Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Nominal Defendant v Bacon [2014] NSWCA 275
• Hearing dates: 6 June 2014
• Decision date: 21 August 2014
• Before: McColl JA at [1]; Macfarlan JA at [27]; Ward JA at [43]

Decision

Appeal and cross-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 - proof of negligence - causation - where plaintiff driving behind a truck on "the beaten track" of a country road and defendant driving in opposite direction on far left of road and pulls back towards centre of road colliding with plaintiff's car - whether defendant's actions were a necessary condition of the harm; TORTS - negligence - contributory negligence - whether trial judge erred in finding plaintiff and defendant equally negligent - whether appellate court should intervene in the primary judge's assessment of apportionment of contributory negligence; TORTS - negligence - discussion of operation of s 5D Civil Liability Act where more than one sufficient condition of plaintiff's injury
• Legislation Cited: Civil Liability Act 2002 (NSW); Civil Liability Amendment (Personal Responsibility) Bill 2002; Motor Accidents Act 1988 (NSW); Motor Accidents Compensation Act 1999 (NSW); The Traffic Act 1949 (Qld)
• Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420; Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568; Bennett v Minister of Community Welfare [1992] HCA 27; 176 CLR 408; Bonnington Castings Ltd v Wardlaw [1956] AC 613; Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139; British Fame (Owners) v Macgregor (Owners) [1943] AC 197; Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32; Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268; Flounders v Millar [2007] NSWCA 238; (2007) 49 MVR 53; Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Reports 81-731; Grant v Sun Shipping Co Ltd [1948] AC 549; Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) [2014] NSWCA 257; Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 75 ALJR 867; March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464; (2013) 65 MVR 578; Mobbs v Kain [2009] NSWCA 301; Mousa v Marsh [2001] NSWCA 317; Nominal Defendant v Hawkins [2011] NSWCA 93; Origin Energy LPG Ltd v BestCare Foods Ltd [2012] NSWCA 407; Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd [2002] NSWCA 461; (2001) 53 NSWLR 626; Skewes v Public Curator of Queensland [1956] St R Qd 143; Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182; Aust Torts Reports 82-101; Wallace v Kam [2013] HCA 19; (2013) 87 ALJR 648; Woolworths Ltd v Strong [2010] NSWCA 282; Zanner v Zanner [2010] NSWCA 343; (2010) 79 NSWLR 702
• Texts Cited: Commonwealth of Australia, Treasury, Review of the Law of Negligence Final Report, (September 2002)
• Category: Principal judgment
• Parties: Nominal Defendant (First Appellant); Andrew Clift (Second Appellant); George Clift (Third Appellant); Sam Clift (Fourth Appellant); Tarnia Clift (Fifth Appellant); Margaret Clift (Sixth Appellant); Natalie Lee Bacon (Respondent)
• Representation: Counsel: BW Walker SC with J Anderson (Appellants); RS McIlwaine SC with PJ O'Connor (Respondent); Solicitors: Sparke Helmore (First Appellant); Lyons Barnett Kennedy (Second - Sixth Appellants); Zucker Legal (Respondent)
• File Number(s): 2013/00303655
• Publication restriction: Nil

Decision under appeal

• Date of Decision: 2013-09-13 00:00:00
• Before: Toner SC DCJ
• File Number(s): 2011/00132693

HEADNOTE

[This Headnote is not to be read as part of the judgment]

This judgment relates to an appeal from a decision of the District Court finding the Nominal Defendant liable for compensation to Ms Bacon for an injury suffered in a motor vehicle accident near Breeza.

Ms Bacon's car collided with an unregistered truck as both were travelling in opposite directions on an unsealed country road in dusty conditions. The District Court held the Nominal Defendant liable for damages but reduced them by 50% for contributory negligence.

The Nominal Defendant appeals from the trial Judge's finding that the truck driver's action was causative of the accident and his Honour's assessment of contributory negligence.

Held dismissing the appeal:

(1) by McColl and Ward JJA (at [26] and [91], respectively) (Macfarlan JA agreeing with Ward JA at [3]) that there was no error in his Honour's finding that the truck driver's negligence was a necessary condition of the accident.

(2) by Ward JA (at [102]) (McColl and Macfarlan JJA agreeing at [3] and [27], respectively) that the there was no error in law in the trial Judge's discretionary decision as to the assessment of contributory negligence.

(3) (obiter) by Macfarlan JA (at [28], [29] & [43]) even if the truck driver's actions were not a necessary condition of the harm, had Ms Bacon sought to justify the result at first instance by reference to s 5D(2) of the Civil Liability Act 2002 (NSW), it is likely that this section would have been applicable. Operation of s 5D Civil Liability Act where more than one sufficient condition of plaintiff's injury discussed.

Judgment

1 McCOLL JA: The Old Dip Road is an unsealed road near Breeza, New South Wales. The respondent, Natalie Bacon, was driving west in a red Ford Fiesta along the road towards Gunnedah at about 4:50pm on 29 August 2008. As was apparently common practice among local users of that road, she was driving in the middle of the road on what was known as the "beaten track". That was the part of the Old Dip Road which senior counsel for the appellant invited the Court to accept was "beaten by the passage repeatedly of wheels". She was also driving in a cloud of dust being thrown up by a prime mover driven by Sam Clift behind which she was driving. Because of the thickness of the dust, she could see just over a car length in front of her. She slowed down as the dust got thicker. She was in the process of veering slightly towards the left side of the road when she saw the front of a semi-trailer being driven in the opposite direction. The two vehicles collided. The semi-trailer was being driven by Andrew Clift, Sam's brother. The point of collision was on the front offside of the bullbar on Andrew's truck and on front offside of the respondent's car. The respondent was injured.

2 Andrew's vehicle was unregistered and uninsured. Hence the respondent commenced proceedings to recover damages in respect of Andrew's alleged negligent driving against the Nominal Defendant pursuant to s 33 of the Motor Accidents Compensation Act 1999 (NSW) (the "MAC Act"). The trial of her case took place in the District Court sitting at Tamworth over four days from 9 - 12 September 2013. The trial judge, his Honour Judge Toner SC, delivered judgement in the respondent's favour (reduced by 50 per cent for contributory negligence) on 13 September 2013.

3 I have had the benefit of reading in draft the reasons of Ward JA. Her Honour sets out the underlying facts and findings of the primary judge. I agree with her Honour's reasons and with the orders her Honour proposes. I add the following observations on the causation issue which to some extent require repetition of the evidence Ward JA has detailed.

4 When he first saw Sam's truck driving towards him, Andrew was driving in the centre of the road on the beaten track "where everyone drives". As he was approaching Sam's vehicle, he noticed a cloud of thick white dust behind it that completely obscured his view such that he could not see what was on the other side of it. Before the two vehicles passed, Andrew moved "right over to the side" and (as the primary judge found (at [32])) off the beaten track. As, or immediately after, the trucks passed he drove into the cloud of dust at the speed to which he had slowed to pass Sam's vehicle without applying his brakes.

5 Sam was driving in front of the respondent's vehicle: primary judgment (at [39]). When he saw his brother's truck approaching he "braked heavily, ...decided I couldn't stop, so I rolled and passed him...". He said he braked because the two vehicles were going to pass at "a very tight spot". He estimated there was half a metre between the two vehicles as they passed. He did not leave the carriageway, or see his brother do so.

6 As the respondent approached the rear of Sam's vehicle she realised the dust it was throwing up was as bad as "probably 7, 8-ish and she slowed down." She could see about a car length and a bit in front of her.

7 There was somewhat conflicting evidence of where the collision occurred. There was no evidence from any accident reconstruction expert. Nor was there any evidence of measurements of the width of the Old Dip Road. Andrew estimated that the road was between eight and ten metres wide at the time he first saw Sam's vehicle. Sam agreed he passed his brother's vehicle in a narrow section of the road. The respondent told a police officer who interviewed her after the accident that the road was "probably 8, 10, 12 (metres)" wide, "wide enough for two cars to squish in past". Andrew gave uncontradicted evidence that his truck was two and a half metres wide, the trailer was two or two and a half metres wide and his total rig was about 30 foot long. Sam's prime mover was two metres wide.

8 The primary judge concluded (at [55]) that immediately before the collision, Andrew was steering back onto the beaten track and, while doing so, collided with the respondent's vehicle. There is no challenge to that finding, although at times the appellant's submissions appeared to gainsay it. The primary judge found that in those circumstances Andrew was negligent, relevantly because he failed to steer and control his truck so as to avoid a collision and drove when his vision of the oncoming traffic was obscured due to dust.

Consideration

9 Divisions 1 - 4 (relevantly s 5D and s 5E) and 8 (relevantly s 5R) of Pt 1A of the Civil Liability Act 2002 (NSW) (the "CLA") applied to the respondent's action by virtue of s 3B(2)(a) of that Act. The appellant's written submissions appeared to accept s 5D posed the relevant test of causation, arguing that the respondent did not establish that Andrew's negligence was a necessary condition of the occurrence of the collision as that provision required. The s 5D(1)(a) test was also the focus of the oral submissions advanced by Mr B W Walker of Senior Counsel who appeared for the appellant on appeal but not at trial.

10 The appellant's written submissions also referred without more to the discussion by Gummow, Hayne and Heydon JJ in their joint judgment in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 ("Allianz") (at [102]) of the notion of causation in the definition of "injury" in s 3 of the Motor Accidents Act 1988 (NSW) as "look[ing], for the CTP insurance system, to notions of proximate cause found in insurance law". It is unnecessary, in my view, to enter into any discussion about the possible relevance of the Allianz test of causation. The appellant did not contend that the issue of causation was to be determined in accordance with the substantially comparable provisions to s 3 considered in Allianz, being s 3A of the MAC Act: cf Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) [2014] NSWCA 257. Further in Nominal Defendant v Hawkins [2011] NSWCA 93 ("Hawkins") (at [45]) Hodgson JA (Beazley JA and Sackville AJA agreeing - the latter adding some observations) expressed the view that a finding "that the definition of 'injury' in the MAC Act was satisfied" meant there "was no substantial question as to whether s 5D of the [CLA] was also satisfied". It is sufficient to proceed on the basis that the converse is also the case.

11 On that basis, the critical issue on appeal is whether the respondent established that any act or omission on Andrew's part was a necessary condition of the occurrence of her injuries: s 5D(1)(a), CLA.

12 The appellant submitted that that question should be answered in the negative in reliance upon the following passage from Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268 in which in their joint judgment Dixon CJ, Fullagar and Kitto JJ discussed Skewes v Public Curator of Queensland [1956] St R Qd 143 ("Skewes") as follows:

"In that case a head-on collision had taken place while two motor cars were being driven at a fast rate in a cloud of dust which temporarily almost destroyed visibility. Driver A was on his correct side of the road, and driver B on his wrong side. The action was in fact tried by a judge without a jury, but, if there had been a jury, it would clearly in the circumstances (which need not be detailed) have been open to them to say that both driver A and driver B were negligent in driving too fast, but that the negligence of driver A was not a 'cause' of the collision, which would have happened with the same results if he had been driving at a reasonable speed.

13 The appellant's essential submission was that the facts as found conformed to those discussed in this passage and, accordingly the primary judge should have found that the respondent had failed to establish causation. Thus it contends that immediately before the collision, the respondent's vehicle was on the beaten track while, as the primary judge found, Andrew was "steering back onto the track". It argues that whereas the respondent's position on the beaten track necessarily meant she was straddling the notional mid line of the road (so as, in part, to be on the wrong side of the road), there was no evidence that at the time of the collision Andrew's vehicle was not on his correct side of the road or, to put it another way, that his vehicle had "crossed the mid-point". The appellant appeared to accept that it was a moot point whether there could be said to be a correct or incorrect side of the road in the circumstances. Indeed, in the final analysis, senior counsel accepted that both were in the "strike zone". His simple argument is that the respondent "can't say his [Andrew's] negligence is a necessary condition of my accident, because if he had not been across the midline, that is, if he had not committed the relevant negligence, I would still have struck him".

14 The respondent submits that once Andrew moved off the beaten track to allow Sam's truck to go past, having regard to the fact that he could not see behind that vehicle because of the dust, he should have stayed where he was. This was because it was foreseeable that there may be a vehicle travelling behind Sam's truck on the beaten track. Instead of doing that, as the primary judge found, he pulled back onto the beaten track. He would not have hit the respondent's vehicle unless he had done so, hence, as the primary judge found, his negligence was a necessary condition of the respondent's harm.

15 The task involved in s 5D(1)(a) ("factual causation") is the elucidation of the factual connection between the negligence (the relevant breach of the relevant duty) and the occurrence of the particular harm: Wallace v Kam [2013] HCA 19; (2013) 87 ALJR 648 at [15] per French CJ, Crennan, Kiefel, Gageler and Keane JJ) approving Allsop P in Wallace v Kam [2012] NSWCA 82; (2012) Aust Torts Reports ¶82-101 (at [4]). The determination of factual causation under s 5D(1)(a) is a statutory statement of the "but for" test of causation: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 (at [55]) per French CJ, Gummow, Hayne, Heydon and Crennan JJ; Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 (at [18]) per French CJ, Gummow, Crennan and Bell JJ.

16 Neither party suggested that if factual causation was established, it was not appropriate for the scope of the appellant's liability to extend to the harm caused to the respondent (cf s 5D(1)(b), CLA) or that the causation issue fell within "the undefined group of exceptional cases contemplated by s 5D(2)": Adeels Palace Pty Ltd v Moubarak (at [55]).

17 The respondent bore the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation: s 5E, CLA. The respondent could establish the appellant's negligence was a necessary condition of her harm if the circumstances raised the more probable inference in favour of what she alleged, rather than leaving the court to conjecture or speculation: Woolworths Ltd v Strong [2010] NSWCA 282 (at [60]) per Campbell JA (Handley AJA and Harrison J agreeing) (an observation not affected by the reversal of the judgment by the High Court); Flounders v Millar [2007] NSWCA 238; (2007) 49 MVR 53 (at [35]) per Ipp JA (Handley AJA agreeing, Hoeben J arriving at the same result).

18 There may, of course, be multiple causes of an accident. In Strong v Woolworths Ltd (at [20]) the majority said of s 5(1)(a) (footnotes omitted):

"[20] Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant's conduct may be described as contributing to the occurrence of the harm." (Emphasis added)

19 The facts in Skewes were, as the extract in Fitzgerald v Penn indicates, somewhat similar to the present case. However the appellant's reliance upon it is, in my view, misplaced insofar as it seeks to extrapolate from that case the proposition that the negligence of driver A who was on his correct side of the road, was not a material (or necessary) "cause" of the collision. That mistaken reliance stems in part from the fact that the joint judgment in Fitzgerald v Penn did not deal with the actual outcome in Skewes.

20 In Skewes a collision took place on a country road when two vehicles drove into a dust cloud thrown up by another vehicle. At the point where the collision occurred (at 147):

"The whole surface of the road was trafficable, but, as often happens on country roads, the traffic in both directions had combined to beat a single set of wheel tracks which ... was well over onto the left hand side ... leaving a trafficable space of five feet between the near side wheel track and the line of the trees [which were growing up to the edge of the road]".

21 Driver A (Skewes) drove his car into the dust cloud while driving on the beaten track. Because of the location of the beaten track on the left hand side of the road, he was on his correct side of the road. However Dixon CJ, McTiernan, Webb and Kitto JJ said in their joint judgment (at 147) that it was "reasonable to infer from his familiarity with the road that he was aware that the tracks he was following were the only beaten tracks along that part of the road; and even if he did not realize that fact, he certainly knew that on that road, as on many country roads, beaten tracks are likely to constitute a single course for traffic in both directions ... [and] of the habit of drivers [in such situations] to use beaten tracks on which ever side of the road they may be, and to share them with the oncoming traffic by moving to the left so that each vehicle has the use of one wheel-track."

22 B was also following the beaten track which had the effect that he was driving on the wrong side of the road and, moreover, committing a breach of regulation 6 of the Regulations made under The Traffic Act of 1949 (Qld) because he was not keeping his vehicle as near as practicable to the left side of the carriage-way. He was also "driving on the side of the road where any traffic proceeding in the opposite direction would almost certainly be found" (Skewes at 150). He recognised that his visibility was progressively decreasing to a point where he could see only six or eight feet ahead. Although he had taken the precaution of driving with his right hand wheel in the left hand wheel track to allow for any opposing vehicle to pass him, he failed to allow "for the very real possibility ... that the driver of an opposing vehicle, prevented by the dust from realising that there was any passing to be done, would be using both wheel tracks" (Skewes at 151).

23 The trial judge found that both A and B had been guilty of negligence which was a material cause of the collision. The majority in the High Court concluded (at 149) that, in the circumstances, a reasonably careful driver in A's position "would probably have brought his car to a walking pace and steered it as far as possible to the left" instead of doing nothing calculated "to avoid or lessen [the danger]". In their Honour's view (at 149) "the time which has to be considered is that which elapsed between the moment when (A) ought to have realised he was going to run into a dense cloud of dust and the moment of impact with [B's] car". They did not doubt (at 150) that the trial judge's conclusion that A failed to take precautions to avoid the danger was open to him. They also concluded (at 150) that A's "failure to take precautionary steps which the situation demanded as a matter of reasonable prudence was a real and substantial cause of the collision" as, too, was B's negligence in (at 151) failing to get off the beaten track onto his side of the road. Accordingly their Honour's dismissed an appeal from the trial judge's finding that both A and B had been guilty of negligence which was a material cause of the collision.

Conclusion

24 The primary judge found, relevantly in my view, that Andrew's operative negligence was steering back onto the beaten track even though he could not see through the cloud of dust his brother's vehicle was creating. Andrew knew there was a risk that there might be another vehicle on the beaten track because, on his evidence, that was where everyone drove on the Old Dip Road. Notwithstanding that knowledge he did not reduce his speed as he approached the rear of his brother's vehicle, drove into the cloud of dust effectively blind and, as he did so, steered back onto the beaten track.

25 It is an available inference which it was open to the primary judge to draw (as he clearly did), that had Andrew not steered back onto the beaten track, the collision would not have happened, even if, at the time he did so Andrew's truck had not passed the notional centre line of the road. He steered his truck onto a part of the road where he knew he might encounter vehicles driving in the opposite direction. Immediately before changing the path of his vehicle, he had passed Sam's truck, albeit narrowly. It is an available inference that Sam was also driving on the beaten track both because that was the custom and also because the respondent (who agreed she was on that part of the road) was driving behind him. The only step Sam took when he saw Andrew's truck was to brake - he did not give any evidence of steering his truck to the left so he could pass Andrew's. Had Andrew not steered back onto the beaten track, accordingly, his truck would have passed the respondent's vehicle just as it had passed Sam's.

26 Accordingly, the primary judge did not err in concluding that Andrew's negligence was a necessary condition of the respondent's harm as, too, was the respondent's. As Allsop P (Young JA agreeing) said in Zanner v Zanner [2010] NSWCA 343; (2010) 79 NSWLR 702 (at [11]) "[b]oth the driver who goes through the red light and the driver with whom he collides who is not paying attention contribute to the accident" and (at [12]) "[t]here is no reason why the appropriate apportionment of respective responsibility is not best allocated through contributory negligence".

27 MACFARLAN JA: I agree that for the reasons given by Ward JA the appeal and cross-appeal should be dismissed with costs. Her Honour's analysis assumes, in my view correctly, that in the circumstances confronting Andrew Clift it was unreasonable for him not to have kept his vehicle to the far left of the road until, when the dust cleared, he was able to see what lay ahead of him. Bearing in mind the frequency with which drivers on roads such as that upon which the accident occurred drive on "the beaten track", that is, straddle the centre of the road, it was unreasonable for Mr Clift to return his vehicle towards the centre of the road until his vision was clear, even if his vehicle remained wholly on his side of the road.

28 Ms Bacon did not seek to justify the result at first instance by reference to s 5D(2) of the Civil Liability Act 2002 (NSW). If she had, I would likely have found it to be applicable. On this basis, even if, contrary to Ward JA's analysis, Ms Bacon's vehicle would have hit Mr Clift's vehicle if he had kept as far as possible to his left, the decision below would nevertheless have stood.

29 On this hypothesis, there were two sufficient causes of the accident. If Mr Clift had not steered his vehicle towards the middle of the road, but had remained as far as possible to his left, the accident would still have occurred because Ms Bacon had driven towards the middle of the road and, on the present hypothesis, there was insufficient room for the two vehicles to pass. It could not then be said that "but for" Mr Clift's negligence, the accident would not have occurred. In other words, Mr Clift's negligence was not a necessary condition of the harm sustained by Ms Bacon.

30 However a similar analysis is applicable to Ms Bacon. If she had not driven towards the middle of the road but had remained as far on her left as possible, the accident would still have occurred because, with Mr Clift's vehicle at or nearing the middle of the road, there was no room for the vehicles to pass. Thus, it could not be said that "but for" Ms Bacon's negligence the accident would not have occurred, or that her negligence was a necessary condition of the harm she suffered.

31 At common law, "when separate and independent acts of negligence on the part of two or more persons ... directly contributed to cause injury and damage to another, the person injured [could] recover damages from any one of the wrongdoers, or from all of them" (Grant v Sun Shipping Co Ltd [1948] AC 549 at 563; Bennett v Minister of Community Welfare [1992] HCA 27; 176 CLR 408 at 429 per McHugh J). Thus "each sufficient condition [was] treated as an independent cause of the plaintiff's injury" (Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [18] and [28]; March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 at 534). The "but for" test did not adequately deal with such cases of separate and sufficient causes (March v Stramare at 516 and 523) and was not therefore applied at common law in them.

32 Section 5D(1) and (2) of the Civil Liability Act state the following concerning causation:

"5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

33 Satisfaction of subsection (1) requires the negligence of the defendant to have been a "necessary condition of the occurrence of the harm". That is, but for that negligence the plaintiff's injuries would not have been suffered. As I have said above, on the hypothesis with which I am presently dealing, that test was not satisfied in the present case.

34 However in my view, subsection (2) was applicable to Ms Bacon's claim.

35 The Ipp Report ("Review of the Law of Negligence: Final Report September 2002"), upon which the late 2002 amendments to the Civil Liability Act introducing s 5D were based, said in [7.26]:

"Although there are some cases with which the 'but for' test does not deal satisfactorily (involving 'causal over-determination' of harm - that is, harm that is attributable to more than one sufficient condition), the law has devised rules for resolving such cases in ways that are generally considered to be satisfactory and fair. We therefore make no recommendations on this aspect of the law".

36 As I read this passage, the authors of the Report assumed that what became s 5D of the Civil Liability Act would not prevent the continued application of the common law rules for dealing with cases where the plaintiff's injury resulted from more than one sufficient condition. These are the rules to which I have referred in [31] above and which the authors of the Ipp Report thought to be satisfactory and fair. Such cases are exceptional cases of the type contemplated by the opening words of s 5D(2) and the application of the common law would result in a determination of those cases, using the next words in s 5D(2), "in accordance with established principles".

37 Moreover, the consideration required by the remaining words of s 5D(2) in my view leads to the conclusion that "responsibility for the harm should be imposed on the negligent party". In this connection, there is no reason to depart from the Ipp Report's view that the relevant common law principles are "satisfactory and fair". Imposition of liability on each of the negligent parties is particularly appropriate where the parties in question are the plaintiff and defendant, and their respective responsibilities for the accident can be reflected in a reduction of the plaintiff's award to account for his or her contributory negligence.

38 In his Second Reading Speech in relation to the Civil Liability Amendment (Personal Responsibility) Bill 2002, the relevant Minister said in relation to what was to become s 5D:

"The bill will also deal with causation. Its intention is to guide the courts as they apply a commonsense approach. The rules for factual causation are set out, including the very limited exception to the 'but for' test. This exception was developed by the court for those rare cases, often in the dust diseases context, where there are particular evidentiary gaps. By including this exception in the bill it is not intended that the bill extend the common law in any way. Rather, it is to focus the courts on the fact that they should tread very carefully when considering a departure from the but for test.

It is only for the most limited and exceptional circumstances where any departure can be justified".

39 This passage refers only to a single exception to the "but for" test, being one that is not presently applicable as it relates to cases where there are particular evidentiary gaps. The speech thus overlooks the exception at common law, referred to in the Ipp Report, where harm is attributable to more than one sufficient condition. However, as the High Court noted in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [55], the exceptional cases contemplated by s 5D(2) are undefined. Whilst obedience must be paid to its express limitation to "exceptional" cases and to its requirement for determinations in accordance with "established principles", the subsection's terms do not justify its limitation to the single instance referred to in the Second Reading Speech, particularly when the further (and presently relevant) exception to the "but for" test was referred to in the Ipp Report to which the Second Reading Speech referred approvingly.

40 Nor is my approach to s 5D(2) inconsistent with binding authority.

41 In Strong v Woolworths, the majority at [18] noted that the "but for" test stated in s 5D(1) "produces anomalous results in particular cases, exemplified by those in which there is more than one sufficient condition of the plaintiff's harm", and said at [28]:

"As earlier noted, the limitations of the 'but for' analysis of factual causation include cases in which there is more than one sufficient condition for the occurrence of the plaintiff's injury. At common law, each sufficient condition may be treated as an independent cause of the plaintiff's injury. The Ipp Report noted the conceptual difficulty of accommodating cases of this description within a 'but for' analysis, but made no recommendation because the common law rules for resolving cases of 'causal over-determination' were generally considered to be satisfactory and fair. How such cases are accommodated under the scheme of s 5D does not call for present consideration" (citations omitted).

42 Nor did the High Court's judgment in Adeels Palace v Moubarak embark on a consideration of s 5D(2). Whilst the Court did understandably say that the statute should be applied rather than the High Court's approach to causation in March v Stramare, it was referring to the "common sense" approach to causation discussed in the latter case and contrasting it to s 5D(1)'s treatment of "factual causation and scope of liability as separate and distinct issues" ([43] and [44]).

43 WARD JA: Ms Bacon was injured in a motor vehicle accident on an unsealed country road near Breeza. She was driving a Ford Fiesta sedan. Her car collided with a semi-trailer being driven by the second appellant, Mr Andrew Clift. As Mr Clift's vehicle was unregistered and uninsured, Ms Bacon claimed damages from the Nominal Defendant for alleged negligence on the part of Mr Clift. A cross-claim by the Nominal Defendant against the owners of the truck driven by Mr Clift was settled before the hearing.

44 Ms Bacon was successful in the District Court in obtaining a verdict against the Nominal Defendant. Her damages were reduced by 50% for contributory negligence on her part. The Nominal Defendant appeals from the finding of negligence and, in the alternative, from the assessment of contributory negligence at 50%.

The collision

45 The circumstances in which the collision occurred may be summarised as follows.

46 The road on which the accident occurred was unsealed and had recently been graded. Mr Clift said that it was slippery. There was some dispute as to the precise location of the accident but it was accepted by Mr Clift that where the accident occurred the road was narrow. Estimates as to the width of the road at that point varied from 8 metres to 12 metres. One witness, Mr Clift's brother, estimated the width of the road before the point of the collision as being even narrower - about 22 feet - on the basis that the road was only just wide enough between the trees for his 'sowing rig' to pass through. According to Ms Bacon, it was "wide enough for two cars to squish in past". It was at least wide enough for two trucks to pass each other at speed, since that is what in fact happened immediately before the collision (as will be seen shortly).

47 Ms Bacon was driving in a westerly direction in the middle of the unsealed road "on the beaten track". The beaten track is that section of the road where the ground has been compacted or beaten by the wheels of vehicles travelling along the centre of the road. Logically, therefore, that part of the road referred to as the beaten track straddles the notional mid-point of the unmarked road. It was accepted by both Ms Bacon and Mr Clift that it was common practice for people to drive on the beaten track.

48 Ahead of Ms Bacon, travelling in the same direction on the road was a truck driven by Mr Clift's brother, Sam. Hereafter, I will refer to the two brothers by their first names to avoid confusion. Sam had driven past the driveway to Ms Bacon's parents' property, travelling at 60km an hour and maintained that speed.

49 Ms Bacon said that she was travelling at about 80km per hour when she started driving along the road. She said that there was "a small amount of dust but nothing to be worried about". As she drove along the road, the dust gradually became thicker. This was no doubt because she was coming closer to Sam's truck. She described this later to a doctor as a "dust cloud" that reduced visibility. Shortly after the accident, Ms Bacon estimated to the police that visibility of the road ahead of her had been limited to 'about a car length and a bit' - about 10 metres.

50 Ms Bacon said that she slowed down as the dust started to thicken and that as she was slowing down she subconsciously, from force of habit, started to veer to the left side of the road. In cross-examination, she said that she had veered "slightly" to the left. If Ms Bacon had been "on the beaten track" and had only veered "slightly" to the left as the dust thickened, it is likely that her vehicle was then still at least partly across the notional mid-line of the road, although she did not accept that proposition in cross-examination.

51 Andrew was driving in an easterly direction. He said that he was driving at about 50 miles per hour (i.e., around 80km per hour) and he too was driving in the middle of the road, i.e., on the beaten track.

52 Andrew said that he saw Sam's truck when he was about 50m away from him and that he then took his foot off the accelerator and put both hands on the steering wheel. He said that at that point the road was between 8 and 10m wide. He could not see anything behind Sam's truck other than a thick white cloud of dust. Relevantly, Andrew also said that, before he passed his brother's truck, he moved as far as he could to the left side of the road; right on the edge of the road but staying on the road.

53 Sam's evidence was that he saw Andrew's truck when he was about 300m away from him and that he braked heavily because he knew that the point where they were going to pass was a very tight spot. He said that he did not leave the carriageway and he did not see Andrew leave the carriageway. He denied that, in order to avoid him, Andrew had had to "pull over to the left and just off the road"; rather, he said that Andrew had passed beside him and accepted that Andrew had been completely within the traffic surface. The references by Sam to he and Andrew not leaving the "carriageway" and to Andrew passing completely within the traffic surface can only sensibly be understood as references to the road as a whole, not that part of it that was described as the beaten track (see, for example, Black 231N-Q). So understood, Sam's evidence is consistent with that of Andrew except as to the distance where he first saw Andrew's truck.

54 The two trucks passed each other. Andrew estimated that when he passed Sam's truck the trucks were between half a metre and a metre apart. Sam estimated the distance at half a metre. The collision occurred just after that. According to Andrew, it happened while Sam's truck was still alongside and about halfway down the side of his truck.

55 Andrew said that he was looking straight ahead and that "straight away" as he entered the dust behind Sam's truck he saw a red flash and heard a bang. Sam continued on and it appears that it was only later that he became aware that there had been a collision. All that Ms Bacon remembered of the collision was seeing Andrew's truck coming straight at her. She was unable to avoid the collision.

56 At the hearing, there was a dispute as to whether, after or as he was passing Sam's truck, Andrew had pulled back onto the beaten track. Andrew denied this. His Honour found that he had on the basis of evidence from Ms Bacon's father (at Black 26X) that shortly after the accident Andrew came to their home and told him that he had "pulled off the road to pass another truck" and that he had "pulled back out" onto the road and thought that he had hit a cow but it was Ms Bacon's car.

57 On the above accounts, the collision occurred after Ms Bacon's car had veered slightly left from the beaten track while she was slowing down. She was probably then still partly across the middle of the road because she had only veered "slightly" at that point. Andrew's truck was then moving back towards the centre of the beaten track. Given that Andrew had been on the far left of his side of the road, Andrew must therefore have been steering to the right and he was far enough across towards the centre of the road to have entered the dust cloud behind Sam's truck because that is where he collided with Ms Bacon's car.

Primary judgment

58 His Honour commenced his consideration of the question of liability by summarising Ms Bacon's case and the evidence of Ms Bacon and her father ([8]-[24]), before recounting the evidence of Andrew ([28]-[38]) and Sam ([39]-[47]). In the course of so doing, it is not always clear whether his Honour was doing more than reciting the evidence. At some places (such as [10]-[12], [14], [19], [22], [28]-[29], [31], [32], [45]-[46]) his Honour refers to what was said by the various witnesses, consistent with a recitation of evidence. At others (such as [30]-[34], [40]-[44]), his Honour states certain matters without making it clear whether this is more than a recitation of the evidence.

59 With the exception of the statement at [29], which appears to record a finding of fact that Andrew was travelling "as he said" at about 50 miles per hour, and the conclusion at [32], read as a whole paragraphs [8]-[47] of his Honour's reasons seem to be no more than a summary of the evidence of the respective parties. For example, his Honour's later rejection of Sam's evidence as to the distance from which he first saw Andrew's truck shows that his Honour's earlier statement as to that matter (at [40]) cannot have been a finding of fact.

60 This is relevant when one comes to consider whether there was any finding as to the position of the two trucks at the time of the collision. At [30], his Honour said:

He [Mr Andrew Clift] took his foot off the accelerator to allow the vehicle to slow. He did not apply his brakes. He passed his brother's vehicle. They were between one half of a metre and one metre apart. When the rear wheels of his brother's prime mover were about at the cabin of his truck, he saw a red flash and heard a bang.

61 The Nominal Defendant accepts that there is ambiguity as to whether (at [30]) his Honour makes a finding that the rear wheels of Sam's truck were about at the cabin of Andrew's truck at the time of the collision, or is simply recording Andrew's evidence to this effect, but the Nominal Defendant points out that his Honour does not go on later to make any finding that Andrew's evidence as to this aspect of the matter was wrong. Therefore, it may well be that his Honour implicitly accepted Andrew's evidence as to the position of his brother's truck at the time of the collision.

62 By contrast, at [32], his Honour in terms expressly concluded that Andrew had pulled "off the beaten track to allow his brother room to pass". The primary judge's reference to Andrew pulling "off the beaten track" cannot have been intended as a reference to Andrew pulling off the road itself since there is no suggestion that Andrew's truck ever left the road altogether nor that this would have been possible given the trees along the side of the road.

63 His Honour was not able to reconcile certain aspects of the accounts of the accident given by the Clift brothers, in particular as to the point at which each saw the other's truck (see his Honour's reasons at [48], [49]). His Honour considered that the evidence was more consistent with the two trucks being 50m apart when Andrew first saw his brother's truck [52], as Andrew had estimated. His Honour also accepted the evidence of Ms Bacon's father, as being more reliable than that of Andrew, as to what Andrew had said to him shortly after the accident. His Honour considered that this was consistent with the pattern of driving, namely Andrew's "return to the beaten track" ([55]).

64 His Honour expressly found that Andrew was "steering back onto the track", i.e., the beaten track, when he hit Ms Bacon's car ([55]). He did not make any clear finding as to whether at that point Andrew's truck had straddled, or crossed, the middle of the road.

65 His Honour said (at [56]) that Andrew was travelling too fast in the circumstances. At [57], his Honour found that Andrew failed to keep a proper lookout; drove at a speed excessive in the circumstances; failed to apply his brakes in time to avoid the collision; failed to steer and control his truck to avoid the collision; and drove his truck when his vision of oncoming traffic was obscured due to dust.

66 His Honour also found (at [59]) that Ms Bacon was travelling at a speed which was excessive in the circumstances, given the poor visibility by reference to the dust being thrown up by Sam's truck, and that she had failed to keep a proper lookout.

67 As noted earlier, his Honour considered that each of the drivers had contributed equally to the cause of the accident ([60]) and therefore found for Ms Bacon but assessed her contributory negligence at 50% ([61]).

Appeal

68 There is no appeal from his Honour's quantification of damages. Rather, the Nominal Defendant appeals on the grounds that his Honour erred:

(i) in finding that any acts or omissions on the part of Mr Andrew Clift were causative of the motor vehicle collision the subject of the proceedings; and

(ii) alternatively, in apportioning Ms Bacon's contribution to the collision at 50%.

Ground 1 - causation

69 Pursuant to s 5D(1)(a) of the Civil Liability Act 2002 (NSW), a determination that negligence caused particular harm requires the plaintiff to establish factual causation, i.e., that the negligence was a necessary condition of the occurrence of the harm. The Nominal Defendant contends that Ms Bacon failed to do so.

70 It is submitted by the Nominal Defendant that the findings made as to the speed at which Andrew was travelling (at [56] and [57(b)] of his Honour's reasons) are immaterial because the speed of the truck was not shown to be a necessary condition of the collision. It is further submitted that nothing turned on the finding as to failure to keep a proper lookout (at [57(a)]) since both parties were driving on an unsealed road in conditions that had thrown up dust and it was not found by his Honour that either should or could have seen the other earlier than he or she did. Since Ms Bacon's car was hidden in the dust behind Sam's truck, it is submitted that there is nothing to show that, by keeping a proper outlook, Andrew could have seen Ms Bacon's car at a time when the accident could have been avoided.

71 Reference is made by the Nominal Defendant in this regard to Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268 at 276-277 [16], where the adequacy of a jury direction as to causation was considered. The plurality there referred to Skewes v Public Curator of Queensland (High Court, 6 September 1954, unrep), a case involving a head-on collision that occurred when two cars were being driven at a fast rate in a cloud of dust which temporarily almost destroyed visibility - one on the correct side of the road, the other on the incorrect side of the road. Their Honours considered that the relevant question to ask in that case was whether the collision would not have taken place with the same results if the first driver had been driving at a reasonable speed. The Nominal Defendant relies on this as endorsing a commonsense approach to the question of causation.

72 Here, it is inapposite to refer to the correct or incorrect side of the road, since there were no lane markings. The Nominal Defendant does not suggest otherwise, though noting the general rule that vehicles keep to the left of the road. In any event, the findings as to the speed at which Andrew was driving and that he had not kept a proper lookout can be put to one side because Ms Bacon does not press those as being necessary conditions of the collision.

73 There were a number of particulars of negligence asserted in the Statement of Claim ([5]) and his Honour made findings as to Andrew's negligence (at [57]) encompassing a variety of conduct. However, on appeal what Ms Bacon emphasised was that Andrew's negligence lay in pulling back onto the beaten track at a time when he could not see what was on the track behind his brother's truck because of the dust and when he knew that traffic could be travelling on that road in either direction.

74 The principal submission for the Nominal Defendant is that Andrew's negligence, as found by his Honour, was not a necessary condition of the occurrence of the harm because the collision would have occurred even if Andrew had not steered back onto or towards the beaten track (and indeed would have occurred even had his vehicle been stationary on the left side of the road). The Nominal Defendant emphasises that Ms Bacon was driving in the middle of the road.

75 The Nominal Defendant thus contends that Ms Bacon failed to establish on the balance of probabilities that the accident would not have occurred had Andrew continued to drive on the far side of the road until he was able to see whether there was any oncoming traffic.

76 Ms Bacon contends to the contrary that the evidence does establish that if Andrew had not left the far left side of the road there would in all probability not have been a collision. In that regard, reference is made to the following: the evidence from both Andrew and Ms Bacon as to the width of the road being between 8-12 metres; the fact that when Andrew was on the far left side of the road the two trucks were able to pass with a half a metre or a metre between them; and the evidence from Andrew as to the width of the two trucks. Andrew said that his truck was two to two and a half metres wide and that Sam's truck was a bit smaller - about 2 metres wide.

77 It does not appear that there were any arithmetical calculations put to his Honour based on the precise measurements of the road and the width and respective positions on the road of the three vehicles. The Nominal Defendant submits that it is not possible to tell how much of a degree of overlap there would have been in respect of the vehicles had Andrew not been steering his truck back onto the beaten track at the time of the accident. It is submitted that the arguments now put by Ms Bacon involve assumptions and guesswork as to matters such as the width of the vehicles in respect of which the evidence is said to have been anecdotal and unreliable.

78 The Nominal Defendant points out that the manner in which the case was run for Ms Bacon at first instance, inconsistently with the proposition for which she now contends, was to emphasise the narrowness of the road. It was put in cross-examination (at Black 212/213) to Andrew that the road was very narrow; that the point at which he passed Sam's truck was a "narrow chicane"; that attempting to get past the truck was a matter of a concern; and that the road was one and a half lanes wide. It was put to Sam that Andrew had to pull "just off the road" to avoid his truck (Black 244G). As already noted, both brothers gave evidence as to the spot where their trucks passed as being narrow or a tight spot and both showed caution when passing at that spot.

79 Nevertheless, the suggestion made at the hearing below that it was impossible for two vehicles to have passed without collision on the road was clearly untenable since that is what had happened immediately before the accident. It was inconsistent with the evidence of each of the three drivers. Therefore, to the extent that Ms Bacon ran her case at first instance on the basis of an incorrect proposition as to the narrowness of the road, that was shown to be not well-founded. She now puts no such case. There is in my opinion no criticism that can be made of her now arguing that the evidence below established causation even though some of that evidence involved the rejection by the various witnesses of propositions put on her behalf as to the narrowness of the road. The fact is that those propositions were not accepted, and could not have been accepted, having regard to the fact that Andrew and Sam had passed each other without collision.

80 The Nominal Defendant submits that it is no more than an optimistic assumption for it now to be suggested for Ms Bacon that the road was sufficiently wide for there to have been no collision had Andrew's truck remained where it was on the far left hand side of the road even though her car was in the middle of the road. There is, however, evidence from which as a matter of commonsense one can assess the opposing contentions in this regard.

81 The first point to note is that both Andrew and Ms Bacon estimated the width of the road as somewhere between 8 and 12 metres wide. Sam's evidence was to the effect that it was at least 6 metres wide at its narrowest point. Second, the evidence does not suggest that Sam, like Andrew had done, had moved to the far left of his side of the road in order to allow the two trucks to pass. Sam said that he had braked heavily but went on to say that he had "rolled and passed" Andrew's truck and agreed that he had "decided to roll through". That does not suggest any deviation from the course that Sam was following on the road.

82 The fact that Andrew and his brother were able to pass without colliding, as they did, means that the road was at least 5 metres wide on the assumption that the trucks were 2½ and 2 metres wide respectively and there was at least half a metre between them; if the distance between them was a metre then the road was at least 5½ metres wide. Sam's evidence suggested that it was at least 6 metres wide at its narrowest point, based on the size of his sowing rig, but there is some uncertainty as to where that narrowest point was. There was no challenge to the estimates given by Andrew as to the width of his and his brother's trucks and nothing to suggest that those estimates were unrealistic. Therefore, if Sam was not driving on the far left of "his" side of the road, and there is no evidence that he was, the estimate of an 8 metre wide road is consistent with the evidence that Sam and Andrew were able to pass each other without colliding.

83 The midpoint of an 8 to 12 metre wide road would obviously be 4 to 6 metres from the far left hand side of the road where Andrew was driving when he passed his brother's truck.

84 On the assumption, though this is inconsistent with her evidence, that just before the collision Ms Bacon was still on the beaten track - i.e., straddling the midpoint of the road, it follows that half of her car must have been on Andrew's "side" of the road. If her evidence had been accepted, and she had veered slightly to the left before seeing Andrew's truck and while slowing down as the dust thickened, this would have placed her car to some, albeit only slight, extent off the middle of the beaten track and hence less than half of her car would have been on Andrew's "side" of the road.

85 Thus, having regard to the evidence of both of the drivers involved in the collision as to the width of the road, and making the assumption most favourable to the Nominal Defendant within the range of estimates they gave, i.e., that the road was 8 metres wide at the point of the collision, and on the basis of Andrew's evidence that his truck was 2 to 2½ metres wide and on the far left side of the road, logically it must follow that had Andrew remained on the far left of the road there would have been no collision unless Ms Bacon's car was at least one and a half metres on "his" side of the road.

86 Ms Bacon's car was a Ford Fiesta sedan. There was no evidence as to its measurements but it was not suggested that the car was as wide as Andrew's truck. If her car was 2 metres wide and, though this was not her evidence, the car was still straddling the mid point of the road at the time of the accident, then there would have been 3 metres between Ms Bacon's car and the far left on Andrew's side of the road where Andrew said he had been driving in order to pass his brother's truck. If Ms Bacon's car was not precisely straddling the middle of the road and was even slightly to her left of that point then there would have been more room between the vehicles. Similarly, if the road was over 8 metres in width, then there would have been even more room for the two vehicles to pass without collision had Andrew remained to the far left of "his" side of the road.

87 The force of the Nominal Defendant's argument lies in the proposition that if there was only half a metre to a metre of space between the two trucks as they passed, and Ms Bacon was travelling further to the right of the centre of the road than Sam had been, then there would have been less room than there had been for Sam or her to have passed Andrew's truck without collision had Andrew remained travelling on a straight line at the far left of "his" side of the road.

88 To the extent that there is uncertainty as to the relevant measurements, the Nominal Defendant maintains that Ms Bacon has not satisfied the onus of proving that in all probability the accident would not have occurred but for Andrew pulling back onto the beaten track.

89 However, there was evidence before his Honour as to the width of the road and as to the width of the trucks; there was evidence that it was common practice to drive on the beaten track; there was no evidence that Sam had changed his course and pulled to the far left of "his" side of the road in order to pass Andrew - rather, Sam said that he had "rolled" through.

90 There was a clear finding by his Honour, not challenged on appeal, that Andrew was steering back onto the beaten track. This is consistent with the point of impact between the vehicles being the front right side of Ms Bacon's car. In doing so, he must have moved at least half a metre to a metre for him to have collided with Ms Bacon's car depending on whether she was then still in the middle of the beaten track or had, as she said, veered slightly left. There was no suggestion that the right hand side of Ms Bacon's car was further to her right than it would have been had she been on the centre of the beaten track and hence straddling the mid-point of the road. Therefore, unless Ms Bacon's car was 3 metres wide, logically the two vehicles would have passed without incident had Andrew's truck remained on the far left hand side of the road.

91 It follows that in all probability had Andrew remained where he was, and not steered back onto the beaten track, the collision would not have occurred. His negligence in doing so when he did not have a clear view of any oncoming traffic was a necessary condition of the accident. His Honour therefore did not err in concluding that Andrew was negligent and that the Nominal Defendant was liable to Ms Bacon in damages for Andrew's negligence.

92 Ground 1 is not made out.

Ground 2 - apportionment for contributory negligence

93 In respect of ground 2, it is submitted that the reduction made for contributory negligence was manifestly inadequate and that his Honour, in addressing the reduction required, did not consider the standard of care imposed upon Ms Bacon as was required pursuant to s 5R(2) of the Civil Liability Act. Alternatively, it is submitted that his Honour's assessment of contributory negligence was manifestly unreasonable in the sense considered in Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 75 ALJR 867 at [3], [5], [29], [65(4)]) and that his Honour failed to take into account the relative importance of the acts of the parties in causing the damage.

94 The Nominal Defendant contends that, as a matter of commonsense, the collision occurred because Ms Bacon was driving in the centre of the road at an excessive speed when her visibility was limited to less than two car lengths ahead and she had little more than half a second to react and avoid the oncoming vehicle; and that she had a materially greater responsibility for the collision than Andrew, who was not in a cloud of dust and was on the left hand side of the road until commencing to move back onto the beaten track.

95 Section 5R of the Civil Liability Act provides:

5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

96 The question is whether a reasonable person in the position of Ms Bacon, having the knowledge she had or ought to have had, was negligent (Origin Energy LPG Ltd v BestCare Foods Ltd [2012] NSWCA 407 at [217]; Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464; (2013) 65 MVR 578 at [34]; Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 at [47]).

97 The existence of a duty of care owed by Ms Bacon to others on the road was not contested. In Mobbs v Kain [2009] NSWCA 301, McColl JA noted (at [91]) that a driver of a vehicle on a public road is under a duty to other persons on and in the vicinity of that road to exercise reasonable skill and care with a view to avoiding the causing of injury to those persons.

98 Here, Ms Bacon was driving on an unsealed country road at around 80km per hour on or close to the middle of the road when her visibility of the road ahead was very limited because of the dust from the vehicle ahead of her. Understandably, there is no challenge to his Honour's finding that she was driving with excessive speed in the circumstances.

99 While his Honour did not expressly undertake the exercise of comparing the negligence of each of Ms Bacon and Andrew, to determine the degree of departure from the standard of care of the reasonable person of each of Ms Bacon and Andrew and the relative importance of their acts or omissions in causing the damage, his Honour explained briefly the aspects in which he considered each had departed from the requisite standard of care in circumstances that were largely common to each.

100 In Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, the High Court said at [8] that:

A finding on a question of apportionment is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds": British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.

101 The constraints on appellate intervention have been recognised in many cases in this Court (see for example Mousa v Marsh [2001] NSWCA 317 at [12]; Mikaera at [35]-[36]). In Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Reports 81-731, McColl JA said at [48]:

To set aside an apportionment of liability it must be shown that the failure to exercise the discretion involved in the apportionment exercise properly was unreasonable or plainly unjust: Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Co Pty Limited (2001) 53 NSWLR 626 at 637 [60] per Stein JA with whom Davies A-JA agreed (655 at [189]); [see also at 653 [172] Fitzgerald AJA.]

102 It is not disputed that both Andrew and Ms Bacon were driving in circumstances where visibility of the road ahead was obscured by dust. Ms Bacon was driving in or close to the centre of the road; Andrew was steering back onto or towards the beaten track. Neither could see if there was oncoming traffic. His Honour's assessment that there was an equal contribution by the parties to the accident is not one that in my opinion was unreasonable or plainly unjust. While minds might differ as to the degree of culpability and causative force of Andrew's conduct, his Honour's assessment is not in my opinion so far outside the appropriate range as to indicate an error in point of law. I would not interfere with his Honour's assessment of contributory negligence.

Conclusion

103 For the above reasons, both the appeal and the cross-appeal should be dismissed with costs.

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Decision last updated: 21 August 2014