McColl JA at , Ward JA at , Tobias AJA at 
TORTS – negligence – negligent driving – appellant passenger in car driven by respondent – where respondent driving within speed limit in semi-rural area at night – where respondent took eyes off road “momentarily” – where car collided with cow which ran onto road – where no evidence animals likely to stray onto road in area – whether respondent failed to keep proper lookout
PRACTICE – where appellant sought leave to raise argument not pleaded at trial – where appellant eschewed argument on point at trial – whether exceptional circumstances allowing new point to be raised on appeal – whether respondent prejudiced by amendments – whether respondent could have conducted case differently if point raised at trial
MOTOR ACCIDENTS COMPENSATION ACT – Part 1.2 Division 1 – construction of blameless motor accident provisions – whether confined to motor accidents as defined in Motor Accidents Compensation Act
EVIDENCE – where respondent not called to give evidence – where statement of respondent tendered by appellant – where appellant’s evidence did not contradict respondent’s statement – whether Jones v Dunkel inference available – whether Jones v Dunkel inference would have assisted appellant’s case
McColl JA (Ward JA and Tobias AJA agreeing):
1 Mr Jesse Mamo, the appellant, was injured when he was a front seat passenger in a motor vehicle driven by Stephen Surace, the respondent, that collided with a cow. He appeals against a decision of Delaney DCJ in which his Honour found that the respondent did not breach his duty of care but that, if he did, any such breach did not cause the accident. His Honour entered a verdict and judgment for the respondent on liability and ordered the appellant to pay the respondent’s costs on the ordinary basis: Mamo v Surace (District Court (NSW), 22 February 2013, (unrep)).
48 The Civil Liability Act does not deal with the concept of the duty of care in negligence per se. In this respect, the heading “Duty of care” in Division 2 in which s 5B and s 5C appear is “apt to mislead”: Adeels Palace Pty Ltd v Moubarak  HCA 48; (2009) 239 CLR 420 (“Adeels Palace“) (at ). Accordingly, the identification of the duty of care the respondent owed the appellant had to be determined by reference to common law principles.
49 The questions whether there was a duty of care and, if so, whether it was breached, had to be determined prospectively: Vairy v Wyong Shire Council  HCA 62; (2005) 223 CLR 422 (“Vairy“) (at  ff) per Hayne J; applied in Adeels Palace (at ). Thus, the court must not focus exclusively upon the particular way in which the accident that has happened came about, as to do so may obscure the nature of the questions presented in connection with the inquiry into breach of duty: Vairy (at ) per Hayne J; approved in New South Wales v Fahy  HCA 20; (2007) 232 CLR 486 (at ) per Gummow and Hayne JJ.
50 Section 5B(1) of the Civil Liability Act sets out three preconditions that must co-exist to establish breach of duty. The effect of s 5B(1) is that the respondent was not negligent in failing to take precautions against a risk of harm unless the risk was one of which he knew or ought to have known, the risk was not insignificant, and in the circumstances, a reasonable person in his position would have taken those precautions.
51 Section 5B(1)(c) invokes the notion of foreseeability as it is relevant to breach of duty of care. However, reasonable foreseeability of the class of injury the plaintiff suffered is also an essential condition of the existence of the duty to take care for the benefit of another. The nature of the foreseeability inquiry differs depending upon the stage at which it is being considered: Shoalhaven City Council v Pender  NSWCA 210 (Pender”) (at ) per McColl JA (Barrett JA agreeing). Section 5B(2) provides a non-exhaustive list of factors the court is required to take into account in deciding whether the third of those preconditions exists: Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd  NSWCA 263; (2009) 77 NSWLR 360 (at ) per Campbell JA (McColl JA agreeing); see also (at ) per Sackville AJA.
52 The inquiry as to duty or no duty of care addresses the foreseeability of harm resulting to the plaintiff from the conduct of the defendant, considered “quite generally” (Shirt v Wyong Shire Council  1 NSWLR 631 (at 639 – 640) Glass JA. The inquiry as to breach “involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk”: Graham Barclay Oysters Pty Ltd v Ryan  HCA 54; (2002) 211 CLR 540 (at ) per Gummow and Hayne JJ; see also Vairy (at  – ) per Gummow J; Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd  2 NSWLR 268 (at 295) (“San Sebastian”) per Glass JA.
53 The principles concerning the duty of the driver of a motor vehicle to other road users (and, implicitly to passengers in the driver’s vehicle) and those pertaining to breach of duty by reference to s 5B of the Civil Liability Act were recently summarised by Meagher JA (Macfarlan and Emmett JJA agreeing) in Marien v Gardiner  NSWCA 396 as follows:
 The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at . Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook  HCA 73; 162 CLR 376; s 5B.
 The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant’s circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt  HCA 12; 146 CLR 40 at 47 – 48; Vairy at , ,  and ; New South Wales v Fahy  HCA 20; 232 CLR 486 at . A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).
 Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung  HCA 48; 181 ALR 301 at . The exercise of reasonable care requires, as the majority observed in Manley v Alexander at , ‘reasonable attention to all that is happening on and near the roadway that may present a source of danger’. That in turn requires ‘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’.
 The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat  NSWCA 340 at , the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
 Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the ‘limits of visibility and control’ so as to be able to react to whatever ventures into the vehicle’s path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at , citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation  1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.”
54 The standard of care required is that which “could reasonably be expected of an experienced and competent driver”: Cook v Cook  HCA 73; (1986)162 CLR 376 (at 383). Although Cook v Cook was overruled in Imbree v McNeilly  HCA 40; (2008) 236 CLR 510 (“Imbree”) insofar as it approved a standard of care qualified by reference to the level of experience of the driver, the court reiterated that the standard of care a driver owed to a passenger was to take reasonable care to avoid injury to others: Imbree (at ) per Gummow, Hayne and Kiefel JJ (Gleeson CJ, Kirby and Crennan JJ agreeing).
55 As I have said, it was uncontroversial at trial that the respondent owed the appellant a duty to take reasonable care in the driving of his motor vehicle. In some cases, even though there is no issue as to a duty of care being owed, there will be a “debate as to what that duty required of it, for it is only when the content or scope of the duty is identified that questions of breach and causation of damage can be considered”: Romeo v Conservation Commission of the Northern Territory  HCA 5; (1998) 192 CLR 431 (at 487) per Hayne J.
56 However, in considering the scope, extent or content of a duty of care, “in a simple case (like motorist and injured road user) the content issue is adequately addressed by identifying the kind of damage suffered and the class of which the plaintiff was a member”: McPherson’s Ltd v Eaton  NSWCA 435; (2005) 65 NSWLR 187 (at ) per Mason P, referring to Modbury Triangle Shopping Centre Pty Ltd v Anzil  HCA 61; (2000) 205 CLR 254 (at -) per Hayne J.
57 The statement as to the circumstances it appeared he took into account in determining the content of the duty of care ought not have referred to what the respondent, in particular, knew or should have known immediately prior to the accident. However, I do not accept that that was a material error which, as the appellant submits, led to error in his Honour’s finding as to breach and causation.
58 His Honour returned, as I read his reasons, to the issue of content again (at ) in terms broadly along the lines of the scope and content of the duty for which the appellant contended.
59 The effect of his Honour’s reasons, in my view, was that having regard to the low risk of encountering any other object on the road at the hour and in the area the respondent was driving, it was not a breach of duty for the respondent to take his attention off the road. It was the sort of activity which is inherent in driving a motor vehicle and might have been engaged in, in the circumstances in which the respondent was driving, by any reasonable driver in his position.
60 Accepting that the exercise of reasonable care required the respondent to be able to control the vehicle so as to know what is happening in the vicinity of the vehicle so as to be able to take reasonable steps to react to those events (Manley v Alexander  HCA 79; (2005) 80 ALJR 413 (at  per Gummow, Kirby and Haine JJ) does not, as Meagher JA pointed out in Marien v Gardiner, require the reasonable driver to be able to, in effect, foresee every event which might happen in the vicinity of the vehicle or, at all times, be in a position to react to everything which might occur.
61 In short, a driver may be found not to have breached his or her duty of care in every circumstance where he or she collides with an object on the road. There will be circumstances in which there will be no breach of the duty of care where there is, in effect, an unavoidable accident: Derrick v Cheung  HCA 48; (2001) 33 MVR 393 (at ); see also Mobbs v Kain  NSWCA 301; (2009) 54 MVR 179 (at ff) per McColl JA (Giles JA generally agreeing and see his Honour at ; Macfarlan JA agreeing).
62 The appellant does not contend that the respondent was driving too fast. It seems to have been common ground that he was travelling within the speed limit. Rather, the appellant’s case depends upon finding that he was not keeping a proper lookout in the circumstances. The appellant’s case in this respect depended upon him persuading the Court that the respondent’s engagement with the CD player was more than a momentary one so that, presumably, he ought to have seen the cow earlier than he did.
63 There was, of course, no express finding by the primary judge as to the amount of time the respondent looked at the CD player. However, his Honour (at ) had posed the question whether “a driver could momentarily take his or her eyes off the road” to engage in such an activity, from which it is apparent that that was the time he contemplated the respondent might have been distracted. It is also apparent from the appellant’s evidence that his observation as to the respondent adjusting the CD player and the impact were “straight away”. The available inference, which appears to be that which the primary judge drew, was that the respondent had, as drivers do in the ordinary course of controlling their vehicles “momentarily” taken his eyes off the road.
64 The appellant saw to extend the period of time it might be expected drivers in the respondent’s position might take to engage with electronic devices in their vehicles by relying on Mr McDonald’s evidence. In my view the primary judge did not err in rejecting that evidence. It failed to have regard to the appellant’s account of what he heard and saw, let alone to the respondent’s description of what he was doing: cf Dasreef Pty Ltd v Hawchar  HCA 21; (2011) 243 CLR 588 (at  – , , ) per Heydon J.
65 The appellant’s alternative argument was that the Court should infer from the respondent’s failure to give evidence that he engaged with the CD player for a period of at least four seconds. The rule in Jones v Dunkel that failure to call a witness leads to the inference that the witness’ evidence would not have assisted the party who failed to call him or her, only applies where a party is required to explain or contradict something, a question which turns on the issues in the case: Schellenberg v Tunnel Holdings Pty Ltd  HCA 18; (2000) 200 CLR 121 (at ). Unexplained failure by a party to call witnesses can also lead to an inference arising from the evidence of the opposing party to be drawn more confidently: Coles Supermarkets Australia Pty Ltd v Tormey  NSWCA 135 (at  per Ipp JA (Giles and McColl JJA agreeing).
66 In my view, in circumstances where the respondent’s statement was in evidence and was substantially consistent with the appellant’s evidence, the circumstances were not such as to lead to any Jones v Dunkel inference which would have assisted the appellant’s case. The only inference, in my view, which arose from the appellant’s evidence as to his observation about the respondent’s conduct and the impact was, as I have already said, that they were virtually instantaneous.
67 Moreover, even if there was an available Jones v Dunkel inference, the Court could not draw the inference for which the appellant contended namely, that the respondent looked down at the CD player for slightly in excess of four seconds. Where a Jones v Dunkel inference is available the Court may either infer that that evidence would not have assisted a party who failed to call the witness and/or draw with greater confidence any inference unfavourable to the party who failed to call the witness as long as that evidence is available to be drawn on the evidence which has been admitted: State Bank of NSW v Brown  NSWCA 223; (2001) 38 ACSR 715 (at  – ) per Spigelman CJ; see also Manly Council v Byrne  NSWCA 123 (at  – ) per Campbell JA (Beazley JA and Pearlman AJA agreeing). There was no evidence which would have permitted the primary judge to infer that the respondent looked at the CD player for 4 seconds.
68 However, even if such an inference was available, that would not, in my view, assist the appellant. On all the evidence, the primary judge found (at ) that “the cow appeared unexpectedly close to the defendant’s vehicle, too close to react and avoid the collision.” The appellant did not advance any submissions which persuade me that his Honour’s conclusion was incorrect. It was consistent with the respondent and the appellant’s evidence that dealing with (and looking at) the CD player and the impact were “straight away”. Further, there was no evidence which would enable the Court to conclude that the cow would first have been visible any earlier than when the respondent saw it. It was an unavoidable accident.
69 I would reject the appellant’s appeal insofar as it concerned the issues which were before the primary judge.
Brisbane Barrister – David Cormack