GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v RAYMON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MEAGHER and HANDLEY JJA 2 December 1991, 2 December 1991 [1991] NSWCA 121 NEGLIGENCE — contributory negligence — apportionment — car in reviewing — motor car collision — apportionment manifestly wrong — set aside for error — plaintiff's responsibility for damage increased from 15 per cent to 50%. Pennington v Norris (1956) 96 CLR 10; AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJ 100 distinguished. NEGLIGENCE — contributory negligence — motor vehicles collide at intersection — respondent commenced right-hand turn across the path of appellant's insured — respondent noses 18 inches to 2 feet across imaginary centre line insured travelling too fast to allow avoidance of clip impact — Master Greenwood finds negligence of insured and contributory negligence of 15 per cent by respondent — on appeal to the Court of Appeal by the insurer — held: (1) (By the Court) Appellate courts must approach the review of the apportionment of contributory negligence with great care. AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100; Pennington v Norris (1957) 96 CLR 10, 15; McCutcheon v Muir, Court of Appeal, unreported, 1 February 1989; (1989) NSWJB 28 applied; (2) (By Kirby P and Handley JA; Meagher JA dissenting) Although no error of law or fact finding was shown, the apportionment was so manifestly erroneous as to disclose error; (3) (By majority) An apportionment of 50 per cent should be substituted. Discussion by Handley JA of the nature of the apportionment decision as akin to a discretionary judgment and its susceptibility to applicable review on a similar basis. Law Reform (Miscellaneous Provisions) Act 1965, s10(1). ORDERS 1. Appeal allowed; 2. Confirm the first finding of the Master; 3. Set aside the second finding of the Master; 4. In lieu thereof, substitute a finding, "The plaintiff was guilty of contributory negligence to the extent of 50 percent'; 5. Order the respondent to pay the costs of the appellant of this appeal; 6. Return the matter to the Common Law Division for the assessment of the plaintiff's damages; and 7. Order that the respondent should have, in respect of the costs of the appeal if so qualified, a certificate under the Suitors' Fund Act 1951. Kirby P I shall ask Meagher JA to deliver the first judgment. Meagher JA This appeal arises out of a motor vehicle accident which took place at the junction of Vaughan and Bede Streets, Auburn. The facts could hardly be simpler. The respondent, Mrs Raymon, was travelling eastwards along Vaughan Street, which runs approximately in an east west direction. She wished to turn right into Bede Street, which runs roughly in a north/south direction. She halted, but at a point which was twelve to eighteen inches over the imaginary centre line of Vaughan Street, when projected into the junction. 2 UNREPORTED JUDGMENTS Mr Fourtounis, for whose negligence the appellant is responsible, was travelling westwards along Vaughan Street. On his own admission he was not keeping a proper lookout for vehicles which obtruded a little onto his path; a situation which easily could have occurred simply by that vehicle progressing in a straight line. It must have been reasonably foreseeable such a vehicle might be in existence. Indeed, Mr Fourtounis said he knew the junction was dangerous. His speed, whatever it was, was sufficiently excessive to prevent his swerving slightly to the left. He did not claim that anything blocked his vision. If, as normal, he had deviated slightly to the left, which he could have done, the accident would not have happened. The Master found, as was inevitable, that Mr Fourtounis negligent. He also found that Mrs Raymon, the respondent, was careless of her own safety and therefore guilty of contributory negligence. He apportioned the contributory negligence as to 85 percent to Mr Fourtounis and 15 percent to Mrs Raymon. It is from this order that the present appeal arises. In British Fame v Macgregor (1943) AC 197, Lord Simon at 198 said: "the cases must be very exceptional indeed in which an appellate court, while accepting the findings of fact of the court below as to the fixing of blame, nonetheless has sufficient reason to alter the allocation of blame made by the trial judge." This statement of principle was endorsed by the High Court of Australia in A V Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100 at 101. In the present case I can see no proper reason for disturbing the Master's discretionary apportionment of blame. All the evidence was before the Master and he did not over-look any part of it. It has not been suggested that he over-looked anything. No question of law arose. No finding of fact can be challenged. Nor does the result strike me as being so inappropriate as to attract additional intervention. For those reasons I would dismiss the appeal with costs. KIRBY P: The general background facts for the orders which I will propose have been set out by Meagher JA in his reasons. RESTRAIN IN THE DISTURBANCE OF APPORTIONMENT FINDINGS I begin these reasons by reminding myself of the instruction of the High Court of Australia and of this Court in many cases. Decisions on the apportionment of liability and the assignment of blame for negligence in cases such as the present will rarely be disturbed by an appellate court. The reasons which lie behind such appellate reticence can be understood by reflection on the generality of the language of the statutory formula by which the question is determined by the primary judicial officer. See Pennington v Norris (1956) 96 CLR 10, 15; Inqua Pty Ltd v McFadden and Anor, Court of Appeal, unreported, 16 March 1990; (1990) NSWJB 29; Talbot-Butt v Holloway, Court of Appeal, unreported 5 October 1990; (1990) NSWJB 132; Watts v Ross, Court of Appeal, unreported, 17 October 1990; (1990) NSWJB 143. That formula appears in s10(1) of the Law Reform (Miscellaneous Provisions) Act 1965 which reads: "10 (1) where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v RAYMON (Meaghe JA) damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share for the responsibility for the damage." In the application of words of such generality, it is very easy for minds to differ. Indeed, no precision is possible in the criteria offered by the Act. Because views on such questions are akin, as Meagher JA has said, to discretionary judgments, appellate courts have been loathe to disturb apportionments determined at first instance unless error is shown. Error may be shown by: (a) Demonstrating error of law; or (b) Demonstrating error of fact finding; or (c) Demonstrating that the result arrived at is so clearly wrong as to show that an error has occurred in reaching the conclusion which is challenged. The appellant insurer does not contend (a). It relies on arguments addressed to (b) and (c). COLLISION AT INTERSECTION WITH INTRUDING VEHICLE Despite the careful analysis of the evidence contained in the appellant's written submissions and elaborated orally during the hearing, I would not be inclined to hold that any error has been shown in the Master's fact finding which would authorize this Court to disturb the apportionment. In any case, the resolution of the factual disputes which were so carefully analyzed by the appellant are not essential to the conclusion which I have reached. For my opinion it is unnecessary to determine whether the appellant was absolutely stationary or not at the time of impact (as she said she was;) or was continuing move forward (as the appellant's insured contended). I am prepared to accept, for the purpose of my decision, that she was stationary. I approach the apportionment which Master Greenwood ordered, upon that footing. The case thus comes down to the argument which I have classified as (e), ie that the apportionment is manifestly erroneous. In my opinion the Appellant is entitled to succeed on this argument. I will state why. The Master's finding amounts to a conclusion that the insured contributed nearly six times more to the happening of the collision than the respondent did. I simply cannot accept that conclusion on the facts taken at their most favourable to the respondent's case. To illustrate my difficulty, I incorporate in these reasons a chart of the intersection produced at the trial by the police officer: [Editor's note: Chart not reproduced by INFO-ONE] It was common ground that the chart was not entirely accurate or drawn to scale. Vaughan Street takes a slight bend to the left in the direction in which the insured was travelling. There was a deviation at the point of the intersection. If the respondent were to continue in the same lane and in Vaughan Street, she would have needed, as she approached the intersection, to move slightly to the right. Likewise, the insured would have to move slightly to the left as he passed through the intersection. I allow for that fact. Nevertheless, it remains the fact that the respondent moved into the lane of the on-coming traffic in which the insured was proceeding. This fact was not denied by her. It was confirmed by the independent witness, Mr Langrish. He added that, in his impression, the respondent was "stationary or creeping", ie that she may have been nudging her way further into the intersection. 4 UNREPORTED JUDGMENTS However that may be, it is obviously dangerous, and seriously so, to do what the respondent did. Nudging into the lane of traffic should not be accomplished, nor should a turn to the right be ventured unless it is safe to do so. So much is required by the Motor Traffic Regulations. It is also required by the common law, reflecting common sense and care in the driving of a motor vehicle on a public road. FACTS CONFIRMING THE SIGNIFICANT CONTRIBUTION OF THE RESPONDENT There are other points which confirm, to my mind, a lack of care on the part of the respondent: (1) The intersection was known to her and known to be busy and to have dangers, as it obviously did; (2) The intersection is controlled by lights, although not by an arrow, to control passage to the right in the direction in which the respondent wished to proceed. This would confirm for a careful motorist the need for a special care in turning to the right across the flow of oncoming traffic having the right of way; (3) The respondent was, perhaps, misled by a car which crossed in front of her, apparently with safety. This may have led her to start her turn and to nose her vehicle into the insured's lane of traffic. She was, as she conceded to this Court, over the imaginary centre line when the collision actually occurred. The distance matters less than the fact. As found by the Master, the distance was not enough to cause a major collision to occur. However, it was enough to contribute significantly to the impact when then followed; (4) If the respondent had remained on the correct side of the imaginary centre line, the insured might have travelled fast, even dangerously fast, but he could then have avoided the impact which occurred. A difficulty which he had in deviating to the left to avoid the respondent's intruding vehicle was the presence, in the lane to his left, of other motor vehicles proceeding in the direction in which he was travelling; (5) The very fact the respondent had time to pause at the intersection was a reason for her to appreciate the peril she was occasioning by moving forward. She should not have crept forward. By doing so she was responsible to a significant degree for the damage which ensued. She was responsible for the damage to a far greater extent than allowed by the Master. The negligence of the insured is plain. So is the contributory negligence of the respondent, as the Master found. However, in my view, it is not reasonable to apportion her responsibility for the collision and that of the insured, in the terms of the statute, in the ratio of 15 to 85. That apportionment is manifestly unreasonable. It therefore permits this Court to intervene for demonstrated error. The finding based on such apportionment must be set aside. CONCLUSION AND ORDERS Both parties consented to this Court's substituting its own assessment of the responsibility for the negligence of the damage in terms of the Act. That, in any case, is what should be done to resolve this litigation. It is what I propose to do. In my view each motorist is equally responsible for the collision. The insured was responsible for driving so fast that he could not adjust to the circumstances created by the respondent's driving. The respondent, however, was responsible for creating those circumstances in the first place. To give effect to those conclusions, I would propose the following orders: (1) Appeal allowed; (2) Confirm the first finding of the Master; \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v RAYMON (Handley JA) (3) Set aside the second finding of the Master; (4) In lieu thereof, substitute a finding, "The plaintiff was guilty of contributory negligence to the extent of 50 percent"; (5) Order the respondent to pay the costs of the appellant of this appeal; (6) Return the matter to the Common Law Division for the assessment of the plaintiff's damages; (7) Order that the respondent should have, in respect of the costs of the appeal if so qualified, a certificate under the Suitors' Fund Act 1951. Handley JA In this case it is common ground that the intersection was dangerous and both drivers knew it was dangerous. There is no dispute that the appellant's insured was guilty of negligence in driving at an excessive speed and in failing to keep a proper look out. The Master also found that the respondent was guilty of negligence in moving her vehicle across the imaginary centre line of the intersection. However, it also follows from the Master's findings that the respondent was also guilty of failing to keep a proper look out, because she failed to notice the on-coming vehicle until moments before the collision. It seems to me the vehicle in front of the respondent in the line of traffic which successfully negotiated a right hand turn in front of the appellant's insured coming from the west and the respondent coming from the east, who was seeking to make a right hand turn at the intersection. The essential fact found by the master was that the respondent was twelve to eighteen inches on her wrong side of the intersection in the path of on-coming traffic which was proceeding with a green light in its favour, and at the time with traffic in both lanes. The respondent had moved forward in this way after the vehicle in front of her had made the right hand turn previously referred to. Like the President, I cannot accept an apportionment of 15 to 85 in favour of the respondent in all the circumstances of this case. Such an apportionment treats the appellant's insured as nearly 6 times more responsible for the collision and the resulting damage than the respondent. While it is true that in cases such as British Fame v Macgregor (1943) AC 197, referred to by Meagher JA, and in AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100, and in other cases, both the High Court and the House of Lords have emphasized the need for appellate restraint in interfering with decisions of trial courts apportioning responsibility in contributory negligence cases and I direct myself in accordance with these principles. Nevertheless it seems to me that the apportionment of responsibility in contributory negligence cases involves the exercise of a judicial discretion and the need for appellate restraint and the criteria on which appellate intervention may be justified referred to in the earlier decision of the High Court and the House of Lords do no more than apply to this particular type of discretionary judgment the general principles applicable to all discretionary judgments, expounded by the High Court in House v King (1936) 55 CLR 499 at 504/505. T agree with Kirby P that the Master's apportionment in this case was, in all the circumstances, plainly wrong. In my opinion both drivers were equally at fault and equally responsible for the collision. I agree with the orders that Kirby P has proposed. KIRBY P: The orders of the court are, accordingly, as I have proposed. 1. Appeal allowed; 6 UNREPORTED JUDGMENTS 2. Confirm the first finding of the Master; Set aside the second finding of the Master; 4. In lieu thereof, substitute a finding, "The plaintiff was guilty of contributory negligence to the extent of 50 percent"; » 5 5. Order the respondent to pay the costs of the appellant of this appeal; 6. Return the matter to the Common Law Division for the assessment of the plaintiff's damages; and 7. Order that the respondent should have, in respect of the costs of the appeal if 80 qualified, a certificate under the Suitors' Fund Act 1951.Counsel for the Appellant: J Gulhot, Instructed by: Creagh and Creagh Counsel for the Respondent: P Hennessy, Instructed by: Beston and Riordan203040