Sierra v Anikin [2003] NSWCA 11 (7 February 2003)

Last Updated: 17 March 2003

NEW SOUTH WALES COURT OF APPEAL

CITATION: Sierra v Anikin [2003] NSWCA 11

FILE NUMBER(S):

40271/02

HEARING DATE(S): 13/09/2002

JUDGMENT DATE: 07/02/2003

PARTIES:

Alfonso Sierra (First Appellant)

State Transit Authority (Second Appellant)

Serge Anikin (Respondent)

JUDGMENT OF: Beazley JA Heydon JA Santow JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3919/99

LOWER COURT JUDICIAL OFFICER: Sidis DCJ

COUNSEL:

K P Rewell, SC/ A R Beardow (Appellants)

C C Branson, QC/ I S McLachlan (Respondent)

SOLICITORS:

Keddies (Appellants)

Warren & Warren (Respondent)

CATCHWORDS:

NEGLIGENCE - pedestrian accident - whether driver and employer liable for injuries sustained by pedestrian in motor vehicle accident - whether evidential basis to support a finding of negligence against the driver

NEGLIGENCE - assessment of contributory negligence - whether apportionment at first instance should be set aside because of manifest error

LEGISLATION CITED:

DECISION:

1. The appeal is allowed

2. The orders of the Trial Judge are set aside

3. In lieu thereof, the Respondent's proceedings are dismissed

4. The Respondent is to pay the costs of the appellant below and in this Court

5. The Respondent is to have a certificate under the Suitors Fund Act 1951 if qualified.

JUDGMENT:

- 27 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40271/02

DC 3919/99

BEAZLEY JA

HEYDON JA

SANTOW JA

7 FEBRUARY 2003

Alfonso SIERRA & Anor -v- Serge ANIKIN

NEGLIGENCE - pedestrian accident - whether driver and employer liable for injuries sustained by pedestrian in motor vehicle accident - whether evidential basis to support a finding of negligence against the driver

NEGLIGENCE - assessment of contributory negligence - whether apportionment at first instance should be set aside because of manifest error

Facts

The Respondent was seriously injured after he was struck by a bus while on the first lane of Epping Road at Epping at approximately 9pm on 29 March 1997. At the time the road was dark, there was no direct street lighting and traffic conditions were light. The Respondent was dressed in dark clothing, except for a white stripe on the toe of his shoes. The Respondent had no recollection of the events of the accident.

The first Appellant gave evidence that he first saw the Respondent when he was 10 metres from the bus when the Respondent was trying to attract his attention. The first Appellant stated that he could not take any action to avoid the collision. At the time the bus' headlights were on low beam. It was accepted that such lighting would illuminate the road ahead for 50 to 60 metres.

The Trial Judge found that the First Appellant had been negligent as well as the Respondent and apportioned liability 75% to the Appellants and 25% to the Respondent.

The issues in the appeal were whether the Appellants' were liable at all for the Respondent's injuries and whether the Trial Judge had correctly apportioned liability for contributory negligence.

Held:

Liability (Beazley JA with Heydon JA agreeing):

1. There is nothing in her Honour's reasons to suggest that the first Appellant should have seen the Respondent when he was on the side of the road.

2. There was no evidence as to when the Respondent stepped onto the road, nor was there any evidence to indicate when it was more probable that he stepped onto the road. All that is known is that the Respondent was on the road at some time.

3. The existence of a number of equally available possibilities is not sufficient to found an inference that the Respondent was on the roadway at a point where the first Appellant could have seen him, reacted and taken action to avoid the accident.

4. There was accordingly no basis on which her Honour could have found that the first Appellant was negligent.

(Santow JA in dissent):

5. There was a sufficient basis for her Honour to reach the conclusion she did that, accepting the Appellant could have had view of the Respondent for 50 metres, evasive action could and should have been taken by the driver.

6. The findings of the Trial Judge do not disclose appealable error in concluding that the first Appellant, in failing to take such evasive action was liable in negligence

Contributory Negligence (Santow JA (Beazley JA and Heydon JA not needing to decide):

7. The evidence clearly established that the bus driven by the first Appellant would have been visible to the Respondent from a distance of at least 108 metres. His failure to remove himself from the road was a very serious act of carelessness as regards his own safety.

8. Her Honour's apportionment of liability did contain appealable error as it involved either an error in principle or misapprehension of facts. The Respondent's damages should be reduced by 60% in lieu of 25%.

ORDERS

1. The appeal is allowed.

2. The orders of the Trial Judge are set aside.

3. In lieu thereof, the Respondent's proceedings are dismissed.

4. The Respondent is to pay the costs of the appellant below and in this Court.

5. The Respondent is to have a certificate under the Suitors Fund Act 1951 if qualified.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40271/02

DC 3919/99

BEAZLEY JA

HEYDON JA

SANTOW JA

7 FEBRUARY 2003

Alfonso SIERRA & Anor -v- Serge ANIKIN

Judgment

1 BEAZLEY JA: The respondent was seriously injured at about 9.00 pm on 29 March 1997 when he was struck by a State Transit Authority bus driven by the first appellant and owned by the second appellant. The Trial Judge held that the first appellant was negligent in the manner in which he drove the bus and was primarily responsible for the accident. Her Honour also found that the respondent was contributorily negligent and apportioned his responsibility for the accident at 25%.

2 The appellants appeal against both findings. The principal basis upon which the appeal against liability is brought is that there was no evidence upon which her Honour could have found that the first appellant was negligent. This challenge requires a detailed review both of the evidence and of her Honour's reasoning. However, as Santow J has reviewed both in some detail it is sufficient for me to refer only to those matters which explain the basis upon which I have reached my conclusion.

3 The accident occurred on Epping Road, Epping, upon a slight downhill section of the roadway leading towards a bridge running over Terrys Creek. The road at that point was two lanes in both directions. Street lighting was available on the roadway where the accident occurred but the two streetlights nearest to the point of collision were not illuminated. The first appellant was driving his bus in an easterly direction at between 70 to 80 kph and was travelling in the nearside (No. 1) lane. He had finished his shift and had activated the "Special" sign on the front of the bus. The interior bus lights were switched off. There were no bus stops in the vicinity of where the accident happened.

4 The respondent, it seems, was walking in a westerly direction along the same side of the road as, but in the opposite direction to that in which, the bus was travelling. Epping Road, in the vicinity where the accident occurred, leads from Macquarie University, and, in the direction in which the appellant was walking, towards the railway station. It is possible that that is where the respondent was heading. He was wearing dark clothing and dark shoes except for a one inch white strip between the sole and upper of the shoe. In the hours before the accident the respondent had attended a concert at the University campus. He had driven to the university with friends and parked in the carpark. Prior to the conclusion of the concert the respondent quarrelled with his girlfriend and he separated from her and their friends. The respondent's behaviour was, thereafter, somewhat unusual. Apparently at some point during the day or evening he went back to his car, moved it to another part of the car park and locked it up. He appears, to have no recollection of having done so, as he telephoned his father to say he was lost and could not find his way home. His father arranged to meet him at the University office. However, when his father arrived at the office at about 8.30 pm the respondent was not there and he could not find him. Much later that night, the respondent's father found the respondent's locked car in the car park. Although the respondent appeared to act strangely in the period after he left his friends there was no suggestion that he was affected by alcohol or drugs.

5 Just over 100 metres east of the point of impact there is the bridge to which I have referred. A pathway runs alongside the road from, relevantly, the Macquarie University up to the end of the bridge. From there on, and for a distance of about 200 metres there is no pathway and the road is bounded by a sealed shoulder and a dish drain between 1.2 and 2 metres wide. The shoulder abuts a cliff face about 5 metres high. The formed pathway continues up over this cliff face, although it was common ground that it would not have been obvious to a person, unfamiliar with the area and in the dark, that the steps from the pathway near the end of the bridge led up to a continuation of the pathway itself. The cliff face, given the time of night and the vegetation growing on it, was itself quite dark. There was some rubbish strewn along the sealed shoulder and in the dishdrain. There was an unbroken white "fog line" delineating the edge of the carriageway and the commencement of the sealed shoulder.

6 Her Honour found that the respondent was between 0.7 metres and 1.3 metres on the carriageway at the point of impact and that he was hit by the nearside edge of the bus. Her Honour also found that the bus was wholly within its own lane at all times. There is no dispute as to these matters. Her Honour did not make a precise finding of speed, but concluded that the bus was travelling between 70 to 80 kilometres per hour. The speed limit was 80 kilometres per hour. The bus had its headlights on which gave an illumination distance of 50 metres. The headlights were trained to the left of the carriageway. Her Honour accepted that there was no reason that the first appellant should have anticipated the presence of a pedestrian on the roadway at that time, although it was not unknown for pedestrians to bypass the footpath on top of the cliff and walk along the sealed shoulder.

7 The first appellant gave evidence that he first saw the respondent at a distance of "approximately 10 metres". At that distance or at a distance of 15 metres, which was the original estimate given by the first appellant to the police as to the distance at which he first saw the respondent, there was no possibility that the first appellant could have taken any action to avoid the accident. The first appellant also said that when he first saw the respondent, he was on the roadway "jumping to stop my bus". Her Honour rejected this aspect of the first appellant's evidence, holding that it was "inherently improbable that [the respondent] would have leaned forward or walked into the path of a large bus travelling at a speed of between 70-80 kph".

8 Her Honour found that given the range of the headlights on the bus, he had a capacity to see the respondent for 50 metres. She held that he could have taken some action to avoid the accident, by stopping the bus, or by taking evasive action by deviating slightly from his path of travel or sounding his horn, had he seen the respondent at a distance of 30 metres. As a consideration of the material in para. 10 below makes clear, her Honour must have meant that had the respondent commenced to react to the presence of the respondent on the roadway at a distance of 30 metres he could have taken some action to avoid the accident. Her Honour found that the appellant's failure to do so meant he was negligent. It was relevant to this finding that her Honour rejected the first appellant's evidence that there were vehicles behind him but in the farside (no 2) lane which would have made it dangerous to swerve to the right to avoid colliding with the respondent.

9 The appellants submitted that there was no evidence to support her Honour's finding of negligence.

10 There is nothing in her Honour's reasons to suggest that the first appellant should have seen the respondent when he was on the side of the road. Her conclusion, then, that the first appellant should have seen the respondent at a distance of 30 metres, involves a finding not only that the respondent was on the roadway but also that he was on the roadway for at least 50 metres prior to impact. The second aspect of this reasoning derives directly from her Honour's acceptance of the expert evidence as to stopping distances. Those distances derive from standard tables and were not in dispute. Using those tables the following matters emerge. If the appellant was travelling at 70 kilometres per hour and based upon a reaction time of 1 second (given that the first appellant was a professional driver) he would have travelled 19 metres before "reacting" to the presence of someone or something on the roadway. It would have taken him another 22 metres to bring his vehicle to a complete stop - a total of 41 metres. At 80 kilometres per hour, the relevant distances are 22 metres "reaction distance" and 30 metres "stopping distance" - a total of 52 metres. It is apparent that her Honour used the higher figures relating to a speed of about 80 kilometres per hour upon which to base her ultimate finding of negligence. There was good reason for her Honour to do so as the first appellant's evidence was that, as he was travelling down the hill towards the bridge, his bus picked up speed to between 75 to 80 kilometres per hour.

11 Had the respondent stepped onto the roadway at a time when the bus was 40 metres away, then the appellant would not have seen him, reacted and been able to take action to avoid the accident in sufficient time to avoid the accident even if he was only travelling at 70 kilometres per hour. The difference between impact and no impact would have only been about 1 metre, but there would have been an impact which the first appellant could not have avoided. Admittedly at that point the bus would have been travelling more slowly. But there was no evidence as to the extent to which the impact would have been less at that point. If the speed was closer to 80 kilometres per hour, the appellant would not have been able to stop his bus until approximately 10 metres after the point of impact. Had the respondent stepped onto the roadway when the bus was 30 or 35 metres away his position would have been correspondingly more perilous.

12 There was no evidence however as to when the respondent first stepped onto the carriageway. He may have done so from the commencement of the unpaved portion of the roadway. He could equally have done so at any point thereafter up until some metres prior to the collision. Nor was there any evidence to indicate when it was more probable that he stepped onto the road. All that is known is that the respondent was on the road at some point. The existence of a number of equally available possibilities is not sufficient to found an inference that the respondent was on the roadway at a point where the first appellant could have seen him, reacted and taken action to avoid the accident: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352; Nominal Defendant v Owens (1978) 22 ALR 128 at 132; Transport Investment Insurance Co. Ltd. v. Longmuir [1997] 1 VR 125 at 141. It follows that there was no evidence to support the basis upon which her Honour found that the first appellant was negligent.

13 The appellants further submitted that, contrary to her Honour's finding, it was not inherently improbable that the respondent would have walked into the path of the bus. Counsel submitted that the respondent's behaviour, in the couple of hours prior to the accident, was in itself bizarre and that this finding was also contrary to the known facts. Having regard to the conclusion to which I have come, it is not necessary to reach any determination on this point.

14 Nor is it necessary to deal with the question of contributory negligence. However, should that issue have been relevant, I would agree with the reasons of Santow JA that her Honour erred in her apportionment of contributory negligence. His Honour found contributory negligence on the part of the respondent to the extent of 60%. For my part I would place it somewhat higher than that, but as this is an area where minds may reasonably differ, I would have accepted his Honour's apportionment.

15 It follows, however, for the reasons I have given that in my opinion, the appeal should be allowed with costs.

16 I propose the following orders.

1. The appeal is allowed.

2. The orders of the Trial Judge are set aside.

3. In lieu thereof, the respondent's proceedings are dismissed.

4. The respondent is to pay the costs of the appellant below and in this Court.

5. The respondent is to have a certificate under the Suitors Fund Act 1951 if qualified.

17 HEYDON JA: I agree with Beazley JA.

18 SANTOW JA:

OVERVIEW

On 29 March 1997 at about 9 pm on a clear night the Respondent was run over by a bus. It was driven by the First Appellant and owned by the Second Appellant, the State Transit Authority. The two adjacent street lights were out at the time though the police evidence was that "I didn't observe any strong deficiencies in lighting". The Respondent had attended a rock concert at Macquarie University during the day, but was not intoxicated.

19 At the point of impact he had been walking against the traffic on the trafficable portion of the first of two lanes of Epping Road at Epping. Neither the Respondent nor any witness was able to give evidence as to how long the Respondent had been on the trafficable portion of lane 1 as distinct from the narrow pathway on the shoulder of the road bounded by a sheer rock cutting up to about five metres high topped by overhanging bush. The Respondent was very severely injured and had no recollection afterwards of the events of the accident. The bus driver did give evidence, as did two lay witnesses in cars passing by. Otherwise the witnesses, apart from the two experts, were present either before or shortly after the event. There were two police witnesses, shortly after the event, Acting Sergeant Guff whose duties included preserving the scene after the accident, and Senior Constable Shirdon of the Forensic Services Group, who made observations, preparing a sketch plan (Exhibit 6) and field reference notes (see Exhibit T and Blue 6 and 7).

20 The Trial Judge, Sidis DCJ, found that the First Appellant had the capacity to see the Respondent from a distance of at least 50 metres. Her reasoning importantly included the further finding that even if allowance were made for the Respondent's dark clothing though with white stripe on his shoes, and for the unexpected sight of a pedestrian on this part of Epping Road, there was a more than adequate distance within which the First Appellant, with the reaction times agreed upon by the experts, could have taken sufficient evasive action. Thus she found that the First Appellant could have stopped the bus which he was driving, sounded the horn on the bus, or swerved, or a combination of these, if he had seen the Respondent from a distance of 30 metres. But she found the First Appellant did not do any of those things by way of evasive action in time. She concluded that his failure to do so leads to the finding that he was not paying adequate attention at the time of the accident, in circumstances where a minor deviation in the path of travel of the bus would have avoided the accident.

21 As summarised by the Trial Judge (at [8]) the evidence bearing on contributory negligence was that the bus driven by the First Appellant would have been visible to the Respondent from a distance of 108 metres, as he walked west along Epping Road or 5.5 seconds before impact. It was also established that the Respondent at the time of impact was walking on the first laneway between 1.3 and 0.7 metres south of the fog line (that is, the white line marking the northern extremity of lane 1, between it and a narrow shoulder). Thus he could have avoided the accident by stepping back from the laneway, if already upon it, to the adjoining shoulder of the road, though one needs to note that it consisted of rough asphalt and a ditch, with loose rubbish and vegetation and was only between 1.2 and 2 metres wide hard up against a 5 metre rock shelf. It may be that he was inhibited in doing so, taking into account the unlit state of the sealed narrow shoulder, with its rubbish and ditch, or for fear of being crushed against the nearby rock wall by the on-coming bus. I mention this, not because there was any evidence of his state of mind -- there could not be as he had no memory of the accident. Rather it is to demonstrate that, in a substantially circumstanced account where evidence from the driver was disbelieved in a number of respects, the Respondent's conduct could not automatically be assumed to have been wholly irrational though it was certainly contributorily negligent. Instead, according to the driver, the Respondent sought to attract attention by "jumping up to stop my bus" when in front of it; Black, 171, T, 29M. How far in front of the bus he was, is unclear. The driver's evidence was that he was only 10 metres away when he saw him. On the basis of this evidence, the Appellants' claim of contributory negligence was not resisted by the Respondent, though its extent was certainly a matter of dispute, both at trial and on appeal.

22 Thus while the quantum of damages was not in issue, liability and the extent of contributory negligence was, and remain the subject of this appeal. The Trial Judge found that the Appellants had been negligent, that the Respondent was contributorily negligent and apportioned liability 75% to the Appellants and 25% to the Respondent. That apportionment is challenged also.

GROUNDS OF APPEAL

23 It is contended by the Appellants that the Trial Judge erred:

(i) in finding a verdict in favour of the plaintiff at all;

(ii) in finding that it was inherently improbable that the plaintiff would have leant forward or walked into the path of a large bus travelling at a speed of between 70 to 80 kilometres per hour;

(iii) in finding that the first defendant driver did not take appropriate evasive action;

(iv) in failing to consider the absence of any evidence concerning the period of time upon which the plaintiff would have been on the trafficable portion of lane 1 of Epping Road prior to the impact;

(v) in finding that the first defendant could have stopped the bus which he was driving, sounded the horn or taken evasive action in the circumstances; and

(vi) in the assessment of the degree of the plaintiff's contributory negligence.

SALIENT FACTS

24 The relevant facts are not in dispute save as to the critical facts concerning:

(a) when the First Appellant driver would have first seen the Respondent, the driver; his evidence was corrected to "approximately 10 metres" (Black, 171, T, 29R) though in earlier evidence to the police he had said 15 metres;

(b) the visibility of the Respondent, in particular whether the First Appellant, exercising reasonable care, should have seen the Respondent earlier, and if so from what distance from the point of impact, having regard to whether the Respondent was on the roadway or closely adjacent to it, and the dark clothing of the Respondent other than that he was wearing shoes bearing a white stripe with white shoelaces;

(c) when the First Appellant first reacted to the presence of the Respondent, the evasive action that he in fact took or could have taken with its likely consequence for the accident, having regard to

(i) the expert's reports of Mr Woodward for the Respondent (Blue, 118) and Mr Joy of Joy Consulting Group for the Appellants (Blue, 229),

(ii) the evidence of the First Appellant,

(iii) the evidence of the two people in passing cars at the time of the accident,

(iv) the relevant police and forensic evidence, and

(v) the photographic evidence.

25 Turning now to the salient facts, I start with some earlier background to the events that followed.

26 The Respondent's evidence was that he attended a rock concert at Macquarie University on 29 March 1997. He had driven there with his then girlfriend, her sister and a friend. They stopped at Epping Station to pick up another friend.

27 The Respondent said that he was unfamiliar with the area and was given directions by his girlfriend. They arrived at the university between 12 pm and 1 pm. The Respondent parked his car in a parking area and he and his companions walked to the site of the concert.

28 The Respondent said there were a large number of people at the concert and a number of bands played. They sat on grass and watched the concert in daylight. He thought he had consumed two beers during the day, there being no contention that the Respondent was intoxicated. The Respondent was unsure of how long they remained at the concert.

29 His next memory was waking up in Royal North Shore Hospital nine days later. He remembered that he was wearing shoes which he described as black conga joggers which had a one inch white band between the black upper and brown sole of the shoe. The shoes were tied with white shoelaces. It was accepted that this evidence, never transcribed, had been given on 8 March 2002. That description of his shoe-ware with the white band and white laces was not in dispute.

30 What transpired at the concert and immediately thereafter was amplified by Ms Esther Kendirjian who was one of those who travelled to the concert with the Respondent. She confirmed that the Respondent had been given directions to the site of the concert by his girlfriend. She stated that between the five of them, they had consumed one or two cups of beer during the day.

31 She said that the Respondent had argued with his girlfriend and left the concert half an hour ahead of the four women. He told them he would wait in his car or at the gates. She said he appeared to be well when he left them.

32 For some reason never explained, when the four women left about a half an hour later, the car was not where they had left it in the carpark earlier that day. The Respondent had in fact moved the car elsewhere within the grounds earlier in the day.

33 When the four women could not find the Respondent they took a taxi to Epping Station estimating their arrival at between 8.30 pm and 9 pm.

34 The Respondent's then girlfriend, Ms Gentz, has, since the date of the accident, herself been the victim of a major assault. As a result of this she suffered significant injuries, including brain damage. She was not therefore called to give evidence in these proceedings and no point concerning her absence was taken by the Defendants at trial.

35 Mr Nicholas Anikin, the Respondent's father, said that the Respondent had telephoned him after 8 pm on 29 March 1997 stating that he was lost and could not find his way home. Mr Anikin told the Respondent to go to the Macquarie University office and wait and that he would get there soon. He said that the Respondent sounded normal when he telephoned.

36 Mr Anikin arrived at the university at about 8.30 pm and waited for one to two hours during which period he did not see the Respondent, the young women or the Respondent's car. After looking for the Respondent, he went home.

37 By 1 am or 2 am, the Respondent had not returned home and Mr Anikin went to look for him again. He found the Respondent's car in the university carpark. It was locked. There is no further explanation to be found in the evidence for why the Respondent moved his car as he did, taking with him his car keys. The Appellants' rely, inter alia, upon this seemingly irrational behaviour as of a piece with what is contended to have been the Respondent's later rash behaviour. This was when, according to the First Appellant, the Respondent literally stumbled out on to lane 1 some 10 to 15 metres from and in front of the bus, leaving no opportunity for evasive action. That this occurred was contrary to the findings of the Trial Judge as to this and as to the events that happened; see Red, 54T to 55E. She found it "inherently improbable that he would have leaned forward or walked into the path of a large bus travelling at a speed of between 70 to 80 KPH."

38 Turning now to the events immediately preceding the accident, the Respondent was walking along or beside Epping Road in a westerly direction, there being two lanes upon which traffic proceeded on an eastbound direction. There was a white fog line on the northern edge of lane 1 eastbound. It can be taken that the Respondent in proceeding in a westbound direction was heading towards Epping Railway Station.

39 Enlargements of the photographs taken after the accident (Blue, 165 to 169) were viewed on this appeal. They show Epping Road as a major arterial road and the relevant section of Epping Road upon which the accident occurred, as straight and graded downwards (in the direction of which the First Appellant was driving). This was at a grade of about 7% to 8%. Photo 28 shows the road curving down. Photo 29, taken near the bridge shown on photo 28, indicates steps to the right. It also shows the continuation to the left of the fog line on the northern side of the eastbound lane 1 with a narrow sealed shoulder of the roadway to the left of the steps going upwards. One may safely conclude, in the absence of any sign indicating pedestrian access via the steps, that a person would not know in the dark that it offered a safe path above the road.

40 There was, as I have said, a sealed shoulder adjacent to the eastbound lane 1. It was narrow, some 1.2 metres to 2 metres and, as the photographs show (at Blue, 6) the area north of the fog line was in an area of rough asphalt and a ditch, with rubbish and vegetation, and an adjacent rock wall. The evidence of Acting Sergeant Guff (referred to by the Trial Judge at Red, 45) describes "the fog line adjacent to a dish drain and rock-face on which there were growing small bushes and weeds."

41 Acting Sergeant Guff, as the Trial Judge records, also noted two non-functioning street lights, one opposite to the site of the accident on the southern side of Epping Road and the other on the northern side of the road about 20 metres to the east; Red, 45. However, when asked about the available light in the area, the Trial Judge records that Acting Sergeant Guff

"disagreed that the area was dark, stating that after the ambulance had left he closed the road. He remained at the scene for a further five to six hours when there was no traffic. In that period of time he was able to use street lighting and his torch to locate the plaintiff's wallet behind a bush, high on the rock wall adjacent to the road."; Red, 45

42 In cross-examination the following question and answer appears:

"Q. I want to suggest to you that in fact the scene without the lights from vehicles which had stopped was very dark indeed?

A. As I said I had no trouble driving there, I was there for some probably four to five hours while procedure was taken. I didn't observe any strong deficiencies in lighting. (Black, 76K)

43 Earlier the following question and answer appears in examination in chief:

"Q. The light generally in that area, could you see by it?

A. Yes I had no problems, either driving my vehicle to and from or observing other vehicles or pedestrians in the area.

Q. What was the weather like at the time?

A. From memory it wasn't raining, it was night-time, it was darkness." (Black, 75D)

44 I turn now to the evidence of the First Appellant. He had started his shift at 12.30 pm on 29 March 1997. He took a 50 minute break at 4.30 pm and completed his shift at about 9 pm. His route during the day had taken him over Epping Road. He was familiar with the route, having travelled it for many years.

45 At the end of his shift, the First Appellant turned the sign on his bus to "Special", turned out the internal lights and proceeded towards his depot at 9.07 or 9.08 pm. He approached the intersection of Epping Road from Pembroke Road where he stopped for a red light. When the light turned green, he turned left into Epping Road travelling in lane 1. He says in his statement, "I believe that there were two or three vehicles behind, travelling in lane 2. I could not estimate the distance but they were quite close to me."; Blue, 259J. That evidence was disbelieved. It was contradicted by Mr Matthew Fatches a lay witness. He was a passenger in a car travelling west on Epping Road ascending an incline towards Beecroft. His evidence, as the Trial Judge records, was that there were no cars travelling ahead of the bus, none in lane 2 travelling behind the bus and none behind the bus for a distance which he estimated to be 100 metres." Red, 42J; see Black, 59S.

46 Thus the Trial Judge concludes, "the First Defendant's evidence that he was restricted by other vehicles and the evasive action which he could take was not supported by Mr Fatches who watched the bus travel east in Epping Road at the time of the accident. Mr Fatches said there were no vehicles ahead of, beside or behind the bus. Further, he stated that the bus did not swerve and that it travelled at the steady speed."; Red, 53M.

47 However, the First Appellant and Mr Fatches were in agreement, as the Trial Judge noted, that the bus was wholly within lane 1 at the time it travelled the section of the road where the accident occurred. The Trial Judge, in noting that the driver was extremely upset at what occurred, added "he was most concerned to point out that there was nothing he could have done to avoid impact with the plaintiff." The Trial Judge specifically concluded that, "I relate the inaccuracies in his evidence overall to this anxiety and they are the reason that I prefer the evidence of Mr Fatches." Red, 53

48 In answer to a question in examination in chief about the state of the street lighting going down to Terry's Creek where the accident occurred, he replied, "It was pretty good but a little poor in lighting towards the down hill."; Black, 170Q.

49 Also in examination in chief, asked "Did you alter your speed at or around the point where the speed limit changed?" [It changed from 60 to 80 at the downhill portion.] He replied, "Yes sir" and stated that his speed went from "60 to 70 in as much as it is downhill"; Black, 170W.

50 In cross-examination the First Appellant states, in answer to the suggestion "That at the time you hit him your bus was doing about 80 kilometres an hour", "No, I was doing around 70, 75 nor more than 80." He added that when he hit him, "the impact was around 65"; Black, 175M. The Trial Judge appears to have taken the First Appellant's speed as the experts did, namely, at 70 kilometres per hour; see Red, 50J.

51 The First Appellant's lights were on low beam. It was not disputed that the range of the headlights of the bus driven by the First Appellant was at least 50 metres and that the lights were trained towards the left-hand side of the carriageway; see Red, 51S and Blue, 147-8 Report of Mr Woodward the Respondent's expert. This is what is said by Mr Woodward regarding brightness contrast and visibility of the Respondent

" ...The main power of the low beam system is directed down and to the left. This means that the highest level of illuminance falls on the lower portion of the object, where the background, the pavement surface and the rock wall in this case, is relatively close. If they both have the same reflectivity, there will be little contrast and little probability that the object will be detectable by the driver. However the relative angles of the object and wall are in the vicinity of 90 degrees, whilst the roadway should carry the shadow of the illuminated plaintiff.

2D. It was stated the plaintiff was wearing black and white shoes at the time. An examination of police photograph number 2 showed that the surfaces of the roadway and the path beyond the edge line were of a mid-grey colour. The contrast in colour between the road surface and bits of white rubbish in the walking area suggest the shoes worn by the plaintiff would have provided a visual cue immediately they were picked up by the low-beam headlights along with the fact that they were moving. The background illuminated by the low-beam lights would contrast with the vision of the Plaintiff due to the angle of the rock embankment running parallel with the direction of travel of the bus. Not having seen the clothing, which the Plaintiff wore at the time, and only having the broad description given of it, if it were composed of dark colours, then its reflectivity would be of the order of 5-10%."; Blue, 148O.

52 Earlier, Mr Woodward remarks on the relevance of brightness contrast and reflectivity.

53 There was no dispute between the experts as to the maximum useful range of the bus's low beam headlights as being about 50 to 60 metres in lighting an otherwise unlit road. However, Mr Joy for the Appellants, after commenting on the lack of direct street-lighting, has this to say (omitting footnotes) about the visibility of the Respondent to the driver on approach.

"Section 3 of this report examined the street lighting on the section of Epping Road near the incident location. The northern side near where Mr Anikin had been walking before he was hit by the bus was not provided with any lighting, and that the nearest street light on the southern side of the road was reportedly not working at the time of the incident. Mr Sierra's view of the left edge of the road, and therefore of Mr Anikin, was thus fundamentally reliant on the light shed by the headlights of the bus.

Since Mr Sierra was driving with opposing traffic approaching on the westbound lanes, he would have been using the bus's low beam headlights. It is generally accepted that typical low beam headlights, complying as is required with Australian Design Rules for motor vehicles, have a maximum useful range of about 50 to 60 metres in lighting an otherwise unlit road.

However, the actual range at which an object about pavement level, eg, a pedestrian, will be visible is dependent on the colour of the object and the background, the surrounding viewing conditions, including glare from approaching vehicle lights, and the eyesight of the viewer. All other things being equal, a light coloured object against a dark background will be significantly more conspicuous than a dark coloured one against the same background when subjected to the same lighting level.

Mr Anikin was walking on the darkest part of this section of Epping Road prior to be struck by the bus. It is understood from both Mr Sierra's statement and that of witness Matthew Fatches that Mr Anikin was wearing dark clothing. His dark clothing would reflect a limited proportion of any light directed on to them and so would contrast poorly with the dark brown rock cutting. This would limit his conspicuity.

It was a section of the road where there is no provision for pedestrians and so it was quite possible drivers would have an expectation that there would be no pedestrian activity there. It is likely Mr Sierra would therefore be directing less attention to the side of the road in this regard than if he was driving through, for example, an area of expected or known pedestrian activity.

There were oncoming vehicles westbound, presumably with headlights on. The glare of headlights of approaching vehicles, even on low beam, detracts from the ability of a driver to perceive objects in otherwise poorly lit environments. This would have further adversely affected the conspicuity of Mr Anikin." (Blue, 239-40)

54 The Trial Judge evidently preferred the expert opinion of Mr Woodward to that of Mr Joy. However, neither expert was asked specifically whether, if the Respondent had been walking on the shoulder of the road immediately adjacent to lane 1 rather than on lane 1 itself, what the consequences for his visibility would have been. However, Mr Woodward's report, earlier quoted, was not controverted when he said that "the main power of the low beam system is directed down and to the left", left being the direction of the shoulder of the road. I have earlier quoted what he said about the Respondent's shoes (with their white stripe) affording a visual cue despite his dark clothing. The Trial Judge found that "There was nothing to obscure the First Defendant's view of the Plaintiff as he walked to his bus. Traffic conditions were light."; Red, 51T. Elsewhere, the Trial Judge rejects the contention of the First Appellant that, "the Plaintiff moved onto the trafficable portion of lane 1 by up to two metres south of the fog line". It was found by the Judge, and not disputed on appeal, that the Respondent "was positioned somewhere between 1.3 and 2.07 metres south of the fog line"; Red, 54N. This was based on:

(i) the evidence of Mr Fatches concerning the spray of glass coming from beneath and over the rear of the bus, the positions where blood was noted and photographed and the point at which the Plaintiff came to rest after the accident,

(ii) the marks on the road leading from point A to point B and to the fog line are scuff marks left by the band of white around the shoes the Plaintiff was wearing at the time of the accident, and

(iii) whilst according to the First Appellant, the Respondent was two metres south of the fog line and continuing to walk towards the bus at the time of impact, leading to Mr Joy placing the point of impact at a particular point on the sketch plan, the Trial Judge states "If I were to accept the First Defendant's other evidence, which is supported by the evidence of Mr Fatches, that he was driving his bus wholly within lane 1 at the point of impact, he would have collided with the Plaintiff in the centre of the front of the bus" whereas "this fact is not supported by the evidence of minor damage only to the nearside edge of the bus or by the nature of the injuries received by the Plaintiff; Red, 52-3.

55 I come now to the events immediately prior to impact and the impact itself.

56 The Appellants in argument particularly relied on the following evidence given by Acting Sergeant Guff:

Q. As best you can, what was the conversation between you and the driver of the bus?

A. The driver of bus seemed to be suffering shock and upset. He was asking me about the condition of Mr Anikin. He also said to me that `he just stumbled out, I tried to swerve', words to that effect." [emphasis added]

57 It appears that that evidence of how he "just stumbled out" was, however, not accepted by the Trial Judge who generally did not find the First Appellant a satisfactory witness. Moreover, in no other of the several accounts given by the First Appellant is there any suggestion of a man "stepping out". Rather the account describes how "a man was stopping my bus" standing approximately two metres from the kerb" and "in my lane", "approximately ten metres" ahead (he subsequently changed that evidence to 15 metres in cross-examination; see Black, 171L to R and 173F to P.

58 Then there are the two similar but not identical statements made by the First Appellant on 10 April 1997, and to the police on 12 July 1997 (Blue, 257 and 262 respectively). In the first statement he says:

"I first sighted this man when I was about 15 metres from him. He was about two metres from the kerb in lane 1. I sighted his [sic] male jumping around and putting arms into the air as if catch my attention and stop the bus. It appeared that his intention at the time was to stop the bus with his body. As soon as I saw him, I braked and swerved the bus to the right. I was aware that there were cars in lane 2, only short distance beside and I moved over as far as I could. There was traffic coming in the opposite direction and I was very fearful that either the bus or one of the cars in lane 2 would be forced over to the incorrect side of the road, which would have resulted in head-on collisions."

59 Perhaps significantly, in the statement to the police three months later, is a difference in the corresponding section which reads:

"I saw a man about 15 metres ahead of me" [emphasis added]

- not

"I first sighted this man when I was about 15 metres from him".

Moreover, in his evidence in court, he says he first saw the Respondent 10 metres away, not 15 metres.

60 The second sentence of the later police statement then reads:

"He was walking about two metres from the kerb in lane 1". [emphasis added]

Whereas, in the earlier statement the inference is that he was not moving forward at all. Rather he is simply jumping around, on the spot, to catch attention. That static impression is reinforced when earlier it is said

"he was about two metres from the kerb in lane 1".

Both statements refer to the jumping around and putting arms or hands into the air as if to catch attention and stop the bus. But neither a forward walking movement nor standing still are consistent with "stepping out" into the first lane from the shoulder of the road.

61 These differences occur in circumstances where, though the Police Station statement is later, it might be expected that the First Appellant would be more cautious. This was after all a statement given directly to the police prefaced by the words

"I shall be liable to prosecution if I have wilfully stated anything which I know to be false or do not believe to be true".

The police statement in particular makes it difficult to put any credence on the notion that the Respondent had "stumbled out" from the adjacent shoulder area. It is not entirely irrational for a pedestrian to be fearful that if he walked on the narrow shoulder of the road, he might not be seen as readily by a car on lane 1, with the risk of being struck against the rock wall should a car or bus deviate from that lane towards that shoulder area. There was also the fact that this adjacent shoulder area was littered with rubbish and had a dish drain running alongside.

62 Finally, when the First Appellant was giving evidence in chief, he simply described the situation as "suddenly a man was stopping my bus" and then in answer to the question "What was the first you saw of him?" he replied, "he was jumping to stop my bus" being "approximately two metres from the kerb", "in my lane" and being "approximately 10 metres ahead when he saw him; Black, 171L to R. Then in answer to the question, "Which way was he facing?" his response was "Towards my bus"; Black, 172C.

63 The Trial Judge does not explicitly find that the Respondent was walking on the roadway as distinct from the adjacent shoulder of the road. But the Trial Judge did conclude that the Respondent would have been visible for at least 50 metres. This rather suggests that the Trial Judge thought that he was throughout the 50 metres on lane 1 itself, reinforced by the evidence that he was "walking" towards the bus. It is conceivable that the Trial Judge thought, relying on the earlier quoted passage from Mr Woodward's report ("the main power of the low beam system is directed down and to the left"), that the Respondent was sufficiently visible to the driver even if he was on the shoulder alongside lane 1, for the 50 metres.

64 The Trial Judge sums the position up as she saw it at 54T, "[A]ccording to the First Defendant the Plaintiff was moving towards the bus intent on boarding it. The Plaintiff cannot say what he was doing. There is no evidence that he was intoxicated at the time of impact or that he was experiencing any other condition which would cause him to behave carelessly.

65 She therefore found it inherently improbable that he would have leant forward or walked into the path of such a large bus travelling as it was at a speed of between 70 to 80 kph. That finding is necessarily an inference, but based on the evidence, including the advantage he had from witnesses particularly the First Appellant. For my part, I would not disturb that finding. I am satisfied that it was properly open to be made, though being an inference it is not immune from appellate intervention.

66 There were, as the Trial Judge earlier explained, a number of indications that the anxiety of the First Appellant may well have led him to distort or otherwise give unsatisfactory evidence not supported by evidence of the passers-by. They included the false suggestion of presence of traffic in the opposite lane preventing or inhibiting a sharper swerve as also the false suggestion of presence of traffic behind the bus. Both suggestions are contrary to the disinterested evidence of the two passers-by. The Trial Judge cites evidence of the First Appellant in cross-examination at Black, 174D to M as to his attempting to avoid the Respondent by swerving, which was contradicted by one independent observer (Mr Fatches); she also properly found important the absence of brake marks on the road (see below). She also notes the discrepancy between the First Appellant's original evidence of first seeing the Respondent at 15 metres, then changing it to 10 metres at trial.

67 In circumstances where, as the Trial Judge recognised, there was no possibility of the Respondent giving evidence, the Trial Judge necessarily had to reach a conclusion in which the various and conflicting statements of the First Appellant clearly did not assist his case. I am satisfied that it was open to the Trial Judge to conclude that it was more probable than not that the Respondent was in fact walking upon the first lane, rather than that he was walking on the adjacent shoulder of the road where it is possible though not certain, that he may have been less readily visible. The fact that the lights were turned down and to the left would possibly negate any lack of visibility, as I have said.

68 I turn now to the evasive action available to the First Appellant and the evidence of what the First Appellant actually did. According to the First Appellant, upon first being aware of the Respondent in the way I have described, and having given two conflicting accounts of the distance (15 metres and subsequently 10 metres), the First Appellant said the following in cross-examination:

"Q. What I want to suggest to you is when you saw the man you tried to put on your brake?

A. Yes sir.

Q. But you didn't brake until after your vehicle had struck him?

A. No sir.

Q. But you're saying you were able to brake within ten metres of being able to see him?

A. Sir I brake, swerve and I straighten the bus.

Q. What I want to suggest to you is that you didn't swerve?

A. I swerved sir.

Q. that you didn't have time to swerve?

A. I was able to swerve, but with caution because there were cars, if I swerve too much I will hit the other cars coming opposite my direction.

Q. Mr Sierra I want to suggest to you that there were no cars coming in the lane behind you that would have interfered with you swerving into the lane if you had have had room Would you agree with that?

A. At the back of my bus in my lane I cannot see if there was a car, but in the other yes, in my right yes. But in the back I cannot see it's so big and so high the bus I cannot see.

Q. What I suggest to you is that there was no vehicle for 70 or 80 metres in the lane beside the bus travelling in the same direction as the bus at the time of the accident. Would you agree with that?

A. I don't remember sir.

Q. When you saw the man in front of you for the short time that you had you were trying to do something about either swerving the bus or braking?

A. I did the best I can sir.

Q. From the time you saw him?

A. Correct sir.

Q. But what I suggest to you si that from the time you saw him you really only started to brake just after you hit him or about the time you hit him?

A. No sir, I brake, swerve and hit him sir." (Black 174N to 175J)

69 Assessing this evidence, one starts with the fact that there were according to the passers-by, no cars in the right-hand lane or indeed behind. It is possible that the First Appellant was not aware of the position of cars behind in the split second he had to act. But he should certainly have been aware of whether there were cars to the right. One can accept there were no cars to the right, as the Trial Judge concluded.

70 Before dealing with what the First Appellant could have done, it is necessary to review the evidence to record what the First Appellant did do. The assertion that the First Appellant both braked and swerved is directly inconsistent with the evidence of the independent witness Mr Fatches. Mr Fatches maintained that at all times the bus remained in lane 1 eastbound and did not in any way deviate from its path of travel; see Black, 60R to S.

71 Furthermore, as noted by both experts, there were no brake marks observed at or about the perceived point of impact. This would have been expected under pre-impact heavy application of the brakes, even in spite of the fact that the bus was fitted with anti-lock brakes (Blue, 135). The bus came to rest some 180 metres beyond point A on the police accident sketch plan (and not the 10 to 15 metres as initially suggested by the First Appellant); Black, 172N.

72 The Respondent's expert, Mr Woodward, makes a telling point when he says:

"With the absence of heavy braking marks being detected, assuming the crash investigation unit that attended had the special skills referred to above, I am of the opinion that the driver's attention was focused elsewhere. In his statement to the police

`I saw a man about 15 metres ahead of me'

when read with his references to cars beside and behind him, confirms that he was not keeping a proper look-out ahead of him. If he was travelling properly in lane 1, there is no reason why he should be concerned with traffic elsewhere. (If he had been looking for obstacles ahead he would have seen the Plaintiff much earlier.)"; Blue, 135.

73 Finally there is the virtual catapulting of the Respondent after striking the modesty panel inside the doors of the bus, which was more consistent with braking having been initiated at some time after impact.

74 I thus conclude that on the evidence, it was open to the Trial Judge to conclude that, "the First Defendant did not take appropriate evasive action"; Red, 54 I.

75 As to what evasive action was appropriate, I turn to the evasive action that the First Appellant could have taken. That question was considered by the Trial Judge on the basis that the First Appellant would have been able to observe the Respondent for a range of at least 50 to 60 metres so concluding that it was thus possible to have taken action either to stop the bus, sound the horn or to otherwise take effective evasive action by swerving.

76 One starts with the fact that the First Appellant was an experienced driver, having driven buses for the Second Appellant for some 15 years prior to the accident (Blue, 257L). The First Appellant readily conceded that if he had seen the Respondent

"30 metres in front of you and there were no cars in the lane beside you, you would have ample time to swerve into that lane and miss him, wouldn't you?"

And likewise,

"If you had seen him 30 metres away you would have had ample time to blow your horn, wouldn't you?"

which again is conceded; see Red, 41W to 42D and the cross-examination there quoted.

77 As to reaction time and capacity to take such evasive action, Mr Joy the Respondent's expert accepted that the appropriate reaction time for a professional driver in the circumstances was in the order of 0.75 to 1.25 seconds, corresponding to a reaction within a physical distance of approximately 15 to 24 metres. The Appellants sought to rely upon their expert Mr Woodward's comment at paragraph 6.07 of his report dated 12 June 2000 (Blue, 128N). This was to the effect that under night conditions and the darkened road, a driver's reaction may range as high as 3 seconds. Accordingly it was said that were the First Appellant to be driving at 70 to 80 kilometres an hour prior to impact, then he would not have had sufficient time to avoid the accident even if he had observed the Respondent from a distance of 50 metres.

78 However, this statement was significantly qualified by Mr Woodward in cross-examination. Mr Woodward accepted that in view of the fact that the First Appellant was an experienced professional driver, his reaction time should have been one second and not three seconds; Black, 104S to 105C.

79 In Mr Joy's report of April 2000 (Blue, 240-1) reference is made to "an empirical demonstration given by Mr Sierra using the actual bus". He said in his report that

"a lateral displacement of say one metre to take at least one second, covering at a constant 70 km/h about an additional 19.5 metres".

80 This demonstrates that, with a further one second to carry out the swerve, and assuming that the one second reaction time translates, as the evidence provides, to about 24 metres at 70 km/h, a swerve could be effected in less than 50 metres. Furthermore, a swerve to the right of merely one metre would have been sufficient to avoid the Respondent, even with him at 1.7 metres from the fog line and with the bus 2.5 metres wide in a lane 3.2 metres wide, provided the bus was at least .7 metres in from the northern fog line. Given the absence of traffic in lane 2, that would moreover have been a safe manoeuvre so far as traffic in that lane was concerned.

81 At Blue, 241L, Mr Joy says the following as to braking:

"However, as an indication only, if it was assumed he braked and swerved simultaneously, then adopting a generous maximum overall braking performance capacity of around 0.6 G, where capital G is the natural acceleration of a falling object under the influence of gravity, ... and adjusting this value to 0.53 G to accommodate the road gradient, Mr Sierra could have slowed the bus from his stated speed of 70 km/h to about 48 km/h over the 19.5 metres discussed above."

82 Earlier in Mr Woodward's report for the Respondent, at 2.09 (Blue, 135) he states:

"The bus was fitted with anti-lock brakes, which, under half-braking, would have allowed it to be steered around an obstacle in its path. With anti-lock brakes being fitted, then the natural reaction to brake heavily and swerve at the same time would have permitted the bus to deflect from its straight ahead course and the possibility of the collision between the Plaintiff and the bus would have been mitigated."

83 Summing up, if one premises reaction time at one second or 24 metres, and adds a further 19.5 metres to effect a swerve, and given the scope for braking, the accident could have been avoided if the Respondent were seen at 50 metres.

84 The Trial Judge concluded that "the First Defendant could have stopped the bus which he was driving, sounded the horn on the bus, or taken effective evasive action if he had seen the Plaintiff from a distance of 30 metres." While that conclusion may be more questionable, despite the First Appellant's concession, the Trial Judge had earlier concluded the First Appellant had the capacity to see the Plaintiff from a distance of at least 50 metres.

85 I am however satisfied that, postulating visibility at 50 metres, there was sufficient basis for the Trial Judge to reach the conclusion she did that evasive action could and should have been taken.

86 I am therefore satisfied that the findings of the Trial Judge do not disclose appealable error in concluding that the First Appellant, in failing to take such evasive action was liable in negligence. This was not a situation such as that described in Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 where the Defendant came upon the victim of the accident with insufficient warning to avoid an accident. However, in considering now the question of contribution, I need to consider whether there was appealable error in the Trial Judge's further finding that the First Appellant was "primarily responsible for the accident"; Red, 55.

87 However, before consideration of this aspect, pertaining to contributory negligence, I should note on the earlier question of negligence that, since preparing these reasons, I have had the advantage of reading the draft judgment of Beazley JA to which Heydon JA concurs which concludes that there was no negligence. I shall refer to it as "the majority view". It leads me to make these additional observations concerning liability in negligence. I do so to ensure that I have explained as fully as I can why I would still adhere to my earlier conclusion, while respecting the view to the contrary.

88 The majority view does not accept the Trial Judge's finding that the Respondent would have been visible for at least 50 metres. That was the Trial Judge's primary finding. (There is also a subsidiary finding that the First Appellant should have seen the Respondent at a distance of 30 metres; that must of course follow from the first proposition.) It is said in the majority view that "there was no evidence however as to when the Respondent first stepped onto the carriageway" (per Beazley JA at [12]) it being said to follow that, being on the shoulder of the road it was not established that he would have been visible at all in that 50 metres. However, the First Appellant's own expert Mr Joy, concludes (Blue 240 and 244), as recorded by the Trial Judge (Red 50), that

"the first defendant had understated the distance from which he saw the plaintiff and proposed that, in order to carry out the actions of braking, swerving and straightening the bus, he probably initially perceived the risk of collision with the plaintiff from 34.5 to 43.5 metres."

Indeed Mr Joy adds the words "at least" before the reference to "34.5 to 43.5 metres back from impact". As the First Appellant's evidence of the Respondent's jumping out at 10 to 15 metres was disbelieved, even evidently by Mr Joy, the evidence of Mr Joy as to his view of when the Respondent was first seen by the First Appellant has some cogency. This is so, despite Constable Shirdon's observations that there were no marks of braking on the road after the accident, and it having been brought to a halt 108 metres past impact (as noted by the Trial Judge at Red 51).

89 The majority reasoning, as I have said, then proceeds that the Respondent's visibility was not established at 50 metres and the Trial Judge's conclusion to the contrary was in error, as it was not shown that the Respondent was actually in lane 1, as distinct from being on the adjoining shoulder of the road. However, there was evidence from the First Appellant's expert, Mr Woodward, that the Respondent would have been visible on the shoulder of the road. I will return to that evidence shortly.

90 Finally, the majority view proceeds on the premise that the only evasive action that could have been taken was braking. No reference is made to evasive action by way of swerving (or sounding the horn). That indeed was a basis for the Trial Judge's conclusion as to the First Appellant having been negligent.

91 The conclusion reached by the Trial Judge was based in part on an assessment of witnesses. There the Trial Judge retains an advantage, so constraining appellate intervention in accordance with well-settled principle. But the conclusion also involves inference from such findings of fact, where it is said that "in general an appellate court is in as good a position as the Trial Judge to decide on the proper inferences to be drawn" from the facts as established or undisputed; Warren v Coombs [1979] HCA 9; (1979) 142 CLR 531 at 551-2. The words "in general" indicate that some inferences are so closely bound up in the disputed factual determinations made by the Trial Judge that it is difficult to separate inference from fact-finding. Appellate constraint upon such fact-finding so closely bound up has implications for the readiness with which an appellate court should substitute its own inference. The present case illustrates this. Here inference (as to when the Respondent first became visible) clearly enough depends both on expert evidence and upon an assessment of the First Appellant's veracity. The latter was not accepted by the Trial Judge, who found the First Appellant unreliable as a witness. That, with its inherent improbability, led to the rejection of the First Appellant's contention, that the Respondent had jumped out at the bus at 10 metres or, as he varied his account, 15 metres. It will be appreciated of course that the Respondent has no recollection of the actual immediate circumstances of the accident.

92 The majority view then proceeds on the footing that for the Respondent to have been visible from 50 metres, he must have been actually on lane 1 at the commencement of the 50 metres. However, there was evidence from Mr Woodward, the Respondent's expert, which took into account that the Respondent had shoes with white markings. That, with the fact that the low beam was directed down and to the left and the relative angles of the object (the Respondent against the wall) alongside the shoulder of the road, led Mr Woodward to conclude that he would have been visible; see earlier. The Trial Judge accepted that evidence in preference to the evidence of the First Appellant's expert. This finding by the Trial Judge was also in my view properly open to her on the evidence and not one which should be disturbed at appellate level.

93 Thus it follows that whether the Respondent were actually on the first lane or on the shoulder of the road, there was a proper basis for the Trial Judge to conclude, as she did, that the Respondent would have been visible for 50 metres to a reasonably alert driver.

94 The second part of the majority reasoning proceeds on the basis that, if one considers braking as the only relevant evasive action, at an assumed speed of 80 kilometres per hour (the maximum speed estimated by the First Appellant whose evidence varied on this from 70 kilometres per hour, to 75 kilometres per hour, to 80 kilometres per hour) this gives a reaction time of one second. The consequential travelling distance would be 22 metres. To that 22 metres is to be added the stopping distance of 30 metres, with the result that the bus would be brought to a halt in 52 metres. The visibility for the lights was estimated by both sets of experts at between 50 to 60 metres. That reaction and braking calculation, coupled with the earlier finding of the Respondent's visibility for 50 metres at least, was one of the bases for the Trial Judge's conclusion of negligence. The majority view rejects the visibility finding. But if it were maintained, braking over the 50 metres would as a matter of common sense have more likely than not avoided the accident, and certainly rendered it less severe in terms of the catastrophic injuries suffered. This avoidance is made the more likely with the probability of the horn being sounded and the noise of the braking alerting the Respondent.

95 However, the Trial Judge was of the view that evasive action was possible in a second way. This was by swerving to the right (as the First Appellant claimed to have done but clearly did not do so in time, if at all). The Trial Judge accepted that there was independent evidence that there were no cars in the right-hand lane, rejecting the First Appellant's evidence to the contrary. Such a deviation or swerve of even 1 metre, particularly if accompanied by pressing of the horn, would on the evidence have permitted the First Appellant to avoid the Respondent within the 50 metres, using the tables to which the majority judgment refers, being the standard tables in evidence and not in dispute. I should add that there was no evidence from anyone, in particular not even Mr Joy, the First Appellant's expert, that this deviation would have been dangerous. Indeed Mr Joy seems to have assumed otherwise, judging by the tenor of his report. It is not open for an appellate court to assume to the contrary, in the absence of evidence.

96 Again, I would myself not differ from the Trial Judge in reaching the conclusion she did that this avoidance action by swerving was available. While I appreciate that the inference drawn by the majority judgment is a possible one, I prefer to leave undisturbed the inference drawn by the Trial Judge on the basis that I do not consider that the contrary inference should be preferred.

Contributory Negligence

97 I turn now to contributory negligence. One starts with the proposition that an appellate court will not interfere with a Trial Judge's apportionment of responsibility or damages unless it can be shown that he or she had erred in principle or misapprehended facts or the apportionment is manifestly erroneous; Phillis v Daly (1988) 15 NSWLR 65 at 78 per McHugh JA. Recent reminder of the "special sacrosanctity" of Trial Judge determinations of proportions of contributory negligence is to be found in Tabvena v Oag ([2002] NSWCA 313, 24 September 2002, unreported) in the following statement by Meagher JA at [9]:

"In Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492 the High Court of Australia delivered a judgment which made it quite clear that a finding of the proportions of contributory negligence (either by a Trial Judge or by a jury) attracts a special sacrosanctity; and in Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 75 ALJR 867 the High Court was constrained to remind us that Podrebersek's case meant what it said."

98 Here the evidence clearly establishes that the bus driven by the First Appellant would have been visible to the Respondent from a distance of 108 metres as he walked west along Epping Road. It is also to be taken that the Respondent was walking between 1.3 and 0.7 metres south of the fog line at the time of impact. Accepting both those propositions, as did the Trial Judge, she nonetheless concluded that contributory negligence was to be apportioned only 25% against the Respondent.

99 But the Trial Judge also accepted the Appellants' submission,

"That for the capacity to see the approaching bus, [the Respondent] should have stepped away from the trafficable portion of lane 1, and that, if he had done so, the accident would have been avoided"; see Red, 56T.

100 The Appellants thus press that when regard is had to "relative culpability", in the sense of the degree of departure from the standard of care of the reasonable man, and "causal potency" in the sense of relative importance of the acts of the two parties in causing the damage (Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 at 532) here, even accepting that the First Appellant was negligent, the extent of contributory negligence should be at least 65%; Orange, 18.

101 The Appellants rely upon Schieb v Abbott (1999) 27 MVR 285. There it was held that the plaintiff had failed to take care of her own safety and was primarily responsibility for the accident and thus was 65% contributorily negligent. This was a case where the plaintiff moved off the footpath between two parked cars without looking into the middle of three lanes when hailing a taxi. The defendant was travelling in the middle lane at 50 to 60 km/h and saw the plaintiff emerging between the two parked cars on his left. He was unable to stop in time before he struck her. Unlike the present case, there was a stream of traffic on his right. He could not veer either left or right without colliding with stationary or moving vehicles. On appeal, it was held that there was a duty of care in the driver even to those who may themselves be careless, imposing a standard of care which requires the driver of the car to be particularly diligent in the case of pedestrians.

102 The Respondent seeks to distinguish Schieb v Abbott (supra) on the basis that the First Appellant could properly be held to be primarily responsible for the accident. The Respondent thus contends:

"41. The Respondent submits that Her Honour was correct in rejecting the submission that the Respondent should not have been walking on the relevant section of Epping Road at all. Indeed, as alluded to above, bearing in mind (a) the degree of darkness, (b) the absence of signage, (c) the location of a perambulator ramp on the northern gutter leading onto the shoulder of the roadway near the commencement of the footpath leading up to the residences with no corresponding ramp on the southern gutter, and (d) the ill-defined and unlit state of that footpath, the direction thereof being unknown upon approach, Her Honour was correct to find that it was logical for those unfamiliar with the area to follow the main road. This submission is clearly fortified by the fact that the same course appears to have been followed by a number of subsequent pedestrians on the very night of the accident, whom, themselves, were uncertain as to the direction of the northern footpath (Black Book - 84)." (Orange, 29)

103 But accepting that the Respondent was walking, not on the adjacent shoulder of the road, but on the laneway itself, with its added danger, is then the Respondent of greater culpability, or his acts of greater causal potency, in the accident that befell him? While it is true that the Respondent may have thought that he would be safer, perhaps because more visible or less likely to be crushed against the rock wall, walking on the first lane of the roadway than walking on a rubbish filled shoulder with a dish drain, it was undoubtedly a significant failure on the Respondent's part to care for his own safety.

104 Moreover the failure to remove himself from the road once the bus was visible when he still had 108 metres to do so, was a very serious act of carelessness as regards his own safety.

105 In all the circumstances I must conclude that, despite the strong constraint on appellate courts interfering with proportions of contributory negligence, the apportionment of liability here did give rise to appealable error within one or other of the categories identified by McHugh JA in Phillis v Daly (supra). It was so manifestly erroneous as to indicate either an error in principle or misapprehension of facts. It must therefore be re-apportioned to reflect what is undoubtedly the greater responsibility of the Respondent. In so concluding, I do however still consider there remains substantial responsibility with the Appellants. In my judgment, that should be reflected in a substantial reduction in the Respondent's damages so that the proportional liability becomes 60% Respondent and 40% Appellants. I appreciate that such an apportionment cannot be a matter of exactitude; there might well be a sustainable case for a lesser amount to the Respondent. But doing the best I can, I believe the apportionment so re-done reflects a reasonably just outcome.

ORDERS

106 In my opinion there should be substituted for the judgment of the District Court a reduction in the Respondent's damages, by reason of contributory negligence, as earlier set out.

107 As to costs, I would make no order as to costs on the appeal and leave undisturbed the order as to costs at trial.

108 Thus I would order:

(a) that the appeal be allowed so far as order 2 is concerned (para 9.2 of the judgment) by reducing the Respondent's damages on account of contributory negligence by 60% in lieu of 25%.

(b) no order as to costs on appeal but the costs orders at trial be left undisturbed.

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LAST UPDATED: 13/03/2003