IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY No. NTG 20 of 1977 GENERAL DIVISION j BETWEEN : COLIN DAVID McINNES and KENNETH MATTHEW Mc INNES Appellants AND: FRANCIS HAROLD CORNEY Respondent ORDER JUDGES MAKING ORDER: Forster, St. John and Fisher JJ DATE OF ORDER: 1 September, 1978 WHERE MADE: Darwin THE COURT ORDERS THAT: The Appeal be dismissed with costs. IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY ) NTG 20 of 1977 ) ) GENERAL DIVISION BETWEEN: COLIN DAVID McINNES and KENNETH MATTHEW _McINNES Appellants AND: FRANCIS HAROLD CORNEY Respondent CORAM: Forster, St. John and Fisher Ju. Delivered 1 September 1978. REASONS FOR JUDGMENT Shortly after 8.00 p.m. in the evening of 4 February 1975 the respondent with two of his workmates was walking along Casuarina Drive, Nightcliff in the City of Darwin on his way to the Seabreeze Motel. All three were tradesmen who had volunteered to come to Darwin to assist in repairing the ravages of Cyclone Tracy to that city which had occurred on 25 December 1974. They were walking on the roadway abreast, with the respondent furthest from the gutter and towards the centre of the road. Whilst so walking the respondent was struck from behind by a motor vehicle driven by the first appellant and owned by the second appellant. The respondent sued the appellants in the Supreme Court of the Northern Territory claiming damages for his injuries caused as he alleged by the first appellant's negligence in the management of the motor vehicle. The appellants disputed negligence on their part and contended that the respondent's negligence caused or contributed to his injuries. The trial judge found that the injuries were caused by the negligence of the appellants, declined to find contributory negligence on the part of the respondent and entered judgment for him for $70,351 with costs. The appellants now appeal to this court against the findings of the trial that they were wholly responsible for the respondent's injuries and that the respondent was not guilty of contributory negligence. There is no challenge to the trial judge's findings that the appellants were guilty of negligence. The primary facts as found by the trial judge were not in dispute at the appeal, the only question being whether the trial judge should have found that in the circumstances the conduct of the respondent contributed to his injuries. These facts are as follows. Casuarina Drive is a bitumen road running east and west with a footpath on its southern side but coer wens no footpath on the northern side. The respondent and his workmates were walking in a westerly direction on the southern (i.e. left hand) side of the roadway. The respondent was furthest out from the gutter, and towards the centre of the road which was 30' wide. It would appear from the evidence that the respondent was approximately 8' from the kerb, though there is no specific finding by the trial judge on this point. The respondent was wearing dark clothing and as he walked was indicating by his right arm his desire to be given a lift by passing cars. The cyclone had caused much damage in the area, it was a dark night without a moon and there was no street or house lighting. There were patches of debris on the footpath which was uneven and over-run by grass. As it happened the footpath was clear of debris for an appreciable distance on either side of the point of accident. However, the evidence of Police Sergeant Manzie and the respondent's workmates indicated that it was not reasonable in the circumstances to expect pedestrians to walk on the footpath as in the absence of lighting it was impossible to see what obstructions were on the footpath. As to the conduct of the first appellant, the trial judge found that he was driving too fast in the circumstances, that he was not keeping a proper look-out for pedestrians whom he should have expected to find on the roads, and that his consumption of alcohol had rendered him incapable of taking action to avoid the respondent. In addition,' there was evidence that he was « @riving a vehicle with defective brakes, which upon application pulled the car to the right. The first appellant was in the habit of correcting this pull by steering to the left, and the evidence that he swerved to the left just prior to the accident does appear to indicate that an over correction contributed to the accident. In these circumstances the trial judge found that the first appellant's negligent driving caused the accident, and this finding is not challenged. The trial judge conceded that the question whether negligence on the part of the plaintiff contributed to the accident was difficult. Counsel for the appellants had pressed on him the basic rule of the road, that pedestrians should face the oncoming traffic. Thais basic rule is provided for in Regulation 38 of the Northern Territory Traffic Regulations. It cannot be disputed that in ordinary circumstances to walk three abreast on the left hand side of the road is prima facie negligent conduct. However, it was the view of the trial judge that the circumstances were out of the ordinary and that it was common practice for pedestrians to walk on the roadway, as the first appellant acknowledged he was aware. In fact he had conceded that he had himself walked on the roadway rather than on the footpath. These were exceptional times when a driver should have been on the look-out for the unexpected. The first appellant, although aware that there were people walking on the roadway because of the obstruction by rubbish of the footpath, had by his conduct disabled himself from dealing with the unexpected. He was driving a car with defective brakes at an excessive speed in the circumstances and he was affected by drink. He had warning that there were pedestrians on the left e hand side of the road approximately two hundred yards prior to the accident. The learned trial judge found that notwithstanding the dark clothing worn by the \ respondent, he would have been seen at a time when it should have been possible for the first appellant to have taken action to avoid him. When he did apply his brakes, it is reasonable to infer that his instinctive action of correcting rendered the impact inevitable by pulling the vehicle towards rather than away from the respondent. The trial judge had found as a fact that in ' the particular circumstances there was nothing unreasonable in the respondent's conduct and that he was not guilty of contributory negligence. The proper approach of this court in these circumstances was established in Whim Creek Consolidated N.L. v. F.C.T. (1977) 17 A.L.R. 421 at 426 namely, "In hearing such appeals from judgments or orders of Supreme Court Judges involving decisions by them on question of fact, the Court will apply the principles which were laid down by the High Court in Paterson v. Paterson (1953) 89 C.L.R. 212 and, more recently, in Da Costa v. Cockburn Salvage and Trading Pty. Limited (1970) 124 C.L.R. 192 and Edwards v. Noble (1971) 125 C.L.R. 296. Before this Court will reverse such a finding of fact, it will have to be convinced that the trial judge came to a wrong conclusion." In this matter we are not convinced that the trial judge came to a wrong conclusion. His finding 1s without doubt a tenable view and is supported by the evidence. There was in the exceptional circumstances prevailing in Darwin at the time much to support his finding and we see no reason to disagree. Counsel for the appellants put to us everything that could possibly be said in favour of allowing the appeal but failed to convince us that the trial judge came to a wrong conclusion or made any mistakes either of law or in dealing with the facts. In the result the appeal is dismissed with costs. ease