Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Smith v Zhang [2012] NSWCA 142 Hearing dates: 23 April 2012 Decision date: 18 May 2012 Before: Macfarlan JA at [1] Meagher JA at [19] Tobias AJA at [35] Decision: (1) Appeal allowed. (2) Set aside the verdict and judgment for the appellant in the sum of $109,900.50. (3) (By majority) Verdict and judgment for the appellant in the sum of $175,840.80, such judgment to take effect from 9 May 2011. (4) The respondent pay the appellant's costs of the appeal. (5) The respondent to have a certificate under the Suitors' Fund Act 1951, if qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - contributory negligence - motor vehicle accident - pedestrian struck by car - failure of driver to keep proper lookout - failure of pedestrian to have regard to own safety - apportionment of liability - whether primary judge erred in omitting to consider greater potential of vehicle to cause harm than pedestrian Legislation Cited: Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Cases Cited: Anikin v Sierra [2004] HCA 64; 79 ALJR 452 British Fame (Owners) v McGregor (Owners) [1943] AC 197 Garry Paul Stocks & McDonald Hamilton Co Pty Ltd v Baldwin [1996] NSWCA 1; 24 MVR 416 Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 Nominal Defendant v Meakes [2012] NSWCA 66 Nominal Defendant v Rooskov [2012] NSWCA 43 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 Stocks v Baldwin [1996] NSWCA 1; (1996) 24 MVR 416 Wyong Shire Council v Shirt (1980) 146 CLR 40 Category: Principal judgment Parties: Maria Smith (Appellant) Yong Gen Zhang (Respondent) Representation: Counsel: S Norton SC/P Khandhar (Appellant) K P Rewell SC/J Turnbull (Respondent) Solicitors: L J Sharpe & Co (Appellant) Sparke Helmore (Respondent) File Number(s): CA 2010/99958 Decision under appeal Citation: Maria Smith v Yong Gen Zhang Date of Decision: 2011-05-09 00:00:00 Before: Olsson DCJ File Number(s): DC 2010/99958 Judgment 1MACFARLAN JA: On 15 August 2008 the appellant, who was then aged 83, was struck by a car driven by the respondent whilst attempting to cross a road. The primary judge, Olsson DCJ, found the respondent liable in negligence but also held that the appellant had been contributorily negligent and consequently reduced her damages by 75 per cent. The sole issue on appeal is whether this Court should disturb the primary judge's apportionment of responsibility by decreasing the reduction for contributory negligence. THE CIRCUMSTANCES IN WHICH THE ACCIDENT OCCURRED 2The accident occurred as the appellant commenced to cross a one traffic lane road providing access to a large residential and retail complex called Rockdale Plaza. Both the appellant and the respondent lived in apartments above the Plaza. 3Parallel to the relevant section of the access road (on the side from which the appellant came) was a concrete ramp enabling cars to exit from an underground level of the carpark of the Plaza. On the other side of that ramp was a footpath and a public road. Shortly after 4.00 pm on 15 August 2008, the appellant alighted from a bus at the bus stop on the public road. To reach the Plaza, the appellant could have walked about 20 metres along the footpath, turned right, used a footpath to cross over the carpark exit ramp (which was at that point underground) and crossed the access road at a pedestrian crossing which was slightly elevated to give it the effect of a speed bump. Alternatively the appellant could have headed in the other direction, walked across the carpark exit ramp and then used a different pedestrian crossing which was again about 20 metres from the bus stop (although in the opposite direction from that referred to earlier). 4Despite the availability of two safe and apparently convenient routes to the Plaza, the appellant chose a third alternative amounting to a shortcut. This involved walking first on a track beside a cyclone fence near the bus stop, apparently erected for the very purpose of deterring pedestrians from taking this route. The appellant then walked across the carpark exit ramp, stepped onto a concrete hob (seemingly about one small step high) and stepped off it to cross the access road to reach the Plaza. She was struck by the respondent's car when she was on the access road. The appellant said that she was halfway across the road (Transcript pp 17, 29) and the respondent said that the appellant had moved "a couple of metres" from the hob on to the road (Judgment [31]). 5The respondent had been driving along the access road at about 10 kilometres per hour but did not see the appellant until his vehicle was approximately four to five metres away from her (Transcript p 26). When he saw her, he braked. He had almost stopped at the time that the driver's side of his car, in the area of the headlight, collided with the appellant. The respondent described the appellant as very stooped and bent almost double, such that he could not see her behind a low wall that separated part of the carpark ramp from the access road. This wall was on the respondent's right as he drove along the accessway. It ended at the point where the carpark ramp ended. It was there that the appellant crossed the ramp and attempted to cross the access road. The wall was about one metre or so in height (Judgment at [51]). 6The accident occurred in daylight and there were no adverse weather conditions. It appears that other people alighted from the bus at the same time as the appellant and took the same route to the Plaza as she did. However, given the slow speed at which she walked, it appears that these commuters had already crossed the access road before the appellant reached it. The respondent gave evidence that he did not see anybody else in the vicinity (Transcript pp 26 - 27). There do not appear to have been any vehicles driving immediately ahead of the respondent, although there was a small mini-bus driving behind him. He said that he was very familiar with the road and drove along it every day (Transcript p 35). THE JUDGMENT AT FIRST INSTANCE 7The primary judge found that at the time of the accident the appellant had a pronounced stoop, limped heavily on one leg and had very poor vision (Judgment [49] - [50], [59]). 8Her Honour concluded that the respondent's speed was appropriate in the circumstances but that a reasonable person in his position would have observed the appellant earlier. Her Honour found that such a person would have foreseen that people might take a shortcut from the bus stop to the Plaza and that if the respondent had been keeping a proper lookout he would have seen the appellant "begin to cross from the bus-stop, cross the up-ramp and step on to the roadway. He saw her only after she had stepped on to the roadway" ([82]). She accepted however that because of the appellant's diminutive build and pronounced stoop, "she would barely have been visible" behind the low wall separating the ramp from the access road, and four or five metres before the point at which his car became level with the end of the brick wall, the respondent may well have been unable to see the appellant ([51] and [62]). Her Honour said that that did not however explain why he had not seen the appellant as she approached. Nor did it excuse his failure to see her as she stepped onto the access road, demonstrating that he had negligently failed to keep a proper lookout. The respondent accepted in cross-examination that if he had seen the appellant when his car was as little as 200 millimetres further away, he would have been able to stop it without hitting her (Transcript 8 April 2011, pp 32 - 3; Judgment [33]). The primary judge accepted the respondent's submission that his opportunity to see the appellant had been brief ([83]). 9In considering what lookout would have been kept by a reasonable person in the respondent's position, the primary judge found that the respondent must have been aware of the high level of pedestrian traffic in the vicinity due to his familiarity with the area, and it was reasonably foreseeable that pedestrians would take the "obvious" shortcut taken by the appellant ([77]). This is not a case where a pedestrian suddenly darted out on to the road. On the contrary, the respondent limped heavily and moved slowly (Judgment [49] and [78]). 10After finding the respondent to have been negligent, the primary judge described the appellant's conduct as follows: "84. On the other hand, as I have found, the plaintiff demonstrated an almost total disregard for her own safety. She elected to take an inherently dangerous path which took her across the top of the car-park up-ramp and across another roadway. She was elderly, disabled by the extant problems with her spine, had no vision in one eye and extremely poor vision in the other. 85. I accept that she probably stepped out onto the roadway without seeing the defendant's vehicle, either or both because of her poor eyesight and the fact that her stooped posture meant that she was actually looking at the road surface". 11Her Honour then assessed the appellant's contributory negligence at 75 per cent and reduced the appellant's damages accordingly (see s 138(3) of the Motor Accidents Compensation Act 1999). RESOLUTION OF THE APPEAL 12The appellant's principal contention on the appeal was that the primary judge failed to take into account "the relative risk of harm in a car ... versus person collision" and thereby failed to apply the principle said to have been established in Pennington v Norris (1956) 96 CLR 10. 13Pennington v Norris concerned the apportionment of responsibility between the driver of a car and a pedestrian involved in a collision. In comparing the relative responsibilities of the parties, the High Court took into account as a material consideration the fact that the pedestrian's conduct, although contributorily negligent, did not endanger the driver of the vehicle or anybody else (at p 16). Although the facts of Pennington v Norris differed substantially from the present, the appellant correctly contends that the factor adverted to by the High Court in Pennington is also significant in the present case. Here, as in Pennington, the respondent was driving a vehicle which had the potential to cause considerable harm to others if he failed to drive it carefully. Thus, the responsibility that he undertook, along with other drivers on public roads, was a heavy one. In contrast, the appellant's conduct was unlikely to cause harm to anyone other than herself. Her responsibility was thus more limited and her neglect of it was less significant than the respondent's neglect of his own. 14The same factor was taken into account by the majority of the High Court in Anikin v Sierra [2004] HCA 64; 79 ALJR 452 where a bus struck a pedestrian. Their Honours cited Pennington v Norris for the proposition that the bus driver "who was in charge of a powerful vehicle had obligations to exercise care for pedestrians in the position of the appellant" (at [46]; see also [48] - [52]). Vehicles have a far greater capacity to cause harm than do pedestrians. 15In the present case the primary judge did not refer to Pennington v Norris or Anikin v Sierra but did cite a passage from the judgment of Mahoney P in Garry Paul Stocks & McDonald Hamilton Co Pty Ltd v Baldwin [1996] NSWCA 1; 24 MVR 416 in which his Honour referred to "the extent of the damage that may be done by a driver to a pedestrian" as one of the matters to be borne in mind when considering "the balancing process" identified by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 8. However, Mahoney P's observation was made in the course of considering the liability of the defendant driver. It was not made in relation to apportionment between a negligent defendant and a contributorily negligent plaintiff. Indeed, the present primary judge did not cite the observation in that latter context but in the course of assessing the respondent's breach of duty. In any event the observation applies only to the question of a driver's negligence and does not deal, as does Pennington v Norris, with a comparison of the relative responsibilities of a driver and a pedestrian. 16In failing to have regard to the point made in Pennington v Norris, the primary judge omitted to consider a significant factor when apportioning responsibility between the appellant and respondent. Accordingly, her Honour erred and it is necessary for this Court to undertake that apportionment itself. 17Apportionment in this context requires consideration of the degree of departure from the standard of care of the reasonable person and "the relative importance of the acts of the parties in causing the damage" (Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494). In this case the latter comparison does not assume any particular significance, so far as the former is concerned. As to the former, for the reasons given by the primary judge, the appellant "demonstrated an almost total disregard for her own safety" (Judgment [84]). On the other hand, whilst the respondent negligently failed to keep a proper lookout, the opportunity that he had to see the appellant was only brief (Judgment [83]). Taking into account the important matter adverted to in Pennington v Norris (see [13] above), my view is that the appellant's contributory negligence should be assessed at 35 per cent. ORDERS 18For these reasons I propose that the following orders be made: (1) Appeal allowed. (2) Set aside the judgment entered at first instance in favour of the appellant. (3) Direct the parties to provide to the Court within 14 days of the date of this judgment, as agreed, a recalculation of the appellant's damages, or if they are unable to agree, submissions in accordance with the following timetable as to the appropriate amount: (a) Appellant's submissions within 14 days of the date of this judgment. (b) Respondent's submissions within seven days thereafter. (c) Any reply within seven days thereafter. (4) Order the respondent to pay the appellant's costs of the appeal. (5) The respondent to have a certificate under the Suitors' Fund Act 1951, if qualified. 19MEAGHER JA: The only issue in this appeal is whether Olsson DCJ (the primary judge) erred in reducing by 75 per cent for contributory negligence the damages recoverable by the appellant for injuries sustained when she was struck by a motor vehicle driven by the respondent. The appellant contends that this assessment was excessive because the primary judge did not have regard to the fact that whereas the appellant failed as a pedestrian to take care for her own safety, the respondent's negligence as driver carried with it the risk of injury to pedestrians and for that reason involved negligence of greater culpability than that of the appellant. Specific reliance was placed on what was said in Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16-17 and Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452 at [51], [52]. 20There is no controversy about the relevant principles. Sackville AJA recently summarised them in Nominal Defendant v Meakes [2012] NSWCA 66: "79. The common law and the enacted law of contributory negligence apply to an award of damages in respect of a motor accident, subject to presently irrelevant exceptions: MAC Act, s 138(1). The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case: s 138(3); Law Reform (Miscellaneous Provisions) Act 1965, s 9(1)(b). The Court must state its reasons for determining a particular percentage: s 138(4). The enacted law of contributory negligence includes s 5R of the Civil Liability Act 2002 ("CL Act"). 80 The test of contributory negligence is objective: the question is whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Joslyn v Berryman [2003] HCA 34; 214 CLR 552, at 564-566 [32], [34], [38], per McHugh J; CL Act, s 5R(2). Once contributory negligence is found, the apportionment as between a plaintiff and 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 ... and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination." Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529, at 532-535, per curiam." 21Because the task of apportioning responsibility involves the weighing of a number of considerations and the making of judgments about which minds might reasonably differ, it is well established that appellate courts should not interfere in the absence of some error of principle or of fact or where the apportionment is plainly wrong: British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201; Pennington v Norris at 15-16; Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494; Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [84], [157]; Anikin v Sierra at [50]; Nominal Defendant v Rooskov [2012] NSWCA 43 at [122]-[123], [163]. 22Two further matters should be noted. As the passage cited above from Podrebersek v Australian Iron & Steel Pty Ltd (59 ALJR 492 at 494) makes clear, the comparison required with respect to the acts or omissions of each party is of the degree of departure from the standard of care of the reasonable man and of the relative importance of those acts or omissions in causing the damage. The second is that s 5R(2)(a) provides that the standard of care required of the person who has suffered harm is that "of a reasonable person in the position of that person". The subsection reflects the position under the common law as stated by McHugh J in Joslyn v Berryman at [32] and [33]. To give effect to those words in the present case, it is necessary to have regard to the appellant's age, poor sight and physical infirmities. 23The appellant does not contend that the primary judge made any error in finding facts relevant to the question of apportionment. The respondent was driving in a westerly direction along Rockdale Plaza Drive, a one-way road comprising two lanes, the outside lane of which was free for traffic. He was travelling at about ten kilometres per hour. On his right as he travelled along Rockdale Plaza Drive, was a concrete wall of a metre or so in height, which separated that road from an exit up-ramp from an underground car park. The appellant was struck by the front driver's side headlight area of the respondent's vehicle after she had stepped onto the roadway at the end of that concrete wall. At the time the respondent first saw her she was about four to five metres in front of him. He braked and had almost stopped at the time he collided with her. He estimated that the vehicle would not have struck the appellant if she had been crossing 200 millimetres further down the roadway from where he struck her. 24The primary judge found that the respondent first saw the appellant when she was about one metre onto the roadway, she having walked across the exit from the up-ramp and onto a concrete hob at the edge of the roadway and then onto the roadway: [56], [59], [82]. At a position five metres or so before he reached the point on the road which was level with the end of the concrete wall, the respondent may well not have been able to see the appellant because of her pronounced stoop: [51], [62]. However, if the respondent had kept a proper lookout he would have seen the appellant as he drove along Rockdale Plaza Drive and whilst she was crossing the up-ramp and before she had walked onto the roadway: [78]. The appellant was blind in her right eye and had very poor sight in her left eye. It was probable that she stepped onto the roadway without seeing the respondent's vehicle either or both because of her poor eyesight and the fact that her stooped posture meant that she was actually looking at the road surface: [50], [85]. 25It is implicit in the primary judge's findings that had the respondent kept a proper lookout and seen the appellant crossing the up-ramp, he would also have seen the appellant as she stepped out at the end of the concrete wall and walked onto the roadway. Instead, the respondent only saw the appellant "after" she had stepped onto the roadway: [82]. The respondent then braked but was unable to bring the vehicle to a halt in the four or five metres between where he first saw the appellant and where the vehicle came to a stop. The effect of the respondent's evidence was that his vehicle would not have struck the appellant if he had seen her earlier. 26The primary judge's specific finding as to the respondent's negligence was that had he been keeping a proper lookout "he would have seen the plaintiff crossing the up-ramp from the car park well prior to her stepping onto the roadway": [78]. That finding is consistent with her Honour's earlier observation that from a position on the road five metres before the end of the concrete wall, the respondent may well not have been able to see the appellant: [62]. I do not read her Honour's reference at [82] to that earlier finding (when addressing the question of contributory negligence) as saying that even if the respondent should not have seen the appellant crossing the up-ramp, he nevertheless was also negligent in not seeing her step onto the roadway. Except for the failure to see the appellant crossing the up-ramp, the primary judge found that "in all other respects, [the respondent's] driving was not in error": [83]. Thus, the primary judge found that had the respondent seen the appellant earlier, as he should have, he would have been aware of her presence and looked out for her and, as a result, seen her as she stepped onto the roadway. 27The question for this Court is whether the primary judge did not have regard to the factor identified by the appellant and erred in not doing so. 28When addressing the question of breach of duty on the part of the respondent, the primary judge cited a passage from the judgment of Mahoney P in Stocks v Baldwin [1996] NSWCA 1; (1996) 24 MVR 416 at 417. That extract is concerned with the question whether there has been a breach of the duty of care and in that context addresses the "balancing" exercise described by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48 as necessary when considering what precautions a reasonable person in a defendant's position would have taken by way of response to an identified and foreseeable risk of harm. The factors to be borne in mind in that process include the magnitude of the risk which, in the context of precautions which a driver must take against the risk of striking a pedestrian, includes the "extent of the damage that may be done" to the pedestrian: cf s 5B(2)(b) of the Civil Liability Act 2002. 29When addressing the question of contributory negligence, the primary judge compared the degree of departure from the standard of care of each of the respondent and appellant without taking into account that whilst the appellant's conduct was grossly careless, it did not directly endanger the respondent or anyone else, whereas the respondent's conduct could endanger pedestrians, such as the appellant, who were taking a known shortcut. In Pennington v Norris, where the driver was speeding in wet conditions with poor visibility down a busy street, the fact that the pedestrian's conduct could not endanger the defendant or anyone else was described as a "material consideration" when apportioning responsibility: at 16. The same factor was addressed in Anikin v Sierra at [51]-[52] where it was noted that on the "facts of Pennington it was said that to drive a car at high speed involved negligence of a far greater culpability than the failure of the plaintiff to keep a proper lookout when crossing the road". 30The primary judge did not refer to this factor when assessing and comparing the culpability of each of the parties. Notwithstanding that the proceedings involved a collision between a vehicle and a pedestrian, it cannot be inferred or assumed that this factor was addressed although not referred to. Although the circumstances of this case are quite different from those in Pennington, the primary judge failed to have regard to a material matter. Because of that error, this Court should interfere with the exercise of apportionment and undertake that exercise itself. 31In doing so it is relevant that the respondent's opportunity to see the appellant was "brief" and that "in all other respects, his driving was not in error". Although the respondent as driver could endanger pedestrians by failing to keep a proper lookout, it is significant that he was taking care by only travelling at ten kilometres per hour and that the only respect in which he was negligent was in failing to see her as she walked across the up-ramp. Nevertheless, his failure to see the appellant at that earlier point in time meant that he was not aware of her presence at the side of the roadway and as a result did not see her as she stepped onto the roadway so as to brake and avoid striking her; notwithstanding that she apparently "attempted to hurry across the road" ([60]) and stepped from the gutter onto the roadway without stopping or being able to see whether there was any oncoming traffic. 32The respondent's failure to see the appellant at the earlier point in time did not make the accident inevitable. Indeed, it remained the position that the accident would not have happened if the appellant had exercised the standard of care required of a reasonable person in her position. The appellant chose to cross the road at a point where there was no pedestrian crossing. At that point and immediately before she stepped onto the roadway it was likely that she could not be seen from a vehicle travelling down the roadway because of her stooped posture and the existence of the low concrete wall. The appellant then stepped onto the roadway in front of an oncoming vehicle either without looking for oncoming traffic or appreciating that she may not be able to see any oncoming traffic. Taking into account the fact that she was old and slow and suffered from these disabilities, her "reasonable best" still required that she stop before stepping onto the roadway so as to give a visual warning of her presence once she was in the line of sight of oncoming vehicles: cf Joslyn v Berryman at [32]. 33It is my view that the appellant was more responsible for the injuries which she sustained than the respondent and that it is just and equitable that the appellant bear 60 per cent of the responsibility for those injuries. 34The orders I propose are: (1)Appeal allowed. (2)Set aside the verdict and judgment for the appellant in the sum of $109,900.50. (3)Verdict and judgment for the appellant in the sum of $175,840.80, such judgment to take effect from 9 May 2011. (4)The respondent pay the appellant's costs of the appeal. (5)The respondent to have a certificate under the Suitors' Fund Act 1951, if qualified. 35TOBIAS AJA: In this appeal I have had the advantage of reading in draft the separate judgments of Macfarlan JA and Meagher JA. The essential difference between their Honours is their respective assessments of the degree of departure of the appellant and the respondent from the relevant standard of care to which each was required to conform. Otherwise each of their Honours provides similar reasons as to why the primary judge erred so as to justify appellate intervention and the re-exercise by this Court of the apportionment process. I agree with those reasons. 36However, on the issue of apportionment I prefer the assessment of Meagher JA of 60 per cent contributory negligence on the part of the appellant for the reasons he has expressed. I therefore agree with the orders his Honour proposes. ********** Amendments 04 October 2012 - The word "relevant" changed to "relative" Amended paragraphs: [22] 04 October 2012 - 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. Decision last updated: 04 October 2012