|Before||Barrett JA at ;
Ward JA at ;
Tobias AJA at .
|Decision||1. Appeal dismissed.
2. The appellant to pay the respondents’ costs of the appeal.
3. Cross-appeal dismissed.[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 – breach of duty of care – motor vehicle accident – the appellant was travelling on a bicycle and went under a bus – whether the driver breached his duty of care by failing to keep a look-out – Manley v Alexander  HCA 79 considered – whether the driver was paying “reasonable attention” to what was happening on or near the roadway – held that the driver did not breach the duty of careTORTS – negligence – contributory negligence – whether the trial judge properly compared the degree of the parties culpability and the relative importance of each party’s acts in finding the appellant’s contributory negligence to be 70 per cent – Podrebersek v Australian Iron & Steel Pty Ltd  HCA 34 applied – no error in finding appellant’s contributory negligence to be 70 per centDAMAGES – torts – negligence – personal injury – whether trial judge erred in allowing cost of certain prosthesis when the appellant was unlikely to use the prosthesis to fullest extent – whether trial judge erred in allowing certain amounts for housing modifications – whether trial judge erred in allowing amounts for past domestic care – whether primary judge failed to discount amount awarded for future domestic care when the appellant was a smoker
Tobias AJA with whom Barrett and Ward JA concurred:
135. The character and features of the present appeal are governed by s 75A of the Supreme Court Act 1970 (NSW). The principles relating to such an appeal were stated by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy  HCA 22; (2003) 214 CLR 118 at -,  and recently adopted by Callinan and Heydon JJ in Pledge v Roads and Traffic Authority  HCA 13; (2004) 78 ALJR 572 at . Those principles were summarised by Gleeson CJ, Gummow, Kirby and Hayne JJ in Anikin v Sierra  HCA 64; (2004) ALJR 452 at  where their Honours said (omitting references to footnotes):
It is necessary to accept the large functions belonging to an appellate court, such as the Court of Appeal, in reviewing findings of fact of a judge sitting without a jury. Those functions, which derive from the provisions of the legislation governing the Court of Appeal in such proceedings, require that Court to conduct its own independent review of the facts, giving effect to its own conclusions about them. It must do this save to the extent, if any, that the primary judge enjoys advantages that cannot be fully recaptured by the appellate court. In these last respects, the appellate court should defer to the findings of the primary judge except for the very limited circumstances where it is authorised to substitute its own, differing conclusions.
136. To this statement of the relevant principles should be added the following rider from the judgment of the plurality in Fox v Percy at  (omitting references to footnotes):
… On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
137. In the present case the Court has been taken to a deal of, but not all, the evidence but this notwithstanding I have read, and hopefully absorbed, a great deal of it including, in particular, the evidence of the first respondent and the documentary and oral evidence of the two experts. In my view the resolution of this appeal very much depends upon an assessment of the evidence of those experts given the rejection by the primary judge of the evidence of the appellant as to how the accident occurred on the one hand and the evidence of Ms Luch^t which purported, to a degree, to corroborate it on the other but whose testimony was rejected on grounds which, in my view, are unassailable and certainly not glaringly improbable. For completeness, I do not consider the evidence of Aslett or the police officer, Ms Duane, to be of any assistance. In this respect, I do not differ from the primary judge.
138. As already noted the appellant relied on the following passages from the joint judgment of Gummow, Kirby and Hayne JJ in Manley at 415:
 … But recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle’s path.
 It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Rd at 4 am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.
139. The essence of the appellant’s submissions was that the first respondent ought to have been aware that the pathway leading to the ramp and which continued on the other side of the road constituted a potential source of danger in so far as children on bicycles might attempt to cross from one side of the road to the other along the line of the pathway without looking to see whether they could do so safely. That required the first respondent to give simultaneous attention not only to whether the roadway was clear in front of him but also to whether, Aslett having passed in front of him without looking, he might be followed by another child on his or her bicycle who might attempt the same manoeuvre. The first respondent was thus under a duty to control the bus in such a way that he was conscious of what was happening to his left where the pathway proceeded past the corner of the fence in time to take reasonable steps to react to a child on a bicycle who might either not see his bus or appreciate that it was moving.
140. However, the passages in Manley to which I have referred should not be taken out of the context in which they were expressed. The facts in that case are significantly different to those in the present case. In particular, the plaintiff in that case, who was struck and injured by a vehicle being driven by the defendant was lying prone on the road so that his position was fixed and in a location where that part of the road where he was lying was illuminated by a street light. Furthermore, the defendant had his headlights on the light which illuminated the roadway for about 60 metres ahead of his vehicle. Further, there was no form of obstruction to be avoided at least by the time his headlight beams illuminated the location of the plaintiff. However, the defendant was distracted by an intoxicated person on the side of the road and simply did not look ahead of him for otherwise he would have clearly seen the plaintiff and been able to avoid colliding with him.
141. The facts of the present case are quite different in that there is simply no evidence as to where the appellant was on the pathway and/or ramp at any particular point of time. All that is known is that the bus was stopped some 7 metres from the northern edge of the ramp; that it moved off when the road was clear in front of the bus (Aslett having already passed in front if it) and that, according to the spreadsheet, the front wheel of the bus passed over the leg of the appellant some 9.4 metres south of the southern edge of the ramp. There was no acceptable physical or visual evidence of any contact between the appellant and/or his bicycle and the body of the bus.
142. Two theories were advanced. One by Mr Johnston which, if accepted, might be consistent with a breach of duty on the part of the first respondent by failing to keep a proper lookout. The other by Mr Bailey which, if accepted, would be inconsistent with any such breach. The primary judge held that he was unable to determine the precise point of impact, if any, between the appellant and the bus; nor was he able to determine precisely where the bus was at the time of any impact. The case was one where, clearly, direct proof of sufficient facts from which to establish, whether by way of inference or direct evidence, how the accident occurred and in particular, at what point along the roadway, was necessary if it was to be alleged that the first respondent ought to have seen the appellant in time to avoid a collision.
143. The evidence, such as it is, in my view gave rise to conflicting inferences of equal degree of probability so that the choice between them was a matter of conjecture. No inference of negligence can be built on the mere fact that at some point the appellant must have ridden down the last 8 or 9 metres of the pathway towards the ramp. Even on the basis of Mr Johnston’s theory, the bus had moved to a point whereby it was at least level with the ramp which caused the appellant to seek to avoid a collision by moving to the south. On Mr Bailey’s theory the appellant moved to the south but was unable to control his bicycle (probably because he was going too fast and only had a rear brake with a bald tyre which would have affected his braking ability) whereby he fell headfirst to his right onto the roadway and was immediately in front of the bus in circumstances, explained by Mr Bailey, that would not, due to the geometry of the bus, have enabled the first respondent to have seen and avoided him.
144. Furthermore, in my view once the bus was moving and had reached the northern edge of the concrete ramp, and if at that point the appellant had ridden down the last section of the pathway, the first respondent would have been entitled to expect that the appellant would not seek to proceed onto the carriage way and would stop in order to let the bus pass like any rational person. He was not a young child: he was born in December 1990 and at the time of the accident (1 July 2007) he was 16 ½ years of age.
145. At the end of the day the first respondent’s duty was to exercise reasonable care. Whether he did so or not depended upon the findings of fact which the primary judge was able to make in the light of the evidence such as it was. The experts acknowledged in the passage from their testimony which I have emphasised at  above that there was a gap in the evidence as to what occurred between the time the appellant’s bicycle proceeded past the corner of the fence bordering the pathway and the time the front nearside wheel of the bus passed over the appellant’s leg. Neither expert was able to fill that gap apart from offering theories or scenarios which constituted conflicting conjectures of equal degrees of probability.
146. The appellant’s case was very much dependent on the proposition that the appellant ought to have known, Aslett having ridden in front of his moving bus, that as the pathway was a form of thoroughfare used to his knowledge by young bicycle riders, another such rider may have been following him. In my view the passage from  of Manley which I have recorded at  above does not mandate acceptance of that proposition in the circumstances of the present case given the unknowns to which reference has been made and which were acknowledged by both experts as providing a gap in the physical evidence which prevented them from reconstructing the events leading up to the accident with any degree of confidence.
147. Furthermore, the first respondent was required to ensure before he pulled away from the kerb, that the road was clear in front of him and that there was nothing behind him. He looked to his left as he pulled away and then to his front and then to his offside rear mirror. He then looked forward again. He could not look to his left while he was looking into that mirror. The sequence in which he looked left, front and behind could not be performed at the same time.
148. In my opinion the application of the general statement of principle at  of Manley is dependent on the facts of the particular case. What is required is “reasonable attention” to what is happening on and near the roadway. Relevantly on the facts of Manley it required attention to what lay ahead of the defendant’s vehicular path.
149. In the present case it was not suggested that the first respondent failed to give attention to what lay in front of him. He clearly did. Rather, it was alleged that he failed to give attention to the possibility of a bicycle rider suddenly appearing on the pathway as it cleared the visual obstruction caused by the fence. But to accept that proposition in the absence of evidence as to the location of the bus in relation to the ramp at the moment the appellant came into view from the position of the driver of the bus, would be to apply principle in a factual vacuum.
150. Furthermore, Manley does not require guesswork on the part of the driver. Reasonable attention to what is happening on and near the roadway requires a factual matrix against which the relevant standard of care can be applied but which, as the experts acknowledged, was missing in the present case.
151. To adopt and adapt what I said in Draca v Silva  NSWCA 312 at , the principles articulated in Manley at  and  did not require the first respondent to keep the pathway under constant surveillance in order to be able to react in the event that a second bicycle rider might suddenly appear and fail to stop before attempting to cross Bunker Parade with a moving bus in full view. To put it more basically, Manley has no application where there was no evidence as to where the appellant was on the pathway when he could have been seen by the first respondent.
152. Given my view on the issue of liability, it is strictly unnecessary to consider the appellant’s appeal with respect to the primary judge’s finding of 70 per cent contributory negligence or the respondent’s cross-appeal on aspects of his Honour’s assessment of damages. However, against the possibility that my conclusion with respect to liability is wrong, it is appropriate to deal with these outstanding issues: Kuru v New South Wales  HCA 26; (2008) 236 CLR 1 at .
David Cormack – Brisbane Barrister.