Harding v Scott [2005] ACTSC 57 (20 July 2005)

Last Updated: 26 July 2005

HARDING v SCOTT [2005] ACTSC 57 (20 JULY 2005)

APPEAL - appeal from the Magistrates Court - discretion of magistrate - whether the magistrate erred in apportioning liability - appeal dismissed.

TORTS - negligence - personal injury - motor accidents - injuries to pedestrians - contributory negligence - where failure of pedestrian to keep adequate lookout for approaching vehicles.

Knight v Maclean [2002] NSWCA 314 (23 September 2002)

Derrick v Cheung (2001) 181 ALR 301

Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 24 of 2005

Judge: Gray J

Supreme Court of the ACT

Date: 20 July 2005

IN THE SUPREME COURT OF THE )

) No. SCA 24 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ANDREW WILLIAM HARDING

Appellant

AND: MALCOLM LESLIE SCOTT

Respondent

ORDER

Judge: Gray J

Date: 20 July 2005

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed, with costs.

2. The cross-appeal be dismissed.

1. In proceedings before a magistrate, the plaintiff sought damages for personal injury. The magistrate found that the defendant was negligent in driving his motor vehicle. The defendant challenges this finding. The magistrate found that the plaintiff also was guilty of contributory negligence and apportioned liability by assigning to the plaintiff 75% of the responsibility for the accident. The plaintiff, by cross-appeal, challenges this finding. There is no appeal or cross-appeal in respect of the damages assessed by the magistrate, which were assessed in the sum of $13,023.45. On the basis of this assessment, the magistrate entered judgment against the defendant in the sum of $3,422.52 which included interest. I shall continue to refer to the appellant and cross-respondent as the plaintiff and the respondent and cross-appellant as the defendant.

The facts

2. On 12 November 2001, at about 3.20 pm, at Cooyong Street, Civic, the plaintiff, a pedestrian, was struck by the motor vehicle driven by the defendant. At the point where the accident occurred, Cooyong Street was a six lane carriageway with three east and three west-bound lanes, divided by a median strip. It borders the central business district of Canberra and is a relatively busy area for motor vehicle traffic and pedestrians. The plaintiff was walking south along the footpath of Lonsdale Street, which, at that time, met Cooyong Street in a T-intersection. The plaintiff proceeded to cross Cooyong Street. The defendant, who was travelling east along Cooyong Street, had stopped at traffic lights at the intersection of Mort Street (a street parallel to Lonsdale Street and to the west of it) and Cooyong Street. Mort Street is perhaps two hundred metres or so from Cooyong Street. Although no direct evidence of that distance was given, that seems to be the assumption upon which the cross-examination of witnesses was conducted.

3. It is the plaintiff's case that he saw the traffic stopped at the traffic lights and proceeded to cross the road, that vehicles coming from the traffic lights came upon him, at least one blew its horn at him when he was in the second lane on the roadway and that, in stepping into the third lane, the defendant's vehicle collided with him. Prior to or at the time of impact he heard tyres "screaming" and after impact, he ended up on the median strip. The defendant's vehicle stopped approximately three metres past the point of impact.

4. It seems clear from the evidence of the other witnesses, being the driver and passenger of the car in the middle lane and a pedestrian bystander, that the plaintiff crossed the road without looking towards the traffic that was coming towards him.

5. At the traffic lights at Mort Street, the defendant was positioned behind a car in the centre lane and, when the lights changed and the cars moved off, the defendant moved into the far lane. The driver and passenger of the car in the centre lane gave evidence that the plaintiff appeared to be crossing the roadway without looking, that the driver of this car sounded her horn, braked sharply and stopped and that the plaintiff stepped into the path of the defendant who was then travelling in the third lane when the collision occurred.

6. The defendant says that he pulled up at the traffic lights at Mort Street behind the car in the centre lane but that in moving off, he moved into the third lane and although he noticed the driver in the centre lane slowing, he did not see the plaintiff until the plaintiff appeared in his path.

The finding of negligence

7. The critical findings of the magistrate, which was subject to challenge on this appeal, were:

The Defendant clearly indicates that he observed the vehicle in the middle lane begin to slow. He did not observe this vehicle to stop as it clearly did, but in my view he ought to have been put on notice that something untoward was possibly occurring on the roadway in front of him. As I have said the evidence before me suggests that the area of Cooyong, Mort and Lonsdale Street[s] is a very busy area both for motor vehicles and potentially for pedestrians. A reasonably prudent driver in my view faced with the apparent indication received from the vehicle in the middle lane that something untoward was occurring ought to have reasonably foreseen that there may be a pedestrian or some other potentially hazardous situation developing in an area immediately adjacent to the Defendant's vehicle, it is also significant that the Defendant failed to see [the vehicle in the middle lane] stop. In the circumstances, it is my view that the Defendant ought to have taken some action to have slowed his vehicle down once he saw the vehicle in the middle lane doing so. His failure to take any action at all following this indication in my view creates a circumstance in which he is partly responsible for the injuries sustained by the Plaintiff. (my emphasis)

The grounds of appeal

8. The grounds of appeal, in a fairly unsatisfactory way, raise the appellant's issue with the magistrate's finding that I have set out. They provide:

1. His Worship erred in concluding that the Appellant was negligent in that he ought to have foreseen that a pedestrian or other hazard was in an area immediately adjacent to the Appellant's vehicle;

2. His Worship erred in concluding that the Appellant was negligent in failing to take some action to slow his vehicle in all the circumstances;

3. His Worship erred in concluding that the Appellant was negligent in circumstances where it was found that the Respondent failed to take any reasonable precaution in relation to crossing the road;

4. His Worship erred in concluding that the Appellant was negligent in colliding with the Respondent in circumstances where he was travelling well under the speed limit, had his view to the left blocked by an adjacent car, and was precluded from veering either to the left or right;

5. His Worship erred in concluding that the Appellant was negligent in circumstances where the Respondent suddenly emerged into the path of the Appellant's vehicle allowing the Appellant no opportunity in which to avoid a collision;

6. His Worship erred in concluding that the Appellant was negligent in circumstances where the Appellant undertook heavy emergency braking immediately upon first sighting the Respondent emerge into the lane in which he was travelling adjacent to the median strip;

7. His Worship erred in failing to deal with the issue of causation which was the subject of separate submissions made on behalf of the Appellant;

8. His Worship erred in failing to conclude that as a matter of causation, the Appellant could not be liable in negligence where there was nothing he could reasonably have done in the circumstances to avoid a collision when the Respondent walked abruptly into the path of the Appellant's vehicle.

9. The grounds of appeal assert error in what are said to be conclusions by the magistrate derived from the magistrate's findings and comments in the paragraph of the magistrate's reasons that I have set out. Although the grounds assert error in making the finding that the defendant was partly responsible for the accident, they conspicuously fail to challenge the finding of fact made that is fundamental to the reasoning. That finding is the one I have emphasised in setting out the findings under challenge and essentially is a finding that the defendant failed to keep a proper lookout. By not addressing this issue, the first six grounds of appeal amount to nothing more than assertions that do not address the reasoning process undertaken by the magistrate. Nor was this deficiency in the grounds made good in the oral argument addressed to me on the appeal.

The oral argument on appeal

10. At one stage during oral argument, it seemed that the proposition being put was that there was no evidence upon which the magistrate could have made the findings that he did. On being pressed, it seems the argument was rather that the evidence that the defendant gave before the magistrate could not support a finding of negligence. Mr Nolan, who appeared as counsel for the appellant, placed emphasis on the defendant's evidence that the first available opportunity that the defendant had of seeing the plaintiff traverse the carriageway was when the plaintiff suddenly emerged from the second lane into the third lane. He further submitted that because the defendant had said in his evidence that he had observed the car in the middle lane slowing down, that did not call for any action on the defendant's part.

11. That proposition does not accord with the magistrate's clear and undisputed finding that the vehicle in the second lane "stopped" and this event was not observed at all by the defendant. In fact, the vehicle in the second lane had not only stopped, but had moved off again before the defendant's car collided with the plaintiff.

12. I was referred to the comments of Heydon JA in Knight v Maclean [2002] NSWCA 314 (23 September 2002). In that case, at first instance, the trial judge had required a motorist, who had collided with a pedestrian in the third lane of a carriageway, to "drive in anticipation of a pedestrian crossing the road in such a fashion as to require him to adjust his speed downwards if he and the pedestrian were to continue" (see at [11]). On appeal, Heydon JA made the following observations (at [66]):

So here, the defendant's driving was intrinsically careful. He was not exceeding the speed limit; he was moving with the traffic flow; there is no suggestion he was not keeping a proper distance from the car in front; if he did not see the start of the plaintiff's journey through a failure to look to the left, or a failure to appreciate the extent to which his view might be blocked, he was in no worse a position than the defendant in Derrick v Cheung, and indeed in a better position because of the existence of lane two to his left. He was entitled to drive with his eyes ahead of him until he noticed something to the left which called for greater concentration on the left. There was nothing on the left calling for greater concentration until the sudden emergence of the plaintiff, and that was too late to give the defendant any opportunity to avoid the collision. A finding that the defendant was liable would be to create a form of strict liability, not to recognise a form of liability in negligence.

Mr Nolan also referred to what his Honour said at [68]:

It is not the law that a driver complying with the minimum requirements of the law of negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey. Yet in the circumstances of the present case the trial judge's test would entail that duty.

13. I accept, with respect, what his Honour said in that case, but those comments are not apt for this case, where the magistrate has made a specific finding of circumstances that required the defendant to direct his attention to the situation created by the plaintiff. I consider that it was properly open to the magistrate to regard the defendant's lookout as defective and to further require the defendant to react to the situation by at least slowing his vehicle.

14. The other case cited and relied upon by the defendant was Derrick v Cheung (2001) 181 ALR 301. In that case, the plaintiff, a small child, emerged suddenly between two parked vehicles onto the road in the path of the defendant's vehicle. The High Court found no basis for a finding of negligence. In the present case, there is such a basis founded, as the magistrate held, in the defendant's failure to observe a circumstance and to respond appropriately.

15. A further argument was put on the basis of what was said to be "causation" and is the subject of the last two grounds of appeal. As I understand the submission, it is simply that nothing could be done in the circumstances to avoid a collision. However, as was apparent in the oral submissions, it is a submission predicated on there being no requirement on the defendant to slow his vehicle down. The finding of the magistrate was to the contrary and that finding has not been shown to be in error. I note also that the driver of the vehicle in the second lane managed to stop her vehicle without colliding with the plaintiff and the defendant's vehicle in fact stopped only some three metres past the point of impact.

16. To support the argument as to the inevitability of the collision, reference was made to tables in Motor and Traffic Law, New South Wales (Lexis Nexis Butterworths). Those tables concerned stopping distances and reaction times. Although reference was made to these before the magistrate, the tables were not tendered as evidence and I did not regard it as appropriate that they be tendered in the appeal before me. As far as I could see, they were only relevant to establish the proposition that, if the defendant did not see the plaintiff when he was 15 metres away or less, the accident could not have been avoided. The tenor of the magistrate's reasons and the evidence he plainly accepted indicate a finding that would not make applicable the proposition which the defendant sought to assert. Although it was the defendant's evidence that he was near the rear bumper of the vehicle in the second lane when he saw the plaintiff, the passenger in the vehicle in the second lane observed the actual collision with the plaintiff when the defendant's vehicle was two metres behind the vehicle which he was in.

17. The plaintiff has failed to demonstrate that the magistrate erred in making the findings that he did, or that the findings were made without evidence to support them.

The cross-appeal

18. The defendant cross-appealed on the ground that:

His Worship erred in finding that the plaintiff's contributory negligence amounted to 75%.

19. In support of the cross-appeal, Mr Pilkinton, who appeared as counsel for the cross-appellant, referred to a passage from the High Court decision in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 493-494 to the following effect:

A finding on a question of apportionment is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds": British Fame (Owners) v. Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury: Zoukra v. Lowenstern [1958] VR 594.

20. No error was identified on the part of the magistrate in taking into account the matters that he did for the purposes of making the apportionment of liability. In those circumstances, and having regard to what the court said in Podrebersek, Mr Pilkinton elected not to press the cross-appeal. I dismiss the cross-appeal.

21. For the reasons I have earlier given, I dismiss the appeal with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 20 July 2005

Counsel for the appellant: Mr P J Nolan

Solicitor for the appellant: Hunt & Hunt

Counsel for the respondent: Mr S Pilkinton

Solicitor for the respondent: Slater & Gordon

Date of hearing: 8 July 2005

Date of judgment: 20 July 2005