New South Wales Court of Appeal CITATION: O'Halloran v Roth [2008] NSWCA 65 HEARING DATE(S): 4 April 2008 JUDGMENT DATE: 15 April 2008 JUDGMENT OF: Giles JA at 1; Hodgson JA at 2; Young CJ in Eq at 57 (1) Leave granted to appeal and to cross-appeal. DECISION: (2) Notice of appeal and notice of cross-appeal to be filed within 14 days. (3) Appeal and cross-appeal dismissed. (4) Defendant to pay three-quarters of the plaintiff's costs of the appeal and cross-appeal. CATCHWORDS: TORT – Negligence – Appeal – Whether decision of primary judge materially affected by reference to parts of experts' reports not admitted into evidence – Whether findings of fact glaringly improbable – Whether apportionment of responsibility for accident appealably wrong. LEGISLATION CITED: UCPR 51.53 CATEGORY: Principal judgment Blatch v Archer (1774) 1 Cowp 63 at 64, 98 ER at 970 Hughes v Kirby NSWCA 27/9/91 CASES CITED: Jones v Dunkel (1959) 101 CLR 298 King v Collins [2007] NSWCA 122 Mastronardi v State of New South Wales [2007] NSWCA 54 PARTIES: Michael Thomas O'HALLORAN (Appellant) Maria ROTH (Respondent) FILE NUMBER(S): CA 40198/07 COUNSEL: C E ADAMSON SC/ B A P KELLEHER (Appellant) B M J TOOMEY QC/ M L HOLZ (Respondent) SOLICITORS: Hunt & Hunt (Appellant) Allenson Benn Law Practice (Respondent) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 20256/05 LOWER COURT JUDICIAL OFFICER: Hall J LOWER COURT DATE OF DECISION: 9 March 2007 LOWER COURT MEDIUM NEUTRAL CITATION: Roth v RTA & Ors [2007] NSWSC 128 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40198/07 SC 20256/05 GILES JA HODGSON JA YOUNG CJ in Eq 15 APRIL 2008 Michael Thomas O'HALLORAN v Maria ROTH Judgment 1 GILES JA: Save that I doubt that I would have assessed the plaintiff's responsibility as higher than the assessment by the primary judge, I agree with the reasons of Hodgson JA and with the orders he proposes. 2 HODGSON JA: On 9 March 2007, Hall J in the Common Law Division determined the question of liability in proceedings in which the opponent (the plaintiff) had sued the claimant (the defendant) for damages for personal injury arising out of a motor accident involving motor vehicles driven respectively by the plaintiff and the defendant. In those proceedings, the plaintiff had also sued the Road Traffic Authority of New South Wales and the Wollondilly Shire Council, and there had been various cross-claims; but those matters were resolved prior to the determination by the primary judge, which concerned only the claim by the plaintiff against the defendant. 3 The determination made by the primary judge was that the defendant was in breach of his duty of care to the plaintiff, and that the respective responsibilities for the accident were 60 per cent to the plaintiff and 40 per cent to the defendant. 4 The defendant seeks leave to appeal from that decision, and the plaintiff seeks leave to cross-appeal against the apportionment. Uncontested Facts 5 It is convenient first to set out facts concerning the accident that are clearly established and/or not the subject of any dispute. 6 The accident occurred at about 2.40 pm on 20 April 2000 on Burragorang Road, The Oaks. The weather was fine and the road dry. The road at that point had three lanes, two for uphill traffic travelling southwards and one for downhill traffic travelling northwards. The road markings between the two uphill lanes and the downhill lane were an unbroken line on the side of the uphill traffic, and broken lines on the side of the downhill traffic (so that it was not prohibited for downhill traffic to go into the middle of the three lanes in order to overtake, if it was safe to do so). The uphill lanes were signposted "Keep Left Unless Overtaking". 7 The hill on which the accident occurred was a rise (about 10.5 per cent) of some hundreds of metres, with a very gradual curve to the left for uphill traffic and to the right for downhill traffic. At relevant parts of the road there was a clear view in both directions for upwards of 400 metres. The applicable speed limit was 100 kms per hour. 8 The point of impact between the cars was in the vicinity of the centre of the uphill lanes on the eastern side of Burragorang Road, near an unnamed road entering on that side. From a scale map in evidence (identified as Appendix C) the point of impact was about 280 metres from the bottom of the hill (shown by a culvert). The widening of the portion of the road for southbound (uphill) traffic commences at this culvert, and the width of two full lanes is reached after about 100 metres. Thus the point of impact was about 180 metres further on from this. 9 Prior to the accident, the plaintiff was driving downhill in a Holden car, and the defendant was driving uphill in a Subaru car. The plaintiff was in the process of overtaking a utility vehicle, towing a trailer, driven by a Mr Proud. The defendant had overtaken a slower moving vehicle. The vehicles of both the plaintiff and the defendant approached each other in the middle of the three lanes. 10 There were tyre burn marks from the plaintiff's vehicle extending about 11 metres to the point of impact, and a tyre skid mark from the defendant's vehicle extending about 9 metres to the point of impact. These marks indicated that the plaintiff's vehicle had moved to its right just before impact, and that the defendant's vehicle had moved to its left just before impact. 11 The cars were very extensively damaged, indicating a high impact collision. The plaintiff (then aged 23) was seriously injured and has no recollection of the accident. Also in her car was her 11 year old brother, who was killed in the accident, her seven year old sister who was injured, and her nine month old baby who was substantially uninjured. The defendant (then aged 49) was also injured in the accident. Road Rules 12 The relevant road rules were set out as follows in the primary judge's judgement: [37] Rule 130 of the Australian Road Rules provides that where a driver is travelling on a road (or a section of road as is the case here) which has been sign-posted "Keep Left Unless Overtaking" the driver (in this case the defendant) must not drive in the right lane unless one of the circumstances specified in subrule 130(2) applies. In this case, subrule 130(2)(b) ("the driver is overtaking") is the only category of exception or "excuse", as it were, available to the defendant to justify his driving in the right lane instead of in the left lane. [38] A "Keep Left Unless Overtaking" sign applies to that section of road between the point at the side of the road where the sign has been erected and continues to apply until the nearest of either a sign at the side of the road or markings on the road indicating that the overtaking lane will end and traffic should move to the right lane: subrule 130(3). [39] A driver is permitted to use a lane which is not the left lane but essentially the "other side of the road" for the purposes of overtaking a slower-moving vehicle travelling in the driver's left lane: rule 134. However, a driver is permitted this manoeuvre only where there is a broken dividing line (between "vehicles travelling in opposite directions": rule 4) or the nearest of two dividing lines is a broken line: subrule 134(2). In this case, the nearest of the two dividing lines to the plaintiff was a broken line. The plaintiff was therefore permitted to use the other side of the road for the purposes of overtaking, subject to the conditions specified in rule 140. [40] Rule 140 provides that a driver is not permitted an overtaking manoeuvre unless two preconditions are met: (a) that the driver has a clear view of any approaching traffic, and (b) that the driver can safely overtake the vehicle. [41] The term "approaching" is defined in the dictionary to the Rules from the point of view of each driver as "approaching [traffic] from any direction": rule 4. "Overtake" is defined (rule 4) as the action of or a manoeuvre comprising the following actions: 'Overtake', for a driver, means the action of: (a) approaching from behind another driver travelling in the same marked lane or line of traffic, and (b) moving into an adjacent marked lane or line of traffic (whether or not the lane or line of traffic is for drivers travelling in the same direction), and (c) passing the other driver while travelling in the adjacent marked lane or line of traffic. [42] Both the plaintiff and the defendant were bound by rules as to overtaking and the use of adjacent marked lanes. Both parties were bound, under the road rules, to assess their proposed overtaking manoeuvre in terms of r 140. Therefore, both parties were required to consider whether they had a clear view of any approaching traffic (rule 140(a)) and whether it was safe to overtake another slower-moving vehicle (rule 140(b)). Evidence 13 The evidence before the primary judge which was relevant to resolving the matters in issue on appeal included photographs showing the relevant section of road from various viewpoints. The primary judge also had a view of the scene. 14 The plaintiff did not give evidence as to the circumstance of the accident, having no recollection of it. 15 The defendant also did not give evidence at the hearing, although there was no evidence that he was unavailable or that he was in any difficulty in recalling the circumstances of the accident. The defendant had given a statement to the police on 6 May 2000, and that statement was in evidence. The relevant parts of that statement were as follows: 3. Around 2.45pm on Thursday the 20th of April, 2000 I was driving my car a grey Subaru Liberty, registration number SDZ-253, along Burragorang Road from Camden towards the Oaks. I was travelling to my home address from work. 4. I was following a white truck when the road was one lane each way it was just past a village. Shortly after the road has an overtaking lane for my direction, when this started I overtook the truck. At that point you start to climb a bit of a hill. I was travelling at around 80-90 km/h and I was still in the overtaking lane, I cant recall any reason why I didnt merge back into the inside lane. I normally drive in the kerbside lane. 5. The road flattens out prior to going up the big hill. Just as I came to the top of the first rise, just coming onto the flat part I noticed a Commodore, it was at that point at the top of the rise that I was first aware of the Commodore in my lane heading towards me. At first sight the Commodore would have been somewhere between 50 to 100 metres in front of me. 6. It was such a surprise to see the other car and the distance so small and closing rapidly I don't think I took any evasive action, I don't remember having taking any. 7. I saw the Commodore drift to its right, my left, it looked like the Commodore was going to go into the kerbside lane and go around me on my left. 8. Then there was a thunderous crash, I felt a great force from coming to a halt, the inertia of stopping so quickly. I don't remember what happened immediately after the crash the next thing I remember is being in the car in its demolished state on the side of the road, stationary. 16 Mr Proud, who did give evidence at the hearing, also gave a statement to the police dated 30 April 2000. The relevant parts of that statement were as follows: 3. About 2.45pm on Thursday the 20th of April, 2000 I was driving my vehicle a white Ford Falcon utility with a box trailer attached. I was driving north along Burrgaorang Road, I had just left a job at The Oaks and was travelling to home to Ruse. A employee of mine Matt was in my front passenger seat. 4. There was a white rigid truck that looked like a concreters truck in front of me, I don't think there was anything in front of that truck and I cant recall seeing anything behind me as we left , the Oaks. 5. Burrgaorang Road travelling north leaving The Oaks travels to the left then to the right then slightly left again then down the big hill. It would only be about a kilometre from The Oaks to the big hill. I was travelling about 80-90 kilometres as a guess, the truck in front of me was about 50-60 metres ahead. 6. When I was about 1/3 of the way down the big hill I noticed a blue Commodore coming up beside me. This was the first time I saw this car. I would guess the speed of the Commodore to be around 110km/h. 7. Around the same time I noticed two cars side- by side travelling in the southbound lanes towards The Oaks. I said something to Matt. When the nose of the Commodore was in line with my shoulder, I could hear the car sliding, it wasn't a screech noise. 8. I focused on the car that was going south in the lane closest to the centre lines. That car veered to the left. I saw that the Commodore veer to its right. 9. I don't recall what my position was when the two cars crashed. I recall bits flying through the air around me. I pulled my car up about 100-150 metres further up the road. 17 About two years after the accident, on 3 March 2004, Mr Proud gave a further statement to an investigator. The relevant parts of that statement, which was in evidence, were as follows: On 20 April 2000 at about 2.40pm, I witnessed a car accident at Burragorang Rd, The Oaks, NSW. I was driving a Ford Falcon XF (1986) Ute, towing a dual axle (7' x 5') box trailer. The Ute might have had 1 or 2 lengths of l00mm PVC drainage pipe on roof racks. The trailer was not more than waist high (900mm). I was travelling down the hill in a Northerly direction, there was a "Concretors" truck 50-100 metres in front of my vehicle. Mathew Casey was sat in my passenger seat. When I was about level with the double telegraph poles (No 68) I observed a Blue Commodore pulling out to overtake my vehicle. At this time the Concretors truck was about level with the later point of impact. There was 2 cars heading South and therefore coming towards me. They had just entered the section of road that includes an overtaking lane. The 2 cars were a Subaru and an unknown model. The unknown car was a car or Ute. It was not a truck or Motor Lorry. It was not carrying a load, nor was it blocking my view of the road behind it There was nothing blocking mine or the Commodore driver's vision. The Subaru started to overtake the other vehicle about level with the "Keep left when overtaking" sign. When the Commodore pulled out to overtake me I looked up and saw the Subaru overtaking the other vehicle. There was about 2-300 metres between the Commodore and the Subaru at this time. When the Commodore was about level with my driver's window the Subaru tried to veer left. The Commodore driver tried to brake but her tyres skidded on the road. The Commodore veered to its right as it skidded. The Commodore veered into the Subaru. This: impact occurred directly to the side of my driver's window. I continued forward for about 100 metres then parked on the side of the road. 18 There was evidence that the double telegraph poles referred to in this statement were about 202 metres uphill from the point of impact. However, in his oral evidence Mr Proud said that at the time, he was focusing on the road, not looking at telegraph poles; and that the investigator had said to him "were you about here" (indicating the vicinity of the double telegraph poles) to which he had replied "yes I might have been here". 19 In his oral evidence, Mr Proud was asked how far the Subaru was from the Holden when he first saw the Holden, to which he replied "I've got no idea. Probably 150, 200 metres. I don't know. How far down the hill are we?" Mr Proud also said that the plaintiff, after she commenced to overtake him, had attempted to stop and did not actually overtake him. Decision of Primary Judge 20 The primary judge very carefully reviewed the evidence and the submissions of the parties. He noted that the essential issue between them was whether the plaintiff and the defendant were in the centre lane for a length of time sufficient for the defendant to see the plaintiff and return to his left-hand lane (as contended by the plaintiff) or whether the plaintiff appeared in the centre lane when her vehicle was close to the defendant's vehicle, so as to give him insufficient time to avoid the collision. 21 The primary judge substantially accepted the evidence of Mr Proud, to the effect that it was about a third of the way down the big hill that the plaintiff commenced to overtake; that it was when he was about level with the double telegraph poles that he observed the plaintiff's car pulling out to overtake; and that there was a distance of between 200 and 300 metres between the plaintiff's car and the defendant's car when the defendant was overtaking the other southbound vehicle. The primary judge referred to the principles in Blatch v Archer (1774) 1 Cowp 63 at 64, 98 ER at 970 and Jones v Dunkel (1959) 101 CLR 298 at 308 and 312; and he accepted Mr Proud's evidence as establishing that the defendant could and should have first detected the plaintiff's vehicle when it was more than 50 to 100 metres ahead of him. The primary judge held that, had the defendant done so, he could and should have gone back to the lane to his left. Accordingly, the primary judge found the defendant liable. 22 On the question of contributory negligence, the primary judge found that it was incumbent on the plaintiff not to cross into the southbound carriageway unless there was no southbound traffic at all in the lane within at least 400 metres; and that it was her action which precipitated the circumstances that required the defendant to have acted urgently. He considered the plaintiff's breach more significant in terms of the relative importance of the acts of the parties in causing the damage, and held that the respective responsibilities were 60 per cent to the plaintiff and 40 per cent to the defendant. Issues on Appeal 23 The defendant seeks leave to rely on the following grounds of appeal: 1. The Court below erred in having regard to material that was not in evidence. 2. The Court below erred in formulating the duty owed by the Appellant to the Respondent by imposing a duty of "heightened vigilance", rather than by determining the proceedings on the basis of the admitted duty to take reasonable care that was owed by the Appellant to the Respondent. 3. The Court below erred in preferring a part of the evidence of Mr Proud as to his relative position on the roadway when he first observed the Respondent's vehicle (that he was level with the double telegraph pole), when such evidence: (a) was inconsistent with the incontrovertible physical evidence of; (i) the point of impact (indicated by gouge marks); (ii) the evasive action taken by the Appellant and the Respondent respectively (indicated by tyre marks on the roadway); (iii) the relative speeds of the Appellant and the Respondent; and (iv) the derived distances, based on accepted ranges of perception reactions times. (b) was inconsistent with the balance of Mr Proud's evidence that: (i) the accident was a high speed collision that happened very quickly; (ii) he was not paying particular attention to his position relative to fixed objects; (iii) when he first became aware of the Respondent's vehicle, the Appellant's vehicle was 100-150 metres ahead of him in the oncoming lane; (iv) as soon as the Respondent pulled along side his vehicle, she commenced evasive action to avoid a collision with the Appellant; and (c) was inherently unreliable, having been procured from Mr Proud four years after the accident by an investigator retained by an insurer (unrelated either to the Appellant or the Respondent) as a result of a positive suggestion made to him with which he concurred. 4. The Court below erred in finding that the Appellant breached his duty of care. 5. Further, and in the alternative, the discretion exercised by the Court below to determine contributory negligence of the Opponent miscarried. 24 The plaintiff seeks leave to cross-appeal, seeking a more favourable apportionment, on the following grounds: 1. The Court below erred in holding that "fundamentally" the Cross Appellant's action precipitated the circumstances that required the Cross Respondent to act urgently to avoid her oncoming vehicle. 2. The Court erred in finding that the Cross Appellant's actions precipitated and gave rise to the danger that resulted in the accident. 3. When evaluating and comparing the respective shares in the responsibility for the accident, the Court below erred in mis-stating the extent of the breach of duty by the Cross Respondent. 4. The court below erred in summarising the negligence of the Cross Respondent as merely a failure to maintain a high level of vigilance and to respond adequately to the circumstances. 5. The Court below erred in neglecting to give due weight to fact that the Cross Respondent did not see the Cross Claimant at a greater distance than 50 to 100 metres away. 6. The Court below erred in neglecting to give force and effect to its own finding that the failure to see the Cross Appellant earlier than a distance of 50 to 100 metres away was consistent with negligence on his part. 7. The Court below erred in neglecting to give force and effect to its finding that the Cross Respondent ought to have been able to complete his overtaking manoeuvre and move back to the left lane prior to the point of impact. 8. The Court below erred in neglecting to give force and effect to its finding that at a point when the vehicles were a distance of 200 to 300 metres apart, the Cross Respondent could have moved back into the left lane as was his usual practice. 9. The Court below miss-stated the duty of an overtaking driver pursuant to Australian Road Rule 140 as being not to commence to overtake unless the overtaking lane is clear of any vehicle. 10. The Court below erred in finding that the Cross Appellant breached Road Rule 140 having regard to its findings as to the relative positions of the vehicles and the inferred distances between them. 25 Leave is necessary because the decision of the primary judge is interlocutory. Since a successful appeal by the defendant could conclude the proceedings, it is in my opinion appropriate to grant leave, and to consider the grounds of appeal and cross-appeal. 26 These grounds raise the following issues, which I will consider in turn: (1) whether the judge's decision was vitiated by his reference to expert evidence which had been excluded. (2) whether the judge was in error in relation to the objective facts of the accident. (3) whether the decision was vitiated by the application of a wrong standard of care. (4) the question of apportionment of responsibility. Excluded Evidence 27 In a number of places the primary judge referred to evidence from experts' reports that had not been admitted into evidence before him. 28 In particular: (1) At para [16], he said that one expert Mr Woodward had considered that the traffic markings for northbound traffic were incorrect and that this led to problems resulting in the accident. (2) At para [17], he said that Mr Woodward had expressed the view that it would be possible for a small car in the process of overtaking a truck in lane one to be concealed from the view of a driver travelling north in the process of overtaking a vehicle in lane three also travelling north. (3) At para [27] he said that another expert Mr Hespe described the view both ways as "open and unobscured". (4) At para [29], he said that Mr Hespe's investigations established that at the time of the accident there "was an unbroken line for northbound traffic which permitted such traffic to enter the overtaking lane which in fact also formed part of the roadway for southbound traffic"; and that at the time of his inspection, changes to the lane lines had been effected by Wollondilly Shire Council. (5) At para [31], he said that, according to Mr Hespe, the "overtaking lane 300m ahead" sign was in the wrong place, being only 64.1 metres before the commencement of this lane. (6) At para [79], he said this: [79] As Mr Hespe, engineer, noted in his report, there is no suggestion of the defendant having slowed his vehicle or taken evasive action in time prior to the impact in the circumstances of the fast moving events. Mr Hespe suggested that, had he taken evasive action or reduced speed, then the accident may have been avoided. (7) At para [112], he said this: [112] The distance between the vehicles at the time they commenced their respective overtaking manoeuvres is, as stated earlier, a very critical fact. The only witnesses who could give evidence on that point were Mr Proud and the defendant. Their accounts, as referred to above, however, raised the question that, if Mr Proud was correct, why was it that the defendant only first noticed the presence of the plaintiff's vehicle 50 to 100 metres away? On the evidence, including the expert evidence, at a distance of 200 to 300 metres apart, the defendant had the opportunity of moving to the left lane as he said was, in fact, his usual practice. 29 Ms Adamson SC for the defendant submitted that these were material errors, and that it would appear to the Court within UCPR 51.53 that some substantial wrong or miscarriage had been occasioned. Ms Adams referred to Hughes v Kirby NSWCA 27/9/91 (where Handley JA said that "litigants are entitled to a judgment which is based solely on evidence which has been admitted in open court in the course of the relevant proceedings"); Mastronardi v State of New South Wales [2007] NSWCA 54 at [73]-[82] (where Basten JA identified the relevant miscarriage as "failure to provide a trial in which, in a significant respect, the assessment of the evidence was not flawed"); and King v Collins [2007] NSWCA 122 at [8]. 30 Ms Adamson submitted that the very circumstance that the primary judge referred to this evidence indicated that he placed some reliance on it; and this was supported particularly by para [112]. She submitted that para [79] also went to a critical issue in the case. 31 In my opinion the references by the primary judge to evidence which had not been admitted would not be a ground for a new trial unless it appeared to this Court that this evidence was material to his decision. I accept that there is a low threshold for materiality, and that it will be material if there is a reasonable or realistic possibility that it did influence the result. Certainly, it is not necessary for this Court to be satisfied that it did influence the result. If there is a reasonable or realistic possibility that the evidence did influence the result, then in my opinion there has been a miscarriage in the sense discussed in Mastronardi, at least unless this Court is satisfied, on the basis of evidence which does not depend on questions of credibility appropriate for assessment by a trial judge, that the decision was correct. 32 In my opinion, there is no reasonable or realistic possibility that the evidence referred to by the primary judge did influence his decision. The question of whether the line markings were appropriate is irrelevant and was so treated by the primary judge; as was the question whether the defendant's car may have been hidden by a truck it was overtaking (Mr Proud first saw two southbound vehicles side by side). An expert's description of the view as "open and unobscured" could not add anything to the photographs in evidence or the primary judge's view of the scene. The state of line-markings was uncontroversial. The placement of the overtaking lane sign was irrelevant, particularly where, as noted by the primary judge, the defendant was very familiar with the road. 33 The first sentence of para [79] was uncontroversial. The second sentence was dependent on findings of primary facts, which were themselves dependent on considerations quite apart from the expert evidence, both as a matter of fact and in terms of the primary judge's reasons. Paragraph [112] could be regarded as suggesting reliance on expert evidence which was not identified; but where the primary judge's finding of fact was that the defendant should have seen the plaintiff when the plaintiff was 200-300 metres away in the same lane and when he was substantially past the vehicle he was overtaking, no other conclusion would be open. The resolution of the liability of the defendant depended on findings of primary facts which could not be affected by the expert evidence, and the primary judge in fact made findings of primary facts without reference to the expert evidence. 34 Accordingly, in my opinion the ground is not made out for ordering a new trial. Facts of the Accident 35 Ms Adamson for the defendant submitted that the primary judge's findings of fact were glaringly improbable. 36 She submitted that the objective circumstances of the accident indicated that neither vehicle was aware that the other was a source of danger until they were at most 130 metres apart, or perhaps as little as 100 metres apart. Assuming reaction times of 1.5-2 seconds, the speed of the defendant's vehicle as 90 k/ph (25 metres per second) and the speed of the plaintiff's vehicle as 100-110 k/ph (28-30 metres per second), then a simple calculation gives these distances. 37 Ms Adamson submitted that the inference that the plaintiff first came into the middle lane about 100-130 metres in front of the defendant was further supported by Mr Proud's evidence that the concrete truck was then 50-100 metres ahead of him and about level with what became the point of impact, and that the entire episode occurred within a fraction of a second or a second; and also that the impact occurred opposite his driver's window. 38 Ms Adamson submitted that Mr Proud's evidence that he was about a third of the way down the hill when he became aware of the Holden overtaking was vague, and his evidence that he was opposite the twin telegraph poles had no weight, having been suggested by the investigator. Mr Proud's evidence of a distance of 200-300 metres between the plaintiff's and the defendant's vehicles at this time was contradicted by his oral evidence that the distance was a 150-200 metres. 39 There is some force in these submissions, but in my opinion they are outweighed by other indications to the contrary. 40 First, the defendant's statement to the police stated that he had been following a slower vehicle prior to the beginning of the overtaking lane, that he moved into the overtaking lane to overtake it, and that he did not know why he did not move back into the left lane. 41 This strongly supports Mr Proud's evidence to the effect that, when he saw the vehicles side by side at the time he became aware of the Holden moving to overtake him, they were near the bottom of the hill. It is reasonable to infer that the defendant's vehicle drew alongside the vehicle it was overtaking not far from the point where there were two complete lanes, that is about 180 metres before the point of impact. 42 The defendant's statement that he did not know why he did not move back into the left lane supports the inference that he had the opportunity to move back into the left lane substantially before the point of impact, that is, that he was well past the vehicle he was overtaking substantially before the point of impact. This inference is also supported by the circumstance that the vehicle overtaken by the defendant must have been sufficiently far behind him to avoid involvement in the accident. 43 These inferences can be confidently drawn in circumstances where the defendant did not give evidence. 44 Next, although Mr Proud's identification of the two telegraph poles as the point where he became aware of the Holden was suggested to him and not clearly adopted, it was broadly consistent with his original statement that he was about one-third of the way down the hill, which Mr Proud estimated to be about 700-800 metres long. 45 Another factor which in my opinion is significant is that there was a gentle curve in the road. In the case of a straight road with three lanes, it is very easy to see whether there is a car in the middle lane several hundred metres ahead. However, where as here there is a curve, it is very difficult to detect whether there is a car in the middle lane 300-400 metres away. In those circumstances, it is by no means unlikely that both cars could have been in the middle lane for 200 or 300 metres before each of them became aware, when they were about 100-150 metres apart, of the need for evasive action. In my opinion this consideration is confirmed by the photographs. This possibility is in my opinion less unlikely than the possibility that the plaintiff moved into the middle lane when the defendant was only about 150 metres away. 46 Although not all of these factors were referred to by the primary judge, they do show clearly that the conclusion he reached was not glaringly improbable. In my opinion, for reasons he gave, he was justified in giving more weight to the evidence of Mr Proud to the effect that he was about a third of the way down the hill (a position which he later approximated to the position of the two telegraph poles), when he became aware of the Holden beginning to overtake him, and that he then saw two cars side by side near the bottom of the hill, than to other evidence, such as Mr Proud's estimate that the truck in front of him was 50-100 metres in front and then about level with the point of impact, and his estimates as to the distances between the cars of the plaintiff and the defendant. 47 Accordingly, in my opinion no error is shown by the primary judge's reasons. In any event, this is a case where Mr Proud was accepted as an honest and reliable witness, and in my opinion the Court of Appeal is not a materially worse position than the primary judge to assess the whole of the evidence. In my opinion, the correct conclusion on the whole of the evidence is that the cars were of the order of 350 metres apart when the plaintiff's car first moved into the centre lane: the defendant's car was at least about 150 metres back from the point of impact, the plaintiff's car was at least about 200 metres back from the point of impact, and there were at least six seconds to elapse before the collision occurred. Standard of Care 48 In para [85] of the judgment, the primary judge says that the defendant owed a duty of "heightened vigilance" when using the overtaking lane. Ms Adamson submitted this was an error, because his duty was no more and no less than to take reasonable care in all the circumstances. 49 In my opinion, the primary judge was not asserting any greater duty than a duty to take reasonable care; and in my opinion it was not an error to say that reasonable care required more vigilance when using an overtaking lane than when not doing so. 50 In any event, on the facts as found by the primary judge and as confirmed by this Court, there was a clear breach of a duty to take reasonable care by the defendant. Apportionment 51 Ms Adamson submitted that, in circumstances where the plaintiff had moved into a southbound lane when it was not safe to do so, her responsibility for the accident was much greater than that of the defendant; and that the primary judge's figure of 60 per cent for contributory negligence was substantially too low. 52 Mr Toomey QC for the plaintiff submitted that the defendant's responsibility was greater, because at a time when the plaintiff was not able to move back to the lane to her left, the defendant was able to move back to the lane to his left and could easily have avoided the accident had he been keeping a proper lookout. He submitted that the plaintiff's vehicle must have been visible in the middle lane for several seconds before the defendant became aware of it. Also, the defendant would have avoided the accident if he had obeyed the requirement of the law to keep left unless overtaking. He submitted that, although the plaintiff was unable to give evidence as to the accident, it was reasonable to infer that she made the reasonable assessment that overtaking was safe because the defendant had plenty of time to complete his overtaking and move back into the left lane. 53 In my opinion, the responsibility of the plaintiff for the accident was substantially greater than that of the defendant. In circumstances where it was not easy to see whether there was an approaching car in the middle lane some 300 or 400 metres away, it was dangerous for the plaintiff to have commenced the overtaking action when she did. The middle lane was designated for southbound traffic, so in my opinion there was a strong requirement for northbound traffic to ascertain positively that it was safe to move into that lane before doing so. Although both drivers were subject to the requirements of rule 140, it would be reasonable for a southbound driver to regard it as prima facie safe from oncoming traffic to be in a lane designated for southbound traffic, whereas it would be reasonable for a northbound driver to regard it as prima facie unsafe to be in a lane designated for southbound traffic. 54 Had I been considering the matter de novo, I may have assessed the plaintiff's responsibility as higher than the assessment by the primary judge; but I am not satisfied that there is an error in his assessment such as to justify appellate intervention. ORDERS 55 In my opinion, although both the appeal and the cross-appeal are to be dismissed, the circumstances of the case would justify an order that the defendant bear something like seven-eighths of the costs of the appeal and the cross-appeal. The question of liability occupied most of the time of the appeal, and both parties were equally unsuccessful on the question of apportionment. This result would be achieved by an order which leaves the defendant paying the whole of its own costs of the appeal and cross-appeal and paying three-quarters of the costs of the plaintiff. This would be a more satisfactory costs order than one which required an attempt to separate out costs referrable to the appeal and to the cross-appeal. 56 For those reasons, I propose the following orders: (1) Leave granted to appeal and to cross-appeal. (2) Notice of appeal and notice of cross-appeal to be filed within 14 days. (3) Appeal and cross-appeal dismissed. (4) Defendant to pay three-quarters of the plaintiff's costs of the appeal and cross-appeal. 57 YOUNG CJ in Eq: I agree with Hodgson JA. ********** 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.