The trial judge dismissed the appellant’s claim for damages. She was found to have been jogging across a road in the early hours of the morning. In the alternative the trial judge she was 75% contributory negligent. The issue for determination on appeal was whether the respondent breached his duty not to have his high beams on and whether it satisfied causation, namely if the respondent driver had activated his high beams was it a necessary precondition for the harm sustained by the appellant.
Macfarlan and Gleeson JA: found that the respondent breached his duty by not having his high beams on, but agreed with Emmett JA it was not causative of the harm:
5 In these circumstances, a reasonable driver in Mr Fletcher’s position would have realised that, if he or she had the vehicle’s headlights on low beam, hazards might be encountered on the roadway which might not be able to be avoided by stopping the vehicle. That a driver is in such a position is not necessarily indicative of negligence on his or her part as the proposition that “a person travelling in the dark must be held to be negligent if he is driving at such a speed that he is not able to pull up safely” was rejected by this Court in South Tweed Heads Rugby League Football Club Ltd v Cole  NSWCA 205; 55 NSWLR 113 at .
6 The question however remains whether the plaintiff has established that a defendant who owed a duty of care has in all the circumstances not acted in accordance with reasonable care (see Derrick v Cheung  HCA 48; 181 ALR 301 at ). Consideration of the steps, if any, that a reasonable person in the position of the defendant would have taken in response to an identified risk must take account of the ease with which the steps might have been taken. Here the simple step of flicking a switch to change the headlights from low beam to high beam would have considerably reduced the risks inherent in the defendant’s driving. He was driving with his headlights on low beam at a speed that did not enable him to stop in time if a person or object on the roadway came into his vision. It is not using hindsight to conclude, as I do, that a reasonable person in his position would have had his headlights on high beam to maximise his field of vision in what the defendant accepted was a completely dark area.
7 Mr Fletcher did not suggest that the approach of oncoming vehicles inhibited his use of high beam. Rather, his explanation for not using high beam was that he was “coming into a built up area” and that it was against the law to use high beam in such circumstances. This is not a sufficient excuse. First, the built up area he was referring to was still some distance away at the time of the collision. If he had in mind also the illuminated roundabout ahead of him, that was, he said, not yet in view because the road sloped upwards. Secondly, his understanding of the law was erroneous and his ignorance cannot excuse him from acting as a reasonable person would have acted. The road rules relating to the use of high beam are referred to by Meagher JA in Marien v Gardiner  NSWCA 396 at . They do not preclude the use of high beam unless preceding or oncoming vehicles are within 200 metres. There was no suggestion that that was the case here.
28 Under s 5D of the Civil Liability Act 2002, a determination that negligence caused particular harm comprises two elements, being that the negligence was a necessary condition of the occurrence of the harm (factual causation), and that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability). Thus, his Honour observed that, to determine whether Mr Fletcher’s negligence caused the particular harm to Ms Lyons, it was necessary for him to be satisfied that the negligence was a necessary condition of the occurrence of her injury (factual causation) and that it was appropriate for the scope of the Mr Fletcher’s liability to extend the harm so caused (scope of liability). The trial judge was not persuaded that, but for Mr Fletcher’s breach of duty, Ms Lyons would not have suffered injury. His Honour therefore concluded that Ms Lyons had not established factual causation, for the purposes of s 5D.
48 The question is whether Mr Fletcher acted in breach of a duty to take care to avoid injuring a pedestrian who had behaved in the way in which Ms Lyons behaved on the night in question. I may be disposed to conclude that Mr Fletcher was not in breach of any duty that he owed to Ms Lyons, either by looking down or by not driving with his lights on high beam. Nevertheless, for the reasons indicated below, whether or not Mr Fletcher was in breach of a duty owed to Ms Lyons, any such breach was not relevantly the cause of the injury because, even if he had activated his high beam headlights and had not glanced down at his dashboard, the accident would not have been avoided.
49 The trial judge found that Mr Fletcher’s response time would have been 2.5 seconds. At the time, he was travelling between 55 and 60 kilometres per hour. At that speed, the stopping distance was approximately 60 metres, which equates to a braking time of about 2.3 seconds. Thus, the time that would have been taken between Mr Fletcher’s perception of Ms Lyons and his coming to a full stop was 4.8 seconds.
50 The distance covered by Ms Lyons from crossing the barrier to the point of impact, assuming she jogged at about 90 degrees to the roadway, was 15 metres. If she was jogging at 3.8 metres per second (as the trial judge found that she was), she would have travelled 18 metres in 4.8 seconds. If she was jogging at 3.35 metres per second – which was an alternative speed discussed during the trial – she would have covered 16 metres in 4.8 seconds. In either case, therefore, at the latest moment that Mr Fletcher could have perceived Ms Lyons and begun braking to avoid hitting her, she would not yet have crossed the southern barrier onto Gunnedah Road. The trial judge found that, even with Mr Fletcher’s headlights switched on high beam, while they would have illuminated the roadway ahead for a distance of 70-90 metres, and further to the side than low beam headlights, Mr Fletcher still would not have been able to see Ms Lyons in sufficient time to take evasive action.
51 Thus, on the basis of the findings made by the trial judge, it follows that, even if Mr Fletcher had not glanced down at his dashboard and had his high beam headlights illuminated, he would not have been able to avoid colliding with Ms Lyons in the circumstances in which she jogged across his path. Whether the impact would have been as serious does not appear to have been investigated. However, on the basis of the findings made by the trial judge, the collision would have occurred even if there had been no breach of duty on the part of Mr Fletcher along the lines complained about by Ms Lyons.
52 The only factual finding that was put in issue by Ms Lyons on the appeal is the speed at which she was travelling on the roadway. The only witness evidence as to that question came from Ms Dixon and Mr Dawson.
53 Ms Dixon said in evidence that she had only a vague recollection, in bits and pieces, of what happened during the day of 20 September 2007. She had been taking drugs and that affected her ability to perceive and recall what occurred on that day. Ms Dixon remembered walking along Gunnedah Road. She said that she was behind Mr Dawson and Ms Lyons and was therefore not talking to them. She remembered a commotion and vaguely remembered seeing Ms Lyons in the air. Ms Dixon said that Ms Lyons walked from the pathway to the lane on the roadway where she was struck. She said that she did not remember climbing over the barrier. She was not sure why they were not walking on the walkway, but they had to go to the other side, since they were intending to cross Gunnedah Road.
54 Mr Dawson, who was called to give evidence by Mr Fletcher, said that Ms Lyons went up the footpath on the overpass. She was walking and then started running. When she got to the top of the overpass, she stepped over the railing and ran across Gunnedah Road and was struck by Mr Fletcher’s vehicle. At the time she was hit, Mr Dawson was just jumping over the railing. He described Ms Lyons’ running as “just a jog, I suppose”. He said that she headed straight across after she stepped over the barrier.
55 Mr Dawson agreed in cross-examination that Ms Dixon was behind Ms Lyons and him. He said that they were walking in a line when Ms Lyons started running. He would not agree that he and Ms Lyons were walking along the road. He insisted that Ms Lyons was running up the road. He said that Ms Lyons walked along the walkway and then started running and jumped over the barrier and was hit by Mr Fletcher’s vehicle. He disagreed with the proposition that at no stage did Ms Lyons jump over the barrier and would not agree with the proposition that at no stage did Ms Lyons run.
56 In the light of the evidence just summarised, it was clearly open to the trial judge to find that Ms Lyons was jogging across Gunnedah Road when she collided with Mr Fletcher’s vehicle. The speed of between 3.35 and 3.8 metres per hour was derived from evidence given by Mr William Keramidis concerning the mechanics of the collision, which the primary judge accepted. Mr Keramidis has the degree of Master of Engineering Science (Traffic and Transportation) from Monash University. He has studied road safety vehicle dynamics, road safety audits, and road safety statistical analysis.
57 The trial judge accepted that Ms Lyons was crossing Gunnedah Road at jogging speed and was therefore crossing at a rate of approximately 3.8 metres per second. His Honour found that she crossed relatively directly from south to north and therefore covered a distance of approximately 15 metres prior to the collision with Mr Fletcher’s vehicle. His Honour found that it would have taken between four and five seconds to cross from the southern side of Gunnedah Road to the point of impact. That finding was open to the trial judge and is not seriously open to doubt.
58 Mr Michael Griffiths gave evidence on behalf of Ms Lyons. Mr Griffiths is a biomedical and mechanical engineer. He is a road safety, crash and injury investigation consultant of considerable experience. Mr Griffiths accepted in cross-examination that, if Ms Lyons had been running across Gunnedah Road at approximately 90 degrees to the roadway, it is entirely possible that Mr Fletcher would not have had time to see and avoid Ms Lyons, even if he had his headlights on high beam. While Mr Griffiths had given an opinion different from that of Mr Keramidis, the only difference between them depended upon the assumptions that they were asked to make. There can be no real doubt that, if Ms Lyons was jogging across Gunnedah Road, as the trial judge found, Mr Fletcher would not have had time to see her and avoid hitting her, even if he had his high beam headlights illuminated.
59 It follows that the trial judge did not err in concluding that there was no causal connection between any breach of duty on the part of Mr Fletcher and the injury to Ms Lyons. That is to say, the injury would not have been avoided, even if there had been no breach of duty.
Brisbane Barrister – David Cormack