"(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.