New South Wales Court of Appeal CITATION: Azzopardi v. Constable; Azzopardi v. Thompson [2006] NSWCA 319 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 2 November 2006 JUDGMENT DATE: 22 November 2006 JUDGMENT OF: Hodgson JA at 1; Ipp JA at 49; McColl JA at 57 DECISION: 1. Appeals allowed. 2. Verdicts and judgments for the respondents varied by substituting in each case a reduction for contributory negligence of 50% and making consequential amendments. 3. Respondents to pay two-thirds of the appellant's costs of the appeals, and to have a Suitors' Fund certificate if otherwise entitled. CATCHWORDS: TORT - NEGLIGENCE - Motor accident - Whether factual errors made by primary judge - Whether primary judge erred in finding negligence - Whether apportionment for contributory negligence unreasonable. Liftronic Pty. Limited v. Unver (2001) 179 ALR 321, [2001] HCA 24 CASES CITED: Pledge v Roads and Traffic Authority (2004) 78 ALJR 572 Podrebersek v. Australian Iron & Steel Pty. Limited (1985) 59 ALJR 492 Emma Azzopardi - appellant PARTIES: Warren James Constable - respondent Edward Thompson - respondent FILE NUMBER(S): CA 40086/06; CA 40087/06 COUNSEL: Mr. J. Poulos QC with Mr. J. Ryan for appellant Mr. B. Dooley with Mr. T. Edwards for respondents Sparke Helmore, Newcastle for appellant SOLICITORS: Curtis Gant Irving, Muswellbrook for Constable Marshall & Partners, Raymond Terrace for Thompson LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 130/05 DC 131/05 LOWER COURT JUDICIAL OFFICER: Armitage DCJ LOWER COURT DATE OF DECISION: 27 January 2006 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40086/06 CA 40087/06 DC 130/05 DC 131/05 HODGSON JA IPP JA McCOLL JA Wednesday 22 November 2006 AZZOPARDI V. CONSTABLE AZZOPARDI V. THOMPSON Judgment 1 HODGSON JA: In separate proceedings, the first respondent (Mr. Constable) and the second respondent (Mr. Thompson) sued the appellant for damages for personal injury arising out of a motor accident that occurred on 28 April 2001. 2 On 27 January 2006, Armitage DCJ gave verdicts for both respondents, subject to a reduction in each case for contributory negligence of 25%. The amount of damages in each case was agreed. The appellant appeals against both these verdicts. CIRCUMSTANCES 3 The accident occurred on the Golden Highway, about 6 kilometres east of the town of Merriwa. The appellant was driving a Toyota car east along that road, and that car struck both respondents in the eastbound lane not far from the commencement of a wide sweeping curve of the road, which goes to the right and downhill for vehicles travelling east. 4 For vehicles travelling east along that road, the road starts a significant descent about 300 metres or more before the likely point of impact in this case. The descent is straight for about 200 metres, after which a gradual curve to the right commences at about 135 metres before the likely point of impact. There is an advisory speed sign showing 85 kph, which appears to be at about 90 metres before the commencement of the curve, and also three chevrons showing the direction of the curve situated at about 50 metres, 90 metres and 120 metres after the start of the curve. The point of impact was not precisely fixed by the evidence, but on all the material, it is reasonable to put it at approximately 15 metres past the third of these chevrons. There is one lane for eastbound (downhill) traffic throughout this part of the road, and two lanes for westbound (uphill) traffic. 5 Shortly before the accident, a Falcon car driven by Mr. Thompson's daughter had proceeded down this hill into the curve, gone off the side of the road, become entangled with the safety fence, and come to a stop across the road at a point about 170 metres from the commencement of the curve, with the front part of the car being across and wholly blocking the eastbound lane, and the rear part of the car extending about half way into one of the westbound lanes. 6 The respondents came to the scene to render assistance after this accident. Mr. Constable came in a four-wheel drive utility, which he parked to the north of the eastbound carriageway, pointing east, about 50 metres west of the Falcon. Mr. Thompson also came in a four-wheel drive utility, which he parked just on the eastbound carriageway, pointing west, about 5 metres east of the Falcon. The primary judge found that neither of these vehicles were illuminated; and this finding is not challenged on appeal. 7 At the time of the accident, there was also a Volvo truck parked adjacent to Mr. Thompson's utility, straddling the double line separating the eastbound lane and the westbound lanes. There was a dispute about which way this vehicle was facing and about whether and to what extent it was illuminated. The driver of this vehicle was not identified, and did not give evidence. 8 Also at the time of the accident, there were two large trucks proceeding very slowly westwards up the hill, having just passed the Falcon, both of them in the left of the two westbound lanes. The first was a truck driven by Mr. Kemble, which was a tipper trailer 13.5 metres (45 feet) long and 4 metres high. It was not clearly established exactly where it was at the time of the accident, but it seems that it was around 70 metres past the Falcon and proceeding uphill at a walking pace. The second truck was one driven by Mr. Dries, which seems to have been about 28 metres long. His evidence, accepted by the primary judge, was that his cab was approximately alongside the respondents when they were hit, putting this cab in the vicinity of 35 metres past the Falcon. 9 The speed limit at all relevant points in the roadway was 100 kph. In addition to the speed advisory sign referred to above, there were other signs further west along the road. At about 800 metres before the point of impact, there was a "slippery road" sign; at about 750 metres before the point of impact, there was a "reduce speed" sign; and at about 700 metres before the point of impact, there was a "steep grade" sign. At the time of the accident, the weather was dry, it was dark (being in the very early hours of the morning) and it was either clear or there was a very light fog that did not materially affect visibility. 10 The appellant and her fiancé Graham Neilson had set off early the previous day from Roxby Downs in South Australia; and they had driven for about 18 hours and 1,600 kilometres to get to the site of the accident. Mr. Neilson drove for a large part of this journey; but the appellant drove for a short time before Cobar, and had taken over again about 15 to 20 minutes before the accident. They had short stops for refreshments at Cobar and Dubbo; and the appellant had slept for about three hours while Mr. Neilson was driving. The appellant was a P-plate driver. 11 The appellant's evidence was to the effect that she was travelling at about 90 kph prior to the commencement of the descent, and that she slowed to go down the hill and round the curve. She said that the glare of lights (being lights from Mr. Kemble's truck) caused momentary blindness, she dipped her lights, and then she saw the respondents on the road and slammed her brakes on. 12 It is clear that the impact of the Toyota car on the respondents was severe, and the appellant's car came to rest just on the north side of the eastern carriageway about 10 metres short of where the Falcon was. The skid marks on the road from the Toyota commenced about 60 metres from the Falcon, and the longest of them was measured at 47.5 metres. The appellant's expert calculated that the car's speed at the time the brakes were applied was 83-86 kph; and while this was not explicitly accepted by the primary judge, it was not rejected. On that basis, the Toyota was moving at about 23-24 metres per second prior to application of the brakes; and expert evidence in the case suggested a perception/reaction time of about 1.5 to 2.5 seconds. That translates to a range of about 35-60 metres prior to the commencement of the skid marks, this giving the approximate position the Toyota was in where the appellant first caught sight of the respondents. Taking the point of impact at about 25 metres from the commencement of the skid marks (consistent with what was said above as to the probable point of impact), it would follow that the appellant must have seen the respondents when she was around 60-85 metres away from them. 13 Mr. Constable had no recollection of the circumstances of the accident. Mr. Thompson had some recollection of those circumstances, but no recollection of precisely where he and Mr. Constable were when they were hit or what they were doing at that time. 14 In addition to evidence from the appellant and the respondents, evidence was given at the trial by Mr. Neilson, Mr. Kemble, Mr. Dries, and two experts, namely Mr. Jamieson for the respondents and Mr. Keramidas for the appellant. The primary judge also had a view of the scene of the accident. FINDINGS OF PRIMARY JUDGE 15 In general, the primary judge preferred the evidence of Mr. Kemble and Mr. Dries to that of Mr. Thompson, the appellant and Mr. Neilson. 16 The primary judge accepted Mr. Kemble's evidence to the effect that, as he was proceeding up the hill, he had his headlights on low beam, and also had his hazard lights flashing; and also his evidence that he flashed his headlights when he saw the appellant's car come over the hill, and flashed them again shortly afterwards. 17 The primary judge also found that the headlights and hazard lights of the Volvo truck were on at the time of the accident, and that the Volvo truck was pointing to the west, that is pointing towards and thus illuminating the Falcon. 18 The primary judge found that the respondents were illuminated by some light source other than the appellant's headlights, this being because those headlights were dipped, giving a maximum range of about 50 metres to the side of the road and less towards the centre of the road, yet the respondents were seen by the appellant when they were at least 60 metres in front of her (see above). The most probable main source of this illumination was the Volvo's headlights, and thus this finding confirmed the previous finding. 19 Next, the primary judge accepted evidence of Mr. Jamieson that the appellant had an uninterrupted view of the crash scene (that is, of the Falcon car) from about 250 metres prior to the point of impact. 20 The primary judge found that the appellant was suffering from fatigue at the time of the accident. 21 He found that the appellant should have reduced speed, after passing the advisory signs, to about 60-65 kph. 22 On the basis of those findings, the primary judge found that the appellant's conduct was not consistent with reasonable skill and care in that (a) she drove when fatigued, (b) she did not keep a proper lookout and (c) she drove too fast. Accordingly, he found negligence proved against the appellant. 23 On the question of contributory negligence, the primary judge found that the respondents were standing side-on to approaching traffic, wearing dark clothing. He found, as noted above, that there was no lighting on their vehicles. However, he found that, because of the noise of Mr. Kemble's truck, it would have been difficult for them to hear the appellant's vehicle approaching. He found there was some failure by the respondents to take reasonable care for their own safety; and on the basis of that finding, assessed contributory negligence at 25%. GROUNDS OF APPEAL 24 The appellant relies on the same grounds of appeal against each respondent. They are: 1. The learned trial judge erred in finding that the Appellant failed to exercise reasonable care for the Respondent in that: 1.1 His Honour erred in finding that the Appellant was fatigued, in particular his Honour failed to have proper regard to the evidence of the Appellant and Graham Neilson and erred in placing any reliance on the opinion of John Jamieson, Traffic Engineer, on the issue of fatigue; 1.2 His Honour erred in finding that the Appellant did not keep a proper look-out in the circumstances and, in so finding: (a) failed to have proper regard to the evidence of the Appellant and Graham Neilson; (b) erred as to the positioning of a Volvo truck parked on the roadway; (c) failed to have proper regard to the evidence of William Keramidas, Traffic Engineer, on the view that would have been available to the Appellant; and (d) failed to have proper regard to the submissions advanced by the Appellant on the issue. 1.3 His Honour erred in finding that the appellant was travelling at an excessive speed in all the circumstances. 2 The learned trial judge erred in failing to find that the Respondent was facing in an easterly direction immediately prior to the impact with the Appellant's vehicle. 3 Further and in the alternative, the learned trial judge erred in assessing the Respondent's contributory negligence at 25%, such finding being wholly unreasonable in all the circumstances. FINDINGS OF PRIMARY FACT 25 Mr. Poulos QC for the appellant submitted that the primary judge was in error in finding that Mr. Kemble's truck had its headlights on low beam, its hazard lights operating, and that Mr. Kemble twice flashed his headlights in view of the appellant's car. He submitted that the evidence of the appellant and Mr. Nielson was to the contrary, namely that the headlights were steadily on full beam and there were no hazard lights operating. Mr. Poulos submitted also that Mr. Kemble's evidence was unsatisfactory, in particular in that he suggested the impossible time of ten seconds between the two occasions when he flashed his headlights, and because he expressed uncertainty about whether he flashed his lights a second time at all. 26 In my opinion, it was well open to the primary judge to accept Mr. Kemble's evidence in preference to that of the appellant and Mr. Nielson, and the primary judge gave adequate reasons for doing so. Despite inaccuracy in the time estimate of ten seconds, and despite a measure of uncertainty about the second flashing of the lights, in my opinion it was well open to the primary judge to find that the lights were in fact flashed twice. 27 Next, Mr. Poulos submitted that the primary judge erred in finding that the Volvo truck was pointing to the west, and finding at the same time that its headlights were on. Mr. Poulos gave detailed criticisms of the judge's process of reasoning, focusing particularly on an alleged error by the primary judge in finding that Mr. Dries approached from a westerly direction, stopped and got out of his truck. 28 In my opinion, the reference to Mr. Dries approaching from a westerly direction was a slip, not a deliberately made finding of fact that was in error. I accept Mr. Poulos' submission that it seems likely that Mr. Dries did not actually get out of the truck; but on the other hand, it seems clear that he did speak to the Volvo driver at a time when his truck was either stopped or proceeding extremely slowly; and I do not think the primary judge's reference to Mr. Dries getting out of the truck is sufficiently material to vitiate his decision. In my opinion, the finding of the primary judge was well open, and was also supported by the primary judge's acceptance of Mr. Dries' evidence that he later saw the Volvo truck heading westwards. In my opinion also, the primary judge's finding that there was some illumination of the respondents quite apart from any illumination that might have been provided by the appellant's headlights was a finding supported by the evidence; and this also lent some support to the finding that the Volvo truck was pointing west with its headlights on. 29 Mr. Poulos submitted that the primary judge was in error in finding that the appellant had an uninterrupted view of the crash scene from 250 metres prior to the point of impact. Although Mr. Jamieson had given evidence in cross-examination that, while this view may have been blocked by the trucks if they had been in the centre lane, it would not have been blocked by them since they were in the kerbside lane, this evidence was contrary to the clear effect of photographs that were in evidence and also a diagram that was in evidence. 30 It does seem to me that the photographs and diagram give strong reasons for doubting this evidence from Mr. Jamieson. Photographs A1.1 and A1.2 (both being at Blue 196 and Blue 231) strongly suggest that a large truck in the kerb lane in the vicinity of the middle of the three chevrons (as Mr. Kemble's truck was) would have wholly blocked the appellant's view of the Falcon car located about 50 metres past the last of the three chevrons, at least until some time after the appellant had passed a point about 185 metres from the Falcon. The plan numbered 6 (Blue 120) suggests strongly that Mr. Kemble's truck would have blocked the appellant's view of the Falcon until her car was at a point about 110 metres from the Falcon. 31 However, it was not put to Mr. Jamieson (or indeed to Mr. Keramidas) that this is what those photographs and that plan indicated. Mr. Jamieson and the primary judge had the advantage of actually seeing the scene of the accident; and there may be some answer to the propositions I have put based on the photographs and the plan that they could have given if the matter had been squarely put to them. In those circumstances, I do not think I should overturn the primary judge's decision on the basis of my interpretation of the photographs and the plan. In any event, as will be seen, I am of the view that the primary judge's decision on negligence should be affirmed on another basis. 32 Mr. Poulos submitted that the primary judge erred in finding that the appellant was suffering from fatigue at the time of the accident, when this proposition was squarely denied by both the appellant and Mr. Nielson, who were accepted by the judge as honest witnesses. 33 In my opinion, it was open to the judge to find, as a matter of common sense, that after such a long journey the appellant was suffering from fatigue, in the sense that her alertness and reactions would be to some extent diminished. This could legitimately be used as a factor in assisting the judge to come to a conclusion, on other evidence, that in specified respects, what the appellant did fell short of reasonable skill and care. However, I am doubtful if the primary judge was justified in finding, if he did, that the appellant's condition was such that for her to drive in that condition was itself was a failure to exercise reasonable skill and care. FINDINGS OF NEGLIGENCE 34 Mr. Poulos submitted that the primary judge erred in finding that the appellant should have reduced her speed after passing the advisory signs to about 60-65 kph: where the most recent and most pertinent advisory sign suggested a speed of 85 kph, it could not be considered negligence for the appellant not to have reduced her speed to 60-65 kph. Furthermore, Mr. Poulos submitted, the primary judge erred by reasoning that, because the accident could have been avoided if the appellant had reduced her speed to 60-65 kph, this is what she should have done. 35 I accept Mr. Poulos' submission that it would be an error to reason that, because the accident could have been avoided if the appellant had slowed down to 60-65 kph, therefore she was negligent in not doing so. I also accept that it would be an error to find, on the basis of the advisory signs alone, that the appellant should have slowed down to 60-65 kph. On a narrow reading of part of the judgment of the primary judge, it is arguable that the primary judge made these errors; but I would prefer a broader reading of the judgment, supporting the view that the judge was also relying, in holding that the appellant should have slowed to 60-65 kph, on his finding to the effect that the appellant should have seen an obstruction and/or problem on the road from a distance of about 250 metres back from the Falcon, and also his view that the appellant should have reacted to Mr. Kemble's hazard lights and his flashing of his headlights. 36 On the basis of his previous submissions, Mr. Poulos submitted that the primary judge was in error in finding breaches of the duty of exercising reasonable skill and care in (a) driving when fatigued, (b) not keeping a proper lookout, and (c) driving too fast. 37 As suggested above, I would think it would have been an error to find negligence against the appellant on the basis of fatigue alone. However, as indicated earlier, I think the judge was justified in reaching a conclusion that there was a measure of fatigue such as could render the appellant's alertness and reactions less than optimal; and this in turn could lend some support to a finding of some other breach. 38 The primary judge's finding that the appellant was not keeping a proper lookout has support from the circumstance that she did not observe Mr. Kemble's hazard lights in operation, and did not observe that Mr. Kemble's headlights were on low beam and were flashed on high beam on two occasions. The circumstance that, according to her evidence, she just saw constant dazzling lights tends to support the judge's finding of failure to keep a proper lookout. The judge's finding that the Falcon was observable 250 metres back from the point of impact, and his finding that the Volvo's headlights were on and pointed towards the Falcon, coupled with the appellant's failure to see the Falcon or at least see that there was something on the road requiring caution, further supports the finding that the appellant was not keeping a proper lookout. 39 In my opinion, on that basis, the exercise of reasonable skill and care did require the appellant to slow down substantially from 85-90 kph in the circumstances. The appellant's visibility ahead was limited, particularly after she dipped her own lights; and in those circumstances, I think the hazard lights of Mr. Kemble's truck and his twice flashing his headlights should have caused the appellant to slow substantially from 90 kph, to something of the order of 60-65 kph suggested by the primary judge. The existence of a visible obstruction on the road about 250 metres ahead should also have produced the same result; and if, contrary to the view of the primary judge that I have not rejected, Mr. Kemble's truck did obscure the view of this obstruction, that itself would suggest the need for caution having regard to Mr. Kemble's hazard lights and the flashing of his headlights. 40 For those reasons, I would not overturn the primary judge's finding of negligence. I would however add that the appellant was faced with a most unfortunate combination of circumstances. The hill and the curve made the problem on the road difficult to see, and this was exacerbated by the position and the lights of Mr. Kemble's truck. However, a fast-travelling car can cause most serious injuries, and the exercise of reasonable skill and care does require quite a high standard, and does require the exercise of significant caution where there are any signs that there is a problem ahead on the road. CONTRIBUTORY NEGLIGENCE 41 Mr. Poulos submitted that, in all the circumstances, the responsibility of the respondents for their injury was far greater than that of the appellant. 42 In my opinion, some allowance has to be made for the circumstance that the respondents were attempting to assist with a problem existing on the road because of the previous accident; and it may be inferred that they were understandably preoccupied with questions concerning how they were to deal with that problem in a way that may have lessened their attention to their own safety. 43 However, there are important factors suggesting substantial contributory negligence, that were not adverted to by the primary judge. They were in the east-bound carriageway at a substantial distance of about 35 metres away from the Falcon and thus away from the major source of lighting, that is the headlights of the Volvo. They were described by Mr. Dries as being in a "pool of darkness"; and although I would not infer from that that they were unlit, it does confirm that they were poorly lit by the Volvo's headlights, because of their distance from the Falcon, and also not lit by the appellant's headlights until shortly before impact. Further, the respondents were in this position on the carriageway where there was no apparent reason for them to be there: if they had been there to alert approaching cars, then surely they would have had some light themselves and would have been on the lookout for approaching cars. They must in fact have been paying no attention whatsoever to approaching cars: if they had been paying any attention to approaching cars, they would have seen the appellant's car approaching in ample time to get out of its way. 44 As I have said, these important factors were not adverted to by the primary judge. In addition, it seems to me that the result reached was so unreasonable as to require this Court to make its own assessment, notwithstanding what was said in Podrebersek v. Australian Iron & Steel Pty. Limited (1985) 59 ALJR 492 at 493-4, and Liftronic Pty. Limited v. Unver (2001) 179 ALR 321, [2001] HCA 24. 45 Having regard to the degree of lapse from reasonable standards, and the degree of contribution to the accident from the respective parties, in my opinion an appropriate apportionment would be a 50% reduction in damages because of the contributory negligence of the respondents. CONCLUSION 46 In my opinion, the appeal should be allowed, and the verdict and judgment below should be varied by substituting a reduction of 50% for contributory negligence in each case, and making all consequential amendments. There seems no basis for making any alteration to any costs order made below. 47 As regards the costs of the appeal, the appellant was unsuccessful in the appeal against the finding of negligence, but successful as regards contributory negligence. The result achieved by the appellant is substantial, and the appellant had to bring the appeal to achieve it. In those circumstances, the general rule is that the costs follow the event, except to the extent that the costs have been increased by the inclusion of severable issues on which the successful party failed. In this case, although most of the argument on appeal was directed to the issue of negligence, on which the appellant failed, most of this argument was also relevant to the question of contributory negligence. On the whole, in my opinion, the appropriate order would be that the respondents pay two-thirds of the appellant's costs, and have a Suitors' Fund certificate if otherwise entitled. 48 Accordingly, the orders I propose are: 1. Appeals allowed. 2. Verdicts and judgments for the respondents varied by substituting in each case a reduction for contributory negligence of 50% and making consequential amendments. 3. Respondents to pay two-thirds of the appellant's costs of the appeals, and to have a Suitors' Fund certificate if otherwise entitled. 49 IPP JA: I have had the benefit of reading the reasons to be published by Hodgson JA. 50 Whether the appellant was negligent in not keeping a proper lookout is not a straightforward issue. 51 As Hodgson JA points out, the photographs and diagram in evidence give a clear impression that the appellant did not have an uninterrupted view of the crash scene from 250 metres prior to the point of impact. This was a key element of the finding that, had the appellant been keeping a proper lookout, she would – in good time - have seen the problem ahead and would have realised that she should slow down to a much lower speed. 52 The judge's finding, in this regard, was, however, based on a view of the scene that he undertook. This is a powerful reason for accepting his finding, despite the impression gained from the photographs and diagram: Pledge v Roads and Traffic Authority (2004) 78 ALJR 572 at 583, [49]. In addition, as Hodgson JA points out, it was not put to the expert witnesses that the photographs and diagram showed that the appellant's view, when some 250 metres away from the point of impact, was obstructed. For these reasons, I would not disturb the judge's findings on this issue. 53 I therefore agree with Hodgson JA that the appellant was negligent in not keeping a proper lookout and in not slowing down more than she did. 54 In my opinion the degree of negligence on the part of the appellant was substantially less than that of the respondents. Hodgson JA points out that the appellant "was faced with a most unfortunate combination of circumstances". These included the configuration of the hill and the curve in the road which made the problem ahead difficult to see. The position and lights of Mr Kemble's truck aggravated these difficulties. In these circumstances, the appellant's failure to keep a proper lookout and slow down is not negligence of a significant order. 55 The contributory negligence of the respondents was of a much higher degree. They were moving or standing in the middle of the road, in the middle of the night, in a position where little if any lighting illuminated them. They were in a position that was obviously dangerous, which required alertness and care on their part. They had ample opportunity to see the appellant's oncoming vehicle. The appellant's vehicle, indeed, would have been visible to them for a far greater distance and for a far longer period than they would have been visible to the appellant. They were not blinded by lights of oncoming traffic and, as pedestrians, had complete freedom of movement on the road. They had more than ample time to move out of the way. Their opportunity of avoiding the accident was far greater than that which the appellant had. The respondents appear to have paid no regard to the possibility that vehicles might be travelling along the road towards them. They failed to keep a proper lookout. 56 In my opinion, the verdict and judgment of the trial judge should be varied by reducing the respondents' damages by 75% for contributory negligence. Otherwise, I agree with the orders proposed by Hodgson JA. 57 McCOLL JA: I agree with Hodgson JA. ********** 23/11/2006 - Amendment to plaint numbers - Paragraph(s) coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.