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[2006] NSWCA 348
Court of Appeal (NSW)
2006-10-17
Beazley JA, McColl JA, Bryson JA, Coll JA
Original judgment source is linked above.
Reported Decision : (2006) Aust Torts Reports 81-869
CITATION: Thomas William Vale v Timothy David Eggins [2006] NSWCA 348
JUDGMENT OF: Beazley JA at 1; McColl JA at 31; Bryson JA at 32
DECISION: 1. Appeal allowed; 2. Verdict and judgment and order for costs in favour of the respondent given in the Court below set aside; 3. Verdict and judgment for the appellant in the sum of $925,000 together with interest calculated from the date of trial; 4. Direct the parties to file and serve written submissions on costs by Wednesday 13 December 2006.
CATCHWORDS: NEGLIGENCE - appellant struck by motor vehicle driven by respondent - appellant "stumbling" across roadway - whether respondent negligent in increasing speed on approaching appellant - reasonable steps required to react to danger of appellant's presence on roadway - whether trial judge erred in breaking events down into phases - NEGLIGENCE - Civil Liability Act - construction of s 49 - does not deny duty of care or liability for damages toward intoxicated person - does not lower standard of care owed to intoxicated person - does not incorporate s 50 of Civil Liability Act - CONTRIBUTORY NEGLIGENCE - appellant intoxicated at time of injury - trial judge's finding of 75% contributory negligence upheld
LEGISLATION CITED: Civil Liability Act 2002 (NSW) ss 49, 49(1)(a), 49(1)(b), 49(1)(c), 50 Motor Accidents Compensation Act 1999 (NSW)
Leishman v Thomas (1957) 75 WN NSW 173 CASES CITED: Manley v Alexander (2005) 80 ALJR 413; [2005] HCA 79 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34
PARTIES: Thomas William Vale (Appellant) Timothy David Eggins (Respondent)
COUNSEL: L T Grey (Appellant) K Rewell SC; M Cleary (Respondent)
SOLICITORS: McClellands Lawyers (Appellant) TL Lawyers (Respondent)
BEAZLEY JA McCOLL JA BRYSON JA
11 December 2006 THOMAS WILLIAM VALE v TIMOTHY DAVID EGGINS Headnote Facts The appellant sustained serious injuries after being struck on Anzac Parade, Chifley, by a motor vehicle driven by the respondent. The appellant had been "stumbling" across the roadway in the direction of the lane in which the respondent was driving when, having appeared to have seen the respondent approaching, he turned and stumbled away from the respondent's line of travel. However seconds before impact the appellant, without warning, turned and "quickly stumbled" back towards the lane in which the respondent was driving. Proceedings were brought by the appellant against the respondent and were dismissed in the District Court of New South Wales. The appellant appealed against that dismissal, on the ground that the trial judge erred in restricting her determination as to whether the respondent was negligent to the manner in which he drove in the last couple of seconds immediately before striking the appellant.
Held per Beazley JA (McColl JA agreeing): (i) The trial judge based her conclusion on the respondent's decision in the seconds before impact, and thereby failed to deal with the essential case advanced on behalf of the appellant that the respondent, having sighted the appellant, should have slowed down so as to be able to avoid collision. (ii) The two-stage approach adopted by the trial judge was erroneous. The question to be determined was what was a reasonable response to the risk with which the respondent was confronted, namely, the presence of the appellant on the roadway. (iii) To meet the standard of care required, the driver of a vehicle must control the speed and direction of the vehicle in such a way that they may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events. It was incumbent upon the respondent when he first saw the appellant to take such reasonable steps as were necessary to react to the danger. Manley v Alexander (2005) 80 ALJR 413; [2005] HCA 79 (followed) (iv) The trial judge appeared to have misconstrued s 49 and reached a conclusion that may have been warranted by s 50 of the Civil Liability Act. However s 50 had no application to cases governed by the Motor Accidents Compensation Act 1999 (NSW). (v) The trial judge's finding of 75 per cent contributory negligence was within a proper discretionary range. The appellant was extremely intoxicated, he was taking very little, if any, care for his own safety, and he should bear the major proportion of the responsibility for the accident. Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492; Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 (applied) Held per Bryson JA (in dissent): (vi) In appraising whether the respondent's conduct was reasonable the events should be divided into two phases. (a) The first phase began when he first saw the appellant on the road, stumbling northward, and ended when the appellant stumbled westward away from the respondent's line of travel. It was reasonable for the respondent to act on the basis that the risk of collision had passed. (b) The second phase opened when the appellant turned and quickly stumbled back. In the time available the respondent had no opportunity to take any avoiding action. (vii) (Beazley and McColl JJA agreeing) Section 49 of the Civil Liability Act does not have the effect that no duty of care is owed to a person who is intoxicated, and does not have the effect that a person who is intoxicated is not entitled to recover damages for that reason. It is not the meaning of s.49(1)(c) that the standard of care is lowered in the case of a person who may be intoxicated, in comparison of the standard of care in relation to a person who is not intoxicated. (viii) The respondent owed the same standard of care to the appellant who was drunk that he would owe if the appellant had been walking normally across the roadway.
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40967/05
BEAZLEY JA McCOLL JA BRYSON JA
11 December 2006 THOMAS WILLIAM VALE v TIMOTHY DAVID EGGINS Judgment 1 BEAZLEY JA: The appellant was seriously injured when he was struck by a motor vehicle driven by the respondent along Anzac Parade, Chifley on 27 April 2002. The appellant brought proceedings against the respondent for damages. Damages were agreed between the parties in the sum of $3.7 million, but the respondent contended that he was not negligent. The proceedings relating to liability were heard by her Honour Gibson DCJ who dismissed the appellant's claim. This appeal is against her Honour's order. 2 I have had the opportunity of reading in draft the reasons for decision of Bryson JA. His Honour has set out in detail the factual circumstances relating to this accident and it is not necessary for me to repeat them, except to the extent I need to do so for the purposes of my own reasons. However, I am respectfully unable to agree with his Honour's conclusion that the appeal should be dismissed. As will be apparent from what I say below, I have adopted a different approach to that adopted by his Honour to the determination of the question of whether the respondent breached his duty of care to the appellant. 3 The accident occurred in circumstances where the appellant was crossing Anzac Parade without any apparent reason. He was described as "stumbling" on the roadway and the place where he was crossing was not a place where pedestrian traffic was expected. The appellant's case at trial was, essentially, that the respondent had sufficient time to stop or to take other action so as to avoid colliding with him. In particular, it had been submitted that, having seen the appellant at a distance of about 90m, the respondent should have slowed down and continued to slow down whereas, believing the appellant had turned to move out of his way, the respondent in fact increased his speed again. 4 The appellant submitted that her Honour Gibson DCJ erred in restricting her attention to determining whether the respondent was negligent in the manner in which he drove in the last couple of seconds immediately before the impact, which was the time during which the appellant turned a second time and commenced to move again in the direction of lane 3, which was the lane in which the respondent was travelling. In order to understand this submission, and to see whether it has been made out, it is necessary to have regard in some detail to her Honour's reasons. 5 Her Honour at [27] stated: "… the resolution of this contested issue in these proceedings can be stated very simply in answer to the following questions. Was the defendant, as a matter of law, entitled to maintain a speed at below the speed limit after he saw the plaintiff on the roadway, after the plaintiff appeared, from his conduct, to have appreciated that the defendant's vehicle was travelling towards him and to have got out of the way, only to stumble back before the vehicle, too late? If the defendant should have slowed further, just how slow should this revised speed have been, and should he have done anything else in the circumstances, such as swerving to the right, blowing the horn, flashing the lights?" 6 Her Honour found that blowing the horn or flashing the lights could have been counter-productive and that the respondent was not negligent in having failed to take either of those steps. There is no challenge to that finding. 7 Her Honour next found at [30] that when the appellant turned and commenced to stumble back towards lane 3, the respondent was "faced with a sudden and unexpected move from a pedestrian who previously appeared to be moving out of his way". In that circumstance, the respondent found himself, on his submission, in a situation where he was required to act "in the agony of the moment". Her Honour at [30] referred to Leishman v Thomas (1957) 75 WN NSW 173 at 175, where Street CJ explained that the expression "agony of the moment" was an application of the rule that the question of what was a reasonable response in a particular case depended upon all the circumstances. At [31] her Honour found that given that the respondent was faced with a sudden and unexpected move from a pedestrian, his failure to swerve to the right did not amount to negligence. Her Honour then stated at [32]: "This leaves me with the issue of the speed at which the defendant was travelling and whether the defendant should have slowed down, either when he first saw the plaintiff or when the plaintiff stumbled quickly back before him just before the accident occurred, to a speed well below 50 to 55 kms per hour." 8 Thereafter, her Honour dealt with the second of the two propositions contained in that paragraph, that is, whether the respondent should have slowed down when the appellant stumbled back towards and finally into lane 3 just before the accident. This is apparent from paragraphs [33] to [36] and the question she posed at [37], where her Honour said: "What chance did the defendant have during this period of time to perceive and evaluate the danger caused by the plaintiff's sudden change?"
as well as from paragraph [38], in which her Honour referred to a submission as to the time in which the respondent had " to respond to the sudden change by the plaintiff in his direction ". 9 Her Honour then reached a conclusion at [39], when she stated: "The practical reality is that it was reasonable for the defendant in the ' agony of the moment ' to have assumed from the plaintiff's conduct that the plaintiff had seen his car and was moving out of the way and accordingly, it was reasonable for the defendant not to react until the plaintiff suddenly changed his direction and stumbled quickly into his path." 10 Having found that it was reasonable to not react until that point, her Honour found that the defendant could not be criticised for choosing to swerve away, rather than "braking as heavily as he could in response to the plaintiff's final movement towards him". Her Honour then found at [43]: "Accordingly, I accept the contention of the defendant that the evidence given by both experts as to reaction times and stopping distances does not assist the plaintiff. At whatever speed the plaintiff moved to cover the relevant distance of 3.6 metres, whether as quickly as asserted by the defendant or as slowly as asserted by the plaintiff, the defendant simply did not have sufficient time to react in order to reprocess the decision he had already made, namely that he thought it was safe to increase to the speed limit of 60 kms per hour because the plaintiff had seen his car and was getting out of his way." 11 Her Honour then stated at [44]-[45]: "If I am wrong in this regard, then the correct analysis, in my view, is the analysis of the expert evidence called by the defendant, although it should be applied to the speed of the plaintiff at the top of the range for 'quickly stumbling', rather than running. The assertion by the plaintiff's reconstruction expert makes avoiding the collision appear mathematically possible but in terms of sheer physical and mental ability seems to me an impossibility for a motor vehicle driver.
Another problem I have with the analysis of the plaintiff's reconstruction expert is that it is impossible for me to know at what stage the plaintiff executed what has been referred to as his 'swerve' because there is no evidence as to at what point in the swerve the impact occurred. It could have occurred at the very beginning of the swerve, after the swerve had been completed, or in the middle. This gives an added air of artificiality to the reconstruction." 12 The "swerve" referred to in this paragraph is the swerve the respondent was making as he collided with the appellant. The difficulty with her Honour's conclusion at [43] is that it is based upon the premise that the respondent's decision that he thought it was safe to increase his speed again when he saw the appellant first change direction and move out of lane 3 was a correct decision so as to negative any negligence thereafter. In my opinion, in approaching the matter in that way, her Honour failed to deal with the essential case advanced on behalf of the appellant, which was that the respondent, having sighted the appellant at a distance of 90m, should have slowed down so as to be able to avoid a collision. I also consider that her Honour's two-stage approach is erroneous, as it involves dividing the circumstances of this case into distinct steps, without any apparent relationship of one to the other. This is the approach that has also been accepted as correct by Bryson JA, where he says at [58]: "Accepting as I do that in appraising whether the respondent's conduct was reasonable the events should be divided into two phases, the Trial Judge's conclusion was, in my opinion, correct." 13 However, the respondent was not faced with two distinct risks. Rather, he was confronted with a situation of danger, namely, the presence of the appellant on the roadway. The question to be determined in that circumstance was what was a reasonable response to the risk with which the respondent was confronted. 14 It is also apparent from her Honour's comment at [39], where she refers to "the agony of the moment", referring to what the respondent saw and reacted to when the appellant commenced moving out of the way, that her focus was on the "second stage" of the incident. However, contrary to her Honour's view that this was an "agony of the moment" situation caused by the conduct of the appellant, the reality is that the respondent was confronted with an ongoing dynamic situation that called for a response from the beginning. But in any event, as I have already explained, the description of the "agony of the moment" does not advance the consideration of the question which her Honour was required to determine. 15 The standard of care of a driver was restated by the High Court recently in Manley v Alexander (2005) 80 ALJR 413; [2005] HCA 79 where the majority, Gummow, Kirby and Hayne JJ stated at [12]: "… the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events." 16 In this case, the respondent was driving along the road at a speed of about 60km per hour with a sighting distance of about 100m. He saw the appellant on the roadway at a distance of about 90m. It was apparent at that point that the respondent needed to take care, because the appellant was "stumbling" when the respondent first saw him. The need to take care did not dissipate at the point where the appellant turned and commenced moving from lane 3. This is apparent from the respondent's witness, Michael Thompson, who was a passenger in the vehicle, who said to the respondent as the appellant was moving from lane 3, "watch out for this kid". It also ought to have been apparent to a driver exercising reasonable care that the appellant's actions were, in any event, so apparently irresponsible, requiring a driver to remain alert to the possibility that the person on the roadway might continue to engage in unpredictable behaviour. 17 In those circumstances, it was incumbent upon the respondent, having observed a danger on the roadway, to take such reasonable steps as were necessary to react to the danger. The time for him to do that was when the respondent first saw the appellant. Whilst it is correct that the respondent took some action at that point, he needed to continue to drive in a manner that enabled him "to take reasonable steps to react to [the] events" that were occurring before him: Manley v Alexander at [12]. In my opinion, the respondent's decision to increase his speed again up to the speed limit when the appellant turned and commenced moving out of lane 3, was not only an error of judgment, it was negligent, as it meant that the respondent was not able to thereafter react to the presence of the appellant on the roadway. 18 Had the respondent continued to slow down, a number of responses would have been open to him. In the first place, it was not disputed that had he continued to brake from the time that he first saw the appellant, he could have come to a complete stop well in advance of the position where the appellant was (Appeal transcript 20). His failure to stop so as to avoid the collision was, in my opinion, negligent. But in any event, by slowing the speed of his vehicle from the point where he first saw the appellant, even if he decided not to stop completely, the respondent could have responded so as to avoid a collision. In this regard, one of the possibilities put to the respondent in cross-examination was that he could have driven up onto the median strip. The respondent refuted that suggestion, stating that he believed it would have put his passengers in danger. That answer, however, was given in the context where the respondent had increased his speed to 60km per hour and was being cross-examined in relation to what he could have done when the appellant spun around and commenced to walk back into lane 3. However, had the respondent been driving at a much slower speed, it is likely that the appellant could have pulled into the median strip without danger either to his passengers, himself, or the appellant. 19 In this regard, the median strip commenced with a concave gutter which bounded a grass area that might properly be described as a reasonably steep mound. The respondent's answer, that he considered that to have driven on to the median strip would have caused danger to his passengers, was reasonable, if one was having regard to the speed at which he was travelling at the "second phase" of the incident, as was described by the trial judge and Bryson JA. However, it was not reasonable if, on the premise upon which I consider this matter ought to be determined, the respondent's speed at the point when the appellant turned ought to have been considerably lower than 60km per hour. 20 Reference was made during the course of the submissions of both parties to a number of decisions in which this Court had either upheld or reversed a finding of negligence. At the end of the day, it must be recognised that each case has to be considered on its own facts. I do not find it helpful in this case to review each of those decisions, as none has a direct bearing on the matter under consideration here. In my opinion, the statement of principle is that to be found in Manley v Alexander and I have concluded that her Honour erred in dissecting the circumstances in which the accident happened into a number of separate and independent sequences. In the circumstances, I consider that her Honour erred in finding that the respondent was not negligent.
Section 49 of the Civil Liability Act 21 Section 49 of Civil Liability Act 2002 (NSW) (the Civil Liability Act) provides, relevantly: "49 Effect of intoxication on duty and standard of care (1) The following principles apply in connection with the effect that a person's intoxication has on the duty and standard of care that the person is owed: (a) in determining whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person's capacity to exercise reasonable care and skill is impaired as a result of being intoxicated, (b) a person is not owed a duty of care merely because the person is intoxicated, (c) the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person. (2) This section applies in place of a provision of … section 138 of the Motor Accidents Compensation Act 1999 to the extent of any inconsistency between this section and the provision." 22 The trial judge found at [60] that the intention of s 49 of the Civil Liability Act is that the appellant is not entitled to recover damages. She held, therefore, that having regard to that section, "the [respondent] has not been negligent". 23 The respondent contended that her Honour meant by that finding that the respondent was not negligent because the appellant would have required a higher standard of care because he was intoxicated and that was prohibited by s 49(c) of the Act. The appellant contended that the effect of her Honour's reasoning was that she wrongly incorporated the provisions of s 50 into s 49. 24 Bryson JA has given consideration to the provisions of s 49 at [65]-[67] and concludes that her Honour's approach to the section was erroneous. Save for one matter with which I deal shortly, I agree with what his Honour says, but would add the following comments. Both the appellant and the respondent agreed that s 49 deals with the effect of intoxication in respect of both the duty and standard of care owed to the intoxicated person. They both agreed that it does not create a bar to recovery as occurs if the provisions of s 50 apply. That section provides, relevantly: "50 No recovery where person intoxicated (1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired. (2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated." 25 Section 50 is not incorporated into the Motor Accidents Compensation Act 1999 (NSW). It is apparent, in my opinion, that her Honour appears to have misconstrued s 49 and in effect, reached a conclusion that may have been warranted by s 50 of the Civil Liability Act. However, that section has no application. It is clear that her Honour's approach was erroneous. 26 The one point of reservation I have in relation to the observations of Bryson JA is his statement at [68], where he said: "Before turning to address s.49 her Honour made (Judgment [53] Red 34) a statement which I have no difficulty with. Her Honour said "The result is that the defendant owes the same standard of care to a plaintiff who is drunk that he would owe if the plaintiff was walking normally across the roadway". This, in my view, was correct, and made exposition of s.49(1)(c) unnecessary for deciding the issues. Whatever difficulties the construction or the application of s.49(1)(c) presents, it does not appear to me to present any real difficulty for disposition of this appeal. (The statement about walking normally was not a statement or finding about the facts of the present case.)" 27 I do not understand his Honour to mean in this paragraph that a driver in the position of the respondent in this case could ignore that which he saw in front of him, that is, a person stumbling, on the assumption that that person might be intoxicated, and thereby control the speed and direction of his vehicle on the basis that the person was not intoxicated. If that is what is meant, I do not agree with his Honour's observations. However, as I have said, I do not consider that that is what either the trial judge or Bryson JA intended. Rather, as I understand it, no more is meant than that the standard of care is that of the ordinary prudent driver, acting reasonably, having regard to the circumstances as they occur. 28 It follows from what I have said that I consider that her Honour erred in relation to her application of s 49 and, as Bryson JA has said, s 49 has no real relevance in the disposition of these proceedings.
Contributory negligence 29 Her Honour properly considered the question of contributory negligence, should she be found to be in error in relation to her finding on liability. She made a finding of 75 per cent contributory negligence. In my opinion, that finding was one which was within a proper discretionary range. The appellant was extremely intoxicated, he was taking very little, if any, care for his own safety, and he should bear the major proportion of the responsibility for the accident. It is established that the finding of contributory negligence ought not to be lightly disturbed, and I find no error in the manner in which her Honour approached the matter: see Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 and Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34. 30 Accordingly, I propose the following orders:
"(a) Failing to keep a proper look-out for or to have sufficient regard for the presence of the plaintiff on the roadway; (b) Driving at an excessive speed in the circumstances; (c) Failing to stop, slow down, swerve, brake or otherwise drive at an appropriate speed and manner in order to avoid a collision; and (d) Failing to warn the plaintiff of the impending collision". 35 The Trial Judge also said (Judgment [17] Red 24) that the question of negligence for determination related to whether what the respondent did after he saw the appellant on the roadway amounted to negligence. The Trial Judge did not find that (Particular (b)) the respondent's speed was excessive in the circumstances. 36 The Trial Judge found (Judgment [19] Red 25): 19. The next issue in dispute is how far away the plaintiff was when the defendant first observed him. While the defendant initially said in examination in chief that he saw the plaintiff 50 metres away he agreed in cross-examination it was about 90 metres. There does not seem to be any significant challenge to the account of both the defendant and his passenger, Michael Thompson, that the defendant first saw the plaintiff stumbling in lane 2 northbound and that as soon as he saw him, which was about 6 seconds from the time of impact, he reduced the speed of his vehicle to somewhere between 50 and 55 kms per hour, and that the plaintiff then stumbled in a westward direction away from the defendant's line of travel. The plaintiff turned his head and body to face the defendant and the defendant and his witness, Mr Thompson both described this in their police statements. The defendant assumed that the plaintiff, having seen the approach of the defendant's vehicle, which had its headlights on, was moving out of the vehicle's line of travel and out of the roadway. However, having stumbled as far as the white broken lines dividing lanes 2 and 3, the plaintiff then turned clockwise and then proceeded to quickly stumble back. While the plaintiff was moving from lane 3 (away from the line of travel of the defendant's vehicle) the defendant's witness, Michael Thompson, said to the defendant: "Watch out for this kid". 37 At a later point (Judgment [34] Red 29) the Trial Judge found that the appellant's turn and movement eastwards was "a sudden and unexpected move." 38 Although the Trial Judge at Judgment [19] (Red 25) spoke of the appellant as having stumbled as far as the white broken lines dividing Lanes 2 and 3 and of the respondent as travelling in Lane 3, other references in the judgment and the whole burden of the evidence show that, referring to the westernmost lane as Lane 1, the middle lane as Lane 2 and the third lane near the grass median strip as Lane 3, the appellant reached the line dividing Lanes 1 and 2, and then proceeded back across the full width of the middle lane before reaching the point of collision in Lane 3. No position of fact was advocated to the effect that the appellant got no further than the line dividing Lanes 2 and 3 before he turned and returned, and references to his movements in the judgment show that there must have been a slip and that the Trial Judge did not intend to say that he only got that far. 39 The Trial Judge also found that despite the appellant's youth (and he was 17 years of age) he was a tall young man. Her Honour said (Judgment [20]-[21] Red 25-26): 20. … The only indication of any risk was that even prior to his quick stumbling back before the accident, he was already stumbling across the road. The third issue of dispute, namely whether the plaintiff was stumbling quickly or running, relates to the circumstances in which the plaintiff suddenly changed direction; there is no suggestion the plaintiff was running across the road when the defendant first saw him. 21. The defendant saw the plaintiff stumbling on the roadway and reduced his speed. However, because the plaintiff appeared to have seen the defendant approaching and to be responding, the defendant increased his speed back up to what he believed to be the speed limit and what the experts have agreed was 60 kms per hour. He had made a judgment that the plaintiff was not going to come back into his path again, although he said he maintained some part of his attention on the plaintiff because a driver needed to look out for pedestrians on the road at night. 40 After considering some matters relating to the speed of the appellant's movement her Honour found (Judgment [23] Red 26): 23. … Accordingly, I accept that the plaintiff quickly stumbled back (rather than ran), without warning, after the defendant had put his foot on the accelerator. 41 The Trial Judge gave consideration to evidence relating to the appellant's alcohol intake. Her Honour reviewed and set out passages from the evidence of Professor G. Starmer, a consultant pharmacologist, on considerations relating to the appellant having been found, in a blood sample taken at hospital approximately 1 hour after the collision, to have 0.179 g/100 ml of alcohol in his bloodstream. It is plain overall that the Trial Judge accepted Professor Starmer's views, although that is not distinctly stated in the judgment: a number of references show that the Trial Judge found that the appellant was in an intoxicated state and was aware of the danger of drinking too much; and this was not disputed, either at first instance or on appeal. 42 In my opinion analysis of the events and of what, acting reasonably, the respondent should have done, if to be clearly addressed, must be addressed in two phases. In the first phase when the respondent's speed was at least 60 kph, he saw the appellant on the road about 100 m ahead stumbling in Lane 2 northbound, and the respondent was clearly called on to take action to avoid a collision. The action he took was that he reduced his speed to something between 50 and 55 kph. This, I would say, was not a sufficient measure to meet the situation which the respondent first observed; in the distance and time available he had a full opportunity to slow down much further, even to a halt if necessary, so as to avoid a collision. When the appellant stumbled westwards away from the respondent's line of travel, and turned his head and body to face the respondent this phase of the events closed: the appellant reached a point a full lane width westward of the lane in which the respondent was driving, and it was reasonable for the respondent to act on the basis that the appellant was not going to come back into his path again, and on the basis that the risk of collision was passed and the respondent no longer needed to conduct himself so as to avoid that risk. At the end of this phase the respondent increased his speed. While the time involved was very short, I see no difficulty in recognising that, when considering whether the respondent behaved reasonably in the circumstances, a second phase of the events opened when the appellant, having stumbled as far as the line dividing the Lanes 1 and 2, turned clockwise and then quickly stumbled back. 43 When proceeding to dispose of the issues the Trial Judge said (Judgment [27] Red 27-28): 27. Thus, the resolution of this contested issue in these proceedings can be stated very simply in answer to the following questions. Was the defendant, as a matter of law, entitled to maintain a speed at below the speed limit after he saw the plaintiff on the roadway, after the plaintiff appeared, from his conduct, to have appreciated that the defendant's vehicle was travelling towards him and to have got out of the way, only to stumble back before the vehicle, too late? If the defendant should have slowed further, just how slow should this revised speed have been, and should he have done anything else in the circumstances, such as swerving to the right, blowing the horn, flash the lights? 44 The Trial Judge considered whether there had been negligence (Particular (d)) in failing to warn the appellant of the impending collision, or of the presence of the vehicle. Her Honour addressed whether there would have been advantages in blowing the horn or flashing the lights, neither of which the respondent did, and concluded that these courses could well have made things worse. The appellant's counsel contended that this conclusion was erroneous and that there was negligence in failing to give a warning in one or more of these ways. However as, at an early point in the events which commenced when the respondent saw the appellant on the road, the appellant turned his head and body to face the respondent and his vehicle, and he cannot have failed to see that there was a vehicle there, with illuminated headlights, and then moved westward away from the vehicle's line of travel in Lane 3, there is nothing further that a warning could have communicated to him. The presence of a motor car cannot have been surprising and cannot have been difficult to understand. 45 The Trial Judge addressed the contention, apparently related to Particular (c) that there was negligence in failing to swerve the vehicle to the right, off the carriageway and on to the grass median strip. This suggestion came under attention, and could only receive attention, if it ever did, as a measure which it was contended the respondent should have taken at the point later in the events when the appellant, having stumbled as far as the white broken line dividing Lanes 1 and 2, turned clockwise and proceeded to quickly stumble back. Contentions relating to what the respondent should have done during this phase in the events were referred to, not inappropriately, by the respondent's senior counsel as "the agony of the moment". 46 The Trial Judge said (Judgment [29] Red 28): 29. … The defendant, if he had swerved to the right, would have proceeded onto the median strip and this could have led to further serious injury. The plaintiff invites me to find that the failure to do so amounts to negligent conduct and this brings me to consider the submissions on what counsel for the defendant has called the "agony of the moment". 47 The Trial Judge brought the expression "agony of the moment" to bear only on the contention that failure of the respondent to swerve to the right onto the grass median strip amounted to negligence. The Trial Judge discussed the position of the respondent (Judgment [30] Red 28) "when faced with a sudden and unexpected move from a pedestrian who previously appeared to be moving out of his way". The Trial Judge said that the respondent "found himself in the position described by Street CJ in Leishman v Thomas (1957) 75 W.N. (NSW) 173 at 175." I set out, at greater length than her Honour, a passage in that judgment: 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. 48 The present situation is unlike those usually associated with the phrase "the agony of the moment" for the reason that the respondent did not take any wrong or arguably wrong action in the agony of a situation created by someone else's fault; except to swerve slightly to his right within Lane 3, which was not a wrong action, the respondent did nothing, and on her Honour's finding and acting reasonably, had no opportunity to do anything. I see no basis on which not driving off the road surface on to the median strip amounted to "an error of judgment" or was "a step which wiser counsels and more careful thought would have suggested was unwise." In evidence the respondent explained his not having driven off the carriageway on to the median strip in terms of his fear of injury to his passengers; he could well have added, injury to himself. His explanation was a complete and reasonable disposition of the suggestion. The potential for injury to himself and his passengers should he lose control of the vehicle as he proceeded straight from a formed surface onto sloping grass is obvious. The Trial Judge found (Judgment [31] Red 29) that failure to swerve to the right did not amount to negligence; the swerve to the right here referred to was the swerve mentioned at Judgment [29] (Red 28) which would have proceeded onto the median strip. In my view this conclusion was plainly correct. 49 In Judgment [39] (Red 30-31) the Trial Judge spoke of the respondent as "choosing to swerve away from the plaintiff rather than braking as heavily as he could …". The Trial Judge did not refer to any other avoiding action taken by the respondent in the second phase, and acquitted him of negligence nonetheless. The swerve here referred to took place within Lane 3, and is not the potential swerve onto the median strip referred to at Judgment [29] (Red 28). Her Honour discussed extensively events in the appellant's "sudden and unexpected move" and discussed, with extensive reference to expert evidence purportedly analysing the events, the speed at which the appellant may have moved and the time which the second phase of the events may have taken. Her Honour did not accept that the appellant ran, saying (Judgment [35] Red 29-30): "it is unrealistic to assert that a person as seriously affected by alcohol as the plaintiff was would have been capable of running the 3.6 metres distance from the place where he turned to the point of impact." Her Honour found (Judgment [36] Red 30): 36. Accordingly, the most reasonable compromise scenario, as the plaintiff submits (plaintiff's written submissions, paragraph 5.8) is that the plaintiff covered the last 3.6 metres of his traversing of the road at a rate of forward progression somewhere between a slow walk and a slow run, or in a speed range of 1.35 to 3 metres per second. This is somewhere between 2.2 and 2.67 seconds. 50 Her Honour's concluding time estimate cannot be clearly understood, and was the subject of adverse observations by the appellant's counsel, who complained to the effect that the period of time during which the appellant, having reached the line dividing Lanes 1 and 2, turned around and embarked in the reverse direction had not been allowed for, and (referring to the evidence of an expert) should have occupied one second, and should be included in the period of time available for avoiding action. A journey of 3.6 m at a speed of 1.35 m per second (a slow walk) uses 2.67 seconds; a journey of 3.6 m at 3 m per second (a slow run) uses 1.2 seconds; these figures are referred to by the Trial Judge at Judgment [38] (Red 30) when reciting another part of the appellant's submissions. If the submission about the extra second of time in which to act ought to be accepted the respondent had 2.2 to 3.67 seconds in which to deal with the danger which arose in the second phase. I attribute my difficulty in understanding these figures and the Trial Judge's employment of them to the highly unreliable, indeed speculative nature of the reasoning of experts upon which the figures are based. Reasoning and calculations of this kind can have some illustrative value, but it is rare that any reliable conclusion can be based on them. 51 The Trial Judge's conclusion in Judgment [39] (Red 30-31) shows that her Honour turned away from the apparent precision suggested by earlier discussion of figures: 39. When dealing with split-second decisions of this nature, particularly in a situation where the defendant had already made a judgment that the plaintiff had seen him and had taken his foot off the brake, to be analysing what amounts to three or four steps by the plaintiff in such a minute fashion, comes perilously close to pseudo-science. The practical reality is that it was reasonable for the defendant in the "agony of the moment" to have assumed from the plaintiff's conduct that the plaintiff had seen his car and was moving out of the way and accordingly, it was reasonable for the defendant not to react until the plaintiff suddenly changed his direction and stumbled quickly into his path. Whatever the reaction time, whether between 0.7 seconds and 1.5 seconds, in the "agony of the moment" the defendant cannot be criticised, in my view, for choosing to swerve away from the plaintiff rather than braking as heavily as he could in response to the plaintiff's final movement towards him.
The Trial Judge considered and rejected the analysis presented by the appellant's reconstruction expert. Indeed her Honour did not fully accept the analysis of the respondent's reconstruction expert. The Trial Judge said (Judgment [44] Red 32) "The assertion by the plaintiff's reconstruction expert makes avoiding the collision appear mathematically possible but in terms of sheer physical and mental ability seems to me an impossibility for a motor vehicle driver."
52 In support of these conclusions the Trial Judge discussed expert evidence including that of Professor Starmer on the unpredictability of actions of a heavily intoxicated person.
53 In the course of her Honour's consideration she said: (Judgment [40] Red 31): 40. … In addition, given that the plaintiff stumbled quickly, if he travelled as quickly as 3 metres per second, he could have arrived at the point of impact in 1.2 seconds, which, even allowing the defendant only 0.7 of a second to react, meant that the defendant only had half a second of braking time to bring his vehicle to a halt, which meant he could not do so, according to Mr Johnson's expertise, unless he was driving at less than 15 kms per hour. 54 The Trial Judge referred to what was under consideration as "split-second decisions" (Judgment [39] Red 30) and while her Honour did not make a finding as to the reaction time it was reasonable for the respondent to use before initiating action, referred (Judgment [39] Red 30) to the reaction time as between 0.7 seconds and 1.5 seconds, both periods referred to in expert evidence. 55 The Trial Judge concluded her discussion as follows (Judgment [41]-[43] Red 31-32): 41. Essentially, what the defendant submits is that even if the defendant did begin to react when the plaintiff began to move east into the path of the defendant, he could not have been expected to have been driving at a sufficiently slow speed to avoid a significant collision. This defeats the plaintiff's argument that if the defendant had slowed down to a reasonable speed when he first saw the plaintiff about 90 metres away on the roadway, the collision could have been avoided. This is a persuasive submission. 42. The plaintiff invited me to infer that if the collision had occurred at a lower speed, the plaintiff would not have suffered injury at all or would have suffered a much less serious injury. I decline to make such a finding. There is no medical evidence to support it. I have seen quite serious injuries caused by cars travelling at a very slow speed. 43. Accordingly, I accept the contention of the defendant that the evidence given by both experts as to reaction times and stopping distances does not assist the plaintiff. At whatever speed the plaintiff moved to cover the relevant distance of 3.6 metres, whether as quickly as asserted by the defendant or as slowly as asserted by the plaintiff, the defendant simply did not have sufficient time to react in order to reprocess the decision he had already made, namely that he thought it was safe to increase to the speed limit of 60 kms per hour because the plaintiff had seen his car and was getting out of his way. 56 It will be seen that the Trial Judge did not make findings adopting any figures for the time taken by the appellant's move, either in his turning motion or in his journey across Lane 2 and into Lane 3; nor did she make any finding adopting a time for the respondent's reaction time. The nature of the evidence under consideration means that infusing estimates of times with precision could only be an error. On the material available, a conclusion in the terms of her Honour's Judgment [43] (Red 31-32), rather than the attribution of the conclusion to mathematical calculation, appears to me to be the appropriate course. 57 The Trial Judge's conclusion is further explained when she returned to the subject after discussing the operation of s.49 of the Civil Liability Act 2002 (NSW). Her Honour said (Judgment [58]-[60] Red 35-36): 58. If the plaintiff was walking normally, then he required less than 4 seconds to reach the median strip and could have crossed safely in circumstances where the driver slowed down to 50-55 kms per hour. This would be the case even if the plaintiff did not see the defendant's car or made some other error of judgment, or was frightened by the car or otherwise behaved in an irresponsible fashion which had nothing to do with alcohol. Similarly, if a pedestrian had moved out of the pathway of the vehicle prior to the defendant putting his foot on the accelerator to return to 60 kms per hour, there would be no chance of a collision. The real problem is when and in what circumstances should a driver anticipate that a pedestrian would move quickly back into his path at the moment when a pedestrian had ceased moving west and begun to turn. 59. The defendant submits to me that I should take the same approach as was taken by the Court of Appeal in Ma v Keane [2003] NSWCA 50. The unforeseeable conduct of the plaintiff in moving back into the path of the defendant's vehicle after apparently having observed its approach should negate any contention by the plaintiff that the defendant should have braked, sounded his horn or otherwise taken evasive measures earlier than he did. 60. I accept these submissions. … 58 The substance of the Trial Judge's finding is that, in the time available, the respondent had no opportunity, in reality, to take any avoiding action. The conclusion is a judgment on breach of duty, on the application of a legal standard to the facts, on which the advantages of Trial Judges over appellate courts are well recognised, and their conclusions are not lightly to be set aside. Accepting as I do that in appraising whether the respondent's conduct was reasonable the events should be divided into two phases, the Trial Judge's conclusion was, in my opinion, correct.
59 In Manley v Alexander (2005) 80 ALJR 413 at 415 [12] Gummow, Kirby & Hayne JJ in a passage which may well have been intended to apply more widely than in exposition of the case before their Honours, said: [12] It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Road at 4 am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events 60 On the facts of the present case there is no doubt that the respondent knew what was happening in the vicinity of his vehicle. Their Honour's observations in Manley v Alexander cannot be applied to a particular case without addressing what particular events happened, what reasonable steps, if any, were available to react to them, and what time those steps would reasonably take. Their Honours' observations were plainly so wide as to include events the possibility of which may be remote; but as a proposition in the law of negligence they are qualified by the understanding that what is under discussion are propositions relating to reasonableness, and their Honours cannot be understood as requiring the driver to be in a position to take timely reasonable steps to react to all dangers which may arise within the limits of the imagination. 61 The risk that a pedestrian who, on a three lane road, had his face towards an oncoming lighted vehicle, obviously observing it, and then walked away from it, to the full width of a marked lane, would then turn around and proceed at a slow run into the marked lane in which the vehicle was travelling was less than a remote possibility; it was in my judgment beyond the bounds of the reasonably foreseeable, and while not beyond the imaginable range of human conduct, was outside the reasonably foreseeable range. The fact that a pedestrian is observably stumbling is in no way an indication that it is possible that he will reverse direction and proceed into the path of a vehicle which he knows to be approaching; that is just as unlikely of a person who is stumbling or otherwise walking irregularly as it is of a person whose gait is normal. The appellant's counsel contended, in the context of the standard of care, that a driver who simply saw with his own eyes that there was a person behaving irrationally on the roadway had to treat what he saw for what it was, and govern his conduct accordingly. This contention has no basis in the facts as found. What the respondent saw was the appellant stumbling in Lane 2 northbound, and as the respondent reduced his speed the appellant then stumbled in a westward direction away from the respondent's line of travel, turned his head and body to face the respondent and continued moving away from the vehicle's line of travel as far as the white broken line dividing Lanes 1 and 2. It cannot be said that the respondent observed irrational behaviour until the second phase opened, in which he could do nothing to avert the collision. 62 It is commonplace to drive at speed past pedestrians who are 3 or 4 m to one side or the other. If the reasonable driver had to proceed at a speed at which he could react to risk if any of those pedestrians suddenly moved towards his path at a slow run, he would not be able to proceed, and would not be able to use his right of passage on the road. He would be trapped in a strange paradox from the philosophy schools in which, however slowly he proceeded, he ought to be proceeding even more slowly so as to accommodate the possibility that someone would run into his path. No matter how slowly he travels there are reasons, if a pedestrian is within walking distance, or running distance, why he should travel more slowly: the slower he goes, the longer the range of potential pedestrian intrusion. Consideration which takes this form has left the realm of the reasonable and is outside discussion of the law of negligence. 63 An interpretation of the event in which causation of the appellant's injury was attributed to the respondent having failed in his duty of care would be a severe injustice to the respondent. If you take a slow run into the path of an approaching car which you know is there, the court cannot say that the driver failed you: that would be fiction. 64 The Trial Judge disposed of the proceedings on a view of the standard of care which was not affected by the appellant's state of insobriety and was not altered from what would otherwise have been by consideration of s.49(1)(c) of the Civil Liability Act. Her Honour's consideration of s.49 and of its operation is found at a later point in the judgment than her Honour's disposition in substance of the issues. At Judgment [51] (Red 33) her Honour said: 51. The defendant does not dispute that he owed a duty of care to the plaintiff, as a pedestrian using the roadway, to take reasonable care for the safety of the plaintiff. The defendant submits that the standard of care was the same as it would have been had the plaintiff been sober, and acted as one might reasonably expect a sober person to act. 65 The operation of s.49 is not in all respects clear to me. Section 49 provides: 49 Effect of intoxication on duty and standard of care (1) The following principles apply in connection with the effect that a person's intoxication has on the duty and standard of care that the person is owed: (a) in determining whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person's capacity to exercise reasonable care and skill is impaired as a result of being intoxicated, (b) a person is not owed a duty of care merely because the person is intoxicated, (c) the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person. (2) This section applies in place of a provision of section 74 of the Motor Accidents Act 1988 or section 138 of the Motor Accidents Compensation Act 1999 to the extent of any inconsistency between this section and the provision. 66 Section 49(1)(a) can have no relevant operation; it is altogether clear and was not disputed that the respondent as the driver of the motor car had a duty of care to other users of the road including the appellant as a pedestrian using the road. Turning to s.49(1)(b), the appellant had no need to rely on or refer to his being intoxicated in demonstrating that a duty of care was owed to him. In s.49(1)(c) it is not clear to me what force to give to the words "is or may be" and the words "of itself", and the significance of knowledge, and of imputed knowledge, of the fact that a person is, and also of the fact that a person may be intoxicated may come to require consideration. It is at least curious that s.49 was made applicable to motor accidents while other provisions of Pt.6 were not, and the interaction of s.49 with s.138 of the Motor Accidents Compensation Act 1999 (NSW) and what may be thought to be inconsistencies also claim consideration. 67 The Trial Judge discussed the operation of s.49 extensively (Judgment [47]-[61] Red 32-36) and expressed some views which I find rather sweeping. Her Honour said (Judgment [53] Red 34): "The policy rationale behind the introduction of s.49 is clear, especially when one has regard to the comments of Professor Starmer about how people who are drunk behave unpredictably on the roadway … The rationale behind s.49 is to prevent such persons claiming compensation." Her Honour also said at Judgment [60] (Red 36) "Where a road user behaves unpredictably on the road in moving back into the path of an oncoming vehicle because his intellectual and physical actions have been affected by alcohol, the intention of section 49 is that the plaintiff is not entitled to recover damages." In my respectful view the Trial Judge was not correct in saying to the effect that the rationale behind s.49 is to prevent people who are drunk and behave unpredictably on the roadway from claiming compensation, and in saying that the intention of s.49 is that a road user who behaved unpredictably on the road because his intellectual and physical actions have been affected by alcohol is not entitled to recover damages. 68 Before turning to address s.49 her Honour made (Judgment [53] Red 34) a statement which I have no difficulty with. Her Honour said "The result is that the defendant owes the same standard of care to a plaintiff who is drunk that he would owe if the plaintiff was walking normally across the roadway". This, in my view, was correct, and made exposition of s.49(1)(c) unnecessary for deciding the issues. Whatever difficulties the construction or the application of s.49(1)(c) presents, it does not appear to me to present any real difficulty for disposition of this appeal. (The statement about walking normally was not a statement or finding about the facts of the present case.) 69 I do regard this as quite clear: that s.49 does not have the effect that no duty of care is owed to a person who is intoxicated, and does not have the effect that a person who is intoxicated is not entitled to recover damages for that reason. It is not the meaning of s.49(1)(c) that the standard of care is lowered in the case of a person who may be intoxicated, in comparison of the standard of care in relation to a person who is not intoxicated. If and insofar as the Trial Judge expressed such a view, it has my disapproval. As there was no finding, and no contention that the respondent knew or should have known that the appellant was not sober, s.49 has no real importance for disposition of these proceedings. 70 The Trial Judge expressed views on contributory negligence, which were challenged in submissions by the appellant's counsel. Contributory negligence cannot be addressed except on some view that both parties were negligent and on an appraisal of their contributions to the outcome. As in my view the respondent was not negligent I am unable to make such an exercise. 71 In my opinion the appeal should be dismissed with costs. **********
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Thomas William Vale
Timothy David Eggins