48The appellants submitted that the primary judge erred in law in first, failing to determine whether Mr Stuart was in breach of a duty to take reasonable care in all the circumstances. Secondly, although he was expressly referred to and addressed on the relevant provisions of the Civil Liability Act 2002 (the CLA) and, in particular, s 5B, he did not structure his judgment to address each of the requirements of that provision.
49With respect to both these contentions, it is apparent from a fair reading of his Honour's reasons that he found that Mr Stuart failed in his duty to take reasonable care. First, Mr Stuart did not at all times keep a proper lookout and, secondly, he erroneously veered to the right and braked heavily, rather than continuing in Lane 1 of the carriageway having observed the movement of Dr Walsh's bicycle across the carriageway towards the median strip. This last mentioned finding is, at least in part, inferentially based upon his Honour's earlier finding (at [127]) that Dr Walsh had completed his crossing of the carriageway by the time that he was struck.
50In any event I do not regard these asserted errors of law as being relevant to the ultimate determination of this appeal. Essentially, the appeal involves a question of fact. The question to be determined in the circumstances which confronted Mr Stuart when he first observed Dr Walsh moving out of the breakdown lane was what was a reasonable response to the risk so created: Vale v Eggins [2006] NSWCA 348; (2006) 46 MVR 514 at [13] per Beazley JA, McColl JA agreeing. To put the issue another way: was there any evidence of a failure by Mr Stuart to keep a proper lookout and/or was the application by him of the brakes of his vehicle, and his steering to the right at the same time as he saw Dr Walsh suddenly move onto the carriageway from the breakdown lane, indicative of a lack of reasonable care on his part in the circumstances? Those are the questions which, in my view, are required to be answered.
51The appellant made a number of challenges to some of his Honour's findings such as those at [130] and [143] which I have dealt with when dealing with his Honour's remarks therein: see [34], [38] and [39] above. A deal of time was also spent in the written submissions and in the appellants' oral argument on his Honour's finding with respect to the point of impact. In my view whether that point of impact was that determined by Mr Keramidas on the one hand or that determined by the primary judge on the other, is not relevant to the resolution of the true issues in the appeal. Given the nature of his Honour's findings of negligence, the precise location of the point of impact, whether within Lane 2 or within the paved shoulder adjoining that lane, becomes insignificant. It is therefore unnecessary to resolve precisely where it was.
52With respect to the finding that Mr Stuart failed to keep a proper lookout, the following observations are pertinent. First, on the basis of Exhibit M Mr Stuart observed Dr Walsh turn from the breakdown lane onto the carriageway when he was some 65 metres from him or, on the basis of Dr Walsh's evidence, some 90 metres. In this context it became relevant to determine the point where Dr Walsh turned onto Lane 1. Thus during the course of the respondent's submissions on the appeal, senior counsel was requested to indicate where, in his submission, that point was. He nominated a position below the word "Likely" in the phrase "Likely Impact Location" as shown on Exhibit M.
53If that be the correct position, then the distance between that point and the commencement of Mr Stuart's reaction time as shown on Exhibit M was 75 metres. Accordingly, there can be no doubt on the evidence that Mr Stuart first observed Dr Walsh move onto the carriageway from a distance of between 65 and 90 metres rather than the 100 feet mistakenly asserted by Mr Stuart in his evidence. Neither of the experts suggested that having observed Dr Walsh moving suddenly onto the carriageway from the breakdown lane from that distance was indicative of a failure on Mr Stuart's part to keep a proper lookout. In my opinion the primary judge's finding to the contrary cannot be sustained.
54In fact senior counsel for Dr Walsh ultimately did not seek to support that finding of the primary judge. Rather, his eventual case on appeal was not that Mr Stuart had failed to act in an appropriate manner but that he had over-reacted to his perception of Dr Walsh on the carriageway by unreasonably "flooring" his brakes thereby causing his vehicle to skid and by turning his steering wheel causing the vehicle to veer to the right: see Appeal Tpt p 64. This accorded with his Honour's finding at [144], [146] and [155] of his reasons to the effect that Mr Stuart had made an "ill chosen choice" in moving or veering to the right under brakes as that ensured that there would be a collision with Dr Walsh as he was moving in that same direction.
55The appellants responded by submitting that his Honour's description of Mr Stuart's truck veering to the right as a consequence of him manoeuvring the steering wheel and at the same time braking heavily as "an ill chosen choice" or "the wrong choice" did not bespeak negligence on his part. In their written submissions the appellants accepted that there was no dispute that on seeing Dr Walsh leave the breakdown lane and commence to move out onto the carriageway, Mr Stuart braked his vehicle heavily and steered it to the right in an attempt to avoid a collision. The question is whether such a manoeuvre was in all the circumstances unreasonable so as to constitute negligence on Mr Stuart's part.
56It was submitted that only with the benefit of hindsight could any criticism be levelled at Mr Stuart's response to observing the bicycle rider turn without warning from the breakdown lane onto the carriageway in an apparent attempt to cross to the median strip before the truck driven by Mr Stuart reached him. Reliance was placed on the evidence of Mr Keramidas that that was "a natural response". Although Mr Schnerring accepted that braking was an excellent response, he considered that Mr Stuart should not have swerved as that was not a good tactic. However, he accepted that that observation was made with the benefit of hindsight.
57It was submitted on Dr Walsh's behalf that had Mr Stuart not over-reacted, he would not have moved from Lane 1 into Lane 2 as that was the same direction in which the bicycle rider was moving. In my view this submission cannot be sustained given the evidence of the experts that a proper response to the situation with which he was faced was for Mr Stuart to heavily apply his brakes. Once he had done so and the off-side rear wheels locked, he lost control of the direction in which the vehicle would travel.
58At one point during the course of oral argument it was submitted on behalf of Dr Walsh that Mr Stuart failed in two respects to exercise reasonable care. The first was his failure to react in a timely fashion to the presence of Dr Walsh on the carriageway by failing to keep a proper lookout. As already noted, this submission was eventually abandoned. The second was that Mr Stuart's action in jamming on his brakes was negligent when he should have kept going in Lane 1. In other words, it was submitted that he simply should not have braked at all. However, that submission was at odds with the evidence of Dr Walsh's own expert Mr Schnerring at Black 100 (recorded at [24] above) that he was not at all critical of Mr Stuart heavily braking as he considered that braking was an excellent response.
59I return to Dr Walsh's over-reaction submission to the effect that it was unreasonable for Mr Stuart to either have braked or to have steered to his right. It was never put to Mr Stuart that he should not have braked as he did. Nor was it put to him that he should not have steered as he did. To suggest that his reaction was unreasonable because he could have avoided the accident by remaining in Lane 1 and not applying his brakes involves a large dollop of hindsight. In this context it may be noted that in re-examination (at Black 171D-H) Mr Stuart said that at the time he first saw the cyclist enter the carriageway from the breakdown lane, he considered that if he kept going in a straight line and had not taken the action he did, the outcome was likely to have been worse than it was and Dr Walsh would probably have been killed. He may or may not have been correct in this but that is not the point.
60A further permutation of Dr Walsh's contentions in oral argument was the assertion that Mr Stuart should have slowed down and braked but had done so too heavily as a consequence whereof he had caused his vehicle to skid. There was no evidence particularly from Dr Walsh's expert, Mr Schnerring, to support this assertion.
61It was in the context of Dr Walsh's over-reaction submission that reference should be made to the appellants' submissions based on their "agony of the moment" contention. Reliance was placed on a passage from the judgment of Street CJ in Leishman v Thomas (1957) 75 WN(NSW) 173 at 175 where the Chief Justice considered the question whether a defendant may rely on the principle of the "agony of the moment" in answer to a claim that he acted negligently towards another. His Honour said:
"This so called principle of acting in the 'agony of the moment' is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved. It is a circumstance, and one possibly of great importance, that the defendant, charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so-called 'agony of the moment', he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise."
62This passage from Leishman was quoted with approval by Stein JA, with whom Meagher and Beazley JJA agreed, in Abdallah v Newton (1998) 28 MVR 364 at 365-366. See also Antypas v McKeon [2001] NSWCA 417; (2001) 35 MVR 121 at [48], [49] per Ipp AJA with whom Hodgson JA and Rolf AJA agreed; Byrnes v Snare (1986) 4 MVR 97 at 99 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ agreeing.
63Like the position in Abdallah, Mr Stuart found himself in a situation which was not of his making. He was driving his truck at 80 kph when, without warning, he suddenly observed between 65 and 90 metres in front of him a cyclist in the breakdown lane look right over his shoulder and then immediately turn 90 degrees onto the carriageway and, at least potentially, into the path of his vehicle. To adopt and adapt the observations of Street CJ in Leishman, Mr Stuart was forced to react to a sudden, unexpected and unheralded scenario when he observed a cyclist, suddenly and without warning, move into his path a relatively short distance in front of him. He may have assumed that the cyclist intended to proceed to the other side of the carriageway but he did not know at what speed. He did the obvious thing and immediately applied his brakes. It was never suggested to him that this was an inappropriate thing to do. Importantly, he responded to the potentially dangerous situation created by Dr Walsh as soon as it occurred: cf Vale v Eggins at [14] and [17].
64In so reacting Mr Stuart did not have the opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had remained in Lane 1, rather than to have steered slightly to his right and at the same time floored his brakes so that his rear wheels locked and his vehicle went into a skid. He found himself faced with a situation which, in my opinion, required immediate action of some sort. If steering to the right was in hindsight the wrong thing to do then it was, in my view, an error of judgment made in the "agony of the moment". To adopt and adapt what Ipp AJA said in Antypes, the fact is that Dr Walsh's conduct brought about a sudden emergency in circumstances where it would be unreasonable to criticise Mr Stuart for taking the avoidance action he did. Being confronted with a situation with which he was required to make an instant decision or one with which it was necessary for him to deal in a matter of a few seconds, it cannot be the case that he acted unreasonably in any way.
65In summary, the issue is not whether there was an alternative course of action Mr Stuart could have taken which would have avoided the collision such as remaining in Lane 1 without the necessity of having to apply his brakes. The issue is whether in all the circumstances with which he was faced, his reaction to the sudden and unexpected movement of Dr Walsh onto the carriageway was unreasonable. In my opinion it was not. It accorded with the response of a reasonably prudent driver in the position Mr Stuart found himself.