ALBERT v THE NOMINAL DEFENDANT [1999] NSWCA 73

New South Wales Court of Appeal CITATION : ALBERT v THE NOMINAL DEFENDANT [1999] NSWCA 73 revised - 01/04/99 FILE NUMBER(S) : CA 40012/98 HEARING DATE(S) : 23 March 1999 JUDGMENT DATE : 23 March 1999

PARTIES : PAUL STEPHEN ALBERT v THE NOMINAL DEFENDANT JUDGMENT OF : Priestley JA at 1; Powell JA at 15; Sheppard AJA at 16

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DCC 5877/95 LOWER COURT JUDICIAL OFFICER : Acting Judge McLachlan

COUNSEL : Appellant - Dr A. Morrison SC / M. Vesper Respondent - A. Ashburner SOLICITORS : Appellant - Stacks - The Law Firm Respondent - Fergusons Holz Solicitors CATCHWORDS : Negligence; Contributory negligence. Podrebersek v Australian Iron & Steel Pty Ltd (1985) ALJR 492 Schieb v Abbott (1998) 27 MVR 285 CASES CITED: Stocks v Baldwin (1996) 24 MVR 416 Tsuji v Metromix Pty Ltd (unreported CA 17/12/98) DECISION : Dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40012/98 DCC 5877/95

PRIESTLEY JA POWELL JA SHEPPARD AJA

Tuesday, 23 March 1999

ALBERT v THE NOMINAL DEFENDANT

1 PRIESTLEY JA: This is an appeal by a Plaintiff in the District Court who brought proceedings for damages for negligence against the Nominal Defendant. The Plaintiff in the District Court succeeded in establishing negligence on the part of the Nominal Defendant, or, more factually, the driver of the unidentified vehicle represented at the hearing by the Nominal Defendant. 2 The Plaintiff's damages were reduced by 50 per cent because of his contributory negligence. The appeal challenges this assessment. For the Plaintiff it has been submitted that much greater responsibility for the damage to the Plaintiff should be attributed to the unknown driver than to the Plaintiff. The Plaintiff had no recollection of the events immediately before he was struck and injured by the unidentified vehicle. 3 The direct evidence of what happened in the accident was very scanty. It was summarised by the trial judge as follows. Having mentioned that the Plaintiff and his friend, Mr Kay, had been drinking and had become quite well under the influence of alcohol during the night when the accident happened, and having mentioned that the two men had been walking along a road which has been referred to as a through road, and having mentioned that the friend, Mr Kay, had run across the road to grab a taxi, the trial judge continued, "The plaintiff moved to follow Kay across the road. Secondly, having travelled some metres across the road, he was struck by a motor vehicle proceeding west in Bay Street. He was thrown quite a number of metres. Thirdly, no marks were seen on the roadway to indicate the point of impact. Fourth, the identity of the driver of the vehicle and the vehicle itself could not be ascertained. Five, the driver of the motor vehicle was negligent in failing to keep a proper lookout and in failing to stop after an accident. The accident could not have occurred without that negligence. Six, the plaintiff was guilty of contributory negligence." 4 Additional facts, relied upon by counsel for the Plaintiff in the appeal today, were that at the time when the accident happened, traffic was very light, and the driver of the unidentified vehicle must have had a clear view of the Plaintiff as he went onto the road ahead of the vehicle. 5 The judge's apportionment of responsibility of 50:50 between the pedestrian and the driver was criticised by counsel for the Plaintiff, who relied on a series of cases in which emphasis has been placed by the court upon the heavy duties that lie upon drivers of vehicles because of the danger they present to other vehicles and pedestrians unless driven with very careful control. The lethal nature of vehicles on public roads has been stressed again and again. We were referred to a number of these cases. I will not go through them but will simply mention that ideas of the kind they deal with were discussed by Mahoney P in Stocks v Baldwin (1996) 24 Motor Vehicle Reports 416 and that what was said there has been adopted and discussed in a number of cases in this Court. One of the most recent of these cases is Tsuji v Metromix Pty Limited, decided on 17 December 1998. Some of the cases are collected there, and reference is made to Schieb v Abbott, (1998) 27 MVR 285, in which there is a fairly extensive collection made of cases of this kind. By cases of this kind, I am referring to those concerning vehicles and pedestrians where the court has emphasised the duties that motorists have to pedestrians generally, including pedestrians who are distressingly often quite careless of their own safety and find themselves injured by motor vehicles. 6 The bulk of these cases deal with situations where a motorist has had some reason, because of the surrounding circumstances, to be aware that pedestrians are likely to behave carelessly. The cases where the injured pedestrian has succeeded as Plaintiff are cases where it has been established that the motorist, although driving at a pace and in a place which are lawful, has nevertheless been put on notice by conduct which the motorist did see or should have seen, that a pedestrian might act in such a way as to put that pedestrian in danger from the motorist. In the cases where pedestrians have succeeded in establishing negligence against the motorist, almost invariably the pedestrian's damages have been reduced because of contributory negligence. 7 Counsel for the Plaintiff sought to extract a general principle from cases of this kind, which would have the result that particular emphasis should be placed by the court, in considering how the responsibility for the damage should be apportioned between the parties, upon what has been called the causative potency of the motor vehicle involved in the accident. I do not think myself that the cases establish any general principle. They do show that the courts in fact, in considering comparative responsibility, take into account the causative potency of the vehicle as one of the circumstances which have to be considered in arriving at a conclusion. 8 The general approach however which must be made by courts in cases of this kind was stated by the High Court in Podrebersek v Australian Iron and Steel Pty Limited (1985) ALJR 492. A court consisting of Chief Justice Gibbs and Justices Mason, Wilson, Brennan and Deane said, "A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v MacGregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed." (at 493-494) 9 They continued a little later, "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man, (Pennington v Norris (1956) 96 CLR 10 t 16) and of the relative importance of the acts of the parties in causing the damage: (Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] TasSR 36 at 42-49 and Broadhurst v Millman [1976} VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case;..." 10 In the present case, I have already stated the circumstances upon which the trial judge acted and which have been accepted by the Plaintiff's submissions in the appeal. They are very scanty. They were sufficient to enable to the judge to find, as a matter of inference and on the probabilities, that the driver of the motor vehicle failed to keep a proper lookout. One can see how he arrived at that conclusion in view of the light state of the traffic at the time of the accident. Had he been keeping a proper lookout, the probabilities are that he would have seen the Plaintiff and been able to avoid him. 11 So far as contributory negligence is concerned, the onus is on the defendant to show that the Plaintiff was at fault in taking reasonable care for his own safety. That seems to me to be an inference that comes from the facts of the case just as strongly as the inference of negligence on the part of the driver. The lightness of the traffic means that had the Plaintiff taken any kind of care in looking up and down the road before he started to cross it, he must have seen the unidentified vehicle. The fact that the Plaintiff was, as the trial judge said, some metres across the road, is a sound foundation for the inference that the Plaintiff was not taking due care for his own safety because, had he been doing so, he would have been able to see the vehicle and not get into its path. 12 They seem to me to be really the only inferences that can safely be drawn from the facts as found by the trial judge. What the trial judge then had to do, in the words of the relevant statute, was to reduce the Plaintiff's damages to such extent as he thought just and equitable, having regard to the Plaintiff's share in the responsibility for the damage. He arrived at the figure of 50 per cent. 13 The question for this Court is not whether this Court would have arrived at that particular percentage. The question for this Court is whether the Plaintiff in the appeal has shown that the judge made some mistake of an identifiable kind, either of fact or law, in arriving at that result, or that the result is so plainly disproportionate to anything that could be arrived at on the facts that the judge must have made some mistake, although it cannot be identified. In my opinion, the Plaintiff has not made out either of those grounds of appeal. I see no sign of any error by the judge in principle, and the result that he arrived at seems to me to be one fully justified on the facts that were before him. It was within the area of a proper exercise of the kind of evaluative judgment that is involved in these cases. 14 In my opinion therefore, although the result so far as the Plaintiff is concerned, is from his point of view a most unfortunate one, it is one that the court should arrive at, the basic reason, as I have said already, being that no error on the part of the judge has in my opinion been shown. I would therefore propose that the appeal be dismissed with costs. 15 POWELL JA: I agree. 16 SHEPPARD AJA: I also agree. 17 PRIESTLEY JA: The appeal is therefore dismissed with costs. **********