GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v SAUL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and HANDLEY JJA 13 February 1992, 13 February 1992 [1992] NSWCA 95 Motor vehicle accident — Plaintiff mowing nature strip with foot of roadway — Issue of fact — No error. APPEAL from Common Law Division — Motor vehicle accident Issue of fact — No error — No issue of principle. ORDER Appeal dismissed with costs. Mahoney JA On 4 January 1986 the plaintiff was mowing the nature strip on the western side of the Princes Highway north of Rocky Point Road; he stepped back onto the road or further onto the road so that he was about eighteen inches or so from the kerb and he was struck by a motor vehicle driven by Miss Hopkinson, the insured, for whom the Government Insurance Office is responsible. He was significantly injured. On 29 November 1989 Master Greenwood assessed the plaintiff's damages at $387,951. He assessed the plaintiff's responsibility for the accident at twenty-five per cent and gave the plaintiff judgment for $290,963. The defendant appealed to this Court against the Master's judgment. The original appeal raised as issues for argument two matters, the apportionment of twenty-five per cent to which I have referred and the quantum of the damages. The quantum of the damages has now been effectively abandoned; need not refer to it further. Shortly before the hearing of the appeal counsel then briefed for the defendant/appellant notified counsel for the plaintiff that it was proposed to seek an amendment of the grounds of appeal to argue the negligence issue, that is there should be a verdict for the defendant because the driver was not negligent. Objection was taken to that amendment. The court heard short argument on the proposal for amendment and indicated the convenient course would be for counsel for the defendant to argue the issue of negligence and the court would subsequently decide whether or not to grant the amendment. In the event I do not think that it matters whether the amendment is granted or not because for the reasons to which I shall refer I think the defendant has failed or would fail upon any issue of negligence. I would therefore propose that the amendment be formally allowed and that the defendant pay the costs of the amendment. Effectively that will mean that the issue of negligence and the amendment will have been dealt with. I do not mean by proposing this that the defendant in proceedings of this kind can assume that the rules in relation to the filing of grounds of appeal should not be complied with or they will be dispensed with without adequate cause. In the present case the court enquired whether any case could be made out to show why the negligence issue was not raised in the Notice of Appeal or earlier. The only suggestion which could be made by Mr Shore for the defendant was that a different view as to the possible success of the issue of negligence had been taken 2 UNREPORTED JUDGMENTS by counsel previously involved. I believe this would ordinarily result in the amendment not being allowed. But it matters not that I have proposed the course I have; the same effect is achieved. I come now to the substance of the appeal. I will deal first with the issue of negligence. The facts are set forth in the judgment of Master Greenwood in the following terms: "The plaintiff, as indicated, was engaged in mowing lawns on the nature strip immediately adjacent to the Princes Highway. He was not, as he suggested mowing in the middle of that nature strip between telegraph poles but rather was mowing around a telegraph pole. In order to do this it was necessary for him to step with one foot onto the road to get the leverage to manoeuvre around the south side of the telegraph pole. The actions of the plaintiff were clearly visible to the witnesses because they were sitting in vehicles which were halted by the traffic lights at Rocky Point Road and Princes Highway. When the lights changed and these vehicles proceeded north in the kerbside lane the plaintiff continued about his task and with one foot on the kerb or in the gutter. He did not look to see what traffic was in the vicinity. He stepped back with the other foot a distance of about eighteen inches from the kerb onto the road where he was clipped by the insured vehicle." "The insured vehicle was stationary at the intersection of Rocky Point Road and the Princes Highway. It was stationary because the lights were red against it. Further up the road about four telegraph poles away the driver, Miss Hopkinson, could see the plaintiff had put his foot in the gutter to gain some leverage as he turned the mower around the telegraph pole. Miss Hopkinson was travelling in the kerbside lane which is approximately ten feet six inches wide. She was driving a 1972 Holden and I am satisfied that she was not travelling in the centre of her lane but was travelling probably about eighteen inches out from the kerb. As she approached the plaintiff he put one foot in the kerb to position himself for continuing to mow around the telegraph pole. As she got closer the plaintiff, in order to get more purchase, placed one foot further back onto the roadway. This was probably his left foot although, as I have indicated earlier, I do not regard that factor as material. The plaintiff was using a noisy lawnmower. He did not look to see if there was any traffic approaching. The insured's evidence is that the plaintiff placed his foot immediately in front of her car and she struck it. She said that she had no time to take any evasive action. Other witnesses suggest that the plaintiff stepped in front of the insured's car when the car was at distances of between two to ten metres away from the plaintiff. I am satisfied on the evidence that the plaintiff stepped back at a distance somewhere between the two and ten metres suggested. I am satisfied also that the insured's car touched the rear portion of the plaintiffs leg which was intruding onto the roadway and it was the clipping of this leg which set in train the dynamics which ultimately found the plaintiff injured on the footpath." The Master held the driver, Miss Hopkinson, to have been negligent. His findings were expressed in the following form: "T am satisfied also that the plaintiff, had she been alert as the defendant stepped back, could have taken some evasive action such as braking or swerving within her lane which may have avoided the accident but I am not satisfied that such manoeuvres would have avoided the collision. Miss Hopkinson was travelling at a low speed, probably in the vicinity of 20 kms per hour. She was able to bring the car to a halt within a car's length after striking the plaintiff. I am \GROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v SAUL (Mahoney JAB satisfied on balance that she is guilty of negligence. Miss Hopkinson had good sight of the plaintiff and his actions. She had previously seen him step into the gutter. She ought to have been aware that he was preoccupied with his task and not looking out for traffic on the Princes Highway. She ought also have known that if he had stepped into the gutter there was a reasonable chance that he may take a further step back. Miss Hopkinson ought to have exercised extreme caution in attempting to pass the plaintiff. She ought, when she saw the plaintiff step into the gutter and before he stepped back at least have sounded her horn. I am satisfied therefore that Miss Hopkinson was in breach of the duty of care which she owed to the plaintiff and is therefore guilty of negligence." In my opinion, notwithstanding the arguments advanced by Mr Shore for the defendant, the finding of negligence was clearly and plainly justified. I think the issue of negligence as far as the defendant was concerned was more or less hopeless. It is clear, in my opinion, that the plaintiff drove too close to the kerb on the road on the particular morning; she was so close that when the plaintiff stepped back one pace he was hit. She drove, it would appear, only about eighteen inches from the kerb and she appears to have done this from the traffic lights which were, on one estimate, some 200 yards or more from the accident. She appears not to have deviated from that line. The kerbside lane in which she was driving was about ten feet six inches wide and there was, in my opinion, ample space for her to move from the kerb so that she was not so close to the position where she could see the plaintiff was. There is no suggestion there was difficulty in doing this: at least, the Master made no finding to suggest that there was. The plaintiff had been in clear view of the driver for a considerable distance, from the time when she was stationary at the lights. One of the obvious dangers was that in the course of his mowing or otherwise he might step backwards onto the road or further onto the road than he was. This was, in my opinion, a plain and obvious possibility and it was one of which a driver, in this driver's position, should have been aware and against which she should have taken precautions. I think on that basis alone the driver was clearly negligent. It was submitted by Mr Shore that this point was not relied upon by the Master in his finding of negligence; that he did not base his finding on it. I am not sure that submission is correct. The Master referred to the fact that the driver should have known that if the plaintiff stepped into the gutter there was a reasonable chance that he might take a further step back. The Master said, "Miss Hopkinson ought to have exercised extreme care in attempting to pass the plaintiff'. Some criticism was I think directed to the use of the word "extreme'', but I do not think, read in its context, the term should be misunderstood. It is sufficient to say that the driver should have taken some care when passing the plaintiff for essentially the reasons given by the Master. But even if the Master did not base his finding on that matter, this Court as on a rehearing can and should consider this aspect of negligence. In the circumstances of this case, there is no reason why it should not do so. I myself would find a clear case of negligence upon that matter. In addition, in the circumstances of this case, it was the obligation of the driver to take precautions so as to make sure that the plaintiff was aware and conscious of the dangers from approaching vehicles. It is, of course, right to say, as I think Mr Shore suggested in his argument, that a person in the position of the plaintiff has a duty himself to take appropriate care for his own safety. But the possibility of negligent or inadvertent action is something that people in ordinary life have 4 UNREPORTED JUDGMENTS sometimes to deal with and, seeing where the plaintiff was, standing where he was and doing what he was, I think ordinary care would suggest that the plaintiff should have been given an indication by the sounding of the horn or otherwise of her approach. It was a simple precaution to take. She did not take it. I would myself think, as the Master thought, that was a precaution that the driver should have taken. For those reasons I am satisfied that the driver was negligent and, if that issue be a live issue in the appeal, I find in favour of the plaintiff. The defendant then argued that the apportionment of twenty-five per cent responsibility to the plaintiff was wrong; the submission was that it was "grossly wrong". It was pointed out that the plaintiffs responsibility was assessed at a third of the defendant's; the defendant's responsibility was three times that of the plaintiff. The matter has been canvassed at length by Mr Shore in his submissions. The principles on which this Court is to approach an assessment of responsibility in this regard are not in question; they are referred to in the cases to which the submissions of counsel have referred the court: see, for example, Pennington v Norris (1956) 96 CLR 10 at 16; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529. As Ihave said, these principles are not in issue. In my opinion, the driver bore significantly greater responsibility than the plaintiff for what occurred. She was, to adapt a phrase used in the older law, more or less in control of the situation. She could see the plaintiff where he was a long time before the accident; she should have taken precautions which would have avoided the accident and the very matter that raised the danger, namely the possible inadvertence of the plaintiff. That was something which should have been present in her mind at an earlier stage and against which she could have taken simple precautions which would have avoided the accident. There was no difficulty in her, for example, blowing the horn or moving slightly to the right in the lane. Had she done either of those things the likelihood is, in my opinion, that the accident would not have happened. In all the circumstances, I do not think that the apportionment of responsibility which the Master made was wrong. I would adopt it as my own; I think it was correct. For those reasons, in my opinion, the order to be made is that the appeal be dismissed with costs. Clarke JA I agree. Handley JA I agree. Appeal dismissed with costs. Counsel for the appellant: HG Shore Solicitors for the appellant: Paul A Curtis and Co Counsel for the respondent: BJ Gross QC/D Lukins Solicitors for the respondent: GM Meadows, Solicitor for GIO