The expert evidence
55 Mr Schnerring, consultant engineer, provided a report dated 2 February 2000 (Blue, 374-409). His conclusions were based on consideration of the place where the respondent overtook Mr Murphy and their relative speeds (Blue 388N-R), the time that it would have taken Mr Murphy to arrive at the crash site and the fact that Mr Murphy and Mr Mirabito arrived at the crash site at the same time. That they did arrive at the same time was according to Mr Murphy's evidence. Mr Schnerring concluded that Mr Murphy and Mr Mirabito must therefore have arrived at the crash site about 2 minutes after it had occurred and thus that Mr Mirabito was about 2.5 km away from the crash site when it occurred (Blue, 389E). Hence it must follow that Mr Mirabito played no role in causing the accident. He also concluded that the unidentified vehicle, if it had been travelling at 70-80 km/h, would have been out of sight and around the curve in 1.5 to 3 seconds after impact. (Blue, 389M).
56 The Appellant points to this evidence as being pivotal to the Trial Judge's deciding in favour of the Respondent (see also his costs judgment, six months later, in Orange, 245 where he confirms the importance of the expert evidence). It is also, says the Appellant, wrong. The Appellant submits it is wrong because the Trial Judge having accepted Mr Mirabito as an honest witness, then must accept his other evidence, upon which he was not re-examined. It was that there was a time lapse of three minutes between him observing the flurry of action and reaching the Plaintiff, including parking and walking back. Thus (Orange 16):
"Mr Schnerring's hypothesis was false. Mr. Mirabito's evidence, upon which he was not re-examined, was that there was a time lapse of three minutes between him observing the flurry of action and reaching the plaintiff. His Honour did not make reference to this evidence in his judgment. Such evidence confirms Mr Mirabito's vehicle, contrary to his Honour's findings, was virtually alongside the plaintiff when the fall occurred and may have played a vital role in influencing the course taken by the plaintiff in that it is probable that what the plaintiff heard was the sound of Mr Mirabito's vehicle in the median lane as it approached her from behind, that vehicle being a two litre four cylinder van (Black, AB, page 70N, 71P-R) carrying heavy equipment and emitting a louder engine noise than that of an ordinary car (Black, AB, page 70O-T);"
57 To this the Respondent answers that, conceding that the Trial Judge did not refer to the three minutes in his judgment, nonetheless wherever Mr Mirabito's NRMA van was, it was undoubtedly in the centre lane, on Mr Mirabito's own evidence, not in the adjoining lane where the Respondent was travelling. I consider there is no basis for upsetting the Trial Judge's acceptance of her evidence that, as a vastly experienced expert rider, she was able to tell in what lane a vehicle coming from behind was likely to be.
58 Nor should it be overlooked that the Trial Judge gave two reasons for rejecting the theory, relied on by the Appellant to refute negligence on part of the Nominal Defendant. That theory was that the Respondent "was frightened or otherwise influenced by the approach of Mirabito when he was actually in lane 3 but she perceived him to be in lane 2". The first reason for rejecting it, before the Trial Judge even gets to Mr Schnerring's calculations, is "that theory flies in the face of Mirabito's own evidence". That evidence was as to the lane he was in (the centre lane) and Mr Mirabito saying that he did not force the Respondent off the road (Black, 72W).
59 The damage to the bike and the Camira, consistent with the injuries of the Respondent, bear out that the accident was indeed a very near thing. Thus it was the right-hand rear portion of the Camira, on the near edge of the vehicle that was damaged. Likewise, the wheels of the bike were not damaged, but the fork of the bike was bent as was the racing bar; see Blue, 327Q-S 327U (Respondent as to the bike) and 379P-S (expert as to the bike), and as to the Camira Black 21H-M (Respondent), Blue, 380F-J (expert), Blue, 366S-U (Murphy), 376X-368C, K-Z (Bures).
The Appellant, perhaps because it would have been a two-edged sword, did not make much of the expertise of the Respondent, in attempting to obviate causation or in ascribing contributory negligence. However for the appeal to succeed contrary to the Trial Judge's finding, one must either
(a) disbelieve the Respondent's story about a vehicle coming too close upon her in the same lane behind her, or
(b) ascribe contributory negligence to her manoeuvres in failing to avoid the second car.
60 The first proposition requires that the finding reached by the Trial Judge disclose appellable error. But that finding has support in the evidence and is fundamentally based on credibility. There is no incontrovertible fact, consistent only with the opposite conclusion, or rendering the Trial Judge's findings glaringly improbable; compare Agbaba v Witter (1977) 14 ALR 187. The medical and hospital records, and Detective Constable Murphy's evidence, when weighed against the Respondent's and her husband's evidence do not require the drawing of an inference contrary to that drawn by the Trial Judge. The Trial Judge simply made a choice between competing inferences. The choice he made was well open to him on the evidence without in any way misusing his advantage.
61 What of the second proposition, the assertion of contributory negligence on the part of the Respondent? The Appellant first sought to attack the Trial Judge's reliance on the so-called "agony of the moment" rule, as failing to grapple with issues of causation and contribution, based on old cases such as Leishman v Thomas (1957) 75 WN(NSW) 173 at 175 per Street CJ. These it was said provide too generous an escape from liability. But one may restate that so-called "agony of the moment" rule by reference to the immediate circumstances, here of split second emergency. This was what Stein JA did most recently in Abdallah v Newton (1998) 28 MVR 364. Appeal to those circumstances still justifies the result the Trial Judge reached. Thus at 365 Stein JA says:
"The reasonableness of a defendant's conduct must be judged according to the circumstances of the particular case. …"
62 So stated, and accepting the finding that the Respondent, in taking the avoidance action she did, acted reasonably in keeping a proper look out with her head held upright (Judgment Red, 11), there is no sufficient basis for treating her conduct as interrupting causation or constituting contributory negligence. The Appellant nonetheless seeks to challenge causation (Orange, 19) with this submission:
"The kerbside lane was 3.6 metres wide. The Camira, presumably like any other vehicle of this type, was 1.8 metres wide. If it was parked the normal 15 centimetres from the kerb the trafficable area for the plaintiff whilst remaining in the kerbside lane was of the order of 1.6 metres. The plaintiff's evidence was that she anticipated she would be able to move back into the kerb lane and then safely pass the Camira (Black AB, page 20TU). This is obviously so having regard to the width of the lane and the space taken by the Camira. That she failed to do so was due to error on her part (Black, AB, page 21D, 45Q-S). It is submitted the sole cause of the accident was the plaintiff's failure to avoid the Camira."
63 The fallacy is to equate "error on her part" with negligence. Negligence would require a failure to do what the reasonably prudent cyclist would have done in the circumstances, here of sudden emergency. One starts with the Trial Judge's unimpeached findings as to the precursor to the accident including that she kept a proper look-out. She is executing a difficult manoeuvre at speed in fractions of a second justifiably in order to avoid much worse injury, from a reasonably perceived threat of being hit by a car closing at speed from behind. How could that failure, by inches, to carry off that difficult manoeuvre amount to negligence?
64 The Appellant essays these attempted answers, apart from the earlier stated description of the width of the car and lane, in contending for at least contributory negligence, namely:
(a) the plaintiff having moved into the kerbside lane failed to steer clear of the Camira;
(b) the plaintiff moved further into the kerbside lane than was necessary, in that there was no reason for her to move so far into the kerbside lane as to create a need to turn to avoid the Camira;
(c) she failed to apply the brakes which would have lowered her speed thus enabling her to more easily clear the Camira, or alternatively, to have reduced the degree of injury suffered;
(d) she failed to keep a proper lookout;
(e) she failed to keep a proper lookout when she looked to the rear when about to move out to pass the first of the parked cars in that she failed to observe the approach of the unidentified vehicle;
(f) she pulled out into the path of the unidentified vehicle without giving adequate warning;
(g) she failed to look behind when she heard the sound of the approaching vehicle to ascertain whether it posed any threat to her.
65 Taking each in turn, answer (a) is a statement simply of what happened, and begs the question whether failure to steer clear of the Camira bespoke negligence. On the Trial Judge's findings, the Respondent was aware of the parked vehicles and endeavoured to steer clear of them. I agree that the findings of fact point to the only reasonable conclusion namely that the sole cause of the collision was the actions of the driver of the unidentified vehicle and that any misjudgment on the part of the Respondent was explicable by the circumstances of sudden emergency.
66 Answer (b) is speculative - we simply do not know how far into the kerbside lane she had moved. Nor do we have any basis, in expert evidence or otherwise, for assuming that what she did in moving so far into the kerbside lane was unreasonable, when seeking to avoid the greater danger, as she reasonably perceived it, of being hit from behind by a fast approaching car.
67 Answer (c), failure to apply the brakes, presupposes that it was negligent to fail to do so in the split second manoeuvre she was executing, in circumstances of sudden emergency that were not of her making. She in fact was seeking to avoid a worse accident. That she was an expert cyclist does not mean that in the circumstances of an unexpected crisis or emergency, she should be held to a substantially higher standard than a less expert cyclist. The most that could be said is that her expertise, while not altering the legal test of negligence, would allow her to gauge the risks of the manoeuvre she was executing with greater precision. But she would still have to carry it out, expert or not, with all its risks, or risk greater injury from the fast-closing car she perceived in the lane behind her.
68 But as to negligence in the execution of that manoeuvre, as Trindade and Cane, The Law of Torts in Australia, 3rd ed, 1999, at 458 conclude: "a person faced with an emergency is only required to exercise such care and skill as a person of ordinary prudence, firmness and experience might have exhibited in the circumstances of an emergency." The authority for this proposition is Cortis v. Baker [1968] SASR 367. This proposition demonstrates that even if the situation in which the cyclist found herself was not a true 'agony of the moment' situation such as to completely defeat a defence of contributory negligence, "allowance can still be made for the fact that under pressure and 'in the heat of the moment' less care and foresight can reasonably be expected than when there is ample time for reflection and planning"; Leishman v Thomas (supra). That this proposition applies equally to negligence of a defendant and contributory negligence of a plaintiff was established in Shelly v. Szelly [1971] SASR 430 per Bray CJ."
69 As to answers (d) and (e), failure to keep a proper look out, this is simply not made out. This is more particularly so when, as the Trial Judge found, the approaching car was in her lane, approaching fast. The evidence accepted by the Trial Judge is that she looked behind her and signalled appropriately when she moved from the kerbside lane to the centre lane. Even if there were a failure on her part to see the unidentified vehicle at that point, there was no evidence that it contributed to the accident, which occurred further up the hill.
70 As to answer (f), failure to give adequate warning when pulling out into the path of the unidentified vehicle, that presupposes that one rejects her evidence that she gave a hand signal in time. There is no basis for upsetting the Trial Judge's finding (Red, 13G) as to that.
71 As to answer (g), failure to look behind when she heard the sound of the approaching vehicle, that incorrectly presupposes that she would have had time to do so, and still have a chance of executing any necessary avoidance manoeuvre in the split second available to do so.