Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Mamo v Surace [2014] NSWCA 58
• Hearing dates: 27 February 2014
• Decision date: 13 March 2014
• Before: McColl JA at [1], Ward JA at [90], Tobias AJA at [96]

Decision

Appeal dismissed with costs

[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 - 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
• Legislation Cited: Civil Liability Act 2002 (NSW); Civil Procedure Act 2005 (NSW); Motor Accidents Compensation Act 1999 (NSW); Motor Accidents Compensation Amendment Act 2006 (NSW)
• Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420; Axiak v Ingram [2012] NSWCA 311; (2012) 82 NSWLR 36; Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11; Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135; Cook v Cook [1986] HCA 73; (1986)162 CLR 376; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588; Derrick v Cheung [2001] HCA 48; (2001) 33 MVR 393; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540; Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510; Ingram v Axiak [2013] HCATrans 64; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413; Manly Council v Byrne [2004] NSWCA 123; Marien v Gardiner [2013] NSWCA 396; McPherson's Ltd v Eaton [2005] NSWCA 435; (2005) 65 NSWLR 187; Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268; Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254; Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631; New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486; O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; Ras Behari Lal v King-Emperor (1933) 50 TLR 1; Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 77 NSWLR 360; Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431; Rowe v Australian United Steam Navigation Co Ltd [1909] HCA 25; (1909) 9 CLR 1; Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121; Shirt v Wyong Shire Council [1978] 1 NSWLR 631; Shoalhaven City Council v Pender [2013] NSWCA 210; Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; Smith v Western Australia [2014] HCA 3; State Bank of NSW v Brown [2001] NSWCA 223; (2001) 38 ACSR 715; University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598
• Texts Cited: Second Reading Speech, Motor Accidents Compensation Amendment Bill 2006 (New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 9 March 2006
• Category: Principal judgment
• Parties: Jesse Mamo - Appellant; Steven Surace - Respondent
• Representation: Counsel: E G Romaniuk SC and D Hanna - Appellant; K Rewell SC and T Renshaw - Respondent; Solicitors: Napier Keen - Appellant; Sparke Helmore Lawyers - Respondent
• File Number(s): CA 2013/83902
• Publication restriction: No

Decision under appeal

• Citation: Mamo v Surace, District Court (NSW), 22 February 2013, unrep)
• Date of Decision: 2013-02-22 00:00:00
• Before: Delaney DCJ
• File Number(s): DC 2010/99458

Judgment

1 McCOLL JA: Mr Jesse Mamo, the appellant, was injured when he was a front seat passenger in a motor vehicle driven by Steven 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)).

2 I would dismiss the appeal with costs for the reasons which follow.

Factual Background

3 The following background is extracted from the primary judgment and the evidence.

4 On the evening of 30 March 2008 the appellant and respondent were at the appellant's house. At about midnight they decided to drive to a party in the respondent's car. They left the appellant's house in Bowman Road, Londonderry and immediately turned right into Purcell Road.

5 What then ensued is best recounted from a statement made by the respondent (who did not give evidence) which the appellant tendered. In that statement the respondent said:

"15. The weather was fine and it was a nice clear night. The road was dry. There are street lights in the area which were lit, but there were not many of them and the area was dark. There were no other cars around.

16. Purcell Road has a slight incline and my car being cold, took its time to wind up and get going. I was not going fast, no more than 40-50 kph. We had only travelled about 100 metres, just before halfway up the incline, I looked down to my left at the CD Player in the car and hit the button on the CD player to change it to the next song. Jesse had his head down trying to light a cigarette.

17. When I looked up, I saw a black cow run out from the left side of the road onto the road in front of my car and my car collided with the cow. I had no time to avoid colliding with the cow as it was in front of my car when I saw it."

6 The impact propelled the cow onto the bonnet of the car where it smashed the windscreen. It then rolled off the bonnet and back onto the road and walked away quickly.

7 At some time prior to the impact, the appellant had bent below the dashboard to light a cigarette. He said that during this activity, "from the corner of my eye I seen [the respondent's] hand playing with the radio" (or CD player, he wasn't sure which). He then heard "an almighty bang ... looked up [and] was covered in glass".

8 When asked to estimate the time which elapsed between seeing the respondent fiddle with the knobs and the bang, he said "straight away". Pressed on the timing issue, he said, in substance, "the bang happened" while the respondent was "playing with the CD player".

9 The appellant was injured and taken to hospital. The appellant did not see the cow. The respondent told him about the cow.

10 In his amended statement of claim the appellant pleaded that "[a]t a point 200 metres south of the intersection of Bowman Road and Purcell Road, Londonderry, a cow walked onto the road into which the Defendant collided, such collision being due to the negligence of the Defendant". The particulars of negligence included, relevantly, failure to keep a proper lookout, and failure to use high beam.

11 The respondent denied liability and pleaded contributory negligence.

Primary Judgment

12 The primary judge ordered the question of liability to be heard before damages as the appellant's injuries had not stabilised. His Honour heard the liability issue on 24 October 2012. He delivered judgment on 22 February 2013.

13 The primary judge identified the appellant's main argument as being that the respondent had been negligent in looking at his radio or CD player immediately before he hit the cow and in not using his high beam in circumstances where the risk of striking something on the roadway was foreseeable.

14 There was no dispute that the respondent owed the appellant a duty to take reasonable care in the manner of driving his motor vehicle. The primary judge said (at [32]) that the "content of this duty depends on the circumstances of the case". The breach issue was governed by s 5B and s 5C of the Civil Liability Act (NSW) 2002, which his Honour extracted in his reasons.

15 Turning to that issue, his Honour found (at [32]) that the accident occurred in a "semi-rural area close to the [appellant's] house" and that "there was no evidence that the defendant knew or should have known that stock or wild animals were likely to stray onto Purcell Road."

16 The primary judge noted that:

"[35] It may be assumed in general terms that drivers need to keep a lookout for objects or obstacles on the roadway so that they may avoid them. It may also be assumed that if a moving vehicle collides with an object or obstacle on the roadway, the risk of harm is not insignificant.

[36] The precautions that drivers will usually take are to keep a proper lookout and then to take such evasive action as is necessary when danger threatens."

17 His Honour recorded (at [37]) that the appellant had lived on the road where the accident occurred for a number of years and had not been asked whether there were stock in nearby paddocks, whether he had seen stock wandering the roads or any signs warning drivers of the likelihood they could encounter stock or wild animals.

18 He then set out (at [38]) paragraphs 16 and 17 of the respondent's statement as to what happened (see [5] above) from which he drew the inference (at [39]) that the respondent looked away from the road.

19 The primary judge identified (at [40]) the critical issue as "whether the fact that [the respondent] looked down was, in the circumstances, a failure to keep a proper lookout". He posed the question (at [41]) "whether a motorist is ever permitted to take his or her eyes from the road in any circumstances". He said (at [42]) that it may be "because of the controls on the dashboard or steering wheel of motor vehicles, that from time to time a driver will look at those controls when it is considered safe to do so [and that] [i]n doing so, it is likely a driver could momentarily take his or her eyes off the road". He added that there was no evidence as to how long the respondent looked down.

20 The appellant sought to establish the probable time the respondent's action would have taken by relying on an expert report from Mr McDonald, a crash investigator, dealing with the throw of low beam lights and reaction times, tendered over objection. The primary judge rejected his opinion, (at [43]) finding it "was based on unproven assumptions and carried little weight".

21 The evidence as to whether or not the respondent was driving with his lights on high or low beam was unsatisfactory, but, on the assumption (see primary judgment at [51]) that he was driving with them on low beam, the primary judge found (at [47]) that the evidence did not "establish that if the respondent had used high beam" he "would have seen the cow earlier than he did, as the cow came unexpectedly from his left", and the high beam would only have extended the distance he could see in front of him. His Honour also found (at [47]) that:

"The cow either ran or walked into his path from the left just as he approached it. There was no evidence that the cow was on the bitumen surface of the road more than a few metres in front of the defendant's vehicle before collision".

22 His Honour concluded that the surrounding circumstances did not require the use of high beam and, accordingly, found the appellant had not established that the respondent breached his duty of care in this respect. The appellant abandoned a challenge to this ruling in the course of argument on appeal.

23 As to the proper lookout case, the primary judge concluded that:

"[53] As to the submission that the [respondent] breached his duty of care by failing to keep a proper lookout, motorists regularly look away from the road to use instruments in their vehicle when they believe it is safe to do so. In this case there was no indication of any danger, there were no anticipated pedestrians or intersections or driveways at the point on the road where the [respondent] changed the CD player. In my opinion, he did not fail to keep a proper lookout by looking at the CD player."

24 The primary judge also concluded (at [56]) that in the event he was wrong on breach of duty of care, causation within the meaning of s 5D of the Civil Liability Act was not established, saying:

"[56] In my opinion, whether the vehicle was being driven with high beam or the driver failed to keep a proper lookout, it could not be said that but for these breaches the accident could not have occurred. The cow appeared unexpectedly close to the defendant's vehicle, too close to react and avoid the collision."

Issues on Appeal

25 The amended notice of appeal raises the following grounds:

(1) The trial judge erred as to the principles to be applied in determining the scope and content of the duty of care owed by the respondent and erred, as a consequence, as to what was required to establish breach of duty of care and causation.

(2) The trial judge erred, consequential upon ground 1, in his findings as to the scope and content of the duty of care, breach of duty of care and causation.

(3) The trial judge erred in failing to apply the correct scope and content of the duty of care, breach of duty of care and causation and conclude, on the evidence, and giving correct evidential and probative effect to the evidence, that negligence had been established.

(4) If the respondent was not negligent, the accident was a blameless motor accident for the purposes of Motor Accidents Compensation Act 1999 (NSW), and on the basis of the decision of Axiak v Ingram [2012] NSWCA 311, the appellant was entitled to a verdict in his favour against the respondent.

26 As will be apparent from the discussion of the pleadings and the primary judgment, the blameless motor accident issue was not raised at trial. Indeed, according to the respondent's submissions, on the morning of 22 February 2013, the day the primary judge had listed the matter to deliver his reserved judgment, the appellant's junior counsel mentioned Axiak v Ingram to the primary judge and:

" ... advised the Primary Judge that, having researched the matter, he made no application for judgment to be deferred pending amendment of the pleadings or further argument as to the blameless accident provisions".

27 The appellant effectively sought leave to amend the pleadings to raise the blameless accident argument on appeal. The respondent opposed that application. I shall return to that issue.

Appellant's submissions

28 The gist of the appellant's argument is that the primary judge focused too narrowly in considering the content of the respondent's duty of care on the particular risk posed by livestock wandering onto the road, and what should have been done in relation to that risk, an error which is said to have contaminated his Honour's consideration of the issues of breach and causation.

29 First, the appellant submits that the primary judge erroneously restricted the content of the duty of care by focusing on the absence of evidence of stock in the area, whether in paddocks or wandering the streets, and the absence of warning signs. He criticised the primary judge's conclusion (at [53], see [ REF _Ref381712967 \r \h \* MERGEFORMAT 23] above), derived, it was submitted, from his Honour's findings about the circumstances of the accident, in particular that there was no evidence that the respondent should have anticipated stock or wild animals straying onto the road, as demonstrating legal error as it looked to the respondent's subjective knowledge and conduct.

30 This, the appellant submitted, led to his Honour's inquiry as to the precautions to be taken to be "illegitimately over-specific to the incident that in fact occurred". Rather, the scope and content of the duty required the respondent to keep both a proper look out for all that was happening on and near the roadway that may present a source of danger, as well as simultaneously controlling the vehicle so as to be able to react to surrounding events.

31 Secondly, the appellant argued that the primary judge also engaged in impermissible retrospective reasoning in looking at duty, content and breach.

32 Thirdly, the appellant submitted that, had the primary judge correctly applied the principles of law to the evidence, he would have found on the basis both of the appellant's evidence as to what he saw and heard prior to and contemporaneous with the impact and the respondent's evidence that the respondent took his eyes off the road to adjust the CD player, that the latter failed to keep a proper lookout for a time which, on the probabilities, both constituted a breach of duty and was causative of the accident.

33 The appellant also argued in this context that the primary judge erred in rejecting Mr McDonald's evidence as to the time taken to glance away from the road when using an electronic device. While he did not contend that evidence was critical or determinative, he argued it was relevant. Had his Honour taken that evidence into account (and drawn a Jones v Dunkel inference available because the respondent was not called, see below), the appellant argued orally, his Honour would have found the time the respondent took his eyes off the road was slightly in excess of four seconds - a time which, again, it was contended would support a finding of breach of duty of care and causation.

34 Fourthly, the appellant argued that the fact that the respondent was not called to give evidence and be cross-examined formed the basis for a Jones v Dunkel inference that the respondent's evidence would not have assisted his case that he did not have sufficient time to perceive, react and avoid the collision with the cow. In such circumstances, he contended the Court could more comfortably make findings that the respondent's conduct amounted to a breach of duty of care.

35 Finally, the appellant sought leave to argue, on the basis of the decision of Axiak v Ingram [2012] NSWCA 311; (2012) 82 NSWLR 36, that if the respondent did not breach his duty of care, the appellant's claim fell within the blameless accident provisions of the Motor Accidents Compensation Act 1999 (NSW) (the "MACA"). If the matter needed to be pleaded, the appellant foreshadowed seeking leave to amend the pleadings to raise the blameless accident argument.

36 The appellant submitted that the respondent would not be relevantly prejudiced if leave to amend was given. He argued there would be no forensic prejudice and the outcome reflected the finding of no negligence for which the respondent had argued at trial. He also contended that the fact Axiak v Ingram was not raised with the trial judge by either party reflected the time of the trial (October 2012) being contemporaneous with the decision of the Court of Appeal (September 2012).

Respondent's Submissions

37 The crux of the respondent's argument is that while he was required to take reasonable care, his duty did not require him to do whatever was necessary to avoid the collision. Rather, the content of his duty was "to identify and have regard to risks that were foreseeable in the circumstances. Whether any response was required to the foreseeable risks, and, if so, the nature of the response, was dependent on those circumstances."

38 The respondent acknowledged that it was part of his duty of care to keep a proper lookout. However, what was a "proper lookout" depended on the circumstances. It did not require constant vigilance. He submitted the primary judge did not err in finding that the circumstances of this case did not require him to look constantly ahead of his vehicle, or that the circumstances were not such that the respondent could not divert his eyes from the road ahead momentarily, in order to adjust his CD player.

39 The respondent submitted the primary judge did not err in finding that he did not breach his duty of care by looking down at the controls of his CD player. He argued that although there was no evidence as to how long it took him to adjust the CD player, his statement as to how he undertook that activity indicated the time was very short.

40 Further, the respondent argued that having regard to the primary judge's findings as to the area in which he was driving, the risk that any vehicles, pedestrians or animals might cross his vehicle's path was remote. He argued that it was an acceptable activity while driving for a driver to look away from the road momentarily to pay attention to equipment in the car, whether a speedometer, fuel gauge or CD player. It was prudent, not negligent, to engage in such activity when the risks were low.

41 Accordingly he contended that the correct test as to breach was whether his conduct in changing the track on a CD, while driving at a modest speed below the prevailing speed limit, when there was no particular danger observable or foreseeable, was reasonable in the circumstances.

42 Next, the respondent submitted that the primary judge correctly concluded that causation was not satisfied as there was no evidence to contradict his Honour's findings that had he been looking constantly at the road he would not have seen the cow any earlier than he did. He supported the primary judge's finding (at [47], see [ REF _Ref381700020 \r \h \* MERGEFORMAT 21] above In that light, he contended that the only inference was that the cow emerged from the darkness to the left side of the roadway a moment before the collision occurred. Thus, he argued that even if the respondent might have seen the cow a split second earlier, had he focused on the road ahead, the collision could not have been avoided.

43 Finally on the issue of liability, the respondent submitted that there was no basis for a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 ("Jones v Dunkel") inference in circumstances where the appellant's evidence did not contradict any part of the respondent's statement and the primary judge found, in substance, that there was no evidence on which a finding of breach of duty of care could be based.

44 The respondent opposed the application for leave to raise the blameless accident issue. He submitted that to do so would be contrary to the principles of justice and finality. He contended that, had the blameless accident issue been pleaded at trial, the respondent might have been able to adduce evidence to defeat such a case, for example, by demonstrating negligence on the part of the cow's owner in failing to prevent the cow wandering onto the road. He also argued that a strong factor militating against the Court granting the leave sought was that the appellant made a deliberate and considered decision not to rely on the blameless accident provisions before the primary judge.

Appellant's reply submissions

45 The appellant's reply submissions were directed wholly to the blameless accident issue. He sought to argue that the words "not caused by the fault of any other person" in the definition of "blameless motor accident" in s 7A should be understood as being limited to fault of a type "which falls within the s 3 definition of 'motor accident'." He argued that the construction for which he contended was supported by the Second Reading Speech for the Motor Accidents Compensation Amendment Bill 2006 (New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 9 March 2006 at 21403) stating:

"For the purpose of making this new claim for death or injury, the motor accident is deemed to have been caused by the fault of the owner or driver of the motor vehicle. The injury must also be caused by a motor vehicle accident of a kind recognised by the Act. A person who is injured in a blameless accident will be entitled to CTP scheme benefits. The one exception is that the driver of the motor vehicle causing the accident will not be entitled to make a claim under these provisions."

46 The appellant also argued that s 7G dealing with "[r]ecovery from person actually at fault" supported the construction for which he contended as it supported the proposition that a motor accident could be "blameless" within the meaning of the legislation, yet still be caused by someone's fault.

47 If his construction was correct, the appellant submitted there was no impediment to the point of law being argued on appeal, albeit that it was neither pleaded or argued at trial.

Consideration: liability

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 [2009] HCA 48; (2009) 239 CLR 420 ("Adeels Palace") (at [13]). 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 [2005] HCA 62; (2005) 223 CLR 422 ("Vairy") (at [126] ff) per Hayne J; applied in Adeels Palace (at [31]). 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 [124]) per Hayne J; approved in New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 (at [58]) 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 [2013] NSWCA 210 (Pender") (at [58]) 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 [2009] NSWCA 263; (2009) 77 NSWLR 360 (at [173]) per Campbell JA (McColl JA agreeing); see also (at [443]) 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 [1978] 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 [2002] HCA 54; (2002) 211 CLR 540 (at [192]) per Gummow and Hayne JJ; see also Vairy (at [70] - [73]) per Gummow J; Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 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 [2013] NSWCA 396 as follows:

[33] 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 [26]. 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 [1986] HCA 73; 162 CLR 376; s 5B.

[34] 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 [1980] HCA 12; 146 CLR 40 at 47 - 48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. 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).

[35] 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 [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], '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'.

[36] 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 [2008] NSWCA 340 at [47], 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.

[37] 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 [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 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 [1986] HCA 73; (1986)162 CLR 376 (at 383). Although Cook v Cook was overruled in Imbree v McNeilly [2008] 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 [27]) 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 [1998] 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 [2005] NSWCA 435; (2005) 65 NSWLR 187 (at [6]) per Mason P, referring to Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 (at [103] - 104]) per Hayne J.

57 The statement as to the circumstances it appeared the primary judge 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 [35]) 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 [2005] HCA 79; (2005) 80 ALJR 413 (at [12] per Gummow, Kirby and Hayne 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 [2001] HCA 48; (2001) 33 MVR 393 (at [14]); see also Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 (at [71]ff) per McColl JA (Giles JA generally agreeing and see his Honour at [4]; 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 [42]) 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 sought 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 [2011] HCA 21; (2011) 243 CLR 588 (at [64] - [66], [68], [91]) 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 [2000] HCA 18; (2000) 200 CLR 121 (at [51]). 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 [2009] NSWCA 135 (at [72] 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 [2001] NSWCA 223; (2001) 38 ACSR 715 (at [17] - [18]) per Spigelman CJ; see also Manly Council v Byrne [2004] NSWCA 123 (at [50] - [55]) 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 [56]) 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.

Blameless accident case: legislative framework

70 The MACA relevantly provides as follows.

71 Section 3 defines "motor accident" as:

"An incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during:

(a) the driving of the vehicle, or

(b) the collision, or action taken to avoid a collision, with a vehicle, or

(c) the vehicle's running out of control, or

(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control."

72 The "blameless accident" provisions of the MACA appear in Part 1.2 (No-fault claims-children and blameless accidents), Division 1 (Recovery for blameless accidents), and relevantly provide as follows:

7A Definition of "blameless motor accident"

In this Division:

"blameless motor accident" means a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.

7B Liability for damages in case of blameless motor accident

(1) The death of or injury to a person that results from a blameless motor accident involving a motor vehicle that has motor accident insurance cover for the accident is, for the purposes of and in connection with any claim for damages in respect of the death or injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle....

Section 7C Presumption that motor accident is blameless

In proceedings on a claim for damages in respect of the death of or injury to a person resulting from a motor accident, an averment by the plaintiff that the motor accident was a blameless motor accident is evidence of that fact in the absence of evidence to the contrary.

Section 7G Recovery of contribution from person actually at fault

A person whose liability for damages in respect of the death of or injury to a person results from the person being deemed under this Division to be a person whose fault caused the death or injury is entitled to recover contribution in respect of that liability from a person (whether or not the driver of a motor vehicle) whose fault actually caused the death or injury.

7H No recovery by Nominal Defendant unless owner or driver actually at fault

The Nominal Defendant is not entitled to recover any amount under section 39 from the owner or driver of a motor vehicle in respect of amounts properly paid by the Nominal Defendant in connection with the operation of this Division unless the motor accident concerned was actually caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle.

Consideration: blameless accident case

73 I have set out the circumstances in which the respondent's written submissions contended the appellant had eschewed reliance upon this Court's decision in Axiak v Ingram. The appellant's written submissions in reply did not take issue with that contention. There was no attempt to explain why the appellant now sought to depart from the clear course charted prior to the delivery of judgment below.

74 Axiak v Ingram was decided approximately a month before trial. It concerned the question whether, for the purpose of the blameless accident provisions, "negligence" in the definition of "fault" in s 3 of the MACA included non-tortious negligence, such as an injured person's contributory negligence in the sense of a failure to take reasonable care for his or her own safety. The Court held that it did not. An application for special leave to appeal was refused on 15 March 2013: Ingram v Axiak [2013] HCATrans 64. Axiak v Ingram is the only decision of this Court dealing with the construction of the blameless accident provisions of the MACA.

75 A party is bound by the conduct of his or her case. It has long been the law that, except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him or her, to raise on appeal (even one by way of rehearing) a new argument which, whether deliberately or by inadvertence, he or she failed to put during the hearing when there was an opportunity to do so: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 (at 7 - 8) per Gibbs CJ, Wilson, Brennan and Dawson JJ; approving University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 (at 483); Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598.

76 There are recognised exceptions to the principle that a party is bound by the conduct of his or her case. Thus, there are cases which recognise that when a question of law is raised for the first time in an ultimate court of appeal (as well as an intermediate court of appeal), as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 (at 319) per Mason J; Coulton v Holcombe (at 8). This exception will not apply where, if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial: Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631 ("Multicon Engineering") (at 645) per Mason P (Gleeson CJ and Priestley JA agreeing).

77 The particular circumstances of each case must be considered, "with due recognition that mistakes occur, that second thoughts are sometimes good thoughts, and that the appellant is entitled to justice; but extending justice to an appellant who has failed to take a point at the trial may work an unacceptable injustice on the respondent": Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 (at [18]) per Giles JA (Mason P and Priestley JA agreeing).

78 Various reasons have been advanced as underlying the principle that a party is bound by the conduct of his or her case. The maintenance of fair play and the repression of unnecessary litigation are two: Rowe v Australian United Steam Navigation Co Ltd [1909] HCA 25; (1909) 9 CLR 1 (at 24) per Isaacs J. Ensuring "the main arena for the settlement of disputes is not moved from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish" is another: Coulton v Holcombe (at 7).

79 Fundamental to all reasons advanced is the notion of finality of litigation, the proposition that "[a] central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances": D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 ("D'Orta-Ekenaike") (at [34]) per Gleeson CJ, Gummow, Hayne and Heydon JJ. Although, of course, the appellate system is the "principal qualification to the general principle that controversies, once quelled, may not be reopened", there, too, "the importance of finality pervades the law [including in] rules about what points may be taken on appeal", all reflecting the fundamental proposition that "the substantial issues between the parties are ordinarily settled at the trial": D'Orta-Ekenaike (at [35]).

80 The appellant reminded the Court of Lord Atkin's aphorism that "finality is a good thing but justice is better": Ras Behari Lal v King-Emperor (1933) 50 TLR 1 (at 2). In Multicon Engineering (at 647) Mason P observed that "there comes a time in any litigation where a party has gone so far in one direction that it would be unjust to allow that party to commence a second run at the same target". His Honour then referred to Lord Atkin's aphorism and added that it "raises a false dichotomy if finality is not seen as an aspect of justice".

81 The administration of criminal justice is an area where Lord Atkins' aphorism "has ready application", it being an area where "a high value is placed on fair procedure and correct outcome": Sinkovich v Attorney General of New South Wales [2013] NSWCA 383 (at [46], [47]) per Basten JA (Bathurst CJ, Price and Beech-Jones JJ agreeing); see also Smith v Western Australia [2014] HCA 3 (at [42] - [43]).

82 The administration of civil justice places no lesser value on such matters, however it is an area where disputes are between citizens with civil, not penal, consequences and, at least since 2005, take place in a statutory context whose overriding purpose is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 56 Civil Procedure Act 2005 (NSW). Section 56, which operates in conjunction with ss 57 - 60, had particular operation at trial in imposing on the parties an obligation to ensure all issues in the proceedings were pleaded for submission to, and consideration by, the tribunal of fact to ensure the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties": s 57(1) Civil Procedure Act.

83 The appellant's argument about whether the blameless accident issue could be raised on appeal tended to focus on Axiak v Ingram. However the blameless accident provisions were inserted into the MACA by the Motor Accidents Compensation Amendment Act 2006 (NSW). They applied to motor accidents occurring after 1 October 2007. These proceedings were commenced in 2010 and an amended statement of claim was filed in July 2012.

84 A plaintiff who wishes to rely on the blameless accident provisions must plead that the motor accident was a blameless motor accident, and that pleading is then evidence of that fact: s 7C MACA. The onus is then placed on the defendant to adduce evidence to displace the presumption flowing from that pleading (s 7C MACA).

85 The parties advanced different arguments concerning the proper construction of s 7A, read, as it must be, into s 7B: Axiak v Ingram (at [62]). The appellant's argument earlier outlined, as one might expect, was that as the accident did not fall within the s 3 MACA definition of "motor accident", there was no evidence the respondent could have called at trial. The respondent sought to persuade the Court both by reference to the definition, but also by ascribing a function to s 7G and s 7H (both of which appear to contemplate that there may be a "blameless accident" notwithstanding that someone was at fault) that the appellant was incorrect and that it would have been open to it at trial to call evidence to displace the s 7C presumption. Not a great deal of light was ultimately cast on provisions which "at least prima facie [manifest] serious inconsistencies and/or anomalies": Axiak v Ingram (at [3]).

86 In my view the appellant has not established the exceptional circumstances necessary to permit a party to raise a new point on appeal. The appellant had ample opportunity to plead the blameless accident provisions and did not, despite revisiting his statement of claim in 2012, which would have given the respondent the opportunity, if he saw fit, to investigate the possibility of the cow's owner being at fault in a manner which would displace the s 7C presumption. The issues of statutory interpretation and liability would then have been canvassed at trial.

87 Further, even when armed with Axiak v Ingram and perhaps somewhat the wiser about the ambit of the blameless accident provisions, the appellant expressly eschewed reliance on a case so framed.

88 In my view it would be inimical to the due administration of justice having regard to the principles and statutory provisions to which I have referred to permit the appellant to raise the blameless accident issue for the first time on appeal.

Orders

89 I would dismiss the appeal with costs.

90 WARD JA: I agree with McColl JA that the appeal should be dismissed with costs for the reasons that her Honour gives. As to the argument sought to be advanced by the appellant, for the first time on the appeal, that the accident in question was a blameless motor accident, I would add the following observations.

91 As McColl JA has noted, the appellant's argument that this was a blameless motor accident turned on a question of construction of the definition of "blameless motor accident" (s 7A of the Act) for the purposes of s 7B of the Act. The appellant contended that the words "not caused by the fault of any other person" in the definition relate to the notion of motor accident, in the sense of requiring that the accident be one involving another motor vehicle even though this was not expressed in the definition of "fault" in s 3 of the Act.

92 The force of that argument appeared to lie in the submission that, otherwise, there would be no function to be performed by s 7G of the Act (or, for that matter, s 7H of the Act). However, it involves reading words into the definition of "blameless motor accident" in order to qualify its otherwise broad operation, i.e., to add something to the effect "in the use or operation of a motor vehicle" after "fault of any other person".

93 The respondent, while accepting that there is some apparent inconsistency in the drafting of the provisions in this part of the legislation, contended that it was incorrect to suggest that ss 7G and 7H would have no meaningful operation if the definition of "motor accident" were to be read as it appears in the legislation.

94 As to s 7G, the sphere of operation to which the respondent pointed in that regard was that if a compulsory third party insurer paid damages under the blameless accident regime but later discovered that there had been another party at fault in respect of the accident, then s 7G would enable the insurer to recover the damages it had paid out from the party that was in fact at fault. Similarly, it was suggested that s 7H would permit the nominal defendant to recover damages paid out in those circumstances.

95 It is neither necessary nor appropriate to form a concluded view on the respondent's construction argument, in circumstances where I agree that the appellant has not established that he should be permitted to raise this issue for the first time on the appeal. Suffice it to note, however, that such a construction would avoid the apparent incongruity of ss 7G and 7H being premised on there being a party actually at fault in respect of an accident for which deemed liability for damages had arisen under the blameless accident provisions. The availability of such a construction also weakens the force of the submission by the appellant that the definition of "blameless motor accident" in s 7A of the Act should be confined to one where there is no fault by another party "in the use or operation of a motor vehicle".

96 TOBIAS AJA: I agree with the orders proposed by McColl JA for the reasons she has expressed.

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Amendments

11 November 2014 - add Player after CD
Amended paragraphs: [7]

11 November 2014 - insert "primary judgment at" before [51]
Amended paragraphs: [21]

11 November 2014 - change "The appellant saw" to "The appellant sought"
Amended paragraphs: [64]

11 November 2014 - change "he in the first line to "primary judge"
Amended paragraphs: [57]

Decision last updated: 11 November 2014