Warren v Coombs and Another
[1979] HCA 9(1979) 142 CLR 531
(1979) 53 ALJR 293
(1979) 23 ALR 405
(Judgment by: Aickin J)
Warren
vCoombs and Another
Judges:
Gibbs ACJ
Stephen J
Jacobs J
Murphy J
Aickin J
Legislative References:
Supreme Court Act 1970 (NSW) - s 75A(5)
Law Reform (Miscellaneous Provisions) Act 1965 - The Act
Supreme Court Act 1970 - The Act
Case References:
Benmax v. Austin Motor Co Ltd - [1955] AC 370; [1955] 1 All ER 326
Cashman v. Kinnear - [1973] 2 NSWLR 495
Chemical Industries of Australia and New Zealand Ltd v. Murphy - (1973) 47 ALJR 122
Committee of Direction of Fruit Marketing and Schroder v. Spence - [1954] St R Qd 295
Da Costa v. Cockburn Salvage and Trading Pty Ltd - (1970) 124 CLR 192
Edwards v. Noble - (1971) 125 CLR 296; [1972] ALR 385
Flannery v. Cohuna Sewerage Authority - (1977) 51 ALJR 135
Jones v. Capaldi - (1956) 98 CLR 615
Mann v. Mann - (1957) 97 CLR 433
Mersey Docks and Harbour Board v. Procter - [1923] AC 253; 39 TLR 275
Montgomerie
&
Co Ltd v. Wallace-Jones - [1904] AC 73
O'Neill v. Chisholm - (1972) 47 ALJR 1
Paterson v. Paterson - (1953) 89 CLR 212
Piro v. W Foster
&
Co Ltd - (1943) 68 CLR 313
Powell v. Streatham Manor Nursing Home - [1935] AC 243
Qualcast (Wolverhampton) Ltd v. Haynes - [1959] AC 743; [1959] 2 All ER 38
SS Hontestroom v. SS Sagaporack - [1927] AC 37
Voulis v. Kozary - (1975) 7 ALR 126
Ward v. James - [1966] 1 QB 273; [1965] 1 All ER 563
Webb v. Bloch - (1928) 41 CLR 331
Whitely, Muir
&
Zwanenberg Ltd v. Kerr - (1966) 39 ALJR 505
Judgment date: 13 March 1979
Sydney
Judgment by:
Aickin J
This is an appeal from the Court of Appeal of the Supreme Court of New South Wales brought pursuant to special leave granted by this court on 26 August 1977. The plaintiff in the action claimed damages for negligence arising out of a collision between the bicycle which he was riding and a motor car driven by the first defendant (whom I call the defendant) and owned by the second defendant. The accident occurred on 6 March 1969 when the appellant was almost 13 years old, but the proceedings were not commenced until 3 May 1974 and the hearing did not take place until 1 March 1976.
The plaintiff suffered very serious injuries including brain damage and severe physical injuries causing permanent mental and physical disability. The trial judge assessed the damages which he would have awarded if the plaintiff's cause of action had been made out, but he found that the plaintiff had not proved negligence on the part of the defendant and, accordingly, dismissed the action. There was, therefore, no basis upon which he could have considered any question of apportionment, but it was not disputed before us that if the defendant were found to be negligent, there should be a finding of contributory negligence on the part of the plaintiff.
The plaintiff appealed to the Court of Appeal (Moffitt P, Hutley and Samuels JJ A) which dismissed the appeal; Moffitt P dissenting. The basis of the appeal was that the trial judge should have held that the defendant was negligent in not keeping a proper lookout and in driving at an excessive speed. The first ground was not pursued in this court in view of the trial judge's finding that the defendant saw the plaintiff as soon as he came in sight. As to the second ground, it is necessary to examine the findings and some of the evidence. However, the question really depends on inference from the facts as found. It will be convenient to begin by stating the background facts and the findings of the trial judge.
The accident occurred in the vicinity of the intersection of Funda Crescent and Burke Road, Lalor Park. The intersection is a "T" intersection, Funda Crescent terminating at the point of the intersection. Funda Crescent was about 24 feet wide between the gutters and ran approximately north-south, Burke Road running approximately east-west. The collision occurred at or about the south-east corner. On that corner there was a house facing west into Funda Crescent having a frontage of 40 feet to Burke Road with a hedge inside the fence along that frontage. Between the gutter in Burke Road and that fence there was a footpath area approximately 12 feet 10 inches wide, although there was at the time no paved footpath. In Funda Crescent there was a footpath area 12 feet 10 inches wide, again with no paved footpath.
The accident occurred between 6.00 and 6.30 in the evening and, as the trial judge found, visibility was quite good, there being no need for headlights or parking lights. The evidence showed that sunset was at 6.26 pm.
The plaintiff and a friend slightly younger than him left his home in Funda Crescent, which was about six houses up from the corner, in order to take his friend home. The plaintiff was riding the bicycle and his friend riding on the luggage carrier. The plaintiff proceeded in a northerly direction down to the intersection with Burke Road. The defendant had set out with four passengers in his car, two in the front seat and two in the back, from Ennis Street, which was the next street entering Burke Road in an easterly direction from the corner of Funda Crescent. He drove to the corner and turned left and proceeded uphill along Burke Road. The trial judge said: "Burke Road at that point is uphill although Mrs Salter described it as 'a slight incline' and according to Mr Warren, 'you wouldn't call it steep but it is up'."
The defendant was asked in cross-examination: "But it is a substantial upgrade?" and answered: "It is a steep upgrade." Funda Crescent sloped downhill from the plaintiff's home to the corner, but the angle of neither slope was measured. In addition the roadway of Funda Crescent, at the point where it met Burke Road, sloped downwards from west to east, and conformed to the slope of Burke Road. The defendant said that he had accelerated up the hill and had just changed into top gear when he saw the plaintiff emerge from Funda Crescent. He said that he immediately braked as hard as he could, but none the less the collision occurred. He also said that he was going at a speed which he estimated between 25 and 35 miles per hour, other witnesses estimating at between 30 and 35 miles per hour. The process of braking in that manner produced skid marks on the road, which were measured and their location is not in contest. They stretched over a distance of 52 feet and ran almost directly up Burke Road. The tyre mark on the northern side was 10 feet 10 inches from the line where the bitumen of the road and the concrete gutter meet and the two tyre marks were 54 inches apart measured from the outer edges. The marks terminated at a point 49 inches west of the prolongation of the eastern kerb of Funda Crescent. On this basis it appears that the forward end of the skid marks was 16 feet 11 inches from the fence line of the corner house, from which it follows that they began some 4 feet from the beginning of the Burke Road fence of that house. From the measured width of Burke Road, it appears that the nearside wheels of the car would have been about 8 feet 8 inches from the southern edge of the bitumen. There was no evidence as to the overall length or width of the car.
There were some discrepancies between the account of the actual impact as given by the defendant and by the passengers in his car, but that is not surprising since they were giving evidence of an event which had occurred some seven years previously. Indeed it would be surprising if there were not such discrepancies. The statements made to the police by all the witnesses had been destroyed in accordance with routine practice before the date of the hearing. The plaintiff and his passengers both gave evidence, but I do not need to set it out because it was rejected by the trial judge.
There were no witnesses other than the occupants of the defendant's car who were able to give any account of the incident. There was, however, a Mrs Salter who heard the crash while she was in her garden. Her house was in John Dwyer Road, which runs off Burke Road to the north, approximately half way between Funda Crescent and Ennis Street. She said that she heard a car revving up and "sort of roaring up the road" and added, "it seemed to me to be going very fast up Burke Road". She then heard a screech of brakes and a bang, and on looking up saw the plaintiff and his bicycle in the air. She said: "Then Billy came down, and the bike hit the car and bounced back up and then hit the road." She also said that at that time the car was nearly up to the corner of Funda Crescent, and in cross-examination assented to the question that: "It had not even reached the corner of Funda Crescent when you heard the bang and looked up and saw the boys in the air." The trial judge said that he preferred the evidence of the first defendant and his witnesses to that of Mrs Salter, and that he was not prepared to infer from what she had said that the driver was travelling at a speed which was, in the circumstances, excessive. The defendant's witnesses had said the car engine was not revving up in any unusual way. The trial judge said, however, that the statement that she saw the plaintiff in the air and that the car was then nearly up to the corner of Funda Crescent was corroborated by evidence in the defendant's case which he accepted and that it was consistent with the marks on the roadway. She also said that she heard "a skid and a bang" and that they were almost instantaneous; presumably she meant that she heard a screeching of tyres and a bang caused by the collision of the bicycle and the car. The trial judge made no comment about that evidence.
The evidence given for the defendant was given by the defendant himself and each of the four passengers. The defendant, after giving the account of the beginning of his journey to which I have referred above, said that he had just changed into top gear when he saw the boy on the bicycle and he was then just before the corner house, ie just before the beginning of the hedge. He said that he did not see the second boy at that stage.
The trial judge made a number of findings of fact which it is convenient to set out expressly. The first was that the evidence of the plaintiff and of his passenger should be rejected and so should the evidence of the plaintiff's mother in so far as it suggested that the boys on the bicycle were on the left-hand side of the road of Funda Crescent as far down as the house second from the corner. The second was that he preferred the evidence of the defendant and his witnesses to that of Mrs Salter. The third was that he accepted the evidence of the plaintiff's father with respect to the position and length of the tyre marks on the road (to which I have referred above) and found that they were made by the wheels of the defendant's car. The fourth he expressed by saying, as to the defendant's witnesses: "Notwithstanding some discrepancies between them and errors by some of them in their observations and in their estimates of distance, I have come to the conclusion that their versions of what occurred were given honestly and with some exceptions are basically accurate." The fifth was that the two boys on the bicycle emerged into view without any warning from behind the hedge of the house on the south-east corner, travelling quickly and cutting the corner and that they were on the incorrect side of the road. The sixth was that the car was travelling at between 30 and 35 miles per hour, and that the defendant applied the brakes immediately he saw the plaintiff and that the car skidded. The seventh was that the point of impact was a little to the east of the prolongation of the eastern kerb of Funda Crescent, and that the car travelled on a short distance after the impact, coming to rest at the spot where the tyre marks ended. The eighth was that the bicycle hit the car at an angle on its near side front portion and that thereafter the plaintiff was thrown up on to the car and landed on the roadway at the point indicated by blood stains in the photographs which were tendered, ie ahead of the car and on the northern side of Burke Road.
The trial judge said that those findings, which he made from the evidence in the defendant's case, were corroborated by the failure of the two boys to see or hear the defendant's car, which was there clearly to be seen, at any stage before the collision; by the position of the skid marks, and by the evidence of Mrs Salter that the car had not reached the intersection when the accident occurred. He said that the fact that the car had not reached the intersection was deposed to also by the occupants of the car and that this indicated that when it hit the nearside front of the vehicle the bicycle was well on its incorrect side of the road and had swung out of Funda Crescent close to the south-eastern corner.
The trial judge also referred to the submission that the skid marks indicated that the speed of the car was excessive in the circumstances, but he was not prepared to draw that inference and said no evidence was called to support such a conclusion. He said that even if it were permissible to consult a table of stopping distances he did not find in it anything which would oblige him to reject the oral evidence of speed which he had referred to. He did not consider that a speed of 30 to 35 miles per hour was in the circumstances excessive and rejected the argument that the defendant in a closely settled area should have expected that a bicycle might suddenly emerge without stopping on his left-hand side and from behind the hedge. He regarded that argument as unrealistic. He also rejected the argument that the first defendant failed to keep a proper lookout and said that he was satisfied that as soon as the bicycle emerged into view it was seen and the brakes were applied as soon as possible.
In the Court of Appeal the principal argument was that the evidence was such that the trial judge was bound to find negligence on the part of the defendant.
In his dissenting judgment Moffit P, in dealing with the question of evidence of speed and the judge's observations about the nature of the duty, said: "When the common law duty of care is considered, the different questions which arise are firstly, as to the type of occurrences the driver should reasonably anticipate might happen, and secondly, having regard thereto, the speed at which he should drive so as to enable him to take reasonable steps to avoid injury to others from such an occurrence. Where there is a blind or partly obscured intersection, as in many other situations of possible danger met in the course of driving a motor vehicle, the duty of care is not limited to risk of foreseeing injury to others on the assumption that they will act ideally or without negligence. In determining what speed is reasonable approaching a place of probable danger, it is relevant to consider the type of danger in a general way which should be anticipated."
There is in that passage a significant change in language which, with due respect, affects the significance of what is being said. That is the shift from "possible danger" to "probable danger". The question whether this particular intersection was one of "possible danger" or of "probable danger" was not directly adverted to in any of the evidence and indeed no evidence from experienced police officers, highway engineers or other experts was called as to the proper classification of this intersection in this respect. No doubt it is a question of fact which a judge or jury can properly decide upon such evidence as is available, including evidence as to the physical configuration, the extent of visibility from one road to another and the presence or absence of any physical obstructions to what would otherwise be the usual extent of visibility when driving along one suburban street towards and across a "T" intersection on the driver's left hand. So far as appears from the trial judge's reasons for judgment no submission was made to him that this was a place of probable danger and indeed his judgment is inconsistent with it being so regarded. Whether Moffitt P intended this significant change in the passage which I have quoted may perhaps be doubtful, but it does appear from the balance of his judgment that he did treat the corner as being a source of probable danger. He gives no reason for that view other than indirectly referring to the fact that there was somewhat limited visibility because of the hedge, nor does he elsewhere refer to the distinction between possible and probable danger.
With due respect to the learned President I am unable to agree that this intersection could be described as "a place of probable danger". That must mean that it was more likely than not that a bicycle or motor vehicle would emerge without stopping or on the wrong side of the road, or both. That it was a place of "possible danger" is no doubt plain enough because that must be true of all intersections. Moreover, if this was a corner where the visibility for those proceeding in a westerly direction was somewhat less than one would normally find because of the presence of the hedge, that also might be a source of possible danger. In cross-examination the defendant said the hedge was about 5 feet high and assented to the proposition that the hedge was "well back inside the fence". There was no evidence of any measurements of its height, thickness or position. There was one contemporary photograph in evidence which shows that there were still gaps between the trees, but it would have required expert interpretation with knowledge of the position and level from which it was taken before a view could be formed as to how far inside the fence it was. There was no such expert evidence. Absence of evidence as to its height and thickness at the time makes it impossible to form a view as to the extent (if any) of the reduction in visibility.
The trial judge did not find that this intersection was a source of probable danger and, in my opinion, there was no evidence on which any such finding could have been made.
It is, in my opinion, correct to say that it was reasonably foreseeable that a bicycle or car might emerge from Funda Crescent without giving way or stopping and that was a risk to be guarded against. However, it is, in my opinion, also correct to say that it was not reasonably foreseeable that a bicycle, or car might emerge, not only without stopping, but also on the wrong side of Funda Crescent turning into Burke Road on its wrong side, and at a considerable speed. The latter view is, I think, in substance the view taken by the trial judge. No numerical estimate of the speed of the bicycle was attempted, no doubt rightly so, but the trial judge accepted the evidence of the defendant's witnesses that it was travelling fast, both northward and eastward in Funda Crescent.
I do not think that the traffic regulations as to right of way and like matters are of any significance in the present case. I do not regard the trial judge as having fallen into any error in this respect, nor do I find any assistance in the numerous cases which have dealt with this matter.
Some reliance was placed on the fact that the car was being driven with its offside wheels somewhat on the wrong side of the notional centre line. The evidence was that there were no other vehicles on the road at that time. In my opinion, that did not constitute negligence in the circumstances of this case and I do not regard it as contributing to the accident. If in fact there was less than usual visibility at this corner, it may well be that to drive at an increased distance from the kerb would be a reasonable precaution so long as it was safe with respect to other traffic in Burke Road. It is well settled that the question of negligence or no negligence is to be regarded as one of fact, notwithstanding that it involves questions of inference and judgment. In a jury trial it is a matter for the jury alone. In a trial by a judge alone, a finding of negligence may differ from the finding of what may be called "objective facts" such as, for example, the location of a point of impact which may depend on the trial judge's view as to the reliability of the witnesses. A finding of negligence, however, involves the measuring of the defendant's conduct in the circumstances as found against the legal standard of the conduct expected of a reasonable man. The application of that criterion to a given set of circumstances may well leave open differing views as to negligence or no negligence, as the number of dissenting judgments in this field well illustrates.
Since writing the above I have had the advantage of reading the joint reasons for judgment of Gibbs, Jacobs and Murphy JJ in which they examine the cases dealing with the function of an appellate court in hearing an appeal on questions (including inferences) of fact from a decision of a judge sitting without a jury. Some of those cases were referred to very briefly in the course of argument, but it cannot be said that the differences between the two approaches referred to in the joint judgment were investigated or the matter fully argued. In those circumstances I do not feel that I should investigate the matter for myself and express a concluded opinion on it unless it were necessary to do so in order to decide the present appeal. On these facts, however, I do not find it necessary to choose between the opposing views or to consider the extent and nature of the difference between them.
In the present case it is, in my opinion, clear that on the evidence the trial judge could have found, as he did, that there was no negligence on the part of the driver and accordingly that the appeal cannot be disposed of on the basis that his finding was not open on the evidence. There is, however, evidence on which the trial judge could have found that the driver was negligent.
On the view adopted in the joint judgment it is for each member of this court to consider whether he would himself conclude that there was negligence on the facts as found, disregarding evidence rejected by the trial judge.
In the present case I prefer the view of the trial judge that the driver of the car was not negligent and I agree with his reasons for that conclusion. I would, therefore, dismiss the appeal.