spun to the left and then veered to the right before the point at which the tread marks or skid marks were visible. However, this finding is not critical to the appeal since his Honour did not conclude that the respondent's negligence consisted of driving erratically either before or after she was able to see the appellant. Nor did his Honour base his conclusion on a finding that the respondent's intoxication prevented her responding appropriately to a situation of danger. The conclusion was based solely on the finding that the respondent drove the vehicle off the road surface on a path which, if continued, would have resulted in the vehicle striking the appellant.

Travelling on the Verge as a Breach of Duty

A further difficulty with his Honour's reasoning is the absence of a finding as to how the respondent's vehicle came to have its nearside wheels on the gravel verge, prior to skidding, as Sergeant Neal's observations suggest. His Honour appears to have regarded it as self-evident that if the respondent's vehicle intruded onto the gravel verge, even marginally and for a short distance, she must have been negligent. But it was necessary to take into account the undisputed evidence that Ms Sandstrom's vehicle passed the respondent's vehicle moments before the accident occurred, travelling in the opposite direction.
Mr Stuart-Smith expressed the view in his report that the respondent's path was consistent with her having moved over after she just passed an eastbound vehicle. In his oral evidence, Mr Stuart-Smith took these observations further: "A. … you've got to remember that the road, whilst it's about 6.3 metres wide, there's no shoulder. There are no edge lines and there's no gutter. So when you're passing another vehicle, most people do move over to the left and so she is - it's just the degree to which, you know, she might have moved out of her regular alignment. You've got to also remember that the area we're talking about where the skid marks could be - where Sergeant West [sic] said they were on the gravel correlates entirely to the area where she is reacting, so she most likely has already seen the [appellant] prior to the car, the left wheel, entering the gravel. So-- Q. You're referring to the 15 to 20 metres? A. Yes. Q. From the evidence of Sergeant Niel [sic]? A. Yes. Q. That she is reacting to that time? A. Yes, that corresponds roughly to her reaction time, an expected reaction time. I can't-- Q. The expected reaction time? A. Yeah. Q. You're not suggesting that her reaction time was an expected one on that evening, was it, having regard to her alcohol-- A. The evidence suggests that that was the case, yes. Q. Having regard to the alcohol that she had? A. No, it doesn't have regard to the alcohol. It had regards to the expected visibility distance, the speeds, the likely point of impact and based on that evidence, her reaction time is consistent with an expected reaction time from a typical driver."
The primary Judge found that the respondent's level of intoxication was a factor which contributed to her driving the vehicle on the gravel verge. However, in the absence of evidence contrary to that of Mr Stuart-Smith, it is not easy to see why the respondent's conduct in allowing her vehicle to come in contact with the gravel verge was due to her intoxication, rather than a reasonable manoeuvre to keep a safe distance from the oncoming vehicle. There was no finding and no evidence to suggest that the appellant should have been aware that pedestrians would be walking along the road in the same direction as she was travelling. (The respondent denied that she realised that anyone had left the party on foot and the primary Judge cast no doubt on that evidence.) Neither the primary Judge nor this Court was referred to any regulation or road rule that prevented the respondent from steering her vehicle slightly off the roadway, for example, to ensure a safe distance between that vehicle and Ms Sandstrom's oncoming vehicle. Indeed, Mr Laughton conceded driving on the gravel in the circumstances was "not unlawful". Nor was this Court referred to evidence that contradicted Mr Stuart-Smith's assessment.
As I have noted, both parties were understandably reluctant for the proceedings to be remitted to the District Court. Had it been necessary to do so, I would have allowed the cross-appeal on the ground that the evidence did not support his Honour's finding that the respondent breached her duty of care by allowing her vehicle to travel for a relatively short distance with the near wheels of her vehicle on the gravel verge.

The Finding that the Appellant was on the Gravel Verge

The primary Judge found that the appellant and Mr Schneider were walking along the gravel verge alongside Homestead Road when first seen by the occupants of the respondent's vehicle. His Honour made no finding as to precisely where the appellant was when the respondent first saw (or could have seen) him, beyond stating that the appellant was on the gravel verge and not on the roadway itself. The finding was critical to his Honour's conclusion that the respondent's breach of duty caused the collision and the injuries sustained by the appellant.
The general principles relating to causation for the purposes of the present case are stated in s 5D of the CL Act. Section 5D(1) provides as follows: "(1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation'), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')." Section 5E of the CL Act provides that in proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. The primary Judge did not refer to these provisions.
His Honour based his causation finding on the evidence of Mr Gallagher and Mr Schneider, which he preferred to the evidence given by the respondent and Ms Newton. A careful examination of the evidence of Mr Gallagher and Mr Schneider, however, indicates that neither clearly placed the appellant on the gravel verge, rather than on the roadway, immediately prior to the accident. Their evidence, if accepted, was clearly inconsistent with the claim by the respondent and Ms Newton that the appellant, when first seen, was in the middle of the left hand lane on Homestead Road. But the primary Judge's finding was that the appellant was not on the roadway at all.
In a signed statement made on 6 October 2010, just under two months after the accident, Mr Gallagher stated as follows: "I then heard [Ms Newton] scream from the back seat and about the same time I saw [the appellant] and [Mr Schneider] walking on the left hand side of the road, [Mr Schneider] was on the edge of the road on the gravel and I think [the appellant] was walking maybe just onto the tar road portion but not sure how far from the gravel edge. [The respondent] slammed on the brakes and car started skidding along the road. I then heard a male scream, but I don't know who or where from, and then [the appellant] and [Mr Schneider] appeared to try and run either direction away from the skidding car. [Mr Schneider] went left further away off the road, but [the appellant] seemed to move the right towards the middle of the road right into the car's path." [Emphasis added.] This statement does not suggest that the appellant was walking on the gravel verge. On the contrary, it places him on the bitumen surface.
In his evidence in chief, Mr Gallagher said that he looked up when he heard a scream and saw: "two figures on the road - sorry, not on the road. They were on the side of the road. It's a country road so it's not really a road as such. It has got like tar and then on the side gravel". He identified the person who was further away from him as Mr Schneider.
The following exchange then took place: "Q. The one closest to you as you're looking, closest to the road, when you made the observation of that figure on the road, could you explain to the Court where you think that figure was in relation to the roadway? A. On the edge of the road. I couldn't say exactly whereabouts. It was four years ago, so I couldn't really say but, yeah, it was towards the edge of the road. Q. Towards the edge of the road? A. Yeah, and I think - because I've had a few statements. I think at the time I might have said the same in my statements but back then I would have had more knowledge of how close." [Emphasis added.]
In his cross-examination, Mr Gallagher gave the following evidence: "Q. When you looked up, you realised then what it was that she was screaming about, didn't you? A. So I was looking - I was in the process of looking up at the same time, so as she screamed I was looking at the figures at the same time. So that's when I realised that there were two figures on the road. Q. And you realised then that at least one of the figures was in the path of the vehicle? A. Yes, on the edge of the road, so if the road - because it's quite a small road as well. There's no like just - from what I recall, there's no distinct lines. I haven't been there recently, so I don't know if there is, so I think the alarm was because we were on the left-hand side of the road and there's no gutter, so if they were walking on the edge, it would kind of look like they were on the road and then that's what I think caused the alarm. Obviously because it was dark as well, I think seeing the two figures come out of nowhere was well kind of did cause the alarm as well because as we were in conversation, we weren't really - well, I know I wasn't like focusing on the road because I was looking down looked up, so that's what alarmed me, but I couldn't tell you what had alarmed the other passengers or driver." [Emphasis added.]
The cross-examiner returned to the topic a little later and the following exchange took place: "Q. When you saw these two dark figures, as you have called them, these two figures, were side-by-side or was one ahead of the other? A. From my angle, they could've been side-by-side, but I was behind them, so I don't know if they were one and behind, but they looked like, so far as I was looking you could just see two figures, so I'd say side-by-side, but I don't know. I couldn't tell you if one of them was in front or behind; so obviously you were seeing from this perspective and they were ahead. You wouldn't tell how far and how close they were, if they were even relative-- Q. In fact what the position was is that Mr Schneider was walking ahead of Daniel. A. I couldn't tell you. Q. No. A. I couldn't tell you if they were ahead or behind, but I do remember side-by-side from my perspective." [Emphasis added.]
Mr Gallagher's evidence certainly suggests that the appellant was walking close to the edge of the bitumen surface of Homestead Road but not that he was walking on the gravel verge when the occupants of the vehicle first saw him. Mr Gallagher frankly acknowledged that his memory would have been better when he made his statement in October 2010. The effect of the signed statement is that the appellant was walking on the bitumen surface of the roadway, although Mr Gallagher was not sure how far from the edge of the roadway the appellant was when Mr Gallagher saw him. Nothing in Mr Gallagher's oral evidence contradicted his written statement.
Mr Schneider gave this equivocal evidence in his examination in chief: "Q. Before you heard a thump, where do you say [the appellant] was? A. I was walking a few metres to the left of the roadway. At no stage did I go on the road, and at no stage did I see [the appellant] on the road. Q. He was behind you? A. He was behind me, yeah."
Mr Schneider was subsequently asked to mark a photograph to show "the general area" in which he was walking. He placed a mark on the photograph indicating that he was walking on the gravel verge of Homestead Road, but at a very considerable distance to the east of the tread marks and skid marks. He was then asked whether he was saying that this was the general area where he remained walking towards where the accident occurred. He replied: "Yeah, around there, maybe even a little bit more to the left. I can't say exactly the territory, to tell the truth, but we were around there, a bit more to …" [Emphasis added.]
Mr Schneider's attention was directed to this topic in cross-examination. The following exchanges took place: "Q. You have told us that [the appellant] was walking behind you. Is that right? A. We were walking side by side at the start. When the incident occurred he was a little bit behind me, yeah, roughly two metres. Q. Would this be right? Given the location where you say you were walking - that is, on the gravel section - if you were walking side by side and if he was to your right, then he would have been walking on the road surface. A. No. Q. Was he walking to your right? A. He was on my right, yes. Q. By the time you got to the point where the accident occurred, you can't say where it was that he was walking, can you? A. I can't say exactly where he was, no. Q. Because you were facing west; that is, towards The Northern Road. Is that right? A. That's right. Q. Incidentally, this was an extremely dark night, wasn't it? A. It was night-time, yes. … Q. No. The fact is that by reason of the fact that he was behind you, you can't really say how far it was that he was behind you, can you? A. We were talking, yeah. Q. I see. So he was close enough for you to be able to have a conversation? A. Yes, that's correct. Q. And you could hear each other? A. Yes. Q. But you didn't hear the car approaching? A. No. Well, I don't recall hearing the car approach. Q. The next thing that you know is that there was a thud or the sound of a collision. Is that right? A. Yeah, that's correct. … Q. Can I suggest to you that when he was struck by the motor vehicle Daniel was in fact walking along the bitumen road surface. A. I never seen. Q. Yes. A. I don't think he was on the road. Q. If you didn't see him, how can you say that? A. Just from - he was walking next to me and I was off the roadway, and he was like a couple of metres behind. I never seen him on the roadway, I was never on the roadway. Q. There was a period of time when he was behind you and you couldn't see where he was. You agree with that proposition, obviously? A. Yes. Q. So you can't say, can you, where he was when he was hit by the car, can you? A. No, I can't." [Emphasis added.]
Mr Schneider's evidence, like that of Mr Gallagher, suggests that the appellant was not walking in the middle of the left hand lane of Homestead Road as the respondent and Ms Newton had testified. However, Mr Schneider's evidence does not support a finding that the appellant was walking on the gravel verge rather than on the roadway. Mr Schneider conceded that he could not see where the appellant was immediately before the collision and that he was unable to say if he was on the verge.
There was no other evidence that could support the primary Judge's finding. The appellant said in his evidence that he had no memory of being at the party or in hospital and that the first time he remembered walking on the gravel or the grass was when he was told in early 2011 that he had been hit by a car. The primary Judge, for understandable reasons, indicated that the appellant's evidence had to be treated with caution. It is clear that his Honour considered that no reliance could be placed on the appellant's recollection as to where he was immediately before being struck by the respondent's vehicle.
Ms Sandstrom signed a witness statement four days after the accident. She said that, as she approached the point at which the accident later occurred, she drove in a hesitant manner because it was so dark and the road was narrow. Although she was concentrating on staying near the left edge of the road, she saw: "someone standing on the other side of the road on the edge of the bitumen. He was standing side on to me and facing towards the middle of the road with his face looking across the road. When first saw him he was about 4 metres diagonally across from me to my right". [Emphasis added.] She thought that person may have been the appellant.
In her evidence in chief, Ms Sandstrom gave similar evidence to her account in the witness statement. She did not say that she observed the appellant on the gravel verge. In her cross-examination, Ms Sandstrom was taken through her statement and accepted that the person she saw "would have been [at] the edge of the line where the bitumen meets the gravel on the path". She later clarified that answer to mean that the person was standing "on the edge of the bitumen which is where the gravel is". She also accepted that the person was outside the range of her headlights and that, because it was so dark, it was difficult for her to see. In these circumstances, Ms Sandstrom's evidence goes no further than indicating that the appellant, although not in the middle of the left hand lane, appeared to be on the bitumen close to the gravel verge.
The evidence of the respondent and Ms Newton does not assist the appellant.
In my view, the primary Judge's finding that the appellant was standing or walking on the gravel verge immediately before the accident is not supported by the evidence. His Honour was entitled to prefer the evidence of Mr Gallagher and Mr Schneider over that of the respondent and Ms Newton. But the evidence given by Mr Gallagher and Mr Schneider went no further than indicating that the appellant was likely to have been on the bitumen surface close to the gravel verge. Their evidence was insufficient to establish on the balance of probabilities that the appellant was standing or walking on the gravel verge adjacent to Homestead Road immediately before the accident. This is so even if (as his Honour found) the appellant moved to his right immediately before impact.

Conclusion on the Cross-Appeal

The primary Judge's conclusion that the respondent's breach of duty caused the appellant's injuries was wholly dependent on the finding that immediately before the accident the appellant was not on the bitumen surface of Homestead Road, but on the gravel verge. As I have explained, that finding cannot stand and thus the finding that the respondent's breach of duty (as found by the primary Judge) caused the appellant's injuries cannot stand.
The appellant withdrew his notice of contention. No submission has been made on his behalf that the causation finding should be upheld even if the appellant was on the roadway immediately before the accident. Indeed in his oral submissions Mr Laughton accepted that if the correct position was that the appellant was not on the gravel verge, but was on the bitumen surface of the roadway, the case founded on breach of duty could not succeed. Accordingly, the cross-appeal must be allowed.

Orders

The cross-appeal should be allowed. The orders made by the primary Judge on 13 February 2015 should be set aside. Subject to any contrary submissions, the appellant (cross-respondent) should pay the costs of the respondent (cross-appellant) of the cross-appeal.
As the issues argued in the appeal do not arise, Grounds 1-4 of the amended notice of appeal filed in Court on 10 March 2016 should be dismissed. Subject to any contrary submissions, the appellant should pay the respondent's costs of those grounds of the appeal.
Ground 5 of the amended notice of appeal remains to be determined. As agreed by the parties, they should be given the opportunity to make submissions on the appellant's alternative blameless accident case. Accordingly the following directions should be made:

the appellant file and serve written submissions within 14 days in support of Ground 5 of the amended notice of appeal and addressing any issues as to costs;
the respondent file and serve written submissions in reply, including any submissions as to costs, within a further 14 days.

EMMETT AJA: This appeal and cross appeal are concerned with the extent, if any, to which the respondent, Ms Clare Cornelius, should be held liable to Mr Daniel Serrao for injuries suffered by him when he was struck by a motor vehicle driven by Ms Cornelius. In proceedings brought by Mr Serrao against Ms Cornelius in the District Court, a judge of the District Court (the primary judge) held that Ms Cornelius was negligent but that Mr Serrao was contributorily negligent to the extent of 40%. The primary judge therefore directed the entry of judgment for Mr Serrao against Ms Cornelius in the sum of $1,556,370.80.
Mr Serrao appealed from the determination of the primary judge that he was 40% contributorily negligent. Ms Cornelius cross appealed on the basis that his Honour erred in finding her negligent. In the alternative, Mr Serrao contended that, if Ms Cornelius was not negligent, his injuries were sustained in a blameless motor accident within the meaning of the Motor Accidents Compensation Act 1999 (NSW) (the Act), such that his loss and damage form the accident were deemed to be caused by default of Ms Cornelius, giving him a statutory entitlement to compensation.
I have had the advantage of reading in draft form the proposed reasons of Sackville AJA. I agree with his Honour, for the reasons proposed by him, that the cross appeal should be allowed. The appeal, in so far as it concerns contributory negligence, therefore does not arise. It will therefore be necessary to hear further argument on the question of the Act. I agree with the orders proposed by Sackville AJA.

Endnotes

Serrao by his Tutor Serrao v Cornelius [2015] NSWDC 4 (Primary Judgment).
Now repealed by Road Transport Legislation (Repeal and Amendment) Act 2013 (NSW), sch 1.
Primary Judgment at [18].
Primary Judgment at [32].
Primary Judgment at [36].
Primary Judgment at [45].
Primary Judgment at [53], [57].
Primary Judgment at [10].
Primary Judgment at [11].
Sergeant Neal's name is spelt in a number of ways in various documents but this is the spelling in his signed statement.
Primary Judgment at [92].
Primary Judgment at [96].
Primary Judgement at [93].
Primary Judgment at [97]-[98].
Primary Judgement at [110].
Primary Judgment at [115].
Primary Judgment at [151].
Primary Judgment at [152].
Primary Judgment at [153].
Primary Judgment at [154].
Primary Judgment at [158].
Primary Judgment at [159].
Primary Judgment at [163]-[165].
Primary Judgment at [158].
CL Act, s 3B(2)(a). Section 5B provides as follows: "(1) A person is not negligent 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."
Laresu Pty Ltd v Clark [2010] NSWCA 180 at [42] (Macfarlan JA, Tobias JA and Handley AJA agreeing); Woolworths Ltd v Ryder [2014] NSWCA 223, 87 NSWLR 593 at [60] (Sackville AJA, Basten and Ward JJA agreeing).
Primary Judgment at [158], reproduced at [44] above.
Primary Judgment at [152]. 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 March 2016

Road Transport Legislation (Repeal and Amendment) Act 2013(NSW)

Road Transport (Safety and Traffic Management) Act 1999(NSW)

Solicitors: Herbert Weller Solicitor (Appellant/Cross-Respondent) Hall & Wilcox Lawyers (Respondent/Cross-Appellant) File Number(s): 2015/67841 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: Serrao by his Tutor Serrao v Cornelius [2015] NSWDC 4 Date of Decision: 6 February 2015 Before: Hatzistergos DCJ File Number(s): 2013/215744

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