Staderman v Dakin [2005] ACTSC 112

4. However, his Honour rejected the appellant's claim, not being satisfied that the appellant had established negligence on the part of the respondent.

5. The appellant takes issue with that finding. She contends that his Honour failed to apply a sufficiently high standard of care.

6. The appellant, her husband and adult daughter had been out at dinner to celebrate Fathers' Day. They lived at 10 Burkitt Street. Approaching that address they noticed material on the roadway. They thought it was an injured or dead cat.

7. After turning into the driveway of 10 Burkitt Street, the appellant's husband went to get a shovel. The appellant's daughter stayed at the side of the road but it is apparent that the appellant went over to the cat's remains. There was no actual observation of the collision by the appellant's husband or daughter and, due to her injuries, the appellant did not recall it.

8. The respondent's wife gave evidence that the car she was in, with the respondent driving, turned into Burkitt Street from Macadem Street. The distance to the collision was, his Honour accepted, about 80 metres. The car was, Mrs Dakin said, in second gear, doing no more than 20 kph. As his Honour described her evidence (at [10]) -

As they drove along the street she observed a person standing on the left hand side of the road and also observed a Falcon sedan parked a little further up the road on the left-hand side. She expressed in her evidence some concern about the figure on the left-hand side of the road and was of the view that this person was very close to the road or on the road. She also indicated that this person was wearing dark clothing. She then states that she saw in her peripheral vision something on the road and called to her husband. Her husband braked and the collision occurred. She indicates that she is not sure if her husband had begun to brake either before, during or slightly after her comment concerning what she had seen on the road. Her husband braked and veered to the left. She described the vehicle as having stopped pretty suddenly.

9. The respondent's wife estimated the distance when she first saw a person in front of the vehicle as about five metres, having first seen the other person at the side of the road. Five metres was an estimate only.

10. The respondent's evidence was summarised by his Honour (at [13]) as follows, following the respondent's turn into Burkitt Street -

He noticed someone on the curb to the left side of the road a little further up the road and was not sure what they were doing. He seems to have observed that person and then saw a person in the middle of the road this person was on the far side of a bridge which runs over an underpass in Burkitt street [sic] and the person was standing on the centreline. The Defendant was of the view that the lighting in the area was fairly dim. The Defendant applied his brakes and swerved towards the curb but came into contact with the Plaintiff. ... The Defendant was of the view that the Plaintiff was about a half to one metre away from the car when he first saw her. ... The Defendant was of the view that he was about two to three metres away from the person on the side of the road when he first saw that person and that he was about ten to fifteen metres away from the Ford vehicle when he first saw that. He thought perhaps the distance between the person on the left-hand side of the road and the Ford was about 10 to twelve metres.

11. This evidence was not challenged by the appellant. Hence, the issue was whether the respondent should have seen the appellant in sufficient time to have avoided colliding with her.

12. His Honour did not accept the appellant's contention on that issue.

13. On appeal Mr Ryan, for the appellant, argued that the conclusion to which his Honour came was self-evidently wrong. He relied on the proposition that, as the appellant and her husband saw the dead cat in the middle of the road in time to stop before hitting it, the larger presence of the appellant ought to have been that much more obvious to the respondent, as a prudent attentive driver, than the dead (or dying) cat had been to the appellant and her husband.

14. It is also apparent, and his Honour made no contrary finding, that the appellant had not darted into the centre of the roadway too late for the oncoming driver to observe and avoid her.

15. On the other hand, the appellant placed herself in harm's way by, when wearing dark clothing, crouching over a dead (or dying) cat, without being able to observe an oncoming slow-moving vehicle.

16. It is apparent that the respondent was driving slowly. However, his headlights were on. It is impossible to believe that, had he been keeping a proper look-out on the road ahead, he would not have observed the appellant on the roadway.

MR RYAN: The fact is, sir, that your primary intention [sic - attention] was to go to [sic] the left of the carriageway?--- My primary intention [sic] was - was focused on the road, I did have attention focused on the person to the side of the road and the car up ahead, my primary intention [sic] was focused actually on the road.

The person to the left was in fact close to the edge of the road or indeed to the footpath wasn't that person?--- They - they were standing on the kerb.

And the car that was parked, the 80s model Ford that was parked up ahead that was on the carriageway adjacent to the kerb was it or perhaps on the kerb itself? --- Adjacent to the kerb.

... (discussion with Magistrate)

Your sole focus was on the left side of the carriageway, those two items, if I might use that expression, the person on the left of the car up ahead on the left? --- My - sole focus was the - the carriageway straight ahead of me. I was taking into account what - what was to the left of me because that - that had actually been in my attention.

You didn't see the person until you were a metre or a half metre away from that person before you hit them? --- That's true I didn't see them until that time, yes.

So in fact your attention couldn't have been to the whole roadway? --- My attention was on the roadway in front of me.

Well how do you explain the fact that you only saw this person half a metre or a metre before you hit this person? --- I've already said that they were wearing dark clothing, also when I'm - when I'm driving somewhere I don't actually expect someone to be standing in the middle of the road and they were wearing dark clothing on a dimly-lit street at night-time.

After further cross-examination, the respondent conceded -

... Well maybe I could have had better anticipation. A lot of what you're talking about is about anticipation. I quite frankly didn't anticipate someone standing in the middle of the road.

18. There was no suggestion that the beam cast by the respondent's headlights was unusually dim. No vehicle casting less than a beam illuminating at least 15 - 20 metres ahead would be safe to drive.

19. The law does impose on drivers of motor vehicles a high standard of care for other road users, including those present for the purposes of dealing with injured persons or animals, or even obstructions, on the roadway.

20. Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452 was referred to by Mr Ryan. The factual situation was comparable to the present. There had been a finding for the plaintiff at first instance. The Court of Appeal (NSW) disagreed. The High Court, by majority, held that the trial judge's finding that there was negligence on the part of the defendant should not have been disturbed. However, the majority did consider that the trial judge's view had been supportable as a matter of law.

21. I note that it was found, in that case, that the bus lights, on low beam, cast illumination for 50 - 60 metres ahead. The bus was, however, travelling at 70 - 80 kph (19.28 to 22.17 metres/second). Unlike the present case there was a factual dispute, not resolved in favour of the defendant by the objective evidence. Indeed, as in this case, the lack of any evidence of braking or skidding (until virtually at impact) argued for a lack of due attention on the part of the driver. There is, in the present case, no evidence that the appellant suddenly lurched into the path of the oncoming vehicle (c.f. Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352; Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301).

22. Other cases were referred to but they do not alter the conclusion that appears from the respondent's evidence. He was driving slowly. Even granted the darkness of the clothing worn by the appellant, she should have been observed by the respondent at least 15 - 20 metres away as an obstruction on the roadway. It would then have been prudent to stop. It is probable that the figure at the side of the road (the appellant's daughter) and the Ford vehicle further down the road, distracted the respondent, even though he believed that he was giving due attention ahead. That he could not have been doing so is demonstrated by the fact that his wife, who was not the driver, nevertheless saw the appellant at a distance of about five metres. The respondent conceded not seeing her until one to one and a half metres away.

23. I therefore conclude that whilst his Honour rightly concluded that the appellant had failed to take reasonable precautions for her own safety, that was not inconsistent with a lack of due care and attention on the part of the respondent. I consider the evidence leaves no other conclusion reasonably open.

24. The objective facts persuade me that the apportionment should be 50:50 as between the appellant and the respondent.

25. There is an appeal as to quantum. It is confined to an alleged error in that the learned Magistrate included, in his estimate of general damages, $15,000 for future dental work and medical treatment. It is contended, on behalf of the appellant that should have been an additional allowance.

26. It is, however, apparent that, in provisionally assessing damages, his Honour found that there would be a need for future treatment. There is nothing to suggest that an appropriate allowance was not made for it. Granted that it could not be precisely quantified it was not inappropriate for his Honour to include that estimate of future expense as part of the component for future general damages.

27. I would, therefore, find a verdict for the appellant, setting aside the verdict as found, and substitute an award of damages in the sum of $43,568.02 plus interest. The total award will be reduced by 50 per cent for contributory negligence.

28. I will hear the parties as to quantification of interest and costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.