T and X Company Pty Ltd v Chivas

Court of Appeal (NSW)|2014-03-13|Before: Beazley P, Basten JA, Barrett JA

Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 Schieb v Abbott (1998) 27 MVR 285 Seers v Turrell (19 November 1997, New South Wales Court of Appeal, unreported) Sons of Gwalia Ltd v Margaretic [2007] HCA 1; 231 CLR 160 Stocks v Baldwin (1996) 24 MVR 416 Talbot-Butt v Holloway (1990) 12 MVR 70 Walker Corporation v Sydney Harbour Foreshore Authority [2008] HCA 5; 233 CLR 259 Yu v Yu (1998) 26 MVR 509 Texts Cited: D Villa, Annotated Civil Liability Act 2002 (NSW) (2nd ed, Law Book Co, 2013) at 247

Review of the Law of Negligence Final Report Category: Principal judgment Parties: T and X Company Pty Ltd (Appellant) Amanda Chivas (Respondent) Representation: Counsel: Mr K P Rewell SC/Mr D J Hanna (Appellant) Mr R S Sheldon SC/Ms M Campbell (Respondent) Solicitors: Moray & Agnew (Appellant) Brydens Law Office (Respondent) File Number(s): CA 2013/111126 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-03-28 00:00:00 Before: Bozic DCJ File Number(s): DC 2011/317324

Judgment 1BEAZLEY P: I have had the advantage of reading in draft the reasons of Basten JA. I agree with his Honour's reasons in respect of negligence and causation. My reasons in respect of contributory negligence are as follows. In dealing with that question, I rely upon the factual matters in his Honour's judgment and in particular the matters set out at [22]-[24]. Although Basten JA has set out the provisions of the Civil Liability Act 2002, s 5R, which governs the 'standard' of contributory negligence in negligence claims that fall within the Act, it is convenient for the analysis which follows to set out its terms at the outset of my reasons. "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time." 2Section 5R was introduced as part of the civil liability reforms which implemented the recommendations of the Review of the Law of Negligence Final Report (the Ipp Report). Section 5R embodies the Panel's recommendations. 3As with certain other aspects of the Ipp Report and, relevantly to this case, in relation to the statutory requirements of breach there is a question of the extent to which the Panel's concern was with the application of the law by judges, rather than considering that a new law of contributory negligence was required. This is apparent in the Panel's reference to judges being "overly indulgent" in the apportioning damages. Section 5S may constitute a reform in providing that a court may determine a reduction of 100 per cent if it considers it "just and equitable to do so", although it is possible that the provision may articulate what was in any event available having regard to the terms of the legislation governing apportionment, discussed below. 4However, the essential aspects of contributory negligence at common law were retained by the Civil Liability Act. In particular, the statutory test is objective, as was the position at common law: Joslyn v Berryman [2003] HCA 34; 214 CLR 552 and, as I have always understood the position, the question at common law was to determine whether there had been a person's departure from the application of reasonable care for the person's own safety. Thus in Joslyn v Berryman, McHugh J, after observing that the test for contributory negligence was objective, stated, at [32]: "The test of contributory negligence is an objective one. Contributory negligence, like negligence, 'eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.'" (citation omitted) 5His Honour continued: "34 In McHale v Watson, Kitto J held ... the established rule [was] that ... 'a plaintiff is required to conform to the same standard of care as a defendant, with due allowance for the fact that here the enquiry is directed to what is reasonable for his own safety rather than the safety of others.' ... 35 ... the plaintiff is held to the standard of care expected of an ordinary reasonable person engaging in the conduct that caused the plaintiff's injury or damage." 6I have made extended reference to Joslyn v Berryman because there are potentially inconsistent decisions in the Court as to the ongoing relevance of that decision given the enactment of s 5R. Nonetheless, the position is now as prescribed by statute and it is the language of the statute to which regard must be had and there would appear to be limited utility in continued reference to that decision, at least in cases which do not bear any similarity in their factual circumstances. 7It is important to note, however, that the Panel's recommendation in relation to contributory negligence was not intended to ignore the identity of the plaintiff or the nature of the relationship between the plaintiff and the defendant. The Panel referred to the example of a child (plaintiff)/adult (defendant) relationship where the application of the same standard to a plaintiff and defendant did not require the Court to treat the child as an adult. Likewise, in the case of an employee/employer relationship, the Panel observed that a court would still take into account the fact that an employee typically has less control over the work environment than the employer. 8There appears to be a difference in views in the Court in decisions where it has been considered relevant to have regard to the capacity of a motor vehicle to inflict significant damage. The potential for a vehicle to do serious damage to a pedestrian was referred to by Mahoney P in Stocks v Baldwin (1996) 24 MVR 416 where his Honour observed, at 417-418: "The use of motor vehicles in the city creates real dangers ... [However] the reasonable person would accept that it is not the duty of a driver so to drive that there is no foreseeable risk of injury to others. To think otherwise would be to ignore the realities of city life. But it is not to be taken from what I have said that risks may be ignored. In the 'balancing' process to which Mason J referred, at least four things are to be borne in mind: the extent of the damage that may be done by a driver to a pedestrian; the degree of likelihood that a pedestrian will suddenly come into the path of an ongoing vehicle; the consequent extent of the precautions which a driver must take against that eventuality; and the extent of what a driver is able to do when confronted with such a danger." Mahoney P continued: "The damage which a driver may do to a pedestrian is great: the injuries suffered by the present plaintiff show this. This is an important matter when deciding what a driver must do. The inconvenience of driving slower is to be measure against, inter alia, what may be done to a pedestrian if the driver's estimate of the risk is wrong. Pedestrians sometimes act carelessly ... they do so with sufficient frequency that a prudent driver would take account of it." 9The damage that a motor vehicle may do to a pedestrian has often been referred to in the case law. Thus, in Schieb v Abbott (1998) 27 MVR 285, having referred to the observations of Deane J in March v Stramare (E & MH) Pty Ltd [1991] HCA 12; 171 CLR 506 at 521, I commented (Mason P and Priestley JA agreeing) that the duty of care of a driver of a motor vehicle was owed to all users of the road, including the inattentive and those whose faculties were impaired by alcohol, meant that the standard of care to be observed by a driver of a motor vehicle was, of necessity, high. In that context, I referred to the identification by Mahoney P in Stocks v Baldwin of the relevance of the damage that may be done to a pedestrian by a motor vehicle in determining whether a driver had breached the duty of care owed to the pedestrian. See also Seers v Turrell (19 November 1997, New South Wales Court of Appeal, unreported); Talbot-Butt v Holloway (1990) 12 MVR 70; Yu v Yu (1998) 26 MVR 509. 10Those cases were decided prior to the introduction of the Civil Liability Act. Nonetheless, the case law has continued to recognise the relevance of the harm that can be done by a motor vehicle for the purposes of determining breach of duty of care. Thus, in Duggan v Chan [2013] NSWCA 182; 64 MVR 249 Emmett JA (Ward and Gleeson JJA agreeing) observed, at [17]: "Drivers of motor vehicles, being in charge of frequently lethal machines, are under a duty to drive reasonably in the circumstances in which they find themselves. Such circumstances include the fact that a driver is driving lawfully by obeying green lights and travelling within the limit proscribed by the law. On the other hand, other circumstances may need to be taken into account as well: Tsuji v Metromix Pty Ltd (1998) 28 MVR 401 at 403-4. Thus, a motorist may have some reason, because of the surrounding circumstances, to be aware that pedestrians are likely to behave carelessly ... A motorist must always be conscious of the fact that a pedestrian may do something silly and must adjust his or her driving to account for that possibility." 11However, as his Honour observed, at [18], the mere possibility of a pedestrian being on the road may not be sufficient to find breach of duty. As the authorities have also stressed, the liability of a motorist is not an absolute one. As I explain below, the observations of the Court in Duggan v Chan as to the damage that can be caused by a motor vehicle, which reflect earlier authorities on this point, is also a relevant observation in respect of the determination of contributory negligence under the Civil Liability Act. 12In determining whether a plaintiff was contributorily negligent, s 5R turns the attention of the decision maker to s 5B. Section 5B(2) provides that in determining whether a reasonable person would have taken precaution against a risk of harm, the Court is to consider: "(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." 13If by reference to those matters, and any other factors that the Court considers relevant, the Court determines that a plaintiff has been contributorily negligent, the reduction in the amount of damages to which a plaintiff would otherwise be entitled, in the case of a motor vehicle accident, is governed by the Motor Accidents Compensation Act 1999, s 138(3), which provides: "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." 14The "just and equitable" determination must be based upon the relative responsibility for the accident as between the plaintiff and defendant. That assessment must, having regard to the statutory scheme, be based upon the Court's assessment of the matters in s 5B(2) as between the defendant who has been found to have breached a duty of care, and the plaintiff, who has been found not to have exercised the care of a reasonable person for his or her own safety. 15In the present case, the s 5B(2) factors, when considered in relation to the negligence of the driver of the taxi, must be answered by reference to the fact he was driving too fast in the CBD, and there were pedestrians in the vicinity, who, to the driver's observation, were not crossing the road safely or in accordance with the regulations. For example, some pedestrians were jaywalking. Others were running across the road, including two of the deceased's friends. Generally, the pedestrians in that part of the city on the day in question were likely to include elderly and infirm persons and persons with strollers and young children, as was seen in the video of the streets in the vicinity of the accident. Importantly, the likely seriousness of the harm, if the driver did not drive at a slower and reasonable speed as a precaution against the risk of harm, was very high. His taxi cab was likely to do serious, if not fatal, injury to a pedestrian should he collide with one at the speed he was travelling. The burden of taking the precaution of slowing down was negligible. There was no social utility relevant to the circumstances. 16For his part, the deceased acted either with a high degree of carelessness, or made a serious error of judgment in respect of the oncoming taxi. However, the driver of the vehicle not only acted with a high degree of negligence in driving in the manner he did, the likely seriousness of the harm in the driver not taking the precaution of driving more slowly was such that the taxi driver should bear a high proportion of the blame for the accident. 17The trial judge did not give reasons for his apportionment. Nonetheless, I consider that appellate restraint in respect of apportionment under the combined operation of the Civil Liability Act, s 5R and the Motor Accidents Compensation Act, s 138(3) is required. In other words, I consider that in the context of these provisions, the appellate restraint referred to in Podrebersek applies: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492. Accordingly, although I may have found a higher degree of contributory negligence (although not to the extent found by Basten JA with whom Barrett JA agrees) I do not consider appellate intervention is warranted. 18BASTEN JA: 6 October 2008 was a public holiday. Traffic in the city was light. At 12.50pm, Mr Imad Khallad was driving a taxi owned by the appellant in a westerly direction down Market Street, Sydney. He had a green light permitting him to cross George Street. As he approached the intersection, two young men ran across Market Street from the north-western kerb (to his right and on the far side of George Street), ignoring the red pedestrian light. They passed in front of his taxi. He did not slow down. As he crossed George Street, a third young man, Scott Chivas, ran onto Market Street and was fatally injured when hit by the taxi. 19Ms Amanda Chivas was the mother of the deceased. She did not witness the accident, but sued in the District Court for nervous shock. The trial judge, Bozic DCJ, found that the driver of the taxi was negligent and assessed the plaintiff's damages at a little under $800,000. He reduced the damages by 40% for the contributory negligence of the deceased, entering judgment in a sum of $478,539. 20By its notice of appeal, the appellant challenges the findings that its driver was negligent, that any negligence caused the accident and the assessment of contributory negligence which it said should have been at least 75%. 21For the reasons given below, the challenges with respect to negligence and causation should be rejected; the challenge with respect to contributory negligence should be allowed and contributory negligence assessed at 75%.

Challenge to finding of negligence 22Where Market Street intersected with George Street from the east (or Hyde Park direction) Market Street was one-way with traffic heading in a westerly direction. There were three lanes. As the traffic crossed George Street, it was required to veer to the left as there was a fourth lane on the west (Darling Harbour) side of George Street for buses which were able to proceed in an easterly direction up Market Street as far as George Street and turn left into George Street. Thus the taxi, proceeding in the right hand lane down Market Street towards George Street (in lane 3, the lanes being numbered from the left) was no longer in the kerbside lane when it crossed George Street. 23The fatal accident was captured by a CCTV camera mounted on a building on the north-west corner of the intersection. It captured images at half-second intervals. Of the four young people in the group, Scott Chivas' two male friends started across Market Street ahead of him. The third friend, a young woman, did not attempt to cross Market Street. The two males commenced to cross four or five seconds before the collision, one just ahead of the other. The CCTV footage suggested that the leading man had just reached lane 1 and that the second man was in lane 2 at the time of the collision. About three seconds after the first of his friends stepped onto Market Street, Mr Chivas followed. At that point, the second friend was directly in the path of the taxi. Scott Chivas crossed the bus lane and was in lane 3 (the taxi's lane) when the collision occurred. 24The findings of fact made by the trial judge were summarised in the following passage at pp 21-22: "(1) On 6 October 2008, Mr Khallad was driving his taxi in a westerly direction on Market Street. (2) As he proceeded down Market Street, there were many pedestrians who were crossing Market Street against the prevailing traffic signals. (3) The subject of pedestrians jaywalking was discussed between the passenger and driver. (4) The taxi was travelling down Market Street at or just below 50 kilometres an hour. (5) At no point prior to the accident did the taxi alter its speed. (6) As the taxi approached the intersection at Market and George Street, there were pedestrians visible on the pavement on both sides of Market Street. (7) The traffic lights facing the taxi were green. (8) One young man left the pavement and proceeded to cross Market Street in a southerly direction; that is, crossing from right to left, as seen by the occupants of the taxi, and half a second later another young man stepped off the pavement and proceeded to cross the road. (9) The taxi did not alter its speed in response to the emergence of pedestrians on the road in front of him. (10) The taxi driver proceeded to drive across the intersection and sounded his horn. (11) The taxi driver passed within a very close distance to the two men, perhaps no more than several centimetres. (12) Three seconds after the first man stepped off the pavement, Scott Chivas stepped off the pavement and proceeded to cross the road. (13) The taxi brakes were applied immediately prior to impact since the CCTV footage shows the taxi in the nose down position upon impact." 25No challenge is made to any of those findings. 26The finding of negligence proceeded on the following basis. First, the trial judge noted that the particular risk of jaywalking had been identified by the taxi driver in conversation with his passenger as they proceeded down Market Street. From that he concluded that reasonable care required that the taxi travel at 40kph, rather than closer to the speed limit, which was 50kph. It followed that the taxi was being driven at an excessive speed (judgment, p 26), a finding which the appellant did not challenge. 27The second aspect of negligence, identified by the trial judge at p 27, was challenged and should therefore be set out in full: "Secondly, in approaching the George Street intersection, the risk of pedestrian jaywalking again became manifest. Five seconds before impact, one of the young men left the pavement. Half a second later, another man left the pavement. Notwithstanding that four and a half seconds prior to impact with Mr Chivas there were two pedestrians crossing Market Street against the lights, and that there were other pedestrians standing on the footpath, the driver did not slow down. At this point, reasonable care required the driver to slow down, not simply to avoid the two men on the road but because of the risk that others might also attempt to cross the road. This in fact occurred some two and a half seconds after the second man left the kerb when Scott Chivas stepped off the pavement." 28This challenge cannot be accepted. Some jaywalkers who proceed across a road otherwise than at a marked crossing, or who use crossings but disregard the traffic signals, do so with full appreciation of the risks and with close attention to the direction from which a vehicle may be expected. Many will have the agility to move more quickly if the unexpected occurs. However, that is not true of all pedestrians on city streets. Some may be young and inexperienced, others old and less agile; some may be familiar with the habits of traffic at particular intersections, others may not, including people from rural areas where traffic may behave quite differently. Some may be expected to anticipate how drivers will behave because they are themselves drivers, but others whether because they do not drive or because they have a disability which does not allow them to anticipate readily how others will behave may face greater risks. A driver who fails to take the variability of such circumstances into account, when faced with persons crossing the street against lights or otherwise unwisely, fails to take reasonable care in the handling of a motor vehicle. 29In applying the principles set out in s 5B of the Civil Liability Act 2002 (NSW), it is necessary in assessing the precautions a reasonable driver would take to consider the likely seriousness of the harm which might eventuate from a collision with a pedestrian and the burden of taking precautions to avoid the risk of harm, that was in the present case by slowing down. 30Given that the appellant accepted that the taxi was travelling at excessive speed, it is difficult to understand the basis for the challenge to the finding of negligence. However, the question as to whether the driver should have slowed below 40kph was significant for another reason, namely the challenge to causation. Its concern with the finding that he should have reduced speed on seeing pedestrians crossing the road in front of him was in part directed to the failure of the trial judge at that point to identify the extent to which his speed should have been reduced. The answer was that his speed should have been reduced so that he did not simply miss the second of the two young men crossing the road, but passed at a safe distance. One reason for taking that step was to avoid the need to focus all his attention on the man he could see on the road, to the exclusion of other possible risks. 31The trial judge, applying the principles in s 5B of the Civil Liability Act, correctly concluded that the driver of the taxi was in breach of his duty to take reasonable care with respect to pedestrians on the roadway and on the kerb at the intersection. 32It may be added that the trial judge sought assistance from the findings in a number of decisions in this Court, discussed in Mobbs v Kain [2009] NSWCA 301; 54 MVR 179; [2009] Aust Torts Rep 82-037. No doubt those findings, based on their particular facts, provide some guidance as to the standard required of drivers; however, they do not constitute binding authority and it is, accordingly, not necessary to consider them for present purposes.

Challenge to finding as to causation 33The challenge to causation was based on the proposition that even if the taxi had been travelling at 35kph or even 30kph on seeing the two young men crossing the road, the outcome would have been no different in that the collision would still have occurred. There was no evidence that the injuries would have been less severe at a lower speed: the case was run upon the basis of collision or no collision. 34At the heart of the appellant's argument with respect to this ground, was the proposition that the trial judge had committed the "hindsight fallacy" identified in Mobbs v Kain, by reasoning from a finding as to the speed at which the collision could have been avoided to the conclusion that breach lay in a failure to travel at or below that speed. This was noted in the judgments of Giles JA (at [3]-[4]) and by McColl JA (with whom Macfarlan JA agreed) at [84], referring to the reasoning of Heydon JA in Knight v Maclean [2002] NSWCA 314 at [66]-[69]. 35As the appellant correctly noted, the central element of causation was that "the negligence was a necessary condition of the occurrence of the harm", as required by s 5D(1)(a) of the Civil Liability Act, involves a sufficient identification of the nature of the breach of duty constituting the negligence to allow that assessment to be carried out. Whilst causation is to be assessed with the benefit of hindsight, the standard of care required is not: to elide the separate stages of the inquiry is undoubtedly erroneous. The question is whether the trial judge did that in the present case. There is no doubt that the trial judge asked himself the correct question, setting out both the statutory provisions and noting the need to identify the negligence causing the harm. The judge then noted evidence of an expert witness, Mr Jamieson, who said that had the driver braked when the two boys crossed the road in front of him, the collision would probably not have occurred. He was asked why not and stated: "Because the physics dictates that if he brake[d], even moderately, not emergency, the taxi would have arrived there late and Scott would have cleared into the lane adjacent to the taxi." 36The trial judge concluded, at p 30: "Approaching the question of causation in this way, it is unnecessary to deal with issues of reaction time and with issues of whether the taxi driver was able or could have stopped, given the time at which Mr Chivas stepped out from the pavement. As I have indicated, in my view reasonable care demanded that the taxi driver should have taken action before Mr Chivas stepped off the pavement." 37It is tolerably clear that this reasoning did not commit the error complained of. The trial judge did not conclude, either expressly or covertly, that the taxi should have been travelling at such a speed as to avoid the accident. Rather, he accepted Mr Jamieson's evidence as to "the physics", a term which is readily understood in the context. 38The CCTV footage showed the deceased stepping off the kerb about 2 seconds before the collision. At the point of collision, he had crossed the bus lane and was in the lane in which the taxi was travelling. Mr Urquhart (the appellant's expert) noted that the deceased travelled "about 3 to 3.5 metres in one second": judgment, p 12. In the three seconds between the first pedestrian stepping onto the roadway and the deceased stepping onto the roadway, travelling at 48kph, the taxi would have covered 40 metres. At 36kph, it would have covered 30 metres. Not only would the driver have had extra time in which to see the deceased and reduce speed further, but the deceased would have had sufficient time to reach lane 2, being the lane beyond that in which the taxi was travelling. That is the rough and ready calculation which underlay Mr Jameison's reference to "the physics". The appellant did not attempt to demonstrate that that calculation was wrong, no doubt because it was not. The trial judge was entitled to rely upon the expert without carrying out the unchallenged calculation. He was correct to conclude that causation was established. 39The breach which the trial judge had identified was in travelling down Market Street at close to 50kph, instead of 40kph. The further breach, which required him to slow further (had that been necessary) when the first two pedestrians started across the road, could readily be satisfied by reducing speed to 36kph. Accordingly, it was the breach already identified which permitted the finding as to causation; there was no application of "hindsight reasoning". The appeal with respect to liability and causation must be dismissed.

Challenge to contributory negligence 40The trial judge assessed contributory negligence of the deceased at 40%. After stating the relevant principles, he identified the relevant factors in the following passage (judgment, p 32-33): "Although this was not a case of a car travelling at high speed, it was a case of a car travelling at a speed which was excessive in all the circumstances, failing to make any attempt to slow down or take other evasive action, in circumstances in which the taxi had a far greater capacity to cause damage. On the other hand, Scott Chivas created the situation of danger by stepping out onto the road, whether one describes his movements as a brisk walk or a jog, where it was not safe to do so, ignoring the flashing red pedestrian light and being able to observe the approaching taxi. Shortly before impact he does look to his left. He stepped out onto the road permitting the driver minimal opportunity to avoid the impact." 41In identifying the relevant legal principles to be applied, the trial judge correctly referred to s 5R of the Civil Liability Act and s 138 of the Motor Accidents Compensation Act 1999 (NSW). Further, he summarised the principles set out in cases which pre-dated the Civil Liability Act, including Joslyn v Berryman [2003] HCA 34; 214 CLR 552 and Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492. 42Section 5R of the Civil Liability Act provides: 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 43The commonly cited passage in Podrebersek is at 494: "The making of an apportionment as between a plaintiff and a 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 (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682...". 44In Talbot-Butt v Holloway (1990) 12 MVR 70, Handley JA, reflecting the reasoning in Pennington v Norris [1956] HCA 26; 96 CLR 10, stated at 88: "The evaluation and assessment of the culpability of the plaintiff and the defendant must take proper account of the fact that ... the plaintiff's conduct posed no danger to anyone but herself, while the defendant who was driving [the vehicle] ... was in charge of a machine that was capable of doing great damage to any human being who got in its way." 45Caution is necessary with respect to the authorities which pre-date the Civil Liability Act. References to the "common law rules of contributory negligence" must also be viewed warily. (Even under the common law reference to 'rules' as opposed to 'principles' was frowned on: see Alford v Magee [1952] HCA 3; 85 CLR 437 at 456 and 460.) 46Apportionment of responsibility in negligence is not a common law concept, but a product of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) ("the 1965 Act"), s 9 of which relevantly provides: 9 Apportionment of liability in cases of contributory negligence (1) If a person (the claimant) suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person: ... (b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage. 47Somewhat unhelpfully, the Motor Accidents Compensation Act provides that "[t]he common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section": s 138(1). The section then states that findings of contributory negligence must be made in particular cases, but expressly preserves "any other ground": s 138(2) and (6). Section 138(3) states that "[t]he 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." Although this last provision is not identical in terms to s 9(1)(b) of the 1965 Act, because s 138 does not purport to impinge on the obligation to have regard to the injured person's share in the responsibility for the damage, it should not be read as an exception to which s 9(1) is made subject by s 138(1) of the Motor Accidents Compensation Act. 48Section 5R of the Civil Liability Act is found in Div 8 of Pt 1A and is stated to apply to motor accidents: Civil Liability Act, s 3B(2)(a). The Civil Liability Act being enacted later than the Motor Accidents Compensation Act, and making specific provision in s 3B for its operation with respect to motor accidents, should not be taken as subject to s 138. Rather, it should be given operation according to its terms. Its interrelationship with s 9 of the 1965 Act warrants separate attention. 49In this somewhat complex statutory scheme it is not clear what role is to be played by the "common law", including the reference in s 138(1) of the Motor Accidents Compensation Act. If (as must be the case) it means no more than the way courts have construed the statutory provisions, it is not only otiose, but "is apt to distract attention from the supreme importance of statute law", to adopt the language of Gummow J in Sons of Gwalia Ltd v Margaretic [2007] HCA 1; 231 CLR 160 at [35]; and see Walker Corporation v Sydney Harbour Foreshore Authority [2008] HCA 5; 233 CLR 259 at [30]-[31] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ); Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd [2013] HCA 50; 304 ALR 1 at [18] (French CJ). For example, s 5R(2) of the Civil Liability Act deals with the "standard of care", which may or may not affect the "just and equitable" test in s 9 of the 1965 Act. 50The reference by the trial judge to Joslyn was no doubt to the "rules" identified by McHugh J at [16]ff. However, there are reasons not to place too much weight on these propositions. First, Joslyn was concerned with the application of s 74(2) of the Motor Accidents Act 1988 (NSW), not the common law (assuming the intended distinction is between the common law and statute; cf Leeming JA in Frost v Kourouche [2014] NSWCA 39 at [31]). McHugh J was indeed conscious of that distinction, making clear the importance of the statutory test at [14]. The following paragraphs of his judgment involved an historical account of the "common law" of contributory negligence, at a time when contributory negligence was a complete defence and the courts had devised a number of mechanisms to diminish the unsatisfactory consequences. Secondly, no other member of the Court expressly adopted the reasoning of McHugh J. Thirdly, whilst doubting the current applicability of the reasoning of the High Court in Cook v Cook [1986] HCA 73; 162 CLR 376 (in respect of the duty of a care owed by a learner driver to an instructor) Joslyn pre-dated the decision in Imbree v McNeilly [2008] HCA 40; 236 CLR 510 which overruled Cook. Finally, although there have been statements in this Court to the effect that s 5R(2) reflects the principle stated by McHugh J in Joslyn, the correctness of that statement is not self-evident and the reasoning underlying it has never been fully exposed. 51Relevantly for present purposes, McHugh J described the test of contributory negligence as "an objective one": Joslyn at [32]. He described it as one which "eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question", quoting Glasgow Corporation v Muir [1943] AC 448 at 457 (Lord Macmillan). McHugh J noted exceptions in respect of children and possibly certain other "special and exceptional circumstances" (referring to Cook) at [30] and [32]. To the extent that s 5R(1) picks up the principles in s 5B, that provision should be applied; to the extent that the standard is identified in s 5R(2)(a), it should be applied. The standard is at least a qualified objective test: it does not conform to the language of McHugh J in Joslyn. 52For present purposes, it is not necessary to consider whether those statements remain correct, a matter which depends not at all on the common law, but on the meaning of the phrase "a reasonable person in the position of [the injured person]". However, what does need to be determined is the extent to which the approach adopted in Pennington v Norris, and relied on in Talbot-Butt, continues to operate. 53There are, as I sought to explain in Council of the City of Greater Taree v Wells [2010] NSWCA 147; 174 LGERA 208 at [107]-[108], difficulties in applying the same legal principles in determining negligence of the defendant and determining whether the injured party was contributorily negligent in failing to take precautions "against the risk of that harm". Secondly, it is not entirely clear whether, by an implication from the statement in s 5R(1) (that the principles applicable in determining negligence also apply in determining contributory negligence), the standard of care identified in s 5R(2) in relation to the injured person is that which applies to the person causing the injury: cf D Villa, Annotated Civil Liability Act 2002 (NSW) (2nd ed, Law Book Co, 2013) at 247. 54The significant, if subtle, change of emphasis which arises from the enactment of the Civil Liability Act raises a doubt as to the emphasis in past cases placed on the capacity of a motor vehicle to cause far greater damage, when compared with the capacity of a pedestrian to cause damage. That factor should be understood from the perspective of both the driver and the pedestrian, rather than as an independent consideration. To treat it as an independent consideration may lead to the conduct of the driver being judged against a higher standard than that of the pedestrian. Each should be equally conscious of that factor and adjust his or her behaviour accordingly: the driver by taking greater care for the pedestrian; the pedestrian by taking greater care for his or her own safety. It appears to have been this factor, however, which led the trial judge to place a greater share of responsibility on the driver than the pedestrian. 55A second factor to be taken into account is the requirement in s 5R(2) that the standard of care required of the plaintiff is that of "a reasonable person in the position of" the plaintiff. In assessing the harm caused to the mother, the trial judge noted that the deceased was affected by Asperger's syndrome. This might have raised a question as to whether the deceased's ability to judge the behaviour of other road users was affected and, if so, whether that was a factor to be ignored in assessing contributory negligence. This in turn might have raised a question as to whether, although in assessing damages the tortfeasor must take the plaintiff with his or her personal frailties and idiosyncrasies, that is not so in the case of an assessment of contributory negligence. In Joslyn, McHugh J thought that statements of Stable J in Daly v Liverpool Corporation [1939] 2 All ER 142 at 143 and of Jordan CJ in Cotton v Commissioner for Road Transport and Tramways (1942) 43 SR(NSW) 66 at 69 that a person should not be held to a standard of which he or she was not capable were wrong because they contradicted the "objective test of contributory negligence": Joslyn at [34] and [39]. McHugh J noted an exception with respect to age in the case of a child: at [35]. 56These issues were not raised in the present case and it is therefore inappropriate to explore them further. To do so would require an inquiry into the extent to which s 5R is consistent with the principle stated by McHugh J in Joslyn, and the extent to which, absent s 5R, relevant disabilities of a plaintiff could be taken into account under s 9(1)(b) of the 1965 Act. On one view, the "claimant's share in the responsibility for the damage" is a mandatory factor in considering a "just and equitable" apportionment, but not the only factor. Section 5R affects the assessment of that factor, but does not deprive the court of the power to consider other factors relevant to the "just and equitable" test. These questions will need to await consideration in another case. 57The weighty factor in assessing relative responsibility for the accident was the unpredictable step taken by the deceased in seeking to cross the road against a red pedestrian light and in the face of oncoming traffic. Giving due respect to the careful reasoning of the trial judge, in my view, according proper weight to that factor in the mix of the identified considerations required a far higher level of contributory negligence. I would assess contributory negligence at 75%.

Conclusions 58For the reasons set out above, the appeal against the findings of liability must be rejected. However, contributory negligence should be reassessed and the judgment in favour of the respondent set aside. 59There was no challenge to the assessment of damages at $797,564. However, the assessment of contributory negligence means that the plaintiff will receive a judgment for only 25% of that figure which, in round terms, is $200,000. 60The plaintiff made an offer of settlement prior to trial, on the basis that the offer was without prejudice, except as to costs. The offer did not purport to be made under the Uniform Civil Procedure Rules 2005 (NSW). The trial judge considered whether rejection of the offer was unreasonable and held that it was not. Accordingly, costs were awarded in favour of the plaintiff, to be assessed on the ordinary basis. Although the judgment in favour of the plaintiff still exceeds her offer, there was no challenge to the costs ruling. Accordingly it should stand. 61In the second judgment, dealing with the application for indemnity costs and an application for stay of the judgment, pending an appeal, the trial judge gave judgment for the plaintiff and made the order as to costs, but also stayed "the proceedings", by which should be understood the enforcement of the orders. The respondent should obtain the benefit of her judgment with interest from the date of the order in the District Court, namely 28 March 2013. 62So far as costs in this Court are concerned, the appellant has failed on the two matters which consumed the bulk of the hearing. However, those matters involved an assessment of the respective responsibilities of the driver and the deceased for the accident, so that no clear division can be made between issues relevant to liability (on which the appellant failed) and contributory negligence (on which the appellant succeeded). In these circumstances the appellant should pay half the respondent's costs of the appeal. The respondent should have a certificate under the Suitors' Fund Act 1951 (NSW) limited to the appropriate proportion of her costs not ordered to be paid by any other party, pursuant to s 6(2)(b). 63The Court should make the following orders: (1) Set aside order 1 made by the District Court on 28 March 2013. (2) In place thereof, give judgment for the plaintiff against the defendant in the sum of $200,000, such judgment to take effect from 28 March 2013. (3) Order that the appellant pay the respondent 50% of her costs in this Court. (4) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the balance of her costs of the appeal. 64BARRETT JA: I agree with Basten JA.

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: 22 July 2014

Suitors' Fund Act 1951(NSW)

D Villa, Annotated Civil Liability Act 2002(NSW)

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