Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Brockman v Serco Sodexo Defence Services Pty Ltd [2016] NSWCA 41 Hearing dates: 11 March 2016 Date of orders: 11 March 2016 Decision date: 16 March 2016 Before: Leeming JA; Simpson JA Decision: Summons seeking leave to appeal dismissed, with costs. Catchwords: APPEALS – application for leave to appeal – judgment below $100,000 threshold – no question of principle – applicant failed to make out a clear case of injustice – leave refused Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D Workers Compensation Act 1987 (NSW), s 151Z Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397 Category: Principal judgment Parties: Nigel Brockman (Applicant) Serco Sodexo Defence Services Pty Ltd (Respondent) Representation: Counsel: K Rewell SC (Applicant) L King SC, P Rickard (Respondent) Solicitors: McInnes Wilson Lawyers NSW (Applicant) Stiles Lawyers (Respondent) File Number(s): 2015/316804 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 1 October 2015 Before: Norton DCJ File Number(s): 2014/131300 [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.] Judgment 1. THE COURT: At the conclusion of the hearing on 11 March 2016, the Court ordered that the summons for leave to appeal be dismissed, with costs. These are our reasons for making that order. 2. The applicant, Mr Nigel Brockman, seeks leave to appeal from the judgment of the primary judge given in the District Court on 1 October 2015. Leave is required because the judgment was in the amount of $87,500. 3. The respondent had brought proceedings pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) to recover amounts it had paid to its former employee, Mr Kotlar, who was injured in a motor vehicle accident on 27 January 2010 on the way to his workplace. Ultimately, her Honour found that Mr Brockman's breach of duty was a cause of the injuries suffered by Mr Kotlar, and assessed damages in the amount of $268,607.62. There was a substantial reduction for contributory negligence. The applicant suggested that an appropriate reduction was 80%, the respondent conceded 60%, and the primary judge found that Mr Kotlar was 70% responsible. The result was a judgment in the amount of just over $80,000 plus interest. Interest was compromised resulting in the judgment of $87,500. 4. There is no challenge to the assessment of damages or the determination of contributory negligence. The proposed grounds of appeal are confined to challenging the finding of primary negligence. Factual background and reasons of the primary judge 1. On 27 January 2010, at about 5:40am Mr Kotlar was walking along the southern side of Hawkesbury Valley Way in Windsor in a westerly direction towards the T-intersection of that street with Percival Street. He worked at the RAAF base on Percival Street, which turns off to the north. 2. This intersection did not have high volumes of pedestrian traffic. It was not controlled by traffic lights, and there was no footpath on either side of Hawkesbury Valley Way. Before Mr Kotlar reached the intersection, he commenced to cross Hawkesbury Valley Way from the southern kerb to the northern kerb. At the place where Mr Kotlar crossed there was one lane in either direction and a right-hand turn lane for vehicles to enter Percival Street. 3. At this time, a witness, Mr Williams, was driving along Hawkesbury Valley Way in a westerly direction and heading towards the RAAF base. He was intending to turn right into Percival Street. Mr Kotlar crossed in front of the vehicle driven by Mr Williams. When Mr Williams saw Mr Kotlar commence to cross the road, he commenced to slow down, then slowed even further and moved his vehicle partly out of the right-hand turn lane back into the westbound lane to avoid hitting Mr Kotlar. He gave evidence that: "I increased the amount of braking I was doing and I kind of veered out towards the left just to give him more space." 1. At the time of the accident, Mr Kotlar was aged 63 and he had been diagnosed with Alzheimer's disease in June 2009. As a result of the accident he was unable to return to work. He was not capable of giving a statement about the circumstances of the accident. 2. The applicant was driving a Hino truck in an easterly direction along Hawkesbury Valley Way, approaching the T-intersection. He accepted that he had seen Mr Kotlar as he approached, and that he had seen Mr Williams' vehicle brake and alter its path in order to avoid the risk of hitting Mr Kotlar. Even so, Mr Kotlar was struck by the truck driven by the applicant and as a result sustained serious physical injuries. 3. The primary judge heard evidence on the question of liability from the applicant, Mr Williams and two experts. Her Honour found that the applicant was driving his truck at 60km/h (below the 70km/h speed limit) and there were a number of vehicles behind him. The trial judge found that the applicant saw Mr Kotlar on the road approximately 167m before the point of impact (which is equivalent to 10 seconds driving time at the speed of 60km/h). There was little if any reduction in speed prior to the impact. 4. One question of fact was whether Mr Kotlar stopped in the middle of Hawkesbury Valley Way, thereby suggesting to the applicant who had him in sight that he would not continue his path onto the eastbound lane. 5. Mr Williams did not give evidence that he had seen Mr Kotlar stop. The primary judge found that Mr Kotlar may have stopped either 1 metre before or actually on the centre lines. Her Honour also found that at some stage while crossing the road he may have turned his head in the direction of the applicant's vehicle. Her Honour was of the view that if Mr Kotlar stopped, it was only for 1-1.5 seconds. As seen below, it was that finding, and her Honour's failure to find that Mr Kotlar had in fact stopped, which was central to the oral submissions advanced on behalf of the applicant. 6. There was no dispute that the applicant saw Mr Kotlar. The applicant kept him under surveillance as he approached, and took his foot away off the accelerator. But he did not brake or alter his direction of travel. 7. Her Honour then made conclusions on liability in accordance with ss 5B and 5D of the Civil Liability Act 2002 (NSW). Her Honour found that there was a foreseeable risk of harm if the applicant continued to drive his truck at a speed of approximately 50-60km/h on a collision course with Mr Kotlar, which was not insignificant. Her Honour noted the applicant's submission that a reasonable person in the position of the applicant should be excused from the burden of taking precautions to avoid a risk of harm because he or she was entitled to assume that Mr Kotlar would stop before he moved into the eastbound traffic lane. While her Honour accepted that in some factual circumstances this assumption was justified, her Honour did not find this was an appropriate assumption in this case. This was because Mr Kotlar had crossed the road on a path which would have led to the risk of a collision with Mr Williams' vehicle had Mr Williams not taken action to avoid it. This was observed by the applicant and should have alerted the applicant to the need to take steps to reduce speed, veer to the left, sound his horn or a combination of those options. There was conflicting expert evidence as to whether the applicant should have taken one of those three options: the applicant's expert (Mr Keramidas) was of the view that none was appropriate, the respondent's expert (Mr George) was of the view that the applicant should have performed at least one of those options. 8. The primary judge determined that the probability of harm occurring if care was not taken was high, the harm was likely to be serious and there was no social utility in driving the truck that would affect the need to take reasonable precautions. In relation to causation, her Honour determined that the applicant's action in continuing to drive his motor vehicle on a collision course with Mr Kotlar was a necessary condition of the occurrence of the harm, and noted that no reason was advanced why it was not appropriate for the scope of the applicant's liability to extend to the harm so caused. Proposed grounds of appeal 1. The applicant advances twelve overlapping proposed grounds of appeal. It is desirable to describe those grounds and their relationship to the evidence and the findings of the primary judge. 2. Proposed ground 1 is a catch-all and does not need to be separately addressed. 3. Proposed grounds 3, 4, 5, 6 and 11 deal with the findings as to the movement of Mr Kotlar, and in particular whether he stopped in the middle of the road. Proposed ground 3 asserts a factual error by the failure by the primary judge to find as a fact that Mr Kotlar stopped short of the centre lines on Hawkesbury Valley Way before walking into the path of the applicant's vehicle in the eastbound traffic lane "when that was a critical fact, the applicant gave direct evidence of that fact and the only witness, Mr Williams gave consistent evidence with that fact". It is true that the primary judge did not make that finding; her Honour found that "Mr Kotlar may have stopped either 1 metre before or actually on the centre lines" and "if Mr Kotlar came to a stop it was for 1 to 1.5 seconds": at [52]. However, Mr Williams did not give evidence that Mr Kotlar had in fact stopped. Rather, Mr Williams stated that he saw Mr Kotlar slow down and assumed he might stop. Further, Mr Williams gave unequivocal evidence that Mr Kotlar got to the centre of the road. 4. Proposed ground 4 asserts error in the finding that Mr Kotlar "had crossed the road in an area where it was dangerous to do so" when Mr Williams had no difficulty at all avoiding Mr Kotlar and in circumstances where, had Mr Kotlar remained in the position at which he stopped, and waited for the approaching queue of vehicles (of which the applicant's vehicle was the first) to pass, there was no danger of a collision. It is sufficient to observe that this finding was amply open to her Honour on the expert evidence. 5. Proposed ground 5 alleges that the primary judge erred in finding that Mr Kotlar "had crossed on a path which would have led to a collision with Mr Williams' car, had Mr Williams not taken action to avoid it" when the only reason Mr Kotlar was in a position where a collision with Mr Williams' vehicle might possibly have occurred was that Mr Kotlar stopped in the lane Mr Williams intended to use, just short of the centre lines, an action that was fully anticipated by Mr Williams so that no risk of a collision eventuated. This ground relates to proposed ground 3 that Mr Kotlar did in fact stop. 6. Proposed ground 6 asserts that the primary judge erred in failing to take into account that Mr Williams' actions in slowing down and moving to his left, which her Honour found to accord with Mr Williams' duty of care, were a product of Mr Williams correctly anticipating that Mr Kotlar would stop in the right turn lane, short of the centre lines, to allow the queue of vehicles travelling in the opposite direction to pass, before stepping into the eastbound traffic lane. Proposed ground 11, which alleges an erroneous reliance on expert evidence "when the evidence establishes that Mr Kotlar did stop", is in the same category. 7. Proposed grounds 2, 8, 9 and 10 are directed to causation. These grounds assert in various ways that the primary judge erred in finding that the taking of reasonable precautions by the applicant would have avoided the collision between the applicant's motor vehicle and Mr Kotlar. The applicant made some complaint that, as a matter of fact, the precautions would not have avoided the collision. 8. Proposed ground 7 asserts that the primary judge erred in finding that the applicant's duty of care required him to do more than lift his foot from the accelerator of his vehicle and to keep Mr Kotlar under constant surveillance, until Mr Kotlar looked in the applicant's direction and stopped. This ground relates to grounds 2, 8, 9 and 10. Her Honour's finding that the applicant should have done more than lift his foot from the accelerator is a finding which was open on the evidence at the trial, given the conflict in expert evidence. 9. The primary judge found that Mr Kotlar's behaviour should have alerted the applicant to the need to take steps to reduce speed, veer to the left or sound his horn or a combination of those options: at [60]. This was a finding which was open to her Honour to make on the expert evidence given at trial by Mr George and Mr Keramidas. 10. Both experts agreed that the options available to avoid a potential crash were for the applicant to slow, reduce speed and/or cover his brake, veer to the left, sound his horn or a combination of these options. The experts also agreed that if Mr Kotlar had presented as a hazard at some time when he was walking across the westbound lane, the accident could have been avoided by the applicant taking those steps outlined above. However, the experts disagreed about when Mr Kotlar should have presented as a hazard. The essential difference between them was that Mr George was of the view that because the applicant had observed Mr Kotlar commence to cross the road, the applicant should have reacted to that emerging hazard. Mr Keramidas considered that Mr Kotlar could not be perceived as a hazard because he was not running, was not a child and was not staggering as he crossed the road. 11. Finally, proposed ground 12 asserts that the primary judge erred in failing to have regard to the traffic conditions in which the applicant was driving. This ground asserts that the trial judge failed to take into account that the applicant was in the head of a queue of vehicles and that the vehicle immediately behind him was tailgating him, creating a risk of rear end collision if the applicant braked or slowed in response to seeing Mr Kotlar. It is true that there was evidence that a number of cars were tailgating the applicant's truck. There was a question of fact whether that impacted upon the actions available to the applicant. Oral submissions 1. At the hearing of the application, a great deal of emphasis was placed on what was said to be the failure of the primary judge to make a critical finding of fact, namely, that Mr Kotlar stopped, near the centre line of Hawkesbury Valley Way, for 1 to 1.5 seconds. Indeed, it was submitted that it was not open for her Honour not to make that finding, in circumstances where there was no evidence to the contrary. 2. The significance of that finding, as it appeared to be submitted, was to absolve Mr Brockman of any liability for negligence, presumably because he was entitled to proceed on the assumption that Mr Kotlar would remain stationary. The essential case was said to be that once it was found that Mr Kotlar had stopped, that the findings of breach fell away, on the basis that the applicant would reasonably expect that his truck and vehicles behind it had been seen by Mr Kotlar. In a related submission, it was said that Mr Kotlar was not behaving erratically. 3. The submission overlooks some important surrounding circumstances. This was no ordinary stretch of suburban road. It was in a semi-rural area. The road was not configured for pedestrian traffic. The intersection was a considerable distance from the nearest town, or any location from which it might be expected that pedestrians would gain access to the road. It was 2.5 km from the train station. The fact, alone, that Mr Kotlar was walking on the road ought to have been a signal to a driver that the situation called for caution. Mr Kotlar's behaviour was sufficient to put Mr Williams on notice that caution needed to be exercised, and cause him to take evasive action. The mere fact – if it was a fact – that Mr Kotlar paused, or stopped, was not sufficient to entitle Mr Brockman to assume that he would remain stationary. 4. In short, even if the primary judge had made the finding that it is contended ought to have been made, there is no compelling reason to conclude that the outcome would have been different. Resolution of the application for leave to appeal 1. It is clear law that in a case such as the present requiring leave, the applicant must demonstrate that the matter involves issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond (what is) merely arguable: see Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397 at [45]. This is not such a case. It is apparent from the foregoing, and Mr Rewell SC who appeared for the applicant candidly acknowledged, that none of the proposed grounds of appeal raises any question of principle or of general public importance. All turn upon alleged errors in her Honour's finding of primary fact, or the legal conclusions to be drawn from those findings of primary fact. 2. The essential fact of this case is that two drivers saw Mr Kotlar crossing a major arterial road. Unbeknownst to both drivers, Mr Kotlar was seriously ill. One driver took steps – slowing down and veering to the left – to avoid a collision. The other driver saw the first take those steps. Irrespective of whether in fact Mr Kotlar stopped in the middle of the road, the applicant faces the burden of demonstrating that there was clear injustice in the conclusion that he had been negligent when he had not undertaken any precautionary measures. 3. The question then is whether the applicant has made out an injustice which is reasonably clear, in the sense of going beyond a merely arguable error. That has not occurred. In the circumstances of this case, the applicant has not made out a reasonably clear case that the primary judge erred in reaching that conclusion. For those reasons, this Court ordered at the conclusion of the hearing that the application for leave to appeal be dismissed, with costs. ********** 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: 16 March 2016