[1959] HCA 8
Kollas v Scurrah [2008] NSWCA 17
Miller v Jennings (1954) 92 CLR 190
[1954] HCA 65
R v Parker (1912) 18 ALR 150
Source
Original judgment source is linked above.
Catchwords
[1998] HCA 50
Fox v Percy (2003) 214 CLR 118[2003] HCA 22
Jones v Dunkel (1959) 101 CLR 298[1959] HCA 8
Kollas v Scurrah [2008] NSWCA 17
Miller v Jennings (1954) 92 CLR 190[1954] HCA 65
R v Parker (1912) 18 ALR 150[1912] VLR 152
Strinic v Singh (2009) 74 NSWLR 419[2009] NSWCA 15
Tarabay v Leite [2008] NSWCA 259
Velevski v The Queen (2002) 76 ALJR 402
Judgment (8 paragraphs)
[1]
Background
There were four stationary vehicles in the inner lane heading southwest on Punchbowl Rd on 1 June 2017 where that road intersects with Warwick St. One was waiting for a gap in oncoming traffic in order to turn right into Warwick St. The plaintiff, Ms Yebdoo, was behind that vehicle in her Hyundai Tucson SUV. Mr Hansford was behind Ms Yebdoo, in his Toyota Hilux utility. The defendant, Mr Holmewood, had been following all three on his Moto Guzzi 750cc motorcycle. Mr Holmewood and Ms Yebdoo collided in the kerbside lane, after both had sought to drive around the right-turning vehicle.
[2]
Prior to the collision, all drivers had been stationary
Originally, the plaintiff's case had been that Mr Holmewood had not brought his motorcycle to a halt at all, but rather had continued, at excessive speed, through the gap between the parked vehicles in the kerbside lane and Mr Hansford's vehicle in the inner lane waiting for the car ahead to turn right. However, Mr Holmewood gave clear evidence that he brought his motorcycle to a stop behind Mr Hansford's utility. He was not cross-examined to the contrary, and the primary judge said at [8] under the heading "FACTS" that "[t]he defendant stopped in the queue in lane, 2 behind Mr Hansford's ute". Early in his oral address in this Court, counsel for Ms Yebdoo accepted that Mr Holmewood had stopped ("[U]ltimately the facts as they were [were] that in fact the respondent did stop behind the utility").
For that reason, many of the diagrams and many of the experts' opinions in evidence concerning the motion of the motorcycle did not accord with the unchallenged findings of the District Court.
[3]
Configuration of the intersection and location of the parked cars
In order to understand the position, it may be useful to consider the following photograph, taken with the camera pointing southwest in the direction the parties were travelling, and showing the intersection as well as the inner lane where each of Ms Yebdoo, Mr Hansford and Mr Holmewood came to a stop, waiting for the vehicle ahead of them all to turn right:
The photograph shows vehicles parked in the kerbside lane, although those vehicles are not shown parked precisely where they were on 1 June 2017. There was conflict in the evidence concerning the location of the parked cars which need not be summarised. All that matters for present purposes is that the primary judge found that the kerbside lane was clear of parked cars where Ms Yebdoo was turning her vehicle into it, and that there was a 1.5m gap between Mr Hansford's utility and the parked car adjacent to it: at [22(4)] and (8). Mr Holmewood rode his motorcycle through that gap before colliding with Ms Yebdoo's vehicle.
[4]
The failure of the plaintiff's case as opened
The breaches of duty alleged in the plaintiff's statement of claim were pleaded broadly, but her case was opened much more narrowly, on the basis that Mr Holmewood (1) had been driving "quite fast", and (2) had breached the road rules by driving adjacent to the vehicles parked in the kerbside lane. Neither of those breaches was made out.
The latter case may be put entirely to one side. It was formally renounced no later than closing submissions on the fourth day and formed no part of this appeal. It was also acknowledged that a mere breach of the road rules was no more than a factor pointing to a failure to take reasonable care: see Kollas v Scurrah [2008] NSWCA 17 at [76] and Verryt v Schoupp [2015] NSWCA 128 at [4] and the cases there cited. It follows that it is neither necessary nor appropriate for this Court to express any view about the operation of the road rules applicable to lane filtering.
That left the case, as opened, to one involving excessive speed. The judge found that Mr Holmewood had been driving at around 15km/h when he passed Mr Hansford, which accorded with his evidence in chief, as to which there was no challenge.
However, the primary judge also found that Mr Holmewood had failed to take the reasonable precautions of looking out and braking as a reasonable rider in his position ought to have done: at [44]. He had not been cross-examined to the effect that he failed to keep a proper lookout, or failed to react to Ms Yebdoo's vehicle as it moved into the kerbside lane. Those findings of breach of duty gave rise to Mr Holmewood's notice of contention, and were the basis on which the primary judge found that Ms Yebdoo had failed to establish causation, which she challenged in ground 1 of her appeal.
It is logical to address Mr Holmewood's challenge to the findings of breach before Ms Yebdoo's challenge to the failure to establish causation.
[5]
Ground 1 of the notice of contention - breach
By notice of contention, the respondent renewed in this Court the submission he had made at trial that the findings of breach were not open having regard to the absence of cross-examination. The trial judge addressed this at [45]-[47], and rejected the submission. His Honour summarised the submission at [45], reproduced at [46] a passage from Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, and concluded at [47] that:
"In the circumstances of the defendant having given the above quoted evidence of his observation of the plaintiff's SUV and of his reaction as well as his estimate of a time of 3 seconds, I do not accept the defendant's argument. In any event, I do not consider that this arises because there is clearly other evidence addressing those issues which the defendant submitted were not addressed in cross‑examination of the defendant (for example, the expert opinion evidence of Mr Hall and Mr Jamieson commenting on the distance available to the defendant and his rate of deceleration, Mr Hansford's oral evidence that the defendant did not visibly slow or brake)."
With respect, that reasoning does not address the unfairness to the defendant in findings of breach of duty being made that had not been put to him, and which, indeed, were not part of the case as opened. Mr Holmewood's evidence had been that:
"I saw the white car moving out to the left into my lane, and then before I know it, I hit the brakes, and I then I just collided with the car, and that's all I remember. I hear - I remember hearing noise, and that's it."
He had also said in cross-examination:
"Q. When you collided with the vehicle, I want to suggest to you, that was in the course of you attempting to overtake the vehicle merging into the left lane around its front.
A. You can say what you like, that's not the case.
Q. And you struck the front ---
A. (not transcribable) ... that's all that was to it. She was in front of me. I had about three seconds to react, and that was all over. That's all I know."
Those are the passages to which the primary judge referred. They do not amount to squarely confronting him with the breaches of duty which were alleged. Mr Holmewood's submission was that it was not to the point that there was other evidence to the effect that he should have reacted faster and braked sooner. The issue was not whether there was evidence to sustain the finding, but rather the need to confront Mr Holmewood with the proposition that he had breached his duty of care to give him an opportunity to give an explanation.
When at trial counsel for Mr Holmewood protested that findings of breach based on lookout and braking were not available because of the absence of cross-examination, counsel for Ms Yebdoo responded that because Mr Holmewood professed to not having a good recollection of the accident, it was unnecessary and inutile to have put these matters to him. That is a contestable proposition. In the passage on which counsel relied, Mr Holmewood is recorded to have said:
"No, I don't have a very good recollection of the accident. Apart from till I hit the car, I was fine, but then after I hit the ---"
There was debate at the trial about that answer (which appears to have been cut off). Mr Holmewood confirmed that he had a "pretty fine" recollection of events leading up to the point of impact. However, Ms Yebdoo maintained that Mr Holmewood had repeatedly indicated that his recollection was poor. It is not at all clear to me whether this matter may be resolved on appeal, and only limited attention was given to the notice of contention in the parties' submissions. It is preferable to resolve this appeal on the basis of the principal point argued, which was Ms Yebdoo's challenge to the reasoning as to causation.
[6]
Ground 1 of the notice of appeal - causation
Let it be assumed, favourably to Ms Yebdoo, that the first ground of the notice of contention is not made out, and Mr Holmewood breached the duty of care he owed to her by failing to take the precautions of looking out and braking as a reasonable rider in his position ought to have done, as the primary judge found at [44].
The first ground of appeal challenged the primary judge's failure to be satisfied that Mr Holmewood's negligence had caused the damage to the plaintiff.
Sections 5D and 5E of the Civil Liability Act 2002 (NSW) applied to Ms Yebdoo's claim (by reason of s 3B(1)(e) and 3B(2)(a) of that statute). As the primary judge observed, Ms Yebdoo needed to establish that the breach of duty by Mr Holmewood was a necessary condition of the occurrence of the mental harm suffered by her, and she bore the onus of establishing any fact relevant to that. That amounted to Ms Yebdoo establishing that a "forceful" collision - one involving not merely the SUV and motorcycle coming into contact, but doing so sufficiently forcefully that Mr Holmewood was dislodged such that he was carried over the SUV's bonnet - would not have occurred but for his failure to keep a proper lookout and to brake. That in turn involves analysing two things:
1. Mr Holmewood's speed at the time of the collision; and
2. the time Mr Holmewood had to react after it first became clear that Ms Yebdoo was changing to the kerbside lane.
The starting point is the incontestable objective facts, in accordance with the principles identified in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.
1. It was accepted as noted above that all vehicles had come to a stop behind a vehicle waiting to turn right into Warwick St.
2. Ms Yebdoo's vehicle and Mr Hansford's vehicle were between 4.2 and 5 metres in length. There must also have been a distance between the two stationary vehicles, but there is nothing to suggest that it was more than a couple of metres.
3. It is clear that Ms Yebdoo's vehicle could not have advanced far after she commenced her move into the kerbside lane. The panel-beating records showed that there was impact to the front passenger door and the panel in front of the passenger front wheel. That is consistent only with the collision occurring when Ms Yebdoo's vehicle was pointing diagonally into the kerbside lane.
The latter point accorded with the testimonial evidence. Mr Hansford saw the collision as it happened, blew his horn, and in accordance with his evidence the trial judge found:
"The plaintiff's SUV proceeded at an angle across lane 1 as the defendant rode toward it and after 3m travel had achieved an angle of 30-40 degrees at the time of impact".
The significance of Ms Yebdoo's vehicle being hit on the front passenger door is that Ms Yebdoo's vehicle could not have moved very far from where it had been waiting in the inner lane. So far as I can see, it was impossible for Ms Yebdoo's vehicle to have moved significantly more than a car-length. In any event, the primary judge noted at [34(6)] that:
"The expert witnesses agreed and it was consistent with evidence in the hearing that the plaintiff's vehicle travelled about 3m. This would appear to be also consistent with the point of first impact at the plaintiff's front passenger door."
If Ms Yebdoo had indicated before beginning to move into the kerbside lane, then that would have increased the time for a motorcyclist who was also making a move to enter the same clear space in the kerbside lane to react. But there was no finding to that effect. Ms Yebdoo said she turned her blinker on before commencing her move. Mr Hansford who was positioned immediately behind her said that he could not recollect seeing her indicate. (Nor could Mr Holmewood, although that is not to the point, since the assumption for present purposes is that he failed to keep an adequate lookout.) The primary judge found that Ms Yebdoo's indicator was on, but made no finding that it had been turned on prior to her commencing her lane change. The finding was:
"The plaintiff proceeded with indicator blinking to manoeuvre from behind the right-turning car, into lane 1."
Ms Yebdoo did not ask this Court to make a further finding of fact, that her indicator was flashing before she commenced to move. That is no criticism; it is difficult to see how such a finding could be made by this Court.
(Out of an abundance of caution, I note that at [34(4)] the primary judge wrote "The plaintiff's left indicator light signalled her intention." That statement follows two subparagraphs dealing with the proposition that there was only a tight space for her turn, and that in the first half of her vehicle's travel, she may only have moved a short distance. The defendant's expert had given evidence that the first half second of Ms Yebdoo's travel might have been "imperceptible" to Mr Holmewood. His Honour rejected that evidence as unhelpful, while acknowledging that as Ms Yebdoo progressed into the kerbside lane, her vehicle would have become progressively more visible to the defendant. Then followed the statement about the left indicator light signalling her intention. Read in context, I think it is clear that the finding equates to Ms Yebdoo signalling simultaneously with the commencement of her changing lanes. It does not amount to a finding that the indicator was flashing before she started to move.)
Two things flow from the foregoing.
1. First, on any view, Mr Holmewood was close to Ms Yebdoo's vehicle when she began her move into the kerbside lane. He could not have been further away than his position at rest behind Mr Hansford's vehicle. If he had already entered the gap between Mr Hansford's vehicle and the car parked in the kerbside lane, then he was even closer.
2. Secondly, if Ms Yebdoo did not indicate before she commenced to change lane, then the first indication of her movement was when she began to move into the kerbside lane. That significantly limits the time for Mr Holmewood to react, when it is borne in mind how limited was the distance her vehicle travelled before the collision.
Ms Yebdoo only travelled some 3m before the collision. Mr Holmewood only travelled not much further than the length of Ms Hansford's utility and the gap between the stationary vehicles. And yet Mr Holmewood's speed was sufficient to propel him over the bonnet of the SUV.
When those matters are combined, it is fairly clear that there was very little time from when Ms Yebdoo's intention to change lanes could first have become apparent to Mr Holmewood and the collision. Mr Holmewood had very little time to react. But for his breach of duty, he would have been accelerating into the open lane ahead of him.
The evidence of reaction time given by the experts was agreed.
1. Mr Hall said that the mean reaction time was 1.5 seconds, but that the 85th percentile could be as high as 3 seconds. Mr Jamieson concurred with that and added "indeed, longer, to be honest".
2. Mr Hall also said that the (mean) perception time for motorcyclists was about 1.2-1.5 seconds. Mr Jamieson agreed, explaining that "a motorcyclist almost by definition need[s] to be more alert, therefore, from an engineering point of view, you'd expect the motorcyclist to perceive and react faster than a normal car driver".
There was no evidence of Mr Holmewood's perception reaction time. He was born in 1955 and was almost 62 years old at the time of the accident. He was an experienced motorcyclist. However, there is no reason to infer that his reaction time was less than 1.5 seconds, and it may have been longer.
Mr Holmewood would be expected to accelerate into the clear space in the kerbside lane as soon as he had passed the parked vehicles. While it is unclear where that clear space commenced, there was clear space no later than the time he reached where Ms Yebdoo's position had been.
Not every collision between SUV and motorcycle was capable of giving rise to the mild PTSD suffered by Ms Yebdoo. Only a forceful collision would suffice to give rise to an accident where Mr Holmewood separated from his motorcycle and travelled over the bonnet of her vehicle. But the faster Mr Holmewood's speed before the point of impact, the less time there must have been for him to react.
It is not clear how fast Mr Holmewood must have been travelling in order that his collision caused him to be dislodged from his motorcycle and be propelled across Ms Yebdoo's bonnet. So far as I can see, there seems to have been no attempt in the evidence below to estimate the minimum speed at which Mr Holmewood must have been travelling in order to achieve sufficient momentum to be carried across Ms Yebdoo's bonnet.
As noted in relation to ground 1 of the notice of contention, there was no cross-examination of the defendant on the breaches found by the primary judge. Insofar as the breach was failing to brake quickly enough, there was no evidence of the timing or effect of deceleration. The primary judge noted at [64] that "[t]he Plaintiff did not put deceleration of the motorcycle to the defendant or to the expert witnesses, Mr Hall and Mr Jamieson during oral evidence."
Insofar as the breach was failing to keep a proper lookout, in order to establish that the breach caused a forceful collision, it was necessary to identify how long a motorcyclist in Mr Holmewood's position had to react, what his reaction would have been, and how that would have avoided a forceful collision. The considerations summarised above demonstrate that that is far from straightforward, given the small distances and times involved.
Making the assumption favourable to Ms Yebdoo that Mr Holmewood had breached the duty owed to her as found at trial, the considerations above lead me to the same conclusion as reached by the primary judge. Ms Yebdoo has failed to establish that the breaches of duty caused a forceful collision. My reasons accord with those given by the primary judge at [65]:
"Whilst I am satisfied on the evidence of approximate time and distance that the defendant breached his duty of care by late braking because he failed to maintain acute attention for vehicles turning from lane 2 into lane 1; in my opinion, the evidence of time and distance is too imprecise and the assessment of deceleration lacks the required expert opinion, to find that the defendant's breach of care was a necessary cause of forceful collision."
It follows that I would reject ground 1 of the appeal.
[7]
Remaining grounds and orders
In light of the above, it is inappropriate to address ground 2, the challenge to the primary judge's estimate of contributory negligence, which can only be done on a sufficiently precise counterfactual basis: see Drew v State of New South Wales [2015] NSWCA 159 at [19] and the decisions there cited. Nor is it necessary to deal with ground 2 of the notice of contention.
Ground 3 does not arise, but I agree with Macfarlan JA. There is no basis to interfere with the notional assessment of future economic loss, assessed by the primary judge at $45,000, which, if anything, was generous to a plaintiff who did not challenge the assessment that her PTSD was mild, in remission, and probably would be resolved in around 12 months, and who appeared to be continuing in employment at the time.
For those reasons, I would dismiss the appeal. There is no reason for costs not to follow the event.
[8]
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: 03 June 2021
Solicitors:
Wilson Fox Lawyers Pty Limited (Appellant)
Moray & Agnew (Respondent)
File Number(s): 2020/269368
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Civil
Citation: [2020] NSWDC 484
Date of Decision: 27 August 2020
Before: Montgomery DCJ
File Number(s): 2019/80512
HEADNOTE
[This headnote is not to be read as part of the judgment]
An SUV vehicle driven by Ms Yebdoo, the appellant, collided with a motorcycle ridden by Mr Holmewood, the respondent. Mr Holmewood was thrown off his bike onto the bonnet of the SUV and then onto the road. Being unaware of where Mr Holmewood was on the road, Ms Yebdoo accidently drove over part of his body.
Mr Holmewood was severely injured in the accident and Ms Yebdoo suffered mental trauma as a result of her concern for Mr Holmewood and her belief, for a brief time, that he was dead. Claiming that the accident was Mr Holmewood's fault, Ms Yebdoo sued him in the District Court for damages in respect of the acute psychiatric illness that she suffered as a result of it. After a four-day hearing, Montgomery DCJ dismissed Ms Yebdoo's claim, directing the entry of judgment for Mr Holmewood.
The primary issues on the appeal and notice of contention were:
(1) Whether Mr Holmewood breached his duty of care to Ms Yebdoo;
(2) Whether any such breach by Mr Holmewood caused Ms Yebdoo's injury.
The Court (Gleeson JA and Leeming JA; Macfarlan JA dissenting) dismissed the appeal.
In relation to Issue 1 (breach by Mr Holmewood):
(Leeming JA found it unnecessary to decide, Gleeson JA agreeing)
(Per Macfarlan JA)
Mr Holmewood's failure to keep a proper lookout and slow his speed in a timely fashion constituted a breach of his duty of care: [52].
The principles in Browne v Dunn (1893) 6 R 67 were not infringed as, even if counsel for Ms Yebdoo did not put the substance of her case to Mr Holmewood in cross-examination at first instance, the case was clearly advanced on behalf of Ms Yebdoo before Mr Holmewood gave evidence: [57], [58].
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1, applied.
In relation to Issue 2 (causation):
(Per Leeming JA, Gleeson JA agreeing)
Due to the imprecision of the evidence of time and distance and the lack of relevant expert evidence, Ms Yebdoo failed to establish that any breach of duty by Mr Holmewood caused the forceful collision that resulted in Ms Yebdoo's injury: [123].
(Per Macfarlan JA, contra)
But for Mr Holmewood's breach, he would have had sufficient time to slow his bike so as to avoid at least the serious collision that caused Ms Yebdoo's injury: [43], [50].
It was enough that this finding was, according to the course of common experience, the more probable inference from the circumstances that appeared from the evidence; expert opinion was not necessary to establish causation in this case: [32], [44], [50].
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 and Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42, applied.
The causation issue
Critical to the primary judge's conclusion that Ms Yebdoo had not established that Mr Holmewood's negligence caused her loss was that a contrary conclusion would have required:
"reasoning employing an understanding and measure of deceleration of the defendant's bike under active braking in the conditions. That is not a matter of common knowledge: s 144(1) of the Evidence Act 1995 (NSW). In my opinion, assessment of deceleration of the defendant's bike in the circumstances of the day was a subject of proof requiring expert opinion and explanation." ([63] quoted in [27] above).
Whilst expert evidence may have been of assistance in determining this issue, I do not, with respect to his Honour, consider that it was necessary in the circumstances of the case bearing in mind the facts found by his Honour, in particular:
1. Ms Yebdoo put her left indicator on and moved her vehicle slowly to the left, out of lane 2 into lane 1.
2. Her vehicle travelled about 3 metres and achieved an angle of 30 to 40 degrees before Mr Holmewood's bike collided with it.
3. Mr Holmewood's bike was travelling at about 15km/h when it passed Mr Hansford's ute's passenger window. According to Mr Hansford, the bike's speed was about that of a "fast jog".
4. Mr Holmewood had approximately 3 seconds from the time he first saw Ms Yebdoo's SUV moving (when he was level with the ute) to when the collision occurred. If he had been keeping a proper lookout, he would have seen it about 2 seconds earlier.
5. Although he said he braked, Mr Holmewood "did not achieve any observable braking, slowing or swerving of the bike" before it collided with Ms Yebdoo's SUV.
6. Mr Hansford first saw Mr Holmewood's bike when it was visible in his side mirror. He sounded his horn to warn "of what [he] sensed would result in a collision" but did not recall observing the bike "swerving, or stopping … [or] applying any brakes, or slowing".
7. Mr Holmewood "rode directly into the side of [Ms Yebdoo's] SUV such as is described in the vernacular as 'ploughing into it'". As described by Mr Hansford, as a result of the collision Mr Holmewood slid up over part of the bonnet of the SUV and off the front of it onto the roadway ahead.
Tribunals of fact (previously usually juries but now judges) have commonly determined questions of negligence and causation in circumstances of this type by drawing on their common sense and experience. This is reflected, for example, in the discussion in the High Court in Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42 concerning the extent to which evidence of a person claiming experience, and therefore expertise, in investigating road accidents was admissible as to the "movements and tendencies of a semi-trailer in an articulated vehicle" and as to "how the particular collision between the panel-van and the semi-trailer occurred". The Court found that the evidence was for the most part inadmissible as the witness lacked appropriate qualifications and in any event to a large extent went beyond the limits of opinion evidence that was admissible in relation to the matters in issue.
Mr Holmewood's negligence (paragraph [1] of the Notice of Contention)
It is apparent from what I have said above in relation to the causation issue that, subject to the questions of pleading and ambit of cross-examination of Mr Holmewood with which I now deal, I agree with the primary judge's finding of negligence on the part of Mr Holmewood. As his Honour indicated (see [23] above), Mr Holmewood failed to keep a proper lookout as a result of which he did not brake to slow his speed in a timely fashion. My conclusions on causation indicate that if he had done so it is likely that the forceful collision which occurred (and therefore Ms Yebdoo's injury) would have been avoided.
His Honour's conclusions as to Mr Holmewood's negligence were in my view well open on the case that Ms Yebdoo conducted at first instance.
First, they fell within the broadly expressed particulars of negligence stated in the statement of claim as follows:
"(i) Failing to apply the brakes.
(ii) Failing to keep a proper lookout.
(iii) Failing to sound the horn.
(iv) Attempting to overtake a turning vehicle when it was unsafe to do so.
(v) Failing to take any action to avoid an oncoming collision.
(vi) Manoeuvring his motorcycle in such a way so as to attempt to pass a turning vehicle in circumstances where it was unsafe to do so."
Secondly, counsel's opening on behalf of Ms Yebdoo was consistent with these particulars (although an additional, later not pressed, allegation of "lane splitting" contrary to statutory road rules was also put). Counsel referred to Ms Yebdoo making her manoeuvre "at a very slow speed" and Mr Holmewood travelling "quite fast". He then specifically noted his reliance on the particulars of negligence (erroneously recorded in the transcript as "particulars of evidence") contained in the statement of claim.
Thirdly, in his written submissions at the conclusion of the hearing, Ms Yebdoo's counsel again specifically indicated his reliance on the particulars of negligence stated in the statement of claim. Counsel also referred in those submissions to Mr Holmewood having done "nothing to avoid a collision", to the collision having occurred at 20 kilometres per hour and to Mr Holmewood's failure to keep a proper lookout.
Mr Holmewood's counsel complained at first instance and on appeal that Ms Yebdoo's counsel did not put the substance of her case to Mr Holmewood in cross-examination. To the extent that he may not have done that, I do not consider that it resulted in any unfairness to Mr Holmewood such that the principles in Browne v Dunn (1893) 6 R 67 were infringed. Those principles do not require matters to be put in cross-examination of an opposing party where the cross-examining party's reliance on the matters in the case is clear from the pleadings or other sources. As explained in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1, the principles in Browne v Dunn do not apply if "notice has already clearly been given of the cross-examiner's intention to rely upon" the relevant matters (at 16C-D; see also 26E-F). More recent authority is to the same effect (see Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213 at [287]-[288] and Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294 at [138]-[144]).
The apportionment issue
The primary judge found that responsibility for Ms Yebdoo's injury should be apportioned to her as to 60% and to Mr Holmewood as to 40% (see [29] above). Factors specifically referred to by his Honour as supporting this conclusion included that:
1. Ms Yebdoo failed to look over her shoulder to check that lane 1 was clear for her SUV to move into, despite being aware that there was a bike in the queue behind her and that it would be possible for the bike to travel between the parked and stopped vehicles;
2. it was Ms Yebdoo, as distinct from Mr Holmewood, who was changing lanes and thus under a particular obligation to proceed safely;
3. Mr Holmewood had a better view than Ms Yebdoo;
4. Ms Yebdoo caused her turning indicator to flash but Mr Holmewood failed to observe it; and
5. Mr Holmewood's intended passage between stopped and parked vehicles required him to be "acutely astute [to] movement from lane 2 into lane 1 of any vehicle ahead of him".
As Basten JA (with the concurrence of Allsop P and Bell JA) said in Tarabay v Leite [2008] NSWCA 259 at [31], "[q]uestions of apportionment, like the exercise of a discretionary power, such as sentencing, give rise not merely to an evaluative judgment, but to a finding which cannot readily be characterised as right or wrong". In Zervas v Burkitt (No 2) [2019] NSWCA 236 at [62], Bell P (with my concurrence and that of McCallum JA) referred to the nature of appellate review of apportionment findings as follows:
"'Appellate review of a trial judge's apportionment of liability as between respectively culpable parties… is governed by the stringent tests which limit appellate review of discretionary decisions': Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Tort Reports 81-731 at [45]; see also Nominal Defendant v Green [2013] NSWCA 219; (2013) 64 MVR 354 at [48]; Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464; (2013) 65 MVR 578 at [35]−[36]; Nominal Defendant v Bacon [2014] NSWCA 275; (2014) 67 MVR 425 at [101]; Central Darling Shire Council v Greeney [2015] NSWCA 51 at [62]−[68]."
Basten JA in Tarabay referred to the need for appellant restraint in such circumstances, although he indicated that the need for that restraint can be diminished if the finding at first instance is a contingent one (as here) "without analysis of the facts" relevant to apportionment (at [34]). I would not put the present judgment in that category as the primary judge here dealt with the facts in considerable detail for the purposes of his negligence and contributory negligence findings and sufficiently identified the matters that led him to make his finding, albeit contingent, as to apportionment.
On appeal Ms Yebdoo submitted that his Honour's apportionment finding was unreasonable and her responsibility should have been assessed to be in the range of 10 to 25%. She particularly emphasised that Mr Holmewood, having no obstruction in front of him, had the superior view because the evidence indicated that once Ms Yebdoo's SUV was at an angle of 15 to 20 degrees, her mirror would not have captured the image of Mr Holmewood. She submitted that her failure to look over her shoulder was "of minimal contribution compared to all of the [other] factors" involved.
Consideration
The primary judge examined Ms Yebdoo's claim for damages for future economic loss with considerable care, referring in detail to the matters upon which she relied. His conclusion as to the amount to be awarded was, particularly as his Honour felt it appropriate to express it as a buffer, a matter of subjective evaluation of a variety of considerations. In Miller v Jennings (1954) 92 CLR 190; [1954] HCA 65, Dixon CJ and Kitto J at 195-6 approved statements of Lord Wright in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 at 616-7 that: "the assessment of damages is more like an exercise of discretion than an ordinary act of decision" with the result that an appellant court is "particularly slow to reverse the trial judge on the question of damages" and that:
"In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference."
The bases of Ms Yebdoo's challenges to the award for future economic loss were in essence as follows.
First, it was submitted on her behalf that the primary judge erroneously "did not focus upon" the impact of the accident on Ms Yebdoo. The submission then referred to the severe distress that Ms Yebdoo suffered as a result of the accident. This was not however something that the primary judge overlooked. Indeed, it was effectively the basis of his award for future economic loss because the distress and its consequences were recorded in detail in Dr Virgona's report on which the primary judge relied.
Secondly, Ms Yebdoo submitted that the primary judge had not properly reflected in his damages award her loss of opportunity to work as a machine operator, or to go to a higher level with her employer. His Honour did however take into account the possibility of Ms Yebdoo becoming a machine operator. In doing so his Honour had regard to Ms Yebdoo's "poor English literacy, numeracy and absence of computer skills" bearing in mind her employer's description of the duties of a machine operator as including "a lot of paperwork on the line which is getting done through i-Pads on the line for the traceability point of view".
As to the possibility of Ms Yebdoo progressing further up the employment ladder, her written submissions stated that, "as she said, if a person becomes a machine operator with the company, one could go to any level", referring to transcript page 41 line 32. The passage of evidence to which that was a reference was however as follows:
"Q. Did you have any intentions about what kind of work you wanted to do with this company, if this accident would not have occurred?
A. Well, my - even up to now, some time they do trainees, asking - the training, they will just ask you, "What is your plan in this company in future?" I always tick the machine operator.
Q. Machine operator.
A. I always tick machine operator. If it come machine operator, Beak and Johnston, you can go to any level.
Q. Did you have any intention to go to levels higher than machine operator?
A. Well, because I can't able to read and write, that is higher the job I can do. But always want to stick of the machine operator.
Q. All right. So, as long as it didn't involve reading and writing.
A. Yeah. I love that job."
Dixon CJ referred in that case at page 491 to the circumstances in which expert evidence is admissible by quoting the following notes to Carter v Boehm, 1 Smith L.C., 7th ed (1876) p 577:
"On the one hand it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it." (Emphasis added.)
His Honour then referred to Cussen J's statement in R v Parker (1912) 18 ALR 150; [1912] VLR 152 that experts "cannot be permitted to attempt to point out to the jury matters which the jury could determine for themselves…". Referring to the case before the High Court, his Honour then said that some of the purported expert evidence constituted "an attempt to guide the jury upon matters which it was within the ordinary capacity of jurors to determine for themselves".
In a similar vein, Menzies J said that he would have thought:
"…that the jury, unassisted by any expert evidence, could on the factual evidence have reached the conclusion that the defendant's transport did first protrude across, and then cross, the centre line of the road because the trailer did not follow the prime-mover in taking the curve, but this circumstance provides no justification for the admission of inadmissible opinion evidence that science explained or supported this version of the happening. It may be that in the circumstances there was no room for the reception of the opinions of experts, because the tendency of a trailer to overrun a prime-mover as it changes course might be thought to be something of which an intelligent but unskilled person would be aware." (Emphasis added.)
Likewise, Windeyer J at 506 contemplated that, if thought necessary, the factual evidence concerning the characteristics of a semitrailer might be called to assist the jury but that:
"[o]nce they were possessed of that knowledge it would hardly be necessary to explain why the equipment might jack-knife on a sharp bend after travelling at a fast speed downhill".
The ability of judges and juries to draw inferences and decide factual questions concerning matters within the knowledge and experience of ordinary people was recognised by Gaudron J's statements as follows in Farrell v the Queen (1998) 194 CLR 286; [1998] HCA 50 at [10] and [11]:
"[10] It is well settled that expert evidence is admissible 'to furnish ... scientific information which is likely to be outside the experience and knowledge of a judge or jury'. In Clark v Ryan, Dixon CJ approved the somewhat more expansive statement that expert evidence 'is admissible whenever the subject matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it'.
[11] In my view, Dr Sale's evidence that the complainant suffered from alcohol dependence and polysubstance abuse is in a different category from his evidence of the complainant's anti-social personality disorder. Regrettably, alcohol dependence and substance abuse do not extend beyond the experience of ordinary persons. However, the experience of ordinary persons is not such that most will know the mental state of a person who suffers some mental impairment in consequence of alcoholism or substance abuse." (References omitted.)
To like effect were the following observations of Gaudron J in Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4 at [82] and [84] concerning the admissibility of expert evidence in accordance with s 79 of the Evidence Act 1995 (NSW):
"[82] The concept of 'specialised knowledge' imports knowledge of matters which are outside the knowledge or experience of ordinary persons and which 'is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience'. So to say, however, is not to say that an expert witness cannot have regard to matters that are within the knowledge of ordinary persons in formulating his or her opinion. So much is expressly acknowledged by s 80(b) of the Evidence Act.
…
[84] Before turning to the evidence with respect to the possible movement of the bodies and the furniture, it is necessary to consider one other feature which pertains to expert evidence generally. As already indicated, expert evidence is evidence with respect to matters outside ordinary experience or knowledge. Where conflicting evidence is given with respect to such matters, the conflict will ordinarily be capable of resolution by a jury only if the evidence is based on matters of common knowledge or experience or on assumptions with respect to matters about which the jury can reach its own conclusions." (References omitted.)
The recourse by judges and juries to matters that are within the knowledge and experience of ordinary people is to be distinguished from the impermissible use by a judge, in making factual findings, of his or her special expertise or experience in non-legal fields such as medicine (see Strinic v Singh (2009) 74 NSWLR 419; [2009] NSWCA 15 especially at [59]).
Assuming for the present that there had been no relevant expert evidence before the primary judge, it would have been open to his Honour to find on the basis of the facts outlined in [21] above that Mr Holmewood's failure to maintain a proper lookout and his consequent delay in braking caused or contributed to Ms Yebdoo's injury. It is important to note in this respect that in determining issues of causation in cases such as the present courts must focus on causation of the injury, not of the collision. When his Honour in the course of considering apportionment recapitulated his finding of negligence against Mr Holmewood his Honour appeared to assume that for Ms Yebdoo to have succeeded it had been necessary for her to prove that but for Mr Holmewood's negligence he would have stopped his bike completely before reaching the SUV (see [28] above). Elsewhere however his Honour referred to avoidance of a "forceful collision" (see [62], [64] and [65] quoted in [27] above), or to avoidance of Mr Holmewood being thrown over the ute's bonnet and onto the bitumen, such that he was in a position where he could be run over by Ms Yebdoo ([66]).
The latter reference was correct in the circumstances of this case because it can readily be inferred that Ms Yebdoo's psychiatric injury would not have occurred if the collision had lacked significant force. Ms Yebdoo's anxiety, and consequent mental illness, arose from the apparent severity of Mr Holmewood's injuries, and Ms Yebdoo's belief that he had indeed died, Ms Yebdoo having become aware that because he was thrown by the collision over her bonnet onto the roadway she had run over him. It can be inferred that if the collision had been significantly less severe because Mr Holmewood had slowed and swerved his bike sideways before the collision, he would not have been projected onto the bonnet of the SUV and then onto the road. The question of causation to be addressed was therefore whether if Mr Holmewood had been keeping a proper lookout he would have been able to do this and avoid, to use the primary judge's expression, a "forceful collision".
As the primary judge erred in principle in regarding relevant expert evidence as essential for his determination of the issue of causation before him, it is for this Court to re-decide that issue, taking into account the facts as found by his Honour. In doing that, I conclude that Ms Yebdoo established on the balance of probabilities that if Mr Holmewood had been paying proper attention he would have been able to slow and swerve his bike so as to avoid at least a serious collision. Both the SUV and bike were moving slowly, with the SUV's speed being "slow" and that of the bike equivalent to a "fast jog". The three seconds which Mr Holmewood conceded that he had, and his Honour held that he had, to react after seeing the SUV turning was in these circumstances a considerable time which the Court, drawing on its common sense and experience, is able to conclude was sufficient for Mr Holmewood to brake and swerve sufficiently to significantly lessen the severity of the collision. This conclusion accords with the view of Mr Hansford (see [12] above) whose evidence was particularly valuable because he was a professional (truck) driver who observed the dynamics of the situation as it unfolded. As well, it is significant that Mr Hansford had sufficient time to perceive the danger and react to it by sounding his horn.
It is enough that the inference that Ms Yebdoo's injury arose from Mr Holmewood's negligence is "according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission" (Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at [305]). The inference I have drawn is, as is required, a "positive inference", not one of a number of conflicting inferences "of equal degree of probability so that the choice between them is [a] mere matter of conjecture" (ibid at 304-5).
It is convenient at this point to refer to Mr Holmewood's challenge by paragraph [2] of his Notice of Contention to a factual assumption made by the primary judge (see [5] above). The relevant paragraph of the Notice of Contention is in the following terms:
"2 On the issue of causation, the primary judge erred in, having found the respondent had 3 seconds to react to the perception of the appellant moving into his lane (Red 31F), then proceeding to assume he had 5 seconds to react (Red 39A-T)".
This challenge however proceeds on a misapprehension. The reference to "Red 31F" is to the finding quoted at [21(7)] above, that is, that Mr Holmewood had three seconds after seeing that Ms Yebdoo's SUV was moving into lane 1 to react. The assumption referred to in the second half of the Notice of Contention paragraph (at "Red 39A-T") is to something different, namely his Honour's finding that there would have been five seconds for Mr Holmewood to react if he had seen the SUV turning earlier, that is, from when he was stationary behind the ute.
There is accordingly no substance in the Notice of Contention paragraph because the effect of the primary judge's findings at the two points in his judgment referred to was that Mr Holmewood should have seen the SUV turning into lane 1 about two seconds before he did see it and should in any event have reacted quicker during the three seconds that he had from the time that he did in fact see the SUV moving into lane 1.
As I have said, the conclusion referred to in [41] above could have been arrived at without the assistance of any expert evidence. Nevertheless, there was in fact expert evidence that provided some support for that conclusion. His Honour referred to it as follows:
"[60] I have found that on the whole of the evidence and after accepting the imprecision arising from the absence of accurate measures of distance and time; that, had the defendant been maintaining reasonable lookout, he would have had approximately 3 seconds of active braking of his motorcycle from a speed of approximately 15km/h. In Exhibit 3, Mr Hall [Mr Holmewood's expert], at [8.5], reported: 'In the first ½ second of braking, an experienced rider can typically lose 5-10kph'. Mr Hall had then assumed a motorcycle speed of 25km/h before braking. A common sense observation is that his opinion evidence indicated that [a] substantial reduction of speed would quickly be achieved through active braking from 15km/h."
As his Honour notes, the expert, Mr Hall, was opining as to the loss of speed from braking if the bike was, prior to braking, travelling at 25km/h. This opinion was not directly applicable to the present case as his Honour found that Mr Holmewood's bike was travelling at only about 15km/h at that time but, as his Honour recognised in the same passage just quoted, common sense indicated that a substantial reduction of speed would likewise occur after the first half second of braking at 15km/h. This was a reasonable inference from Mr Hall's evidence.
This inference was more than a sufficient basis for his Honour to conclude that Mr Holmewood had sufficient time, whether it was three or five seconds, to avoid a collision of the force that occurred. The Court did not however need this expert evidence to determine the causation issue in Ms Yebdoo's favour and it certainly did not, in my respectful opinion, need any further expert opinion or explanation for that purpose. That it might have been assisted by such evidence does not warrant a conclusion that it was necessary. As the plurality stated in Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [165], "[d]isputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led".
For these reasons, Ms Yebdoo succeeds on her challenge to the primary judge's finding against her on causation of loss.
The hearing below related to a situation commonly encountered on the road of a vehicle attempting to change into another lane without the driver taking care to ensure that it was safe to do so and another vehicle (in this case a motorcycle) travelling in that other lane not taking care to avoid colliding with the vehicle coming into it. Ms Yebdoo's case clearly involved the propositions that, whether or not she herself was guilty of negligence, Mr Holmewood was guilty of negligence in not keeping a proper lookout and in not braking early enough to avoid colliding with Ms Yebdoo's vehicle, or at least not colliding with it in a forceful fashion. As I have explained in [54]-[55] above, this case was clearly advanced on behalf of Ms Yebdoo before Mr Holmewood gave evidence (and as well at the end of the hearing - see [56] above). As a result, Mr Holmewood was aware of it when he gave evidence and had the opportunity to respond to it in such fashion as he and his legal advisors thought appropriate. There was therefore no unfairness to him and no infringement of the Browne v Dunn principles.
Paragraph [1] of the Notice of Contention must accordingly be rejected.
Ms Yebdoo did not in my view demonstrate any error in his Honour's assessment. She was not able to point to any relevant matter that his Honour overlooked or wrongly took into account, and I consider that the percentages his Honour adopted were within the range reasonably available. I consider that the percentages were in fact appropriate bearing in mind the matters to which his Honour referred and in particular having regard to the fact that Ms Yebdoo was changing lanes. She thus had an exacting obligation to take care to do so safely. On the other hand Mr Holmewood was continuing in the direction of travel of the stopped vehicles, albeit that he also had to be on alert for someone attempting to move around the right turning vehicle in the way that Ms Yebdoo sought to do.
I add that it is unclear from his Honour's reasons whether in making his apportionment on a contingent basis he assumed, as he ought to have, that his finding on causation of Ms Yebdoo's loss was erroneous (see the statement in parentheses in [71] of the judgment quoted in [28] above). Even if there was an error on his Honour's part in this respect, the challenge to his apportionment percentages would be unsuccessful because I consider that, on a reassessment, the same percentages would, and should, be arrived at.
This evidence made it clear that Ms Yebdoo did not see herself as having any realistic prospect of going higher than a machine operator. Nor was there any other evidence to suggest that she did.
Fourthly, Ms Yebdoo submitted that although the evidence suggested that she had "improved in terms of her psychological health, …by no means was she free from symptomatology…". His Honour was however entitled to rely in this respect on Dr Virgona's opinion that Ms Yebdoo's prognosis was good, with her residual symptoms being mild. Dr Virgona considered that Ms Yebdoo should achieve full remission, seemingly within the 12 months he contemplated that medication should continue. His Honour however properly took into account the "significant possibility that [she] might not achieve" early full remission. There was therefore no departure by his Honour from the evidence.
In these circumstances, it is apparent that the primary judge's consideration of the future economic loss involved a careful analysis of the competing considerations which led to a result which was well within the range of reasonable awards open to his Honour. As a result, this ground of appeal should be rejected.