BOYD v ELLIOTT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY JA and Hope AJA 10 July 1992, 10 July 1992 [1992] NSWCA 26 NEGLIGENCE — motor vehicle — reasonable care — entitlement to anticipate reasonable care by pedestrians for their own safety — Winters v Davidson (1989) 9 MVR 239 applied. MOTOR VEHICLES — negligence — duty to sound horn — duty to stop flow of traffic — requirements of reasonableness — held: no negligence. NEGLIGENCE — motor vehicle — want of reasonable care — pedestrian on side of road struck by passing motor vehicle — conflicting version of facts — pedestrian claims vehicle driven off bitumen onto gravel verge — driver claims pedestrian lurches into path of vehicle independent witness confirms driver's version — trial judge accepts driver's version — dismisses claim for damages — on appeal to the Court of Appeal — held: (by the Court): (1) The standard of care required was that of reasonableness in the prevention of foreseeable injuries. Daly v Liverpool Corporation [1939] 2 All ER 142 (KBD); Cocks and Anor v Sheppard (1979) 53 ALJR 591 (HC); Bishop v Dunn (1984) 1 MVR 381 (SCNSW) considered; (2) Irrational behaviour of pedestrians, in apparent disregard for their own safety, may not be reasonably anticipated by a reasonably careful motorist. Winters v Davidson (1989) 9 MVR 239 (NSWCA) applied; (3) Having regard to the acceptance of the driver's version, the Court of Appeal was not authorised to reach a different conclusion. Abalos v Australian Postal Commission (1990) 171 CLR 167 applied; (4) Appeal dismissed with costs. MOTOR VEHICLES — negligence — duty of care — duty owed by motor vehicle driver to pedestrian seen lurching on gravel verge of road held: No duty to stop vehicle and lane of traffic in circumstances. No duty to sound horn. LAW REFORM — motor vehicle negligence — need for a more rational system for compensating persons injured referred to by Kirby P and Priestley JA (Hope AJA concurring). Kirby P This is a plaintiff's appeal from a judgment entered against him in the District Court. A pedestrian is injured in a motor vehicle accident Mr Peter Boyd (the appellant) was injured on Friday 15 July 1977, fifteen years ago. The injury occurred on a dark but fine night when the appellant, a pedestrian, was struck by a motor vehicle driven by Mrs Olga Elliott (the respondent). The incident occurred in New Line Road, Dural, near the intersection of that road with Old Northern Road. It happened in the evening, sometime about dusk. The point of the impact was some 800 metres from a hotel at which the appellant, earlier in the afternoon and evening, had been spending time consuming beer. The appellant was, at the time, on workers' compensation. He had collected a compensation cheque earlier in the afternoon. He had then walked around the shops and proceeded to the hotel where he met some friends. The appellant claimed at the trial that he had consumed only two or three middies of beer at the hotel. There was some evidence to support this contention of only 2 UNREPORTED JUDGMENTS moderate consumption. However, there was also evidence of observations of him after he was injured which ran to the contrary. The appellant's case, as principally put at the trial, was simple. It was that he was walking on the side of the road on a gravel verge. Suddenly the respondent's motor vehicle came at him. He put up his hands to shield his eyes from the brightness, presumably of the respondent's headlights. However, a collision occurred. It occurred in such circumstances because the respondent had driven her car off the bitumen onto the gravel where the appellant ought to have been seen. Clearly, if such a case were accepted, the appellant would be entitled to recover damages on the basis of the respondent's negligence. However, this was not the version of the facts which the trial judge accepted. Somewhat belatedly, in April 1987, the trial of the action came on for hearing in the District Court before Newton DCJ. On 26 February 1988, his Honour published his reasons for his reserved judgment. He found against the appellant. The appeal to this Court has taken a further four years to reach this Court. That further delay has not been explained. As at the trial, the claim seems to have been pursued with what might be called less than the usual vigour. Such delays create a problem for courts both at trial and on appeal. There is, it must be said plainly, a distinct element of unreality in reviewing the contested evidence of events so far away and on the basis of the testimony of witnesses at a trial which took place ten years after the incident, the subject of the claim. However, that is the way in which Newton DCJ had to deal with the matter. We, in this appeal, must do likewise. The trial judge rejects the pedestrian's claim Newton DCJ decided that judgment should be entered in favour of the respondent. Against the possibility of error in that regard, and in conformity with the authority of this Court, his Honour proceeded to determine the damages upon the basis which he would have accepted had there been a judgment in favour of the appellant. If he were entitled to recover, Newton DCJ found that the appellant' s verdict would have been in the sum of $273,832.13. However, in the light of his conclusion that the appellant had failed to prove negligence on the part of the respondent, he entered judgment against the appellant, as I have said. From that judgment the appellant has appealed. In the appeal, counsel for the appellant principally attacked the determination of the issue of liability. However, he has also challenged the award of damages. He has enticingly invited the Court to enter judgment in the sum of $300,000 but with a reduction of twenty percent for contributory negligence resulting in a net judgment in his client's favour in the sum of $240,000. Before the Court may come to that result, it is necessary to review the question, which is the primary question, dealt with by Newton DCJ, as to whether the appellant was entitled to recover damages at all. The questions before Newton DCJ, in the way the case was presented, were: whether or not the appellant had proved that the defendant was negligent thereby causing his damage and, if so, whether the respondent had proved contributory negligence on the part of the appellant. The third question was damages, which only arose if the first question were answered in the affirmative. After setting out a review of the evidence and certain conclusions Newton DCJ approached the question before him thus: In my opinion the question I really have to ask myself on the facts of this case, as I have found them, is not whether the accident arose substantially or partially as a result of fault on the part of the plaintiff. I regard that, on the evidence, as URJ BOYD v ELLIOTT (Kirby P) 3 plain. The question I have to ask and answer is whether, on the probabilities, there has been proven any negligence on the part of the defendant." This passage was criticised by counsel for the appellant. He said that it indicated a misdirection. It was said that, in the context, the judge had adopted an inappropriate test for the duty owed by the respondent to the appellant as a pedestrian on the highway. It was said that, in some way, it suggested that the highway was for the exclusive use of the respondent as a motorist. I see nothing in the passage which has been criticised, nor in the other passages in Newton DCJ's reasons, which come anywhere close to suggesting that his Honour made any such inappropriate assumptions or approached the case in anything but the orthodox manner on the correct basis. The judge's conclusion rests upon acceptance of certain witnesses The appellant alleged negligence. It was therefore for him to prove negligence. The respondent alleged contributory negligence. It was therefore for the respondent to prove that defence. But contributory negligence only arise if the appellant succeeded on the primary issue negligence. Newton DCJ decided that on that issue the appellant failed. He did so on the footing that he accepted "basically" the evidence of the respondent given before him at the trial. He accepted also the evidence of a witness, Mr Baker, who was proceeding in a motor vehicle immediately behind the respondent. He rejected, in important respects, the evidence of the appellant. So far as the evidence of the respondent is concerned, the relevant testimony is to be found in his Honour's reasons in a passage where he expressly accepted it. It was: "She [the respondent] said that as she was driving along, she saw 'a man swaying from side to side on the nature strip, coming towards me'. By 'nature strip' she said she was referring to the grassed area. She, of course, was referring to the plaintiff. She described him as having 'his head down and his arms were limp by his side and he was swaying from one side of the strip to the other." His Honour went on to say that the findings in relation to the foregoing evidence were: "T reject the evidence of the plaintiff and his witnesses on this score. On the probabilities, I consider the plaintiff was well affected by alcohol, was walking on the grass at the time seen by the defendant, and lurched quite suddenly out on to the side of her car." So far as the evidence of Mr Baker is concerned, he was proceeding behind the respondent. His evidence differed in some respects from the evidence of the respondent. The respondent had suggested that she slowed almost to the point of stopping at the time of the impact. Mr Baker did not agree with this. He said, rather, that at no stage did the respondent slow down. Nevertheless, Mr Baker's evidence was accepted by the trial judge. It was relevant in a number of respects. It was relevant for describing the way in which the appellant came into contact with the respondent's car. It was also relevant in respect of the "strong smell of alcohol" which Mr Baker detected on the person of the appellant immediately after the collision. It was this latter impression, recounted by Mr Baker in his evidence, which the trial judge accepted and which gave an explanation for the erratic conduct of the appellant as recounted by the respondent. Far from being a case where the appellant had been walking innocently on the gravel verge only to be struck by the respondent, the judge accepted that the appellant had moved erratically off that verge and onto the bitumen. 4 UNREPORTED JUDGMENTS The respondent's case was that she saw the appellant at some distance. She continued to proceed along the highway. She proceeded at a normal pace. She kept in vision the motor vehicle in front of her. She did not swerve off the bitumen. Suddenly, the appellant moved onto the bitumen. In doing so, he struck her motor vehicle, thereby receiving injury. Critically for the case of both parties, Mr Baker's evidence lent support to the version of the facts given by the respondent. He did not see the respondent move off the side of the road onto the gravel as the appellant alleged. In this respect his evidence provided a vital first step in establishing the version of the facts which Newton DCJ accepted and which led his Honour to his conclusion. Counsel for the appellant placed before the Court, both in written submissions and in oral argument, a very thorough examination of the facts. It is in deference to counsel's arguments that I will proceed to refer to some of what was said. However, correctly in my view, the appellant accepted that the case has to be approached by this Court upon the basis that the findings of fact which were made by Newton DCJ depended in many respects upon the advantages which his Honour enjoyed from seeing the witnesses, observing their demeanour and judging where the truth lay in conflict between. To the extent that his Honour's conclusions were based on impressions so derived they could only be disturbed in the very limited circumstances explained by the High Court, including in the series of recent decisions such as Jones v Hyde (1989) 63 ALJR 349 at 351; 85 ALR 23, 27; Abalos v Australian Postal Commission (1990) 171 CLR 167, 179 and Dawson v Westpac Banking Corporation (1991) 66 ALJR 94 at 99. Suggested errors of fact finding by the trial judge are rejected The primary complaints about the judge's determination were as to three suggested errors of fact finding on his Honour's part. The first of these was a challenge to the conclusion stated by his Honour in his reasons for deciding that the appellant had walked into the side of the respondent's car. The focus of this attack was upon the following passages in his Honour's reasons: "In my opinion, the plaintiff has not succeeded in establishing, on the probabilities, the negligence of the defendant." "On the probabilities, I consider the plaintiff was well affected by alcohol, was walking on the grass at the time seen by the defendant, and lurched quite suddenly out onto the side of her car. Had the accident not happened very quickly, I feel sure that the witness Baker would have observed more than he did of the plaintiff." And further: "T find on the facts that the plaintiff was well affected by alcohol, was proceeding on the grass at the relevant time and stumbled quickly across the balance of the grass and the gravel and out onto the bitumen to collide with the side of the vehicle of the defendant." Clearly, it was these findings which led to his Honour's conclusion that the appellant had not succeeded in establishing, on the probabilities, negligence in the respondent. It was therefore important for the appellant to disturb those findings and conclusions. In my view they have not been disturbed. On the contrary, they are fully supported by the evidence. The evidence of Mr Baker was that the appellant had "rolled off the side of the car". The suggestion put to this Court was that the proper evaluation of the facts, to be deduced from this evidence of Mr Baker, was that the appellant had moved along the side of the gravel but, at a certain point, had moved into the path of the URJ BOYD v ELLIOTT (Kirby P) 5 respondent's motor vehicle and had been struck in a position where the respondent, had she been driving carefully, would have had the opportunity to have observed him and to have stopped in time or to have taken some other defensive procedure to avoid a collision with him. It was suggested that the way in which the aerial on the respondent's motor vehicle had been bent supported this challenge. In my view it did not. The word "side" was used by Mr Baker in his evidence. It supported the conclusion of the judge that the collision was at the side of the vehicle. That conclusion was, in turn, consistent with the respondent's testimony. It is true that the judge said that the appellant rolled off the side of the vehicle. I do not believe that this was inconsistent with the evidence of Mr Baker which, on the contrary, supports the finding which his Honour made. The second challenge was to the conclusion that the appellant lurched quite suddenly in front of the motor vehicle of the respondent. It cannot be doubted that this is what the respondent herself said in evidence: Q: Why had you not applied your brakes any earlier than this? A: I had slowed down. There was hundreds of cars (sic) and I did not think he was going to lope over towards my car because he was just on the grass part of the road and it all happened so fast; just staggered straight off. Q: You say he staggered? A: Reeling from side to side." Newton DCJ had the advantage over this Court of seeing the respondent give her evidence. He accepted her evidence in this respect. It is evidence which is supported to this extent by the evidence of Mr Baker. Had the facts been different, it might have been expected that Mr Baker would have recollected a different version of events. But nothing which Mr Baker said was in any significant respect inconsistent with the respondent's evidence. It was certainly open to Newton DCJ to accept the evidence of the respondent. He did so. I do not believe that it is open to this Court now to disturb his conclusion which then followed. Thirdly, it was said that Newton DCJ erred in his statement that the sounding of the horn on the part of the respondent would have been of no use. Counsel argued that "even drunks" are entitled to be alerted by the sound of a horn. However, the sounding of the horn will not always be required by the exercise of the motorist's duty of care. Nor is that course necessarily apt to the circumstances. So much is demonstrated by many cases. A recent one is Government Insurance Office of New South Wales v Aleksovski, CA 40030/89, an unreported decision of this Court of 15 May 1991. The facts in that case were quite different from the present. However, in the present case I do not believe that we would be entitled to reach a conclusion different from the trial judge by reason of the admitted failure of the respondent to sound her horn. The central question was whether the appellant had moved suddenly into the path of her vehicle. In such a circumstance to avoid collision the sounding of a horn would not have been useful. Unless the appellant could disturb Newton DCJ's conclusion as to how the collision actually occurred, this Court could not disturb the determination of negligence which followed. That conclusion rested upon what the respondent herself said. This Court is not authorised to disturb the conclusion which the primary judge reached based, in part at least, upon the advantage which he had at the trial of seeing the respondent give her evidence. Suggested errors of legal principle and approach are rejected 6 UNREPORTED JUDGMENTS Various other arguments were put before this Court to sustain criticisms of Newton DCJ's decision. An additional argument which was advanced was that his Honour had reserved his decision for a time and might have forgotten the detail of the case. It was suggested that he may not have had a transcript available to him. Certainly in the District Court the delays in preparation of transcripts are notorious. However, this submission had to be withdrawn because, on the face of his Honour's reasons, with numerous paginated references to the transcript, it was clear that he had had the transcript before him in preparing his decision. Then it was said that his Honour had misdirected himself in applying an artificially high standard to the duty of care which the appellant, as a pedestrian, had to observe for his own safety at or near a highway. Reference was made to the remarks of McTiernan J in Alldridge v Mulcahey and Anor (1950) 81 CLR 337. In that case his Honour was part of the majority of the High Court. In the course of his reasons, at 345, his Honour said: "Tt is true that a pedestrian has a right to walk on the part of a road used by vehicles unless it is reserved exclusively for their use. It should be added that the driver of a vehicle owes a duty to take reasonable care to avoid running into a pedestrian who is lawfully using a roadway. The pedestrian must exercise the degree of care which an ordinary prudent man would take in the circumstances. These may be such that the pedestrian would fall short of that standard of care if he ventured to walk on the road. It is a question of fact in each case whether a pedestrian who is injured by a vehicle failed to take due care for his safety." Great care must be used in citing legal authorities in cases of this kind. Each case depends upon its own facts. The facts here were determined in the manner in which I have now set out. Newton DCJ came to the conclusion that this pedestrian, who was walking on the side of the road, moved suddenly into the trajectory of the respondent's moving motor vehicle. Such a conclusion does not run into any difficulties by reason of the decision of McTiernan J in Alldridge v Mulcahey. The appellant urged that McTiernan J had given support to a decision of Denman CJ in Boss v Litton (1832) 5 Car at 407 at 409; 172 ER 1030 at 1031. There the Chief Justice said: "All persons, paralytic as well as others, had a right to walk in the road and were entitled to the exercise of reasonable care on the part of persons driving carriages along it." This passage should not be taken out of context. It was expressed in 1832 long before the advent of fast moving motor vehicles. Whilst the drivers of such vehicles must take care for pedestrians at or near the highway, pedestrians must also take such care of their own safety. Nothing less is appropriate to the conditions of a modern Australian highway with fast moving vehicles upon it. The principles which were stated in Boss v Litton, in the context of a "taxed cart" in the England of 1832, have to be approached with a little care in attempting to apply them to the conditions of modern highways in Australia in 1992, some 160 years later. Then counsel referred to the decision of Daly v Liverpool Corporation [1939] 2 All ER 142 (RBD) at 144 where there appears the familiar passage concerning the potential of the modern motor vehicle, carelessly driven, to be a "lethal weapon". Stable J there said: "My view is that the sooner it is recognised as being the law that a person who drives a motor vehicle under modern conditions is in precisely the same position as, for instance, that of a surgeon or a person who undertakes to perform an URJ BOYD v ELLIOTT (Kirby P) 7 extremely difficult task, involving extremely dangerous consequences for other persons, the better. The standard of care and skill which the law must demand from the driver of a motor car to day is a very high one indeed. A motor car has become a lethal weapon. It may be that pedestrians very often feel that it is so. We know that the motor car kills thousands of pedestrians, but I have never heard of a single pedestrian, or of a thousand pedestrians combined, who killed one motor car. The standard of care and skill which the law requires to day in the driver of a motor vehicle is very high indeed. I think that in this case there was a departure from that very high standard of care, a standard which it is impossible to reconcile with the discharge of the duties of drivers of public vehicles." It was said that his passage had gained the support of the High Court of Australia in Cocks and Anor v Sheppard (1979) 53 ALJR 591 (HC) at 595. However, Murphy J's observations in that case, referring to Daly, were expressed in dissent. They do not therefore form part of the binding rule of Cocks. Moreover, they were qualified by Murphy J as being an expression of his "inclination" to accept Daly. They were expressed in the context of a case about a semitrailer. This is not a case in which to explore the possibility that the decision in Daly may have some instruction for Australian courts in particular circumstances. It is enough to say that nothing in the reasons of Newton DCJ, in this case, indicated that he approached the question before him, which was primarily a question of fact, by the application of any test for the standard of care of the appellant and the respondent which were different from those which are orthodox and applied every day in courts in similar claims. The test applied was the test of reasonable care to avoid the risks of a foreseeable injury. That was the correct test. Next, counsel drew upon the remarks of Hodgson J in Bishop v Dunn (1984) 1 MVR 381 (SCNSW) at 384. From this decision, counsel urged that prima facie, if a driver hits a pedestrian, that amounts, without more, to evidence of negligence. Bishop v Dunn was a case where the driver had not seen a pedestrian. That default had, in the circumstances, led Hodgson J to his conclusion. How much more so, it was argued when, as here, the driver admitted that she had seen the pedestrian and yet had not avoided collision with him. I do not believe that it is appropriate in this case to review the correctness of what Hodgson J, in the special facts, found in Bishop v Dunn. In this case, I repeat for the last time that the central question was whether or not, as the respondent claimed, the appellant had moved so fast into the path of her vehicle that she was unable to avoid the collision. Or whether, as the appellant asserted, the respondent had veered off the bitumen highway onto the verge where he should have been safe. The trial judge determined this contest in favour of the respondent's version. This Court is not able to set that finding aside in the circumstances of this case. Nor should it do so. It was complained that many cases demonstrate that even intoxicated pedestrians are entitled to the protection of the law of negligence. Reference was addressed, for example, to Adric v Bullock (1988) 7 MVR 285 at 286. I entirely agree. It is true that there are superficial similarities between some of the facts in the cases cited, including Adric v Bullock and the present case. However, those similarities do not sustain the argument of the appellant. To succeed, the appellant must undermine the decision of Newton DCJ which rested, ultimately, on his Honour's acceptance of the evidence of the respondent. The appellant has not done this. Therefore his Honour's finding on the facts survives the scrutiny of this appeal. 8 UNREPORTED JUDGMENTS Recapitulation: five suggested grounds of negligence are not made out When one looks, in review, at the suggestions of negligence which are put before this Court for the appellant, there were five The first was that the respondent had failed to slow down. She said she did. Mr Baker agreed with the suggestion that she had not done so. However, this much is clear. The respondent certainly stopped her vehicle within a very short distance of the point of impact. Had she not been travelling slowly, as she claimed, the appellant would almost certainly have been killed. The respondent originally claimed that she had first seen the appellant some two hundred yards away. At that time she said he was staggering, swaying from side to side with his head down. This was latched onto by the appellant's counsel as a basis upon which to suggest that, with such a view of him, the respondent ought to have taken preventative measures to avoid collision. However, the respondent agreed, in answer to a question, that she was hopeless in estimating distances. Newton DCJ did not accept that she had a view of the appellant for two hundred yards. He formed no view as to exactly how far back from the point of impact she had first seen him. She certainly was not travelling fast. She was merely travelling in a lane of traffic, keeping up with it. She said that she kept the appellant under her vision, through the corner of her eye. In these circumstances I do not believe that Newton DCJ has been shown to have been wrong in his conclusion that the respondent did everything that a reasonably careful motorist should have done in the circumstances. Secondly, it was said that the respondent failed to sound her horn. However, as I have already said, this is by no means necessarily indicative of negligence. If one starts with the premise that the appellant moved suddenly into the path of traffic to collide with the side of the respondent's vehicle, then no negligence relevant to avoiding collision is shown by the respondent's failure to sound her vehicle's horn. Thirdly, it was said that the respondent had failed to stop her car in time to avoid impact. However, if the appellant's move was unpredictable, or not reasonably predictable, then her failure to stop her car in a moving lane of homebound evening traffic in such a place does not demonstrate a want of that care which the law requires of a motorist. The fact that a person with some apparent disability is seen on the side of the road adhering to the gravel is not ordinarily a reason for stopping completely the movement of traffic on a highway. It must be expected that, in ordinary circumstances, such a person will take care for his or her own safety and will keep on the gravel verge and off the trafficway. This, suddenly, the appellant failed to do. The failure of the respondent to stop her car on the mere sight of the appellant against the off chance that he would act as he did was not evidence of negligence. Fourthly, it was said that the respondent had failed to swerve in order to avoid the impact which occurred. This was put to the respondent in a question asked at the trial. She said that it was not possible for her to swerve. This answer was attacked in the appeal. However, the test to be applied to the respondent is what reasonable care is required of her as a motorist in the relatively short matter of seconds in which she had to determine what to do. I do not believe that her failure to swerve - even if that course had been open to her - amounted to negligence in the circumstances. Fifthly, it was contended that the respondent should have flashed her high beam at the appellant to warn him to take particular care. It is possible, from the appellant's description of the raising of his hands to his eyes, that she may have done this. But this Court cannot explore that question because it was not a matter which was litigated at the trial. URJ BOYD v ELLIOTT (Hope AJA) 9 Conclusion: the judgment is sustained - need for law reform The result is that neither on the challenges of law to the way in which Newton DCJ approached the matter, nor in the assertion of errors of fact finding, nor in the complaint about the application of the correct principles to the facts as found, has any error been shown in Newton DCJ's decision such as would authorise this Court to disturb it. I have reached this conclusion with a sense of the misfortune in which the appellant finds himself. It is distinctly arguable that our law should not approach these matters upon a basis which requires a person to establish negligence in order to recover compensation. Judges have been saying this for a very long time. See eg [1974] 1 NSWLR xiv. However, negligence is still the relevant law to be applied. Whilst it remains the precondition to the recovery of damages, this Court must apply it. So far as the Court of Appeal is concerned, its only authority to disturb the conclusion of a trial judge is if error is shown. For the reasons which I have expressed, no such error has been demonstrated. It is not, therefore, necessary to examine either the question of contributory negligence or the complaints about the damages which were calculated by Newton DCJ against the possibility of error being shown. It is enough to indicate that, as no such error has been shown, the appeal must be dismissed with costs. Priestley JA This is an appeal by way of rehearing. A long course of practice followed by judicial decision has established the way an appellate court, in considering such an appeal, should approach submissions asking the Court to change findings of fact made by a trial judge sitting alone. In the light of the practice and the decisions, I do not think that the present case is one in which this Court would be justified in undoing or varying the trial judge's basic findings of fact. The appellant's counsel made a skilful and thorough effort to persuade us to the contrary. The material against his submissions was, in my opinion, too difficult to overcome. The trial judge's basic findings of fact make the case somewhat similar to two earlier cases in this Court: see Stewart v Carnell (1987) 2 MVR 147 and Winters v Davidson (1989) 9 MVR 239. I mention these cases not because of the similarity in their facts, because it is not such as to give this Court any help in deciding the present appeal in the factual sense, but because the later of the two, at 241, adopted the following statement made in the earlier: "Negligence implies a want of care to prevent foreseeable injury. There are limits on the extent to which irrational behaviour of pedestrians in apparent disregard of their own safety should reasonably be anticipated by a reasonably careful motorist." It seems to me that, on the facts found by Newton DCJ, his further conclusion, which essentially involved the idea that the defendant could not reasonably be expected to have anticipated what the plaintiff did, was correct. This case also seems to me to be yet another in the stream of examples which pass through this Court of the unsatisfactory state in modern conditions of the law which requires persons injured by motor vehicles to prove fault on the part of the driver as a precondition to compensation for injury. There seems to me to be a pressing need to continue the search for a more suitable system, capable of being fairly administered. On the law as it stands, I agree that this appeal should be dismissed with costs. Hope AJA I agree with the reasons given by Kirby P and I agree with the order which he has proposed. I also agree with the reasons of Priestley JA. 10 UNREPORTED JUDGMENTS Kirby P: The order of the Court is: appeal dismissed ORDER Appeal dismissed with costs.Counsel for appellant: CT Barry Solicitors for appellant: Cunningham, Adam, Cobb and Vitnell 10 Counsel for respondent: RC Tonner Solicitor for respondent: Solicitor for Government Insurance Office of New South Wales203040