ORDERS
18For these reasons I propose that the following orders be made:
(1) Appeal allowed.
(2) Set aside the judgment entered at first instance in favour of the appellant.
(3) Direct the parties to provide to the Court within 14 days of the date of this judgment, as agreed, a recalculation of the appellant's damages, or if they are unable to agree, submissions in accordance with the following timetable as to the appropriate amount:
(a) Appellant's submissions within 14 days of the date of this judgment.
(b) Respondent's submissions within seven days thereafter.
(c) Any reply within seven days thereafter.
(4) Order the respondent to pay the appellant's costs of the appeal.
(5) The respondent to have a certificate under the Suitors' Fund Act 1951, if qualified.
19MEAGHER JA: The only issue in this appeal is whether Olsson DCJ (the primary judge) erred in reducing by 75 per cent for contributory negligence the damages recoverable by the appellant for injuries sustained when she was struck by a motor vehicle driven by the respondent. The appellant contends that this assessment was excessive because the primary judge did not have regard to the fact that whereas the appellant failed as a pedestrian to take care for her own safety, the respondent's negligence as driver carried with it the risk of injury to pedestrians and for that reason involved negligence of greater culpability than that of the appellant. Specific reliance was placed on what was said in Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16-17 and Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452 at [51], [52].
20There is no controversy about the relevant principles. Sackville AJA recently summarised them in Nominal Defendant v Meakes [2012] NSWCA 66:
"79. The common law and the enacted law of contributory negligence apply to an award of damages in respect of a motor accident, subject to presently irrelevant exceptions: MAC Act, s 138(1). The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case: s 138(3); Law Reform (Miscellaneous Provisions) Act 1965, s 9(1)(b). The Court must state its reasons for determining a particular percentage: s 138(4). The enacted law of contributory negligence includes s 5R of the Civil Liability Act 2002 ("CL Act").
80 The test of contributory negligence is objective: the question is whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Joslyn v Berryman [2003] HCA 34; 214 CLR 552, at 564-566 [32], [34], [38], per McHugh J; CL Act, s 5R(2). Once contributory negligence is found, the apportionment as between a plaintiff and 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 ... and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529, at 532-535, per curiam."
21Because the task of apportioning responsibility involves the weighing of a number of considerations and the making of judgments about which minds might reasonably differ, it is well established that appellate courts should not interfere in the absence of some error of principle or of fact or where the apportionment is plainly wrong: British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201; Pennington v Norris at 15-16; Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494; Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [84], [157]; Anikin v Sierra at [50]; Nominal Defendant v Rooskov [2012] NSWCA 43 at [122]-[123], [163].
22Two further matters should be noted. As the passage cited above from Podrebersek v Australian Iron & Steel Pty Ltd (59 ALJR 492 at 494) makes clear, the comparison required with respect to the acts or omissions of each party is of the degree of departure from the standard of care of the reasonable man and of the relative importance of those acts or omissions in causing the damage. The second is that s 5R(2)(a) provides that the standard of care required of the person who has suffered harm is that "of a reasonable person in the position of that person". The subsection reflects the position under the common law as stated by McHugh J in Joslyn v Berryman at [32] and [33]. To give effect to those words in the present case, it is necessary to have regard to the appellant's age, poor sight and physical infirmities.
23The appellant does not contend that the primary judge made any error in finding facts relevant to the question of apportionment. The respondent was driving in a westerly direction along Rockdale Plaza Drive, a one-way road comprising two lanes, the outside lane of which was free for traffic. He was travelling at about ten kilometres per hour. On his right as he travelled along Rockdale Plaza Drive, was a concrete wall of a metre or so in height, which separated that road from an exit up-ramp from an underground car park. The appellant was struck by the front driver's side headlight area of the respondent's vehicle after she had stepped onto the roadway at the end of that concrete wall. At the time the respondent first saw her she was about four to five metres in front of him. He braked and had almost stopped at the time he collided with her. He estimated that the vehicle would not have struck the appellant if she had been crossing 200 millimetres further down the roadway from where he struck her.
24The primary judge found that the respondent first saw the appellant when she was about one metre onto the roadway, she having walked across the exit from the up-ramp and onto a concrete hob at the edge of the roadway and then onto the roadway: [56], [59], [82]. At a position five metres or so before he reached the point on the road which was level with the end of the concrete wall, the respondent may well not have been able to see the appellant because of her pronounced stoop: [51], [62]. However, if the respondent had kept a proper lookout he would have seen the appellant as he drove along Rockdale Plaza Drive and whilst she was crossing the up-ramp and before she had walked onto the roadway: [78]. The appellant was blind in her right eye and had very poor sight in her left eye. It was probable that she stepped onto the roadway without seeing the respondent's vehicle either or both because of her poor eyesight and the fact that her stooped posture meant that she was actually looking at the road surface: [50], [85].
25It is implicit in the primary judge's findings that had the respondent kept a proper lookout and seen the appellant crossing the up-ramp, he would also have seen the appellant as she stepped out at the end of the concrete wall and walked onto the roadway. Instead, the respondent only saw the appellant "after" she had stepped onto the roadway: [82]. The respondent then braked but was unable to bring the vehicle to a halt in the four or five metres between where he first saw the appellant and where the vehicle came to a stop. The effect of the respondent's evidence was that his vehicle would not have struck the appellant if he had seen her earlier.
26The primary judge's specific finding as to the respondent's negligence was that had he been keeping a proper lookout "he would have seen the plaintiff crossing the up-ramp from the car park well prior to her stepping onto the roadway": [78]. That finding is consistent with her Honour's earlier observation that from a position on the road five metres before the end of the concrete wall, the respondent may well not have been able to see the appellant: [62]. I do not read her Honour's reference at [82] to that earlier finding (when addressing the question of contributory negligence) as saying that even if the respondent should not have seen the appellant crossing the up-ramp, he nevertheless was also negligent in not seeing her step onto the roadway. Except for the failure to see the appellant crossing the up-ramp, the primary judge found that "in all other respects, [the respondent's] driving was not in error": [83]. Thus, the primary judge found that had the respondent seen the appellant earlier, as he should have, he would have been aware of her presence and looked out for her and, as a result, seen her as she stepped onto the roadway.
27The question for this Court is whether the primary judge did not have regard to the factor identified by the appellant and erred in not doing so.
28When addressing the question of breach of duty on the part of the respondent, the primary judge cited a passage from the judgment of Mahoney P in Stocks v Baldwin [1996] NSWCA 1; (1996) 24 MVR 416 at 417. That extract is concerned with the question whether there has been a breach of the duty of care and in that context addresses the "balancing" exercise described by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48 as necessary when considering what precautions a reasonable person in a defendant's position would have taken by way of response to an identified and foreseeable risk of harm. The factors to be borne in mind in that process include the magnitude of the risk which, in the context of precautions which a driver must take against the risk of striking a pedestrian, includes the "extent of the damage that may be done" to the pedestrian: cf s 5B(2)(b) of the Civil Liability Act 2002.
29When addressing the question of contributory negligence, the primary judge compared the degree of departure from the standard of care of each of the respondent and appellant without taking into account that whilst the appellant's conduct was grossly careless, it did not directly endanger the respondent or anyone else, whereas the respondent's conduct could endanger pedestrians, such as the appellant, who were taking a known shortcut. In Pennington v Norris, where the driver was speeding in wet conditions with poor visibility down a busy street, the fact that the pedestrian's conduct could not endanger the defendant or anyone else was described as a "material consideration" when apportioning responsibility: at 16. The same factor was addressed in Anikin v Sierra at [51]-[52] where it was noted that on the "facts of Pennington it was said that to drive a car at high speed involved negligence of a far greater culpability than the failure of the plaintiff to keep a proper lookout when crossing the road".
30The primary judge did not refer to this factor when assessing and comparing the culpability of each of the parties. Notwithstanding that the proceedings involved a collision between a vehicle and a pedestrian, it cannot be inferred or assumed that this factor was addressed although not referred to. Although the circumstances of this case are quite different from those in Pennington, the primary judge failed to have regard to a material matter. Because of that error, this Court should interfere with the exercise of apportionment and undertake that exercise itself.
31In doing so it is relevant that the respondent's opportunity to see the appellant was "brief" and that "in all other respects, his driving was not in error". Although the respondent as driver could endanger pedestrians by failing to keep a proper lookout, it is significant that he was taking care by only travelling at ten kilometres per hour and that the only respect in which he was negligent was in failing to see her as she walked across the up-ramp. Nevertheless, his failure to see the appellant at that earlier point in time meant that he was not aware of her presence at the side of the roadway and as a result did not see her as she stepped onto the roadway so as to brake and avoid striking her; notwithstanding that she apparently "attempted to hurry across the road" ([60]) and stepped from the gutter onto the roadway without stopping or being able to see whether there was any oncoming traffic.
32The respondent's failure to see the appellant at the earlier point in time did not make the accident inevitable. Indeed, it remained the position that the accident would not have happened if the appellant had exercised the standard of care required of a reasonable person in her position. The appellant chose to cross the road at a point where there was no pedestrian crossing. At that point and immediately before she stepped onto the roadway it was likely that she could not be seen from a vehicle travelling down the roadway because of her stooped posture and the existence of the low concrete wall. The appellant then stepped onto the roadway in front of an oncoming vehicle either without looking for oncoming traffic or appreciating that she may not be able to see any oncoming traffic. Taking into account the fact that she was old and slow and suffered from these disabilities, her "reasonable best" still required that she stop before stepping onto the roadway so as to give a visual warning of her presence once she was in the line of sight of oncoming vehicles: cf Joslyn v Berryman at [32].
33It is my view that the appellant was more responsible for the injuries which she sustained than the respondent and that it is just and equitable that the appellant bear 60 per cent of the responsibility for those injuries.
34The orders I propose are:
(1)Appeal allowed.
(2)Set aside the verdict and judgment for the appellant in the sum of $109,900.50.
(3)Verdict and judgment for the appellant in the sum of $175,840.80, such judgment to take effect from 9 May 2011.
(4)The respondent pay the appellant's costs of the appeal.
(5)The respondent to have a certificate under the Suitors' Fund Act 1951, if qualified.
35TOBIAS AJA: In this appeal I have had the advantage of reading in draft the separate judgments of Macfarlan JA and Meagher JA. The essential difference between their Honours is their respective assessments of the degree of departure of the appellant and the respondent from the relevant standard of care to which each was required to conform. Otherwise each of their Honours provides similar reasons as to why the primary judge erred so as to justify appellate intervention and the re-exercise by this Court of the apportionment process. I agree with those reasons.
36However, on the issue of apportionment I prefer the assessment of Meagher JA of 60 per cent contributory negligence on the part of the appellant for the reasons he has expressed. I therefore agree with the orders his Honour proposes.