Mr Wassman described the appellant looking towards the eastern end of North Street for traffic for a period that he estimated to be about two seconds (CB.89.M-P). This version of events did not explain why the appellant had not seen Mrs Beveridge's vehicle approaching the intersection at about 50 kph from the east. Mr Hartley's account, namely that the appellant cycled straight into the intersection without looking, did fit with his acceptance of Mrs Beveridge's evidence.
28 There is no basis for disturbing the Judge's factual finding. Ground 6 is wholly lacking merit.
29 Grounds 1 and 2 challenge the sufficiency of the Judge's reasons for his findings that the appellant was guilty of contributory negligence and on apportionment.
30 The Judge's decision was delivered ex tempore. His Honour made the following finding concerning the appellant's conduct in the lead up to the accident (RB 38.P-T):
[47] It follows that I accept that the plaintiff rode through the give-way sign without pausing, out into North Street, past the line of cars, including the waiting white panel van at the head of the queue, into the path of the oncoming vehicle of the first defendant, Mrs Beveridge.
31 His Honour set out his reasons for determining that the appellant was guilty of contributory negligence at [72] (RB 44.G-Q):
[72] In my view this plaintiff was guilty of contributory negligence to a substantial degree. Clearly it was he who went through the give-way sign contrary to the requirements of the traffic rules. He knew he was required to give-way to traffic in North Street but failed to do so. In this regard the evidence is, as I have found it, that he did not change his speed, and emerged from beside the white van into the pathway of the oncoming vehicle of the first defendant. He clearly did not take sufficient care to pause or stop and adequately observe whether or not the path was clear. He should have been alerted to the danger by the fact that the other vehicles remained stationary at the give-way sign.
32 In written submissions senior counsel for the appellant referred to the obligation to give proper reasons explained in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 per Kirby P (as his Honour then was) at 257 and 259. At 259 his Honour said:
This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged.
33 I see no warrant for the contention that the Judge failed to adequately state his reasons for concluding the appellant was guilty of contributory negligence. There was a critical factual issue, which his Honour resolved against the appellant by his acceptance of the evidence of Mr Hartley. His Honour set out, in the passage that I have extracted above, a concise statement of the matters that he took into account in holding that the respondent had established that the appellant did not take the reasonable care for his own safety that was to be expected of a boy of his age.
34 The Judge found that the appellant's contributory negligence was "substantial". His Honour dealt with the question of apportionment as follows (RB 44.R-RB 45.F):
[73] The question then becomes, to what extent is it just and equitable to reduce his damages? In considering this issue I take into account the relative culpability of the defendant in comparison to that of the plaintiff: Barisic v Devenport [1978] 2 NSWLR 111.
[74] In this regard I must compare the respective degrees by which the conduct of the plaintiff and the defendant has diverged from the standard of care of a reasonable person: Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 529 at 532-3.
[75] I take into account the plaintiff's age, the fact that he was fatigued, thirsty and most probably anxious that he had fallen behind his fellow cyclists.
[76] I assess the contributory negligence of the plaintiff at 40 per cent.
35 I do not consider the challenge to the sufficiency of reasons with respect to the issue of apportionment has merit. His Honour correctly stated the principles to be applied. The judgment is a discretionary one. His Honour recorded his assessment that the appellant's contributory negligence was substantial.
36 In ground 3 of his amended notice of appeal the appellant contends that the Judge erred in his evaluative conclusion that the appellant was guilty of contributory negligence. Counsel for the respondent submitted that the appellant should not be permitted to challenge the finding of contributory negligence in light of the concession made by trial counsel. The appellant's counsel submitted before the Judge (at CB 145.O-X):
I'm not arguing that you should not make any finding of contributory negligence because I don't think the law in that respect goes that high but given that this is a situation of momentary lapse of judgment, your Honour's finding in respect to culpability ought to reflect that. In my submission it is a lot less than 25 per cent in the circumstances of this case, and when it comes to that, of course one factor I haven't mentioned is that you've got to judge not just the culpability against the driver, but the culpability against the school as well.
Now you have to look at the totality of the conduct of the two defendants together, not just the driver. Now arguably there is no contributory negligence against this school because this accident, the mechanism of this accident is exactly what the system, the school's policy and the government's policy was designed to prevent, that is to have children supervised in a closed file system, a military system where there's a leader supervisor at the front and one at the back, the one at the front controls the pace, the one at the back controls the stragglers, and the two supervisors communicate with each other.
37 When regard is had to the whole of the passage set out above, it seems to me that the concession was made in the context of the case brought against Mrs Beveridge.
38 The submission put at trial - as to the absence of contributory negligence in the context of the claim against the respondent - was the one pressed on appeal: the risk that had eventuated was the very one that the respondent was under a duty to protect the appellant from.
39 In Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 Gleeson CJ, McHugh, Gummow and Hayne JJ at 14 [29] said:
There is no rule that apportionment legislation does not operate in respect of the contributory negligence of a plaintiff where the defendant, in breach of its duty, has failed to protect the plaintiff from damage in respect of the very event which gave rise to the defendant's employment. A plaintiff may be guilty of contributory negligence, therefore, even if the "very purpose" of the duty owed by the defendant is to protect the plaintiff's property. Thus, a plaintiff who carelessly leaves valuables lying about may be guilty of contributory negligence, calling for apportionment of loss, even if the defendant was employed to protect the plaintiff's valuables.
40 The principle explained by their Honours in the joint reasons in Astley is of general application and extends to cases involving a failure to take reasonable care for one's own person. In determining whether the respondent had established that the appellant was guilty of contributory negligence it was necessary for his Honour to be satisfied that the appellant contributed to his injury by failing to take the reasonable care for his own safety that is to be expected of a 14 year-old youth. In my opinion, it was well open to his Honour to find that the appellant had contributed to his own injury in light of the factual findings that I have set out at [20] above.
41 Ground 4 challenges the determination of apportionment. It was submitted that the Judge failed to accord appropriate weight to a number of facts and circumstances in assessing the respective share in the responsibility for the injury between the respondent and the appellant. These are particularised in ground 4 of his amended notice of appeal as follows:
(a) The appellant's age and lack of riding experience on busy public roads;
(b) that the appellant had been taking part compulsorily in school sports;
(c) the long distance that the appellant had been made to cycle;
(d) that the appellant was fatigued, thirst, lagging behind his friends and in all probability trying to catch up to them;
(e) the conduct of the teachers in dismissing the student contrary to the school and Department of Education sport policy and at a busy time of day and in a busy part of town;
(f) that the teachers had not provided the students with any adequate instruction;
(g) the aim and purpose of the school's policy of closed rank/file cycling, that being to avoid exactly the type of situation that occurred arising;
(h) the failure by the respondent to make any inquiry of the appellant or his mother to ascertain what level of experience the appellant had in riding on a public road and particularly a busy public road;
(i) failure to consider the fact that the appellant had observed his companions to have safely negotiated the intersection just before he proceeded out;
(j) allowing the appellant to ride on a busy public road when he had no experience of riding through give-way intersections and in particular no experience of the give-way intersection that was the site of the accident;
(k) failure to consider that the intersection was busy, confusing and dangerous and which the driver of the vehicle in her experience concluded that some people who are not familiar with the intersection do not give way;
(l) failure to have regard to the fact that the appellant's view would have likely been obscured by the windowless van and also by the fence at the intersection.
42 The Judge referred to each of the matters in (a), (b), (c), (d), (e), (f) in his reasons. There is no basis for concluding that he did not give them appropriate weight.
43 His Honour did not refer to the respondent's failure to make an inquiry of the appellant's mother to ascertain his level of experience in riding on busy public roads. His Honour did find that no inquiry had been made as to the experience or capability of any of the participants in the recreational cycling activity. It is unclear how any failure to make an inquiry of the appellant's mother may be thought to have added weight to this consideration.
44 The matters addressed by particulars (g), (h) and (j) are each directed to the negligence of the teachers in the conduct of the activity, which the Judge found. For the reasons earlier given, the respondent's negligence does not defeat the defence of contributory negligence. There is no basis for concluding that the Judge did not give appropriate weight to the matters that bore on the extent to which the teachers departed from the standard of care that they owed to the appellant.
45 Particular (i) is obscure. The Judge found that the appellant was 30 metres from the intersection when he saw his companions cycle through it. They may have been careless for their own safety or it may have been safe for them to proceed through the intersection in the way that they did. In either case the circumstance that they had negotiated the intersection successfully does not bear relevantly on the assessment of the appellant's failure to take care for his own safety in cycling through a give-way sign.
46 Turning to particular (j), the Judge found that the appellant was aware of his obligation to give way to traffic in North Street at the intersection with Alma Street. The appellant acknowledged that he had given evidence on the previous occasion that he had seen the give-way sign at the intersection. In cross-examination the appellant agreed that he had knowledge of road direction signs and that he knew he had to give way at a give-way sign (CB 48.E-G). It is not apparent that the appellant's lack of experience of the intersection of Alma and North Streets had any bearing on the assessment of the extent to which he had departed from the standard of care of a reasonable 14 year-old.
47 Particular (l) addresses factual matters that may be thought to underline the reasons why reasonable care (including the reasonable care to be expected of a 14 year-old) required caution in proceeding through the intersection.
48 The Judge was mindful that, in Ms Beveridge's opinion, the intersection was a dangerous one. His Honour commented on this at [40] (RB 37.O).
49 In Podrebersek (1985) 59 ALR 529 the High Court said (at 532):
A finding on a question of apportionment is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be a difference of opinion by different minds": British Fame (Owners) v Macgregor (Owners) (1943) AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.
50 No relevant facts or circumstances were identified by counsel in written or oral submissions, which were not referred to by the Judge. The Judge correctly stated the principles that are to be applied in determining the extent to which the appellant's damages were to be reduced by reason of his own negligence. Many of the factors addressed in the lengthy submissions filed in support of the appeal overlap with particulars (a) - (l) of ground 4 of the amended notice of appeal and were variously relied upon in support of the submission that it was an error to find that the appellant was guilty of contributory negligence, as well as that his Honour's discretion miscarried in the order for apportionment. Both challenges are without merit. It was open to the Judge to conclude that the contributory negligence was substantial and to determine that the appellant's damages should be reduced by 40 per cent.
51 Ground 5 of the amended notice of appeal the appellant contends that the trial Judge erred in his determination of apportionment by failing to draw the inference that the appellant's failure to give way was dictated by momentary inadvertence or lapse of concentration, rather than as the result of a conscious and deliberate decision to act.
52 The submission, that the Judge should have drawn the inference that the appellant's failure to give way was the result of momentary inadvertence, was also advanced in support of the submission of error in the finding of contributory negligence.
53 As the written submissions acknowledged, the cases on which reliance was placed relating to momentary inadvertence were employment cases involving the failure to provide a safe system of work: McLean v Tedman (1984) 56 ALR 359 at 362-4 and Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37. I accept the respondent's submission that the analogy between the employment cases and the present is not apt. In the employment context it is recognised that in considering contributory negligence it is open to the tribunal of fact to have regard to "inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions" (per Windeyer J in Sungravure at 37. In that case Kitto, Menzies and Owen JJ said at 33:
An inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for or consideration of the consequences that may follow from the doing of it, and whether it is so or not is a matter for the consideration and determination of the tribunal of fact.
54 The Judge found the appellant cycled into North Street, failing to slow down or stop at the give-way sign. His Honour accepted that the appellant was fatigued. There was no basis for his Honour finding that the appellant's conduct was not conscious and deliberate, albeit that it may have been thoughtless.
55 For these reasons the orders that I propose are as follows: