Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Stuart v Walsh [2012] NSWCA 186
• Hearing dates: 15 May 2012
• Decision date: 25 June 2012
• Before: Bathurst CJ at 1; Basten JA at 2; Tobias AJA at 3

Decision

(a)Appeal allowed.

(b)Set aside the verdict, judgment and orders made by North DCJ on 31 March 2011 and in lieu thereof there be a verdict and judgment for the appellants.

(c)Set aside the orders for costs made by North DCJ on 17 June 2011 and in lieu thereof the respondent to pay the appellants' costs of the proceedings at first instance.

(d)The respondent to pay the appellants' costs of the appeal but to have a certificate under the Suitor's Fund Act 1951, if otherwise 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: NEGLIGENCE - personal injury from traffic accident involving bicycle rider - appeal against the primary judge's orders challenging his finding of negligence and his assessment of contributory negligence.; NEGLIGENCE - duty of care - breach - question of fact - whether the appellant's response to the risk created was unreasonable or indicative of a lack of reasonable care in the circumstances - application of the principle of agony of the moment - only with the benefit of hindsight could criticism be levelled at the appellant's response.; NEGLIGENCE - findings of negligence could not be sustained - appeal allowed and verdict, judgment and orders of the primary judge set aside - verdict and judgment for the appellants.
• Legislation Cited: Civil Liability Act 2002; Suitor's Fund Act 1951
• Cases Cited: Abdallah v Newton (1998) 28 MVR 364; Antypas v McKeon [2001] NSWCA 417; (2001) 35 MVR 121; Byrnes v Snare (1986) 4 MVR 97; Leishman v Thomas (1957) 75 WN(NSW) 173; Vale v Eggins [2006] NSWCA 348; (2006) 46 MVR 514
• Category: Principal judgment
• Parties: Mark Alwyn STUART (First Appellant); PILKINGTON AUSTRALIA LIMITED (Second Appellant); Daniel James WALSH (Respondent)
• Representation: Counsel: P J Deakin QC/ G T Young (Appellants); P E Blacket SC/ G R Graham (Respondent); Solicitors: TL Lawyers (Appellants); Philip Watson Pty Ltd (Respondent)
• File Number(s): 2011/132314

Decision under appeal

• Date of Decision: 2011-03-31 00:00:00
• Before: Judge North DCJ
• File Number(s): 2009/339412

Judgment

1 BATHURST CJ: I agree with Tobias AJA.

2 BASTEN JA: I agree with the orders proposed by Tobias AJA and with his reasons.

3 TOBIAS AJA: At approximately 4pm on 28 May 2007 the respondent, Dr Daniel Walsh (Dr Walsh), was struck and injured by a truck owned by the second appellant and driven by its employee the first appellant, Mr Mark Stuart (Mr Stuart). The respondent instituted proceedings against both appellants asserting that Mr Stuart had breached his duty of care to the respondent for which the second appellant as his employer, was vicariously liable.

4 On 31 March 2011, his Honour Judge North of the District Court found Mr Stuart liable in negligence and, after assessing Dr Walsh's contributory negligence at ten percent, entered a judgment and verdict in his favour in the sum of $344,352.96 plus costs. The appellants' appeal against his Honour's orders challenging his findings of negligence and his assessment of Dr Walsh's contributory negligence at only ten percent. There is no challenge to his Honour's assessment of damages.

Dr Walsh's version of events

5 At the time of the accident Dr Walsh was 73 years of age and was an experienced bicycle rider. He was visiting his son who lived at Raymond Terrace. As a keen and expert bicycle rider it was his practice whilst staying with his son to regularly ride a course or circuit that he had devised which, relevantly, required him to ride south along the Pacific Highway (the Highway) near Tomago just north of the Hexham Bridge. It was also his practice, just before reaching that bridge, to cross the Highway from its eastern to its western side via an emergency vehicle cross-over within the median strip and then to head north back to Raymond Terrace.

6 The accident occurred approximately five to six hundred metres south of the intersection of the Highway and Tomago Road (the Tomago intersection). From that intersection to the Hexham Bridge the Highway comprises two lanes in each direction separated by a median strip approximately eight metres wide. Adjoining the eastern carriageway between the Tomago intersection and the Hexham Bridge is a breakdown lane (also referred to in the evidence as a fog lane) approximately three metres wide. It was along this breakdown lane that Dr Walsh was riding before he decided to make a 90-degree turn out of that lane in order to cross the southern carriageway of the Highway to the cross-over area in the median strip, with a view to continuing his ride in a northerly direction.

7 Dr Walsh's evidence was that he was travelling at approximately 30 kilometres per hour in what he referred to as the fog lane. As he approached the emergency vehicle cross-over area within the median strip and whilst still moving, he looked over his right shoulder to check for oncoming traffic. He observed only one vehicle (being that driven by Mr Stuart) approximately 100 yards away and travelling in what was referred to in the evidence as Lane 2 of the southern carriageway of the Highway, being that closest to the median strip.

8 Without giving any signal or other indication as to what he was proposing to do, Dr Walsh made what he described as a 90 degree turn and proceeded directly across the dual carriageway onto that part of the median strip which comprised bitumen, avoiding that part which was grassed. He then braked and turned his bicycle so it faced south allowing it to roll very slowly forward. He then heard the brakes of the truck being applied and two seconds later he was hit and was rendered unconscious.

9 At the time of impact Dr Walsh stated that he was only travelling at walking pace of about three or four kilometres per hour maximum. It was his intention to alight from his bike and to walk across the emergency vehicle crossover area of the median strip for the purpose of re-mounting and proceeding north along the western carriageway of the Highway.

Mr Stuart's version of events

10 Mr Stuart had started the day at approximately 5am in Coffs Harbour having the previous night loaded his truck with glass sheets from the second appellant's premises. On leaving Coffs Harbour he made deliveries at Port Macquarie, Wauchope, Kempsey and Tuncurry and was then proceeding to Jesmond, which is close to Newcastle and on the southern side of the Hexham Bridge.

11 At the Tomago intersection there is a southbound merging lane for vehicles turning left from Tomago Road to travel in a southerly direction along the Highway. In order to permit vehicles making that manoeuvre to do so safely, Mr Stuart was travelling in Lane 2 (the right-hand lane of the eastern carriageway of the Highway). He was travelling at the speed limit of 80 kph. When he considered it safe to do so it was his intention to return to Lane 1 (or the left-hand lane). He had commenced that manoeuvre when he first saw Dr Walsh riding his bicycle in the breakdown lane. At that time, according to his evidence in chief, the majority of his truck would still have been in Lane 2 although the nearside wheels would have been straddling the broken white line between the two lanes.

12 According to Mr Stuart he noticed the bicycle rider making a motion that indicated to him that he was going to stop and it was because he thought that the rider was coming to a stop that he did not proceed at that point fully into Lane 1. The rider pulled up, put his right foot down on the ground and looked over his right shoulder. Those actions indicated to Mr Stuart that he had been given the "green light", presumably to continue on without slowing or taking other avoiding action. However, he did not get much further into the Lane 1 when he observed the bicycle rider pick up his foot (which had been on the ground) and proceeded out from the breakdown lane onto the carriageway. This part of Mr Stuart's evidence was rejected by the primary judge who accepted the evidence of Dr Walsh that without stopping and after looking over his right shoulder he had proceeded, without hesitation and without stopping, to make a 90 degree right-hand turn into Lane 1 and then to directly cross both lanes to the median strip.

13 Mr Stuart's evidence (at Black 132N) was that at the time he observed Dr Walsh looking over his right shoulder the distance between the bicycle and his truck was probably 100 feet (which equates to 30.48 metres). This evidence was also rejected by the primary judge as it did not accord with the objective evidence to which reference is made below.

14 According to Mr Stuart the rider of the bicycle started to pedal across the Highway in a southwesterly direction. He then realised that he was going to collide with the bicycle whereupon, when asked what he did, he responded (at Black 133H):

"I just hit the skids and tried to veer away from him. It was inevitable that I was going to hit him ...".

When asked what he meant by "hit the skids" he said he applied his brakes "nearly through the floor" as a consequence of which the rear tyres of the truck on the driver's side locked up.

15 At that point Mr Stuart in effect lost control of the truck which ultimately, according to his evidence (at Black 133S-W), came into collision with Dr Walsh in Lane 2 slightly to the right of the carriageway. When asked by how much his speed had reduced by the time of impact, he said that he had taken his foot off the accelerator when he applied his brakes so that it would have been under 80 kph but as it all happened so quickly there was not much time to de-accelerate. He estimated that from the time he first saw the cyclist looking over his right shoulder to the point of impact was approximately three seconds.

16 In cross-examination Mr Stuart accepted that it had been a long but normal day for him and that by the time of the accident he had travelled approximately 500 to 550 kilometres. As to how the length of his working day affected him at the time of the accident, the following exchange occurred (at Black 169U-170D):

"Q.Mr Stuart, can I suggest this and the same thing, you understand the basis we do that, is this. You'd had a long day. You'd been up since 5am, so the time this happens a bit after four you'd been on the go for eleven hours. You've driven 500 kilometres. You've done a hard day's work on anyone's view of it. You were, as you said yesterday, ten or fifteen minutes from knocking off at Jesmond and can I suggest to you that at that time as you were coming down that long straight to the Hexham bridge your attention was wandering and you weren't really watching carefully what was happening on the highway?

A.No, that would be untrue.

Q.Untrue. So you don't concede at all that you might have been getting a bit weary and eager to call it a day?

A.No. That was my job. I get plenty of rest during the day."

17 I would interpolate that there was nothing in any evidence to which the Court was referred which would suggest that Mr Stuart was inattentive, that his attention or concentration was distracted or that he should have seen Dr Walsh turn across the carriageway earlier than he did. There is no doubt that he was mistaken as to the distance between him and Dr Walsh when the latter was first observed looking over his right shoulder. As will appear, that distance is more likely to have been no less than approximately 65 metres from the point of impact. But as the evidence of the appellants' expert Mr Keramidas, demonstrated, there was no reason for Mr Stuart to have reacted to Dr Walsh cycling along the breakdown lane until he observed him, without warning, making a right-hand turn into Lane 1 of the carriageway.

18 Much of the cross-examination of Mr Stuart was directed at challenging his evidence that before Dr Walsh looked over his right shoulder and immediately entered upon the carriageway from the breakdown lane, he had stopped thus indicating to Mr Stuart that he, in effect, would let the truck pass him before attempting that particular manoeuvre. As I have indicated, the primary judge rejected Mr Stuart's evidence on this issue. A great deal of the cross-examination was also directed at challenging Mr Stuart's evidence that not only had the cyclist come to a complete halt before he looked over his right shoulder, but also only a relatively small portion of his truck had moved into Lane 1 before he saw Dr Walsh ride out onto the carriageway from the breakdown lane whereupon he immediately applied his brakes. Typical of that line of cross-examination was the following exchange (at Black 158R-159M):

"Q.At the time you particularly recall seeing the cyclist?

A.Yes. I was in the process of doing that here. When I spotted the cyclist I stopped progressing that - like, I would've gone into that - at more of an angle if he wasn't there. As soon as I seen him I took the precaution of just not moving over until I knew what he was doing, yes.

Q.But is this the position, that you did - you hesitated but then kept on moving to the left? Is that what happened?

A.Yes. I hesitated, yes, then he looked in my direction and then I proceeded to slowly come over, yes.

Q.Slowly to move into the left-hand lane?

A.Yes, that was my intention, yes.

Q.And that's what you did?

A.No. I was in the process of doing it.

Q.How far do you say your vehicle got into the left-hand lane? In other words, how much--

A.Not very far.

Q.Let's go back and take it step by step?

A.Okay.

Q.You said when you first had your attention drawn to it your wheels had just a little gone over the broken white line?

A.Correct.

Q.I then understood you to say you hesitated but then continued on?

A.Correct.

Q.Just can you help us how far did you continue on? How much of the vehicle--

A.Not very far at all because in that split second that it had gone from him looking at me giving me the green light to move over then he rode across the road. So I couldn't go any further. I wasn't going to go any further.

Q.And again you mightn't be able to say and I don't want to keep repeating it but can you help us at all as did half of your truck get into the left-hand lane or a quarter or what?

A.No, I don't think so, no."

19 At Black 163 Mr Stuart agreed that his evidence was that he had moved slightly into Lane 1; he had then seen the cyclist but thought that he had come to a halt; he then moved a bit further into that lane but then realised that the cyclist was going to cross the road. He was then asked in the following exchange as to what movements he then made with the truck as he observed the cyclist start to cross the carriageway:

"Q.We know you braked?

A.I know the - I just remember that it didn't matter what I done, I was going to hit him. I moved to the right to lessen the impact if anything.

Q.I just want - what I want you to help us with is this. Did you swerve to the right? I mean, did you pull the wheel to the right as well as braking?

A.Yes.

Q.You did, okay. So you've pulled the vehicle - the wheel, not obviously hard, but you've pulled it distinctly to the right?

A.Yes.

Q.And braked?

A.Yes."

It was not put to Mr Stuart that it was imprudent of him to have heavily applied his brakes or that he should not have pulled his vehicle to the right as he braked. That he did so was criticised by Mr Schnerring, an expert retained by Dr Walsh and to which reference is made below. In fact the only Browne v Dunn type challenge to Mr Stuart's evidence was that which I have recorded at [16] above.

The expert traffic engineering evidence

20 As I have noted the expert called on behalf of Dr Walsh was Mr Schnerring. The difficulty with his evidence was that he was asked to assume, relevantly, the following (at Blue 172 I-L):

"Mr Walsh turned across the highway as follows:

Mr Walsh looked over his right shoulder and saw a truck (being the one that ultimately struck him) and it was then on the other side of Tomago Road and in the right lane (i.e., the lane closest to the median strip).

On determining that the roadway was otherwise clear, he made a quick crossing of the highway and on reaching the line dividing the offside lane and the median strip he straightened his bike and then commenced to coast intending to stop before proceeding to turn around into the northbound lanes. It was whilst in this position that he was struck by the truck."

21 On the other hand Mr Keramidas, the appellants' expert, was asked to determine the point of impact and concluded that it occurred within Lane 2 approximately 1.5 metres east of the western edge line of that lane.

22 Both experts were in agreement that in traffic engineering practice it is generally recognised that a driver should be able to perceive and respond to an unexpected hazard within 1.5 seconds in an urban environment and about 2.5 seconds in a rural setting. Nevertheless, perception reaction times are often less than these design values and it is commonly accepted that perception and reaction times can be as low as 0.75 seconds. However for uncommon and unexpected events, values longer than 2.5 seconds can be expected. In this context the experts agreed that it is important to appreciate that the reaction process involves four stages, namely, detection or perception; identification or interpretation; decision or judgment; and response or reaction. However, as Mr Schnerring acknowledged (at Blue 98K), the perception of the cyclist in the present case as a hazard to Mr Stuart would only commence when the cyclist commenced his motion to cross onto the carriageway from the breakdown lane and that based on the assumed crossing speed of Dr Walsh (25 kph), Mr Stuart was likely to have had somewhere between 1.25 and 1.8 seconds to respond and commence braking and steering. That estimate is consistent with Collision Diagram B (which became Exhibit M) prepared by Mr Keramidas and to which further reference is made below.

23 In his written evidence (at Blue 183) Mr Schnerring expressed the view that Dr Walsh very likely had crossed both southbound lanes of the Highway before Mr Stuart commenced to brake. Why Mr Stuart would brake at all in those circumstances was not explained if, before he did brake, he had observed that the cyclist had reached the safety of the median strip. Mr Schnerring continued that given that Mr Stuart's truck was probably wholly within Lane 1 when he first observed Dr Walsh enter onto and proceed across the carriageway, it could have passed behind the bicycle without incident had Mr Stuart continued on without braking or swerving. He was thus almost certainly in a position to avoid the collision. I mention this matter as it was relied on in argument by Dr Walsh although, as will appear, it is not necessarily legally relevant: see [39] below and [57].

24 Mr Schnerring was cross-examined with respect to this expression of opinion. At Black 100 he accepted that people do swerve in the direction of an object they are trying to avoid although they are not required to do so. The following exchange then occurred:

"Q.You don't think it is a reasonable reaction at all for a driver to try to steer away from the cyclist coming out from his left?

A.No, I don't. I think it's a terrible evasive strategy because you're steering where they're going. You should be either braking in a straight line or don't swerve in that direction. It doesn't work.

Q.So you're saying that you can't understand even why a driver would attempt to veer away from a cyclist going--

A.I haven't said that. I said I know people do it and it's not a good tactic and not everyone does it. Some do, some don't.

Q.And you would be critical of a driver who is seeing a cyclist coming out from the left-hand side of the road and tried to veer away from him. Is that right?

A.Well, at the distances that you've put to me of 100 yards or 100 metres, yes.

Q.And you'd also be critical--

A.There's no need.

Q.--of him heavily braking, would you?

A.No. Not at all. I think braking is an excellent response.

Q.You don't think there's an element of hindsight in your criticisms here, Mr Schnerring, do you?

A.I would suggest that all forensic expert reports are a matter of hindsight. We're looking at it after the event." [Emphasis added]

25 Again, at Black 115X to116W the cross-examiner returned to the same topic:

"Q.I want you to assume that he reached a position perhaps somewhere in that nearside lane, perhaps somewhere over the lane marking when he observed the cyclist on his left?

A.Yes.

Q.And that having observed the cyclist on his left looking up over his right shoulder towards him?

A.Yep.

Q.He continued to draw perhaps a little bit further to the left, perhaps stayed somewhere where he had originally been and it was only when the cyclist commenced to move from the side of the road into the highway that he started to veer away from the cyclist?

A.Yes.

Q.Pausing there, all of those movements and manoeuvres you would have no criticism of. Do you agree?

A.In terms of being - like as in plausible movements.

Q.Plausible but also reasonable. Would you not agree?

A.It depends on what you think the bicycle rider is doing.

Q.He doesn't know, Mr Schnerring, you don't know, but--

A.No.

Q.--what I'm asking you to agree is that not a reasonable--

A.I can't agree with reasonable but it is a series of manoeuvres that can fit the physical evidence.

Q.Do you not agree that there's nothing you could criticise in that?

A.I can in terms of crash avoidance, yes.

Q.With the benefit of hindsight?

A.It is things that have been discussed in literature as to if an object is moving across your path from left to right and it's the rider is looking over his shoulder which suggests that he would hardly want to enter the traffic stream. He would be wanting to cross it. I think the reasonable assumption is that, "This guy is going to cross the road. I'm in the left lane. He'll be gone before I get there." Why change lanes and follow him? That's--

Q.Mr Schnerring--

A.I'm trying to explain why I don't think it's a reasonable manoeuvre.

Q.That's with the benefit of hindsight only, Mr Schnerring, I put to you?

A.I disagree that it's - I mean, in terms of reconstructing accidents and plotting events, we all apply hindsight I think."

26 However on re-examination the following question and answer occurred (at Black 121S-V):

"Q.Just in respect of the question you were last asked, Mr Schnerring, if we accept that the truck is under heavy braking because we know where the skid marks are going, would it be likely that there would be much capacity to steer at that point or would the vehicle basically carry on on the line it's going on?

A.Once the wheels are locked he's got the - if the front is locked as well then that's using up all the available friction supply. So there shouldn't be any left over for steering."

27 This evidence was confirmed by Mr Keramidas in his oral evidence in chief in the following exchanges at Black 224 - 225:

"Q.Mr Schnerring was very helpfully asked a question in re-examination in relation to what control a driver has whilst braking as heavily as this driver was and I'd like you to allow in addressing that topic for the fact of the nature of this vehicle. Under brakes, heavily braking as this truck was, what control did the driver have of it and its journey?

A.Look, the level of control would be virtually nil. As Mr Schnerring indicated, and he was quite correct, in locked wheel condition you can't change direction.

...

HIS HONOUR: Just before you cross-examine.

Q.When you say it's difficult to change direction?

A.Yes.

Q.If all of the - if it's the right offside tyres that are locking up does that pull the vehicle one way or the other?

A.Now, it can do that, your Honour. The reason why the right wheels locked up in this case is because the weight has been lifted off them and so they are more likely to be able to lock. It doesn't mean that the braking effort is going to be significantly different left to right and--

Q.But if you steer into the rider you're putting - because you're steering with your front tyres, aren't you?

A.Correct. You're steering with your front tyres, so you're leaning - you're loading up your left tyres. They're providing braking effort. Your right tyres, because they've become unloaded, are more likely to lock. We look at the tyre marks. If the tyre marks were to show that the marks start parallel and then basically wash out into each other that means there's been a twist.

Q.Yes?

A.And therefore there's uneven braking. From what we see of these marks there's a curvature and the only bit of what looks to be a smudge is where the rear tyres finish and it looks like there's one tyre in the middle between them that runs off. So the braking effort across this vehicle has been pretty much constant. It's just that the weight transference has meant the offside wheels have been able to lock. The nearside wheels are under heavy braking. Now, the reason why I didn't say there is no control over the vehicle is because obviously if the driver were to steer to the left - he's got no steering capacity off the right side of his vehicle. He does have some steering capacity off his left side but that's also the side that's loaded. So it is far more difficult to recorrect the front steering wheel from a right attitude to straighten and left to effectively do a faster basic swerve.

Q.All right.

A.In fact I think what we see in the marks is what appears to be a gentle attempt to correct or straighten up the vehicle because it's certainly coming into the median at a sharper angle than it eventually finishes up."

28 During the course of his cross-examination the primary judge conducted the following exchange with Mr Keramidas (at Black 243U to 244I):

"HIS HONOUR

Q.I'm a bit puzzled though you say that it's almost axiomatic or automatic that he would move to the right. If you accept that he's seen the bicycle make this sudden manoeuvre to the right wouldn't one know that a bike doesn't go backwards?

A.Unless he--

Q.And therefore if you're going to move to the right aren't you going to move - unless you've correctly judged the speed and everything else, you're going to move into danger?

A.I think, your Honour, the difference is this. If you accept that the rider was crossing the road at 90 degrees, you're correct. If you accept what the driver seems to be suggesting, that he's riding at 45 degrees, he could just as easily rather than continue across the right lane, straighten up and continue in the left lane, in which case you've then taken him out.

Q.I understand what you're saying.

A.So that's the difference. If - so it depends on the perception of the person as to the potential - and all of this has to occur of course the decision making process within about three-quarters of a second.

Q.I think it's quite clear and everyone is agreed that it's an agony of the moment situation?

A.Mmm." [Emphasis added]

The findings of the primary judge

29 Three lay witnesses gave evidence each of which said that the impact between the bicycle and the truck occurred within Lane 2 of the carriageway. However for reasons not presently relevant, the primary judge was reluctant to accept the evidence of those witnesses as to the point of impact.

30 At [110] of his reasons his Honour commented that a prudent driver, having first noticed a cyclist riding on the side of the road, should automatically have become aware and then remained aware of him, particularly when driving a truck which was not easy to stop or manoeuvre. At [113] and [118] he observed that none of the eyewitnesses had seen Dr Walsh making a gradual manoeuvre to his right thus enabling Mr Stuart to decide that he had time and space to pass him "on his right". He continued at [118]: "So on the evidence of [Mr Stuart] (himself) it does not appear that [Dr Walsh] was undertaking the type of gradual merging onto the highway that would have safely enabled him [presumably Mr Stuart] to pass on the right."

31 I would understand from this statement that his Honour was finding that the action of Dr Walsh was not so gradual that Mr Stuart could have remained in Lane 2 and passed in front of him: rather, as Dr Walsh crossed the carriageway without hesitating, there was no opportunity for Mr Stuart to pass him on his right: that is, by remaining and continuing in Lane 2.

32 At [123] his Honour noted that both experts agreed that the skid marks shown on Exhibit M were caused by the locking of the rear offside wheels of Mr Stuart's truck. Those skid marks demonstrated that his vehicle was wholly within Lane 1 prior to braking commencing. However, with respect to the point of impact his Honour noted (at [124]) that the truck impacted the rear of the bike but, according to the damage to it, at an angle a little to its right. It was clear from the skid marks and Mr Stuart's version that his truck, at the point of impact, was pointing to the right rather than proceeding straight ahead. This fitted precisely Dr Walsh's evidence that he had completed his crossing of the two lanes and was already travelling in a southerly direction when he was struck from behind albeit a little from the right.

33 At [127] the primary judge accepted, as had Mr Schnerring, that Dr Walsh had completed his crossing of the carriageway by the time he was struck. In this respect he found that Dr Walsh was struck not within Lane 2 but within the paved shoulder of the roadway which comprised a 700mm wide strip between the western side of Lane 2 and the eastern edge of the median strip, a finding repeated at [156]. In these respects his Honour's findings were in the following terms:

"129.It appears to me, based on all the evidence, that he [Dr Walsh], having completed his turn on the bitumen, was just outside the middle or right lane but not on the grass. He was then struck in the near vicinity of the white post and the Eureka road sign and ended up where he did. Indeed it is not disputed that he was in the median strip and not in the lane when the collision came to a halt.

130.Even if this is wrong then I find that he should still not have been struck as he would have been very close to the right hand side of the lane and the accident was a result of the defendant Stuart deciding not only to steer right but sharply right, and to follow the direction in which the bike was obviously heading."

34 The critical finding at [130] was that the accident was a result of Mr Stuart deciding not only to steer right "but sharply right", thus following the direction in which the bicycle was obviously heading. Although it is true that Mr Stuart said that as he applied his brakes he attempted to steer to the right, there was no evidence, and it was not suggested to him either that he steered "sharply right" or that his objective was to follow the direction in which the bicycle was heading.

35 In response to a submission that once he braked, Mr Stuart had no control over the direction his truck was taking, his Honour observed that it was necessary to consider the whole of the circumstances leading up to the incident. At [133] to [141] of his reasons he rejected, first, Mr Stuart's evidence that Dr Walsh came to a stop before commencing to traverse the two lanes of the carriageway and, secondly, his evidence that the truck did not wholly enter Lane 1 prior to the braking manoeuvre. His Honour therefore found that Mr Stuart's evidence was unreliable with respect to the events leading up to the collision. From his rejection of Mr Stuart's evidence that before proceeding onto the carriageway Dr Walsh had come to a complete halt on one hand and that at the time he applied his brakes the truck was wholly within, although bordering on the edge of, Lane 1 of the carriageway, his Honour concluded (at [142]) that it appeared that Mr Stuart was not maintaining a proper lookout.

36 I would interpolate that that conclusion does not logically follow from his Honour's rejection of Mr Stuart's evidence to which I have referred. There is simply no link between the rejection of that evidence and his Honour's consequential acceptance that Dr Walsh, after he had looked over his right shoulder, made a 90 degree turn onto the carriageway without stopping and without giving any warning that he proposed to do so. There is also no link between the finding that at the time he applied his brakes Mr Stuart's truck was in Lane 1 to a greater extent than Mr Stuart had accepted and his finding that it followed that he was not maintaining a proper lookout.

37 The primary judge (at [143]) then made the following finding:

"In evidence he [Mr Stuart] said that he noticed the cyclist for some time before it came to a halt. If a driver of a heavy vehicle sees a cyclist in front it is reasonable to consider that he will watch it very carefully. Here I consider that the [Mr Stuart] was tired and that he did take his eye off the cyclist and when he saw [Dr Walsh] in front of him completing the crossing manoeuvre he panicked and hit the brakes heavily and veered to the right."

38 It was certainly put to Mr Stuart that due to the time he had been on the road his attention was wandering and that he was not really watching carefully what was happening on the Highway, a proposition he denied. He also denied that he was weary: see [16] above. Although his Honour found that Mr Stuart's evidence was unreliable in the two respects to which I have referred above, nevertheless at [141] he found that he was doing his best to recollect what was obviously a dramatic occasion albeit that his evidence was unsatisfactory in those two respects.

39 Critically, even if his Honour rejected Mr Stuart's denial that he was not weary as he had had plenty of rest during the day, it did not necessarily follow from that that he ever took his eye off Dr Walsh after he first saw him. It was not put to him that he did not at all times have the bicycle in his vision. Importantly, it was never suggested to him that he took his eyes off Dr Walsh after he saw him look to his right and then, without warning and suddenly and unexpectedly, enter onto the carriageway. Finally, it was never put to him that he panicked. Certainly he "hit the brakes heavily and veered to the right" but there was no suggestion either in the expert evidence or otherwise that this was a consequence of Mr Stuart panicking as distinct from his reaction to Dr Walsh's sudden and unexpected movement from the breakdown lane onto the carriageway.

40 The effect of the primary judge's finding at [143] was replicated at [153] in which he said that he had come to the conclusion that Mr Stuart did not at all times keep a proper lookout. Moreover, he went further. At [144] he found that it was:

"an ill chosen choice to move to the right in the same direction as the cycle and that this decision ensured that there would be a collision."

41 At [145], after referring to the skid marks, his Honour found that it was axiomatic that had Mr Stuart kept a proper eye on Dr Walsh when he was crossing the carriageway, the last thing he should have done was to have veered in his direction. Such a finding smacks of hindsight. At [146] he then stated:

"... given my findings regarding the fact that he did not stop his cycle prior to crossing, and accepting his [Dr Walsh's] evidence that he crossed directly ... it is clear that ... Mr Stuart made the wrong choice in moving to the right under brakes."

Of course whether he made the right or wrong choice in the circumstances suddenly presented to him does not necessarily bespeak negligence.

42 His Honour's reasoning as to his finding on the balance of probabilities that Mr Stuart did not at all times keep a proper lookout was summarised by him at [153] in the following terms:

"Taking all of the evidence into account, including that of the two experts, I have come to the conclusion that ... Mr Stuart did not at all times keep a proper lookout. If he had he would have known that he was at some stage travelling wholly within the left hand lane. He would also have known that [Dr Walsh] did not stop, remove his foot from the toe clip, place it on the ground, look over his shoulder and then replace it and start out onto the road."

43 As I understand that reasoning, it was that Mr Stuart could not have been keeping a proper lookout and at all times had Dr Walsh under observation because he was mistaken as to whether Dr Walsh came to a stop before he moved out onto the carriageway and as to the precise location of his truck when he applied his brakes. This reasoning in my view demonstrates error.

44 At [155] his Honour found that the accident occurred because Mr Stuart veered to the right which was precisely the direction in which Dr Walsh's bicycle was obviously travelling.

45 When dealing with the issue of contributory negligence, his Honour accepted (at [161]) that Dr Walsh did not give an actual signal of his intention to draw out from the side of the road. He nevertheless rejected the submission that he had caused a traffic hazard by moving into the path of the oncoming truck even though, according to Dr Walsh, it was only 100 yards or 92.3 metres away when he commenced his movement onto the carriageway. The difficulty, of course, is that how precisely Dr Walsh proposed to cross the carriageway was unknown to Mr Stuart until he observed it. Nevertheless at [162] his Honour said:

"I do accept that if the truck driver had been keeping a proper lookout he would have gauged the movement of the cycle and remained in the left hand lane and proceeded safely onwards. Instead he veered right and braked heavily and caused an accident which ended up with the cycle and [Dr Walsh] in the median strip.

Exhibit M - Collision Diagram B

46 The primary judge seemed to have accepted Exhibit M prepared by Mr Keramidas as accurately depicting the skid marks of Mr Stuart's truck including the manner in which it veered from Lane 1 into Lane 2 over a distance of some 35 metres between the point where braking commenced to the point where, according to Mr Keramidas, the point of impact occurred. By scaling off the plan, the length of the skid marks was 40 metres and the distance from Mr Keramidas' point of impact to where on the plan he considered the reaction time of Mr Stuart started, was 65 metres.

47 One of the difficulties with the evidence is that Dr Walsh did not indicate on a plan precisely where he was when he turned 90 degrees onto the carriageway from the breakdown lane. However, he did mark on Exhibit D, which was transferred by Mr Keramidas to Exhibit M, where he maintained the impact occurred. If one assumes, as he maintained, that Dr Walsh moved at right-angles to that point from his starting point where he crossed into Lane 1, then according to Exhibit M, the distance from that point to where Mr Stuart's reaction time started, was approximately 90 metres. The distance between the point shown on Exhibit M as where Mr Stuart's reaction time started and the start of his swerve and braking, scales off the plan at 28 metres which, at 80 kph, would have taken 1.26 seconds to travel. This reaction time was consistent with the evidence of both experts. The difference between that reaction time and the three-quarters of a second referred to by Mr Keramidas in the passage from his evidence, which I have recorded at [28] above, is miniscule.

The nature and resolution of the issues on appeal

48 The appellants submitted that the primary judge erred in law in first, failing to determine whether Mr Stuart was in breach of a duty to take reasonable care in all the circumstances. Secondly, although he was expressly referred to and addressed on the relevant provisions of the Civil Liability Act 2002 (the CLA) and, in particular, s 5B, he did not structure his judgment to address each of the requirements of that provision.

49 With respect to both these contentions, it is apparent from a fair reading of his Honour's reasons that he found that Mr Stuart failed in his duty to take reasonable care. First, Mr Stuart did not at all times keep a proper lookout and, secondly, he erroneously veered to the right and braked heavily, rather than continuing in Lane 1 of the carriageway having observed the movement of Dr Walsh's bicycle across the carriageway towards the median strip. This last mentioned finding is, at least in part, inferentially based upon his Honour's earlier finding (at [127]) that Dr Walsh had completed his crossing of the carriageway by the time that he was struck.

50 In any event I do not regard these asserted errors of law as being relevant to the ultimate determination of this appeal. Essentially, the appeal involves a question of fact. The question to be determined in the circumstances which confronted Mr Stuart when he first observed Dr Walsh moving out of the breakdown lane was what was a reasonable response to the risk so created: Vale v Eggins [2006] NSWCA 348; (2006) 46 MVR 514 at [13] per Beazley JA, McColl JA agreeing. To put the issue another way: was there any evidence of a failure by Mr Stuart to keep a proper lookout and/or was the application by him of the brakes of his vehicle, and his steering to the right at the same time as he saw Dr Walsh suddenly move onto the carriageway from the breakdown lane, indicative of a lack of reasonable care on his part in the circumstances? Those are the questions which, in my view, are required to be answered.

51 The appellant made a number of challenges to some of his Honour's findings such as those at [130] and [143] which I have dealt with when dealing with his Honour's remarks therein: see [34], [38] and [39] above. A deal of time was also spent in the written submissions and in the appellants' oral argument on his Honour's finding with respect to the point of impact. In my view whether that point of impact was that determined by Mr Keramidas on the one hand or that determined by the primary judge on the other, is not relevant to the resolution of the true issues in the appeal. Given the nature of his Honour's findings of negligence, the precise location of the point of impact, whether within Lane 2 or within the paved shoulder adjoining that lane, becomes insignificant. It is therefore unnecessary to resolve precisely where it was.

52 With respect to the finding that Mr Stuart failed to keep a proper lookout, the following observations are pertinent. First, on the basis of Exhibit M Mr Stuart observed Dr Walsh turn from the breakdown lane onto the carriageway when he was some 65 metres from him or, on the basis of Dr Walsh's evidence, some 90 metres. In this context it became relevant to determine the point where Dr Walsh turned onto Lane 1. Thus during the course of the respondent's submissions on the appeal, senior counsel was requested to indicate where, in his submission, that point was. He nominated a position below the word "Likely" in the phrase "Likely Impact Location" as shown on Exhibit M.

53 If that be the correct position, then the distance between that point and the commencement of Mr Stuart's reaction time as shown on Exhibit M was 75 metres. Accordingly, there can be no doubt on the evidence that Mr Stuart first observed Dr Walsh move onto the carriageway from a distance of between 65 and 90 metres rather than the 100 feet mistakenly asserted by Mr Stuart in his evidence. Neither of the experts suggested that having observed Dr Walsh moving suddenly onto the carriageway from the breakdown lane from that distance was indicative of a failure on Mr Stuart's part to keep a proper lookout. In my opinion the primary judge's finding to the contrary cannot be sustained.

54 In fact senior counsel for Dr Walsh ultimately did not seek to support that finding of the primary judge. Rather, his eventual case on appeal was not that Mr Stuart had failed to act in an appropriate manner but that he had over-reacted to his perception of Dr Walsh on the carriageway by unreasonably "flooring" his brakes thereby causing his vehicle to skid and by turning his steering wheel causing the vehicle to veer to the right: see Appeal Tpt p 64. This accorded with his Honour's finding at [144], [146] and [155] of his reasons to the effect that Mr Stuart had made an "ill chosen choice" in moving or veering to the right under brakes as that ensured that there would be a collision with Dr Walsh as he was moving in that same direction.

55 The appellants responded by submitting that his Honour's description of Mr Stuart's truck veering to the right as a consequence of him manoeuvring the steering wheel and at the same time braking heavily as "an ill chosen choice" or "the wrong choice" did not bespeak negligence on his part. In their written submissions the appellants accepted that there was no dispute that on seeing Dr Walsh leave the breakdown lane and commence to move out onto the carriageway, Mr Stuart braked his vehicle heavily and steered it to the right in an attempt to avoid a collision. The question is whether such a manoeuvre was in all the circumstances unreasonable so as to constitute negligence on Mr Stuart's part.

56 It was submitted that only with the benefit of hindsight could any criticism be levelled at Mr Stuart's response to observing the bicycle rider turn without warning from the breakdown lane onto the carriageway in an apparent attempt to cross to the median strip before the truck driven by Mr Stuart reached him. Reliance was placed on the evidence of Mr Keramidas that that was "a natural response". Although Mr Schnerring accepted that braking was an excellent response, he considered that Mr Stuart should not have swerved as that was not a good tactic. However, he accepted that that observation was made with the benefit of hindsight.

57 It was submitted on Dr Walsh's behalf that had Mr Stuart not over-reacted, he would not have moved from Lane 1 into Lane 2 as that was the same direction in which the bicycle rider was moving. In my view this submission cannot be sustained given the evidence of the experts that a proper response to the situation with which he was faced was for Mr Stuart to heavily apply his brakes. Once he had done so and the off-side rear wheels locked, he lost control of the direction in which the vehicle would travel.

58 At one point during the course of oral argument it was submitted on behalf of Dr Walsh that Mr Stuart failed in two respects to exercise reasonable care. The first was his failure to react in a timely fashion to the presence of Dr Walsh on the carriageway by failing to keep a proper lookout. As already noted, this submission was eventually abandoned. The second was that Mr Stuart's action in jamming on his brakes was negligent when he should have kept going in Lane 1. In other words, it was submitted that he simply should not have braked at all. However, that submission was at odds with the evidence of Dr Walsh's own expert Mr Schnerring at Black 100 (recorded at [24] above) that he was not at all critical of Mr Stuart heavily braking as he considered that braking was an excellent response.

59 I return to Dr Walsh's over-reaction submission to the effect that it was unreasonable for Mr Stuart to either have braked or to have steered to his right. It was never put to Mr Stuart that he should not have braked as he did. Nor was it put to him that he should not have steered as he did. To suggest that his reaction was unreasonable because he could have avoided the accident by remaining in Lane 1 and not applying his brakes involves a large dollop of hindsight. In this context it may be noted that in re-examination (at Black 171D-H) Mr Stuart said that at the time he first saw the cyclist enter the carriageway from the breakdown lane, he considered that if he kept going in a straight line and had not taken the action he did, the outcome was likely to have been worse than it was and Dr Walsh would probably have been killed. He may or may not have been correct in this but that is not the point.

60 A further permutation of Dr Walsh's contentions in oral argument was the assertion that Mr Stuart should have slowed down and braked but had done so too heavily as a consequence whereof he had caused his vehicle to skid. There was no evidence particularly from Dr Walsh's expert, Mr Schnerring, to support this assertion.

61 It was in the context of Dr Walsh's over-reaction submission that reference should be made to the appellants' submissions based on their "agony of the moment" contention. Reliance was placed on a passage from the judgment of Street CJ in Leishman v Thomas (1957) 75 WN(NSW) 173 at 175 where the Chief Justice considered the question whether a defendant may rely on the principle of the "agony of the moment" in answer to a claim that he acted negligently towards another. His Honour said:

"This so called principle of acting in the 'agony of the moment' is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved. It is a circumstance, and one possibly of great importance, that the defendant, charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so-called 'agony of the moment', he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise."

62 This passage from Leishman was quoted with approval by Stein JA, with whom Meagher and Beazley JJA agreed, in Abdallah v Newton (1998) 28 MVR 364 at 365-366. See also Antypas v McKeon [2001] NSWCA 417; (2001) 35 MVR 121 at [48], [49] per Ipp AJA with whom Hodgson JA and Rolf AJA agreed; Byrnes v Snare (1986) 4 MVR 97 at 99 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ agreeing.

63 Like the position in Abdallah, Mr Stuart found himself in a situation which was not of his making. He was driving his truck at 80 kph when, without warning, he suddenly observed between 65 and 90 metres in front of him a cyclist in the breakdown lane look right over his shoulder and then immediately turn 90 degrees onto the carriageway and, at least potentially, into the path of his vehicle. To adopt and adapt the observations of Street CJ in Leishman, Mr Stuart was forced to react to a sudden, unexpected and unheralded scenario when he observed a cyclist, suddenly and without warning, move into his path a relatively short distance in front of him. He may have assumed that the cyclist intended to proceed to the other side of the carriageway but he did not know at what speed. He did the obvious thing and immediately applied his brakes. It was never suggested to him that this was an inappropriate thing to do. Importantly, he responded to the potentially dangerous situation created by Dr Walsh as soon as it occurred: cf Vale v Eggins at [14] and [17].

64 In so reacting Mr Stuart did not have the opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had remained in Lane 1, rather than to have steered slightly to his right and at the same time floored his brakes so that his rear wheels locked and his vehicle went into a skid. He found himself faced with a situation which, in my opinion, required immediate action of some sort. If steering to the right was in hindsight the wrong thing to do then it was, in my view, an error of judgment made in the "agony of the moment". To adopt and adapt what Ipp AJA said in Antypes, the fact is that Dr Walsh's conduct brought about a sudden emergency in circumstances where it would be unreasonable to criticise Mr Stuart for taking the avoidance action he did. Being confronted with a situation with which he was required to make an instant decision or one with which it was necessary for him to deal in a matter of a few seconds, it cannot be the case that he acted unreasonably in any way.

65 In summary, the issue is not whether there was an alternative course of action Mr Stuart could have taken which would have avoided the collision such as remaining in Lane 1 without the necessity of having to apply his brakes. The issue is whether in all the circumstances with which he was faced, his reaction to the sudden and unexpected movement of Dr Walsh onto the carriageway was unreasonable. In my opinion it was not. It accorded with the response of a reasonably prudent driver in the position Mr Stuart found himself.

Conclusion

66 In my opinion the primary judge's findings that the Mr Stuart was negligent in first, failing at all times to take a proper lookout and, secondly, by choosing to move or veer to the right in the same direction as the cyclist cannot be sustained. Nor can Dr Walsh's amended or alternative case that Mr Stuart acted unreasonably in that he over-reacted to the situation with which he was faced. Accordingly, the appeal should succeed. I would therefore propose the following orders:

(a)Appeal allowed.

(b)Set aside the verdict, judgment and orders made by North DCJ on 31 March 2011 and in lieu thereof there be a verdict and judgment for the appellants.

(c)Set aside the orders for costs made by North DCJ on 17 June 2011 and in lieu thereof the respondent to pay the appellants' costs of the proceedings at first instance.

(d)The respondent to pay the appellants' costs of the appeal but to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified.

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Amendments

26 September 2012 - corrected references to paragraphs
Amended paragraphs: 19, 38, 47, 51 and 58

Decision last updated: 26 September 2012