Kelly v Carroll [2002] NSWCA 9 (5 February 2002)

Last Updated: 20 February 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: Kelly v Carroll [2002] NSWCA 9

FILE NUMBER(S):

40013/01

HEARING DATE(S): 5 February 2002

JUDGMENT DATE: 05/02/2002

PARTIES:

Amanda Jayne Kelly (Appellant)

Melinda Jane Carroll (Respondent)

JUDGMENT OF: Beazley JA Heydon JA Ipp AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 5453/00

LOWER COURT JUDICIAL OFFICER: Cooper DCJ; Tupman DCJ

COUNSEL:

Mr J D Hislop QC/Ms E E Beilby (Appellant)

Mr P Menzies QC/Mr P G Maiden (Respondent)

SOLICITORS:

Stewart Cuddy & Mockler (Appellant)

Kevin Byrnes (Respondent)

CATCHWORDS:

ND

LEGISLATION CITED:

Law Reform (Miscellaneous Provisions) Act 1965 (NSW)

DECISION:

Appeal dismissed

appellant to pay respondent's costs of the appeal

cross-appeal dismissed with no order as to costs

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40013/01

DC 5453/00

BEAZLEY JA

HEYDON JA

IPP AJA

5 February 2002

AMANDA JAYNE KELLY v MELINDA JANE CARROLL

JUDGMENT

1 HEYDON JA: This is an appeal from a verdict and judgment for the plaintiff in the sum of $220,506.53 given by Cooper DCJ on 11 December 2000. The plaintiff was injured when riding a motor scooter which came into collision with a car driven by the defendant. The trial judge assessed damages at $551,266.33 but reduced that figure by 60% for the plaintiff's contributory negligence.

2 The defendant appeals. She contends that she was not negligent; that, even if she had been negligent, that did not cause the accident; and that even if it had been correct to hold her liable in negligence, the deduction for the plaintiff's contributory negligence should have been much higher than 60%. She also attacks a costs order made by Tupman DCJ on 26 June 2000 when the trial could not proceed and had to be adjourned.

3 The plaintiff cross appealed but the cross appeal has been abandoned.

Background

4 The incident occurred at the intersection of the Bruxner Highway and Brewster Street, Lismore. The trial judge said:

"The accident occurred shortly after 4.00pm on a clear, dry afternoon. The Bruxner Highway, also known as Ballina Road, runs east/west at the relevant location and has two lanes for each direction. Brewster Street runs north/south and intersects the highway. There are dotted lines at the opening of Brewster Street on the roadway to indicate that the Bruxner Highway is the priority road.

At the relevant time the plaintiff was driving her moped motor scooter in a westerly direction along the highway and came to the corner of Brewster Street intending to make a turn right, that is in a northerly direction into that street. The traffic travelling [in] the opposite direction from the plaintiffs, was quite heavy. Accordingly the plaintiff stopped adjacent to the middle of the road in Bruxner Highway without entering upon the intersection, awaiting a break in the traffic.

... whilst the plaintiff was stationary she saw a break in the oncoming traffic. This break was caused by two vehicles travelling east, one of them was in the lane adjacent to the median strip, it was a van. This van was stationary in its lane indicating it intended to make a right hand turn to travel south in Brewster Street. At the same time a car was either stationary or moving very slowly in the kerbside lane of Bruxner Highway, intending to turn left, or north, into Brewster Street. It was at this stage that the plaintiff started moving across the road. She looked for oncoming traffic but could see none. I am satisfied that part of the reason for this was that a view of the vehicles travelling east in the kerbside lane of Bruxner Highway, would have been partially obstructed by the van in the outer lane waiting to turn right. As the plaintiff proceeded to turn right she looked up Brewster Street and the next thing she knew she was hit. She did not see what hit her.

Looking at things from the defendant's point of view - she was driving east on the Bruxner Highway, approaching the intersection of Brewster Street at the speed which was being travelled by all of the traffic, namely sixty kilometres per hour. She could not recall when giving her evidence whether there was any vehicle in front of her turning left. However by the time she reached the intersection the inside lane of Bruxner Highway on which she was travelling was clear. She then entered upon the intersection at a speed of about sixty kilometres per hour. She said that she was looking ahead and also looked to her left in Brewster Street to see if there was any oncoming traffic. The next thing she knew there was a bump and she did not know what caused it. She then proceeded down some one hundred to two hundred metres on the highway, past the intersection and stopped and came back and saw the plaintiff in an injured condition. It is quite clear that both drivers were involved in the collision without either of them having seen the other vehicle beforehand.

On behalf of the plaintiff it was submitted that the defendant had moved from the kerbside [lane] to the outer lane of traffic in Bruxner Highway before entering upon the intersection. ...

The evidence comfortably satisfies me that the defendant did not move to the outer lane. Had she done so, she would have been prevented from entering the intersection by two vehicles. The first was the van which was intending to turn right and immediately behind that was a car being driven by Mr Ehsman who gave evidence in this case. It may well have been that the defendant intended to change lanes, but then changed her mind because of the presence of the vehicles in the outer lane.

The evidence of Mr Ehsman was that he was driving in an easterly direction, the same direction as the defendant, on Bruxner Highway in the outer lane. He slowed down because of the presence of a van stationary in that lane ahead of him with its trafficators indicating an intention to make a right hand turn into Brewster Street. At a point when he was either going very slowly or stopped, what he described as a rusty coloured car passed him on the inside lane and this was the car that ultimately stopped after the impact with the plaintiff. He did not see the actual impact. One then has a situation where neither of the participants in the action was aware of the presence of the other upon the roadway, until the very time of impact.

The first question to determine is has the plaintiff satisfied the Court on the balance of probabilities that the defendant was negligently driving, and that such negligence materially contributed to the impact.

The defendant gave evidence that she was familiar with this section of roadway and was aware that from time to time vehicles would be seeking to make a right hand turn in front of the path she was travelling. She was aware that the van was present, stationary in the outer lane, waiting to make a right hand turn and that this could partially obstruct her view of the intersection. In addition she ought to have been aware with the exercise of reasonable care that the stationary vehicle in the outer lane, plus the presence of the left turning vehicle in the kerbside lane would cause a gap in the eastbound traffic which could encourage a person to turn right from the east and then north into Brewster Street.

Under these circumstances I am satisfied that the defendant ought to have kept a close lookout for such vehicles as she entered upon this intersection and also ought to have lessened her speed from about sixty kilometres per hour. In this regard it needs to be remembered that at sixty kilometres per hour, she would have crossed over that intersection in approximately two and a half seconds. Without keeping a proper lookout and without lowering her speed she deprived herself of the opportunity to avoid a collision, either by sounding her horn or by varying her direction to the left, or by braking, or by a combination of all three. Under these circumstances the plaintiff has satisfied the Court on the balance of probabilities that the defendant was negligent."

5 The trial judge then stated the following conclusions about the plaintiff's contributory negligence:

"The plaintiff was riding a small motor scooter. She ought to have been aware that because she was on a small object in comparison with other vehicles on the roadway, that a view of her would have been obstructed by the stationary van referred to earlier. Under those circumstances she ought, with the exercise of reasonable care, not to have proceeded upon that intersection other than at a very slow speed and carefully watching to see that no vehicles came out from behind the stationary van through the kerbside lane of Bruxner Highway. Although she was going at a slow speed, she was not in fact keeping such a lookout. Of course the regulations provide that she was obliged to give way to the oncoming vehicle as she was turning right. The plaintiff was in breach of this regulation. For all of these reasons I am comfortably satisfied that the plaintiff was guilty of negligence.

The next question to determine is the extent to which the plaintiff's damages shall be reduced having regard to her fault and to the amount considered just [and] equitable in the circumstances of the case. As previously mentioned, neither the plaintiff, nor the defendant were keeping a proper lookout. However in favour of the defendant it must be said that she had the right of way in accordance with the regulations under the Traffic Act, whilst the plaintiff was obliged by those regulations to yield right of way. Having regard to the comparison, both of culpability, that is of the degree of departure from the standard of care of the reasonable person, and of the relevant importance of the acts of the parties in causing the damage, I am satisfied on the balance of probabilities that it is just and equitable in the circumstances of this case that the plaintiff's damages be reduced by sixty per cent."

The defendant's arguments on negligence

6 The defendant did not, in this Court, challenge the trial judge's conclusions of primary fact. However, she attacked the trial judge's conclusion that she was negligent in the following ways. In writing she submitted, first:

"... at all times [she] was travelling within the speed limit and in conformity with surrounding traffic. If the Defendant was to travel at a lower speed, less than that in conformity with the traffic, it could have created other risks to other motorists."

That argument is unsound. For the defendant to have slowed down at the intersection would not have caused risks to other motorists. Each of those motorists travelling in the same direction as the defendant ought to have slowed down to the extent necessary as well. Occasional periods of slow movement for that reason are entirely typical experienced in urban traffic conditions. It would not have caused unreasonable disruption.

7 In oral address, Mr J D Hislop, QC, who appeared for the appellant with Ms E E Beilby, stressed that if the defendant had been driving at the speed which the arguments against her called for, it could have been as low as 10 or 15 kilometres per hour and could have clogged up traffic on the highway. It may indeed be that the defendant should have slowed down to that extent. But either the obstruction would have been of relatively short duration, or those responsible for the roads in question should have ensured that they could be used by safe drivers in a manner compatible with reasonable progress. It is not a defence to negligent driving that the roads are unsatisfactory.

8 Secondly, the defendant submitted:

"A driver is entitled to assume that others will not commit gross acts of negligence without warning. In the present circumstances the Respondent committed such an act involving, inter alia, a breach of subregulation 71(1)(b) of the Motor Traffic Regulations 1935, in that she failed to cause her vehicle to stand until it was able to make a right hand turn across the path of oncoming traffic with safety. In all the circumstances it is submitted that his Honour applied too high a standard of care to the Appellant.

...

For the Appellant to have any prospect of avoiding the accident, she would have had to reduce her speed to a virtual walk, which is in fact what the Respondent's Senior Counsel submitted was necessary at trial. This places an unrealistic standard of care upon someone in the position of the Appellant."

9 So far as the argument characterises the plaintiff's conduct as gross negligence, it is too extreme. It is certainly common ground that it was negligent. But she had waited two minutes in order to make the turn. She thought she saw an opportunity to turn created by the stopping of the vehicle nearest her in the middle lane and the turning of the car from the kerbside lane into Brewster St. The conditions were not entirely satisfactory from any driver's point of view. They generated a response from the plaintiff which was in part cautious, but, though in part careless, was not grossly negligent. It was careless in the sense that the opportunity she perceived was not, by the time she reacted to it, an opportunity in truth available, because had the opportunity been in truth available within the period of her reaction time, there never would have been a collision.

10 Errors by other drivers and by pedestrians are among the things a motorist can be obliged to keep a lookout for. In Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 at 427, Barwick CJ, McTiernan, Kitto, Taylor and Owen JJ said, of regulations similar to subregulation 71(1)(b) of the Motor Traffic Regulations 1935:

"These regulations in nominating the vehicle which has another vehicle on its right as the give way vehicle are undoubtedly salutary and their breach is deservedly marked with criminal penalties. But they are not definitive of the respective duties of the drivers of such vehicles to each other or in respect of themselves: nor is the breach of such regulations conclusive as to the performance of the duty owed to one another or in respect of themselves. The common law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case.

... The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to `reasonable care' is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected."

They went on to say that that approach was not inconsistent with Trompp v Liddle (1941) 41 SR (NSW) 108. Jordan CJ, Halse Rogers and Street JJ said:

"A driver is entitled to assume that other drivers will observe the rules of the road. This does not mean that he may drive at any pace he chooses so far as roads coming in on his left are concerned, or with complete indifference to the possibility of a car suddenly emerging from the side road as the result of accident, miscalculation, ignorance or recklessness. It means that it is not unreasonable for him to act on the assumption that other drivers are obeying the rules unless there is something which should make him realise that they are not."

Here the defendant knew the locality, knew or ought to have known that cars could seek to turn right in front of her path, knew or ought to have known that the car in the kerbside lane was turning left while the car in the middle lane was stationary, knew or ought to have known that her view was obstructed and ought to have known that the configuration of vehicles could cause a gap and could cause a car to turn right into her path. The propositions just set out appear in or flow from the trial judge's judgment at Red 39U-40H. It will be necessary to examine that passage in more detail below in view of the oral submissions. To some extent the defendant's oral evidence is inconsistent with parts of it, but not with his conclusion that she was negligent.

11 In the circumstances it was not safe for the defendant to assume that other vehicles would comply with the regulation in question. Her duty was to have her vehicle in hand so she could bring it to a halt or otherwise avoid an impact from other vehicles turning from their right into her path, even if it was the result of a careless action. She could not drive with indifference to that possibility, whether it stemmed from accident, miscalculation, ignorance of recklessness. She could not act on the assumption the driver of that vehicle would obey the rules because of the visibility problems of the location.

12 Thirdly, the defendant submitted:

"In addition, his Honour's finding that by reason of not lowering her speed, the Appellant deprived herself of the opportunity to avoid the collision, either by sounding her horn or by varying her direction to the left, or by braking, does not, it is submitted, constitute negligence. This is mere speculation and against probability. It is therefore an impermissible inference upon which negligence could be determined. As stated by the High Court in Derrick v Cheung (2001) HCA 48 (9 August 2001) at paragraph 13:

`Even if the inference which the Trial Judge drew, that if the Appellant's speed had been slower by a few kilometres per hour she would have been able to avoid the collision, was more than mere speculation, it is still not an inference upon which a finding of negligence could be based ... . The possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the Plaintiff has proved the Defendant, who owed a duty of care, has not acted in accordance with reasonable care.'

It is submitted that the mere possibility of a different result, that is if the Appellant had entered the intersection and was able to sound her horn, vary her direction to the left or brake or a combination of all three (as was stated by his Honour) is at its highest speculation and upon the test enunciated in Derrick v Cheung (supra) is not an inference upon which a finding of negligence could or should be used."

The trial judge did not state specifically how much slower than 60 kilometres per hour the defendant should have gone. The trial judge's reasoning did not turn in terms on the proposition that the speed should have been reduced by only a few kilometres per hour. The trial judge's reasoning was that she ought to have been aware that the presence of a turning vehicle on the left lane and a stationary vehicle in the right lane could create a gap which could encourage persons in the plaintiff's position to turn right in circumstances where she knew they could not easily be seen.

13 The trial judge's conclusion that the failure to keep a lookout sufficiently careful to avoid a collision by the use of horn, brake and steering wheel is not invalid.

14 The quotation from Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at [13] relied on, when examined in context, serves as a reminder how very different that case was from this. It must always be remembered that cases of this character can turn on their precise facts, which can be very various. The High Court there held that a driver who hit an infant child when she darted out between two parked vehicles very quickly was not negligent. The driver was driving at 45-50 kilometres per hour in a 60 kilometre per hour zone. There was no opportunity to see the infant until she reached the road. The High Court upheld the dissenting judgment of Davies AJA in the Court of Appeal. He said:

"The facts of the present case were different from those in Stocks v Baldwin for there was no particular perceivable risk which the appellant should have taken into account but did not. She drove with other cars at a modest speed, 45-50 km per hour, keeping an appropriate distance between her vehicle and the vehicle in front and keeping a proper lookout. The appellant's driving was appropriate in the circumstances. For the appellant to keep up with the general flow of the traffic, when the traffic was travelling at a modest speed, well under the speed limit, and when there was no particular danger observable, was both a reasonable and proper response to the traffic conditions on the day. For the appellant to have dawdled along Victoria Avenue when no particular danger was apparent would not have been appropriate for it could have caused disruption."

15 Here, on the other hand, there was, on the trial judge's reasoning, a "particular perceived risk", a right hand turn by the plaintiff's oncoming vehicle which the defendant could have had difficulty in seeing. Here, the defendant was not driving at the relatively modest speed of 45-50 kilometres per hour along a road without a cross street. Here, as will be seen, the defendant was not keeping a proper lookout. Here it could not be said there was no particular danger. The conduct called for on the part of the defendant was not to "dawdle" in a manner causing disruption but to slow at the crossroads when the opportunity for the plaintiff to make a careless right hand turn arose.

16 The High Court said:

"What was unlikely in this case was that an unattended infant of such tender years would dart in front of a relatively slow moving vehicle on a busy road in such a way that a collision was, to all intents and purposes, unavoidable."

Here there was no equivalent unlikelihood.

17 Fourthly, the defendant submitted:

"Indeed, if the Appellant were driving more slowly then it would have been likely that the consequences of the collision were more serious as the Respondent's vehicle would have travelled further into the Appellant's lane. At a slower speed, the Respondent would most likely have been struck by the front of the Appellant's vehicle and directly run over instead of ricocheting off the front right hand corner (which is the unchallenged evidence as to where the Appellant's vehicle was damaged (Black book 80H))."

The force of those arguments depends on how slow the defendant's speed might have been. At a slightly slower speed, the consequences described in the defendant's submissions might well have happened, but at a much lower speed there would have been no accident. The duty of care resting on the defendant described in Sibley v Kais was to approach at a speed sufficiently slow to permit her to bring the car to a halt. At that speed the accident would not have happened.

18 Various additional submissions to some extent supporting the written submissions and to some extent adding to them were advanced in oral argument.

19 First, Mr Hislop attacked the trial judge's finding that the defendant "was aware that the van was present". It was submitted that in truth the defendant either denied that proposition or gave no positive evidence in support of it. The defendant's evidence in cross-examination suggested that if she was to be accepted as a credible witness, she, in truth, had extremely limited recall of the precise circumstances of the accident. Nothing in the reasons for judgment suggests that the defendant was not a credible witness in the sense of endeavouring to give evidence to the best of her ability. Even if the trial judge's statement is unsupported by direct evidence, it is certainly the case that if she was not aware the van was present, she should have been if she had been keeping a proper lookout.

20 The evidence in question is as follows:

"Q. And when you approached the intersection what do you remember seeing at the intersection?

A. I don't remember seeing anything. I was looking to my front and I remember checking my left hand side, but I didn't see anything to my right.

Q. Do you remember a car in front of you turn to the left at the intersection?

A. No, I don't remember.

Q. Do you remember a car stationary turning right?

A. No, I don't remember.

Q. At the intersection, a car or a van?

A. No, I don't remember them being stationary. I remember there was traffic on both sides of me, but as I was going through the intersection I can't recall where, you know, the stationary vehicles were.

Q. You said this is a major road and the one you travel on or travelled then on a regular basis and it has heavy traffic?

A. Yes.

Q. And you were aware I think you have told us that along the road cars would frequently stop and turn right?

A. Yes.

Q. And do you say that you would be keeping an eye out for those cars principally so you could avoid them by staying in the left lane?

A. Yes.

Q. One of the other things that you knew about that road was that cars turn right coming in both directions, in other words, cars in the median strip lane that you were travelling in would stop at intersections and turn right and there are also cars coming the other way that would be doing the same thing from time to time, is that right?

A. Yes.

Q. And so one would need to keep a pretty careful lookout as one drove along in case there was a car turning right?

A. Yes.

Q. In your direction or a car turning right coming towards you?

A. Yes.

Q. And, of course, one of the other things that you would need to look out for on that road particularly with people who are unfamiliar with it would be the driver who might want to pull out from the median strip lane into the left lane in which you were travelling to avoid cars that might be at the intersection; I suppose that was something else you would need to keep an eye out for?

A. Yes.

Q. So that if you were keeping a good lookout you would be watching for all those things, is that right?

A. Yes.

Q. And you have no recollection of any cars being at this intersection at all?

A. No, I remember --

Q. Is that right?

A. - the traffic, yes, but I remember looking to my left and then I was being cautious, but it was a long time ago and I just can't remember exactly where all the cars were at that point of time.

Q. Nobody is asking you to say where all the cars were at that point of time. I am just merely trying to get some understanding of what you can recall you saw. So that you drove through this intersection as I understand it maintaining the speed with the traffic?

A. Yes.

Q. You didn't slow down, did you?

A. No.

Q. Don't you think that it might have been a prudent thing to do given that there might be cars at that intersection?

A. No.

Q. And had there been cars at the intersection turning right, either coming towards you or going in the same direction as you, it would have been a prudent thing, wouldn't it, to have slowed down as you approached the intersection in case there was some car about to make some manoeuvre the view of which might be blocked from you, wouldn't that have been a sensible thing to do?

A. Yes.

Q. So is this right, that had there been cars at that intersection what you would have done driving prudently would have been to slow down as you went through it, is that right?

A. Yes.

HIS HONOUR: Sorry, when you say cars at the intersection, at what part of the intersection, doing what?

MENZIES: Thank you your Honour. I am sorry.

Q. Had there been cars stationary at the intersection turning right either from the direction that you were travelling in or turning right from the opposite direction you would have regarded it as a prudent thing to do to slow down as you went through the intersection in case a car moved in front of you, is that right?

A. Yes.

Q. Or in case a car which had been on your right in the median strip lane pulled out to overtake the stationary car which was turning right but travelling in the same direction as you, is that right?

A. Yes.

Q. Because you were conscious that these were in fact quite dangerous intersections?

A. Yes.

Q. Let me suggest this to you, that what happened that day was that there was a car approaching the intersection travelling in the same direction as you in the same lane and that car turned left or started to turn left into Brewster. I know that you have told us that you have no recollection of this, but let me suggest that that is in fact what was happening and that as you approached the intersection because you saw the car in the left hand lane turning left you started to pull out to the right to go round that car?

A. No. As I remember it, I was just going straight ahead. Cars crossed all directions at the intersection. I looked to my left as that car was turning and I can't remember all my actions just before the accident, but maybe I did slow down as that car turned left, but I didn't go to overtake it or anything like that.

Q. But do you have a recollection of the car turning left or not?

A. No.

Q. I thought you didn't?

A. No, I don't.

Q. You have no recollection?

A. No. I know I didn't go to turn, you know, take over the - I remember I was just in my left lane.

...

HIS HONOUR: Q. Was this little Datsun a Datsun 120Y, do you remember?

A. No, I can't remember.

Q. You said earlier that as you were approaching the intersection you were looking to your front and to your left?

A. Yes.

Q. Why were you looking to the left?

A. Because cars like would be turning left in front of me. It was a cross intersection so there was cars that were going to turn left, you know, if there was a break in traffic. So I was watching if there was any traffic merging.

Q. You mean coming from the side street, is that what you mean, or turning left from the street you were in?

A. No, no, turning left from the side street into my main line of traffic."

21 On that evidence it is plain it cannot be said that the defendant was, to the fullest extent possible, keeping a proper lookout. Though she gave evidence of looking ahead of her in the left lane, and to the left with a view to avoiding the other cars coming from the side street into the left hand lane, in the event of there being a break in the traffic, her evidence is inconsistent with keeping a proper eye on what was happening in the right hand lane and to the right hand side of her vision.

22 A central part of Mr Hislop's oral argument attacked the trial judge's conclusion to the effect that the defendant "ought to have been aware ... that the stationary vehicle in the outer lane, plus the presence of the left turning vehicle in the kerbside lane would cause a gap in the east bound traffic which could encourage a person to turn right from the east and then north into Brewster Street". As expressed, the trial judge's reasoning is perhaps exaggerated or difficult to accept so far as it asserts probabilities rather than possibilities. However, it is incontestable that the defendant was failing to keep a proper lookout. The question is - what could she reasonably have been expected to do if she had been keeping a proper lookout?

23 Had she been keeping a proper lookout, she might have been expected to have noticed that there was a considerable quantity of traffic going both ways on the highway. She could have been expected to have noticed that at least two or three cars were lined up pointing in her direction, and indicating a desire to turn right. Mr Hislop demonstrated by recourse to photographs and to certain evidence of the plaintiff that a good view was to be had at least in the middle to far distance along the highway. If the plaintiff had that view, so did the defendant.

24 In my opinion it was open, in the specific circumstances of this case, to conclude that a reasonably prudent driver in the position of the defendant, keeping a proper lookout, could have perceived that a vehicle in the position of the plaintiff's vehicle might have attempted to cross the highway at the point of the intersection, whether that was a wise course or not. Had the defendant been keeping a proper lookout, she would have been in a position to have slowed down as she approached the intersection to a sufficient speed to have taken further averting action from that point. Her failure to have done this supports a conclusion of failing to comply with the duty of care which rested on her.

25 Next, Mr Hislop attacked the reasoning process by which the trial judge concluded that the defendant would have crossed the intersection in two and a half seconds. His analysis of the evidence was that if the defendant was travelling at 60 kilometres per hour it would have taken little more than half a second before that process would have been completed. His point was that, allowing for the slowness of human reaction time, the defendant would have had no opportunity to do anything.

26 In my judgment, it is not necessary to analyse the details of the argument or reach a conclusion as to its correctness, although I am prepared to assume its correctness. The argument in favour of a breach of duty on the part of the defendant did not depend on her ability to react once she had reached the intersection, but rather on the proposition that she ought to have achieved a sufficiently low speed before that point to permit a speedy and effective reaction at that lower speed.

27 The trial judge's reasoning and Mr Hislop's criticism of it depends on the proposition that the defendant was doing 60 kilometres per hour on entry into the intersection. The reasoning I have outlined above rests on the proposition that she should have been travelling much more slowly at that time.

28 Mr Hislop submitted that there was no evidence to support the trial judge's statement that just before the plaintiff began her manoeuvre "a car was either stationary or moving very slowly in the kerbside lane of Bruxner Highway, intending to turn left, or north, into Brewster Street". It seems clear from the evidence of Mr Fisher that there was a car turning left (Black 54K-M, 55R, 58V and 63Q). The plaintiff also gave evidence of that (Black 8Q and 10R). At Black 81Q the defendant did not remember any car turning left. At Black 83T she gave an answer apparently indicating she did remember a car turning. In succeeding answers, however, she said she did not remember this.

29 It seems unquestionable that there was a car and unquestionable that the plaintiff treated the existence of that car turning left as something which afforded her an opportunity to move out into the traffic. The trial judge's finding that the plaintiff saw a break in the traffic that caused her to begin her manoeuvre is said in the defendant's written submissions not to be challenged. Cars travelling at 60 kilometres per hour normally slow down considerably when turning left. There was sufficient evidence to support the conclusion that the car turning left was moving only slowly.

30 In my opinion the various attacks and criticisms advanced by the defendant against the trial judge's reasoning, while to a limited extent successful, are not sufficient to invalidate his conclusion that there was negligence.

The defendant's argument on causation

31 The defendant then attacked the trial judge's conclusion on causation:

"Further, there was no basis for finding that any action of the Appellant played any causative role in the accident. As submitted by the Appellant's Senior Counsel in the Court below, because of the timing of the Respondent's turn, no matter what speed the Appellant was travelling, she would have been unable to see the Respondent until the turn had been effected, that is until the Respondent's vehicle was in the Appellant's lane immediately in front of the Appellant."

However, had both vehicles been moving slowly the accident would have been avoided. The plaintiff was moving slowly but the defendant was not.

The defendant's argument on contributory negligence

32 The defendant's argument on contributory negligence was that, on the trial judge's findings, an assessment of at least 90% contributory negligence should have been made:

"due to the gross risk that the Respondent took when she drove across a busy road without ensuring the absence of oncoming traffic. The duty to maintain a proper lookout for other motorists was clearly not met in circumstances where it was incumbent upon the Respondent to do so."

The plaintiff concedes that her conduct did constitute contributory negligence.

33 The approach of the courts to apportionment was described as follows by the High Court in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 at 532-533:

"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."

It may be assumed that so experienced a judge as the trial judge was aware of those principles and his language suggests that he applied them. Because the task is of the character described, appellants face difficulties in disturbing apportionments made by trial judges. In the same case the High Court said:

"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."

34 Neither party was keeping a proper lookout. One was travelling too fast. The other was attempting a risky manoeuvre. The conduct of each was materially causative. While other trial judges might have selected a higher or even a lower figure, that selected by this trial judge has not been shown to be appellably erroneous.

35 There is a further difficulty with the defendant's argument. To contend that the contributory negligence should have been assessed at "at least 90 per cent" is to go very close to contending that it should have been assessed at 100%, for as the figure rises above 90, the difference between it and 100 becomes de minimis.

36 In Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 at 29-30 Hayne J said, with the agreement of Gaudron, McHugh, Gummow and Kirby JJ, in a case on the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 10(1):

"But no matter how culpable the claimant may be, if the damage results from the fault of the person who suffers the damage and the fault of another, it is not possible to say that the damages recoverable in respect of that damage are to be not simply reduced but are to be entirely eliminated. Such an outcome cannot be justified as `just and equitable having regard to the claimant's share in the responsibility for the damage' for it is an outcome which holds the claimant wholly responsible, not partly so.

Our attention was directed to two English cases in which there are dicta suggesting that there is no principle of law which requires that there cannot be 100% contributory negligence on the part of a plaintiff. It may be open to doubt whether the statements that were made in those cases go further than saying that even if a breach of the duty of care owed by a defendant to the plaintiff is established, that breach may not, in the particular circumstances, have been a cause of the plaintiff's damage. But even if these cases do go further and do seek to countenance an apportionment of 100% responsibility to one party to the exclusion of responsibility of another party whose fault was a cause of the claimant's damage, that is a step which I consider cannot be taken. It is a step which apportionment legislation in the form under consideration here does not permit. That is not to deny the importance of considering whose fault caused or contributed to the damage; indeed it is to emphasise the importance of that examination. There may be cases in which a defendant may be shown to have failed to exercise reasonable care for the plaintiff, but the plaintiff is, in all the circumstances, judged to have been the sole author of the misfortune of which the plaintiff complains. But that is to conclude that the defendant's want of reasonable care was not a cause of the plaintiff's damage; it is to deny that the fault of both plaintiff and defendant contributed to that damage."

37 In short, the defendant's contention that contributory negligence should have been fixed at 90% or more goes close to denying she played any causal part in the accident. Her submission on that point has already been rejected.

The defendant's argument on costs

38 The defendant argued that Tupman DCJ should not have ordered the defendant to pay the costs of the adjournment of 26 June 2000. The defendant argued the correct order should have been that those costs be costs in the cause. There is an academic aspect to the argument in view of the fact that the appeal against the trial judge's findings on liability has failed, so that his order that the defendant pay the plaintiff's costs of the whole cause stands. However, it is possible that the argument on behalf of the defendant was seeking to distinguish between an order that costs be costs in the cause, which might carry only, for example, one day's costs, and the order made, which was that three days' costs be payable.

39 The essential point made by Mr Hislop was that both sides at the time of the argument before Tupman DCJ were estimating a duration of five or so days, and the submission was that it was unjust and irrational that the defendant should be visited with the consequences of a position that both sides were, by default or otherwise, in that respect sharing.

40 Before considering Tupman DCJ's reasoning, it is desirable to set out the background as she perceived it. On Monday 19 June 2000, when the sittings had ten days to run, the plaintiff estimated that the case would take three days (not counting a day for submissions and judgment). On 26 June 2000 at the outset it is not clear what was said owing to a tape failure, but it seems that for the first time counsel for the defendant, Mr Letherbarrow SC, estimated a duration of four-six days (not including addresses and judgment). On that estimate the case might well not have finished in the remaining five days of the sittings. Junior counsel for the plaintiff (Mr Maiden) said:

"My recollection is that the matter would have got a start on the Thursday of the second last day of the sittings, and there was a discussion in open court as to the length of time, the defendant that time having estimated that it was a one day plus case.

HER HONOUR: That is quite clear from the documents that are in the file.

MAIDEN: And Mr Letherbarrow and I - my recollection again, your Honour, and I stand corrected on this - but we said, well, it being Thursday, we may or may not finish it Friday. Likely, on my friend's estimate and mine, that it would not finish because it would go over possibly into a third day, for judgment at least.

LETHERBARROW: Your Honour, I hate to say this, but at that stage I was going on the estimate given to me by those instructing me. I am hesitant to say, but I hadn't read the brief at that stage.

HER HONOUR: They gave the same estimate to the Registrar when the matter was placed in the hearings list as well, one day plus.

MAIDEN: I accept what my friend says entirely, of course, your Honour, but I certainly raised the question of time and said - and being at that time, I said, `Well, look, I'm not going' - my estimate was that it would take more than two days. Defendant - my friend's solicitor, I think, was here, and on that basis the estimate of the defendant was extended, at least between counsel, from one day to two to three days. This is the first I've heard of the estimate of four to six days, your Honour. Had that been made on the last occasion, your Honour --

HER HONOUR: You would have got a special fixture or sent it back to Sydney or something like that."

The plaintiff then increased her estimate from three days to four (not counting submissions and judgment). On that estimate the case would have finished within the sittings, but thereafter both counsel for the plaintiff and Tupman DCJ thought it prudent to accept the higher estimate of the defendant.

41 It is to be noted that when counsel for the plaintiff said that earlier the defendant had estimated that it was a day plus case, Mr Letherbarrow did not disagree. And when Tupman DCJ informed Mr Letherbarrow that the representatives of the defendant had given the Registrar an estimate that the case would take one day plus when on 22 February 2000 it was listed for hearing in the two weeks sittings to be held at Port Macquarie from 19 June 2000, again Mr Letherbarrow did not disagree. Later the following exchange occurred:

"HER HONOUR: And because we don't have callovers here any more, no-one has ever been forced to think of it. And someone told the Registrar on behalf of the defendant that it was still a one day plus case when the matter was listed in these sittings on 22 February. That must have always been wrong.

LETHERBARROW: It could never have finished in one day, ever.

HER HONOUR: No - one day plus, I'm sorry. One day plus. But in any event, it is not going to finish by Friday [30 June] so I am not going to start it, because it is inconvenient from my point of view, from the plaintiff's point of view, potentially into next year for a part-heard case, and from the court's point of view for me to take it part-heard, given my requirements to sit in the criminal jurisdiction. But either of those two dates can be available in Sydney."

The proposition that the Registrar had been misinformed by the defendant's representatives appears again to have been accepted by Mr Letherbarrow. A little later Tupman DCJ said:

"Mr Letherbarrow, no matter what the outcome of the case is, why shouldn't the defendant pay the plaintiff's costs thrown away as at today? It's the defendant's fault that this matter has got a wrong estimate. The defendant was still telling the Registrar back when the matter was in the list before the Registrar on 22 February that it was a one day plus case."

Just after the last statement of the judge quoted, Mr Letherbarrow said that the plaintiff too had been estimating "one day plus" to the Registrar. Thereafter Tupman DCJ said:

"And it seems to me that even though there may well have been other reports served by the plaintiff since 22 February when the matter was in the Registrar's callover, I only have one callover sheet in the file that seems to apply to that callover, and it was still being estimated as one day plus, if that is the relevant one. It is not dated, so I want to be a little bit careful about that, because it may well have applied to an earlier callover date.

But it was the plaintiff who estimated two to three days on Monday last week and it is now the defendant who, I accept, properly, has informed the court that it is going to take considerably longer than that, and it seems to be taking considerably longer because of the way the defendant now views the proper running of the case on behalf of the defendant. And in those circumstances I think the defendant should meet the plaintiff's costs thrown away as a result of the hearing being vacated in these sittings, and three days, including senior counsel, seems reasonable to me in the circumstances. And that would be irrespective of the ultimate outcome of the case."

42 Later Tupman DCJ made the costs order after the following exchange:

"LETHERBARROW: Your Honour, in relation to the costs, I am instructed that costs in our view should be costs in the cause, for this reason; at the end of the hearing of this matter, the trial judge will have the benefit of hindsight and will be able to determine whether this was ever a two to three days case, which is what the plaintiff has said up until this morning when they agreed that it was four days. If at the end of the hearing the trial judge is of the view that it would never, on any view, have finished within two to three days, then the defendant would be in a position of having a costs order which it would have to appeal against in that respect. So I'd ask your Honour to reserve the question of costs for the trial judge, and he can make a much more educated decision at that time.

HER HONOUR: Mr Letherbarrow, I am against you on that. It seems to me that the comments that I made earlier still apply, notwithstanding that submission, and for the reasons that I have already given, I propose to make an order that the defendant pay the plaintiff's costs thrown away by the vacation of this hearing date, and I will allow three days costs, including costs for senior counsel as those costs."

It is to be noted that Mr Letherbarrow did not repeat the contention that on 22 February the plaintiff as well as the defendant was estimating one day plus.

43 The judge's decision to place the burden of costs on the defendant rather than to make some more neutral order rested on two considerations in combination.

44 One consideration was what she took to be the unilateral error made by the defendant before the Registrar on 22 February 2000 in estimating a duration of one day plus. Tupman DCJ appears, without disrespect to Mr Letherbarrow, not to have been convinced by Mr Letherbarrow's subsequent statement, which stands alone amongst various pieces of silence both before and after it was made, that it was not a unilateral error. There is no evidence to suggest that she was wrong in not being so convinced. It seems that the counsel representing the defendant was not present when the estimate was given to the Registrar, so that what he said to Tupman DCJ did not proceed from personal knowledge, and there was no testimony or assurance from persons who were present demonstrating any factual error in the assumption on which Tupman DCJ proceeded.

45 The second consideration affecting Tupman DCJ's thinking was the four-six day estimate advanced by the defendant, which she and the plaintiff fell in line with. In her understanding, that arose because of a changed perception on the part of the defendant's representatives as to how they should conduct the case on her behalf. A decision by the defendant's representatives that saw the case as requiring a much longer treatment than they had before, with a consequential duration longer than that which the plaintiff predicted, was within the legitimate entitlements of those representatives and their client, and could not be nullified, but it highlighted the fact that the loss of the opportunity of a trial on 26 June 2000 was caused by the defendant's side, not the plaintiff's side. No error has been demonstrated in that reasoning.

46 Hence no mistake has been shown to exist in Tupman DCJ's approach to the costs order of the type which would permit this Court to interfere with what was a discretionary decision on a matter of practice and procedure.

Orders

47 The orders proposed are as follows.

1. The appeal is dismissed.

2. The appellant is to pay the respondent's costs of the appeal.

3. The cross-appeal is dismissed with no order as to costs.

48 BEAZLEY JA: I agree.

49 IPP AJA: I agree.

50 BEAZLEY JA: The orders of the court will be as proposed by Heydon JA.

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LAST UPDATED: 20/02/2002