- Medium Neutral Citation:
- The Nominal Defendant v Ross [2014] NSWCA 212
- Hearing dates:
- 11.04.2014
- Decision date:
- 03 July 2014
- Before:
-
Beazley P at [1]
Meagher JA at [2]
Hoeben JA at [10] - Decision:
-
(1) The appeal is allowed in part.
(2) Other than the orders for costs, the judgment entered by Judge Levy SC in favour of the respondent against the appellant in the sum of $328,540 is set aside and in lieu thereof, judgment is entered in favour of the respondent in the sum of $266,939.
(3) The parties are to file agreed Short Minutes of Order as to the costs of the appeal within 7 days. In default of agreement, the parties are to file and serve proposed orders and short submissions not exceeding 3 pages and any evidence upon which they wish to rely within 21 days.
[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 - claim by pedestrian against Nominal Defendant - pedestrian injured by minibus at airport which departed shortly after the accident - whether driver of minibus was negligent - whether fact finding of trial judge glaringly improbable - failure by driver to keep a proper lookout - contributory negligence - failure by pedestrian to keep a proper lookout - apportionment of liability more heavily weighted against driver - whether due inquiry and search established - particular circumstances of accident - meaning of "due" inquiry and search - failure to access to CCTV film within 28 days - appeal allowed in part.
- Legislation Cited:
- Motor Accidents Compensation Act 1999 - s34(1)
- Cases Cited:
-
Cavanagh v Nominal Defendant [1959] HCA 57; 100 CLR 375
Fox v Percy [2003] HCA 22; 214 CLR 118
Gordon v Truong; Truong v Gordon [2014] NSWCA 97
Harrison v The Nominal Defendant [1976] 50 ALJR 330
Hawthorne v Hillcoat [2008] NSWCA 340
Nominal Defendant v Browne [2013] NSWCA 197
Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380
Oztan v NSW Ministerial Corporation [1995] 23 MVR 259
Pennington v Norris [1956] HCA 26; 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 529
Ross v Nominal Defendant [2013] NSWDC 110
Warth v Lafsky [2014] NSWCA 94 - Category:
- Principal judgment
- Parties:
-
The Nominal Defendant - Appellant
Ysaiah Ross - Respondent - Representation:
-
Counsel:
Mr K Rewell SC/Mr W Fitzsimmons - Appellant
Mr R Sheldon SC/ Ms E Welsh - Respondent
Solicitors:
McCourts Solicitors - Appellant
Brydens Law Office LP - Respondent
- File Number(s):
- 2013/248126
- Decision under appeal
- Citation:
- [2013] NSWDC 110
- Date of Decision:
- 2013-07-19 00:00:00
- Before:
- Levy SC DCJ
- File Number(s):
- 2011/157874
HEADNOTE
[This Headnote is not to be read as part of the judgment]
The respondent was injured when an unidentified minibus collided with him outside Terminal 2 at
In the District Court, the appellant did not dispute that the collision occurred at the time and place alleged by the respondent, but denied that the driver of the minibus was negligent. The appellant alleged a high degree of contributory negligence on the respondent’s part. The appellant also asserted that the respondent failed to comply with his duty of due search and enquiry. The primary judge found that the driver of the minibus was negligent and that the respondent was contributorily negligent to the extent of 20 percent. The primary judge found that the respondent had satisfied his duty of due search and enquiry.
On appeal to this Court the appellant challenged the finding that the driver of the minibus was negligent, and that if he were negligent he challenged the assessment of contributory negligence. Also challenged was the finding that the respondent had satisfied his duty of due inquiry and search pursuant s34(1) of the Motor Accidents Compensation Act 1999.
Held by the Court, the appeal was allowed in part
1. The Appeal against liability by the appellant was dismissed. The basis for a finding of negligence against the minibus driver was that he failed to keep a proper lookout. The submission that because the minibus was there to be seen had the respondent looked, no liability should be found against the Nominal Defendant did not follow. If the minibus was there to be seen by the respondent had he looked, the respondent was also there to be seen had the driver of the minibus been keeping a proper lookout. Negligence on the part of the Nominal defendant was clearly established: at [35], [37]-[38].
Warth v Lafsky [2014] NSWCA 94 at [55]-[56], applied.
2. Contributory negligence on the part of the respondent was increased from 20 to 35 percent, resulting in the respondent’s damages being reduced from $328,540 to $266,939. Errors were established in the fact-finding of the primary judge. Irrelevant considerations that affected the assessment of contributory negligence were taken into account. While it may be said that the negligence on the part of the respondent and the driver of the minibus was of a similar kind in that neither kept a proper lookout, other considerations were also relevant. A failure by a pedestrian to keep a proper lookout might result in injury to himself or herself, whereas a failure by a driver of a vehicle might result in not only injury to the driver but also serious injury or death to an innocent party. Taking these matters into account and having particular regard to the findings of fact available on the evidence, the Court re-exercised the discretion to re-assess the apportionment of liability: [39]-[49], [80].
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 529 at [8], Gordon v Truong; Truong v Gordon [2014] NSWCA 97 at [13]-[21], considered.
Pennington v Norris [1956] HCA 26; 96 CLR 10 at [15],
3. The provisions of s34(1) of the Motor Accidents Compensation Act 1999 had been met to satisfy due inquiry and search by the respondent. The Court considered the meaning of the word ‘due’ and was satisfied in the circumstances that the respondent was not able or required to take steps at the time of the accident to obtain the registration of the minibus or the identity of the driver. The Court also found that even if due inquiry and search immediately after the accident was precluded by the actions of the driver, that concept did not require access to the relevant CCTV footage be requested within 28 days. The Court determined that a ‘reasonably informed member of the community’ would not be expected to know that CCTV camera footage taken at the airport would be kept for only 28 days and that this approach was contrary to the ‘less stringent interpretation of s34 and its predecessors’ required by recent cases: at [54]-[78].
Nominal Defendant v Meakes [2012] NSWCA 66;60 MVR 380 at [60], [71], Nominal Defendant v Browne [2013] NSWCA 197, Cavanagh v Nominal Defendant [1959] HCA 57; 100 CLR 375,
JUDGMENT
1BEAZLEY P: I have had the advantage of reading in draft the reasons of Hoeben JA. I agree with his Honour's reasons and the orders he proposes.
2MEAGHER JA: I have had the benefit of reading in draft the judgment of Hoeben JA. I agree for the reasons that his Honour gives that the appellant's appeal on the question of negligence should be dismissed and that its appeal on the question of contributory negligence should be allowed and an apportionment of liability made as to 65 per cent against the appellant and as to 35 per cent against the respondent.
3The remaining question is whether the respondent showed that, after due inquiry and search, the identity of the vehicle responsible for the accident could not be established. The relevant principles are referred to by Hoeben JA. It was necessary for the respondent to show either that there had been due inquiry and search but that the identity of the relevant vehicle had not been established or, although there had not been due inquiry and search, that such an inquiry and search would not have established its identity: see Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380 at [54], [55] per Sackville AJA (McColl and Basten JJA agreeing).
4There were two potential opportunities for the respondent to discover the identity of the minibus vehicle which collided with him when he stepped off the curb outside Terminal 2 at Sydney Airport on 30 May 2008. The first was when the accident happened. The evidence as to the circumstances in which the driver of the other vehicle left the accident scene is set out by Hoeben JA. The respondent was injured, bleeding, groggy and confused. The driver's behaviour in stopping his vehicle, going to see if the respondent was okay, returning to his vehicle to get a box of tissues and then taking the tissues to the respondent gave no reason for the respondent to think that he should obtain immediately information as to the identity of the driver and vehicle because that driver, without warning, was about to scurry from the accident scene. All of this happened in a period of between 60 and 90 seconds. In my view the primary judge did not err in concluding that the obligation to make due inquiry and search did not require the respondent to make any inquiry to establish the identity of the vehicle and its driver in that period. The time for making that inquiry and search had not and did not arise before the driver departed quickly and without any warning.
5The second opportunity was the making of a request for CCTV film. The first request was directed to Sydney Airport Corporation and dated 3 October 2008. It sought footage in relation to Terminal 3, rather than Terminal 2, and for 29 May 2008 rather than the date of the accident. The response to that request was that any CCTV footage was retained for a period of 28 days, being that recommended by "the Australian Standard industry practice and having regard to IT storage constraints". The letter did not confirm that the incident would have been captured by the CCTV footage. A later letter addressed to Qantas Airways produced a similar response.
6The primary judge dealt with the appellant's submission that due inquiry and search required that the respondent "seek out possible CCTV footage" on the basis that such an inquiry "would have been unlikely to yield any practicable results tending to identify the vehicle or the driver": Ross v Nominal Defendant [2013] NSWDC 110 at [134], [135]. One possible difficulty with this way of dealing with this argument is that if due inquiry and search required that a request for CCTV camera footage be made within a particular period and that had not occurred, it was for the respondent to show that the inquiry would not have identified the vehicle or driver.
7Whether due inquiry and search included making a request for CCTV film within 28 days of the accident requires an assessment of whether a reasonably informed member of the community in the respondent's circumstances would have expected in May 2008 that the area where the accident occurred might have been covered by CCTV cameras and believed that any film from those cameras might not be kept for more than 28 days. The only evidence which assisted the primary judge to consider this question was the fact that eventually an inquiry as to the existence of such film was made by the respondent's solicitors. The fact of that inquiry is consistent perhaps with there having been an expectation at least in the solicitors, that the area where the accident happened might have been covered by CCTV cameras. However, in May 2008 the respondent had not retained solicitors and was proposing to travel overseas in circumstances where he had seen a doctor and been told that he had a minor injury. In my view a reasonably informed member of the community at that time would have had no particular knowledge of standards or practices in relation to the keeping of CCTV security footage and would have expected that any such footage which was available would be kept in some form for a period longer than 28 days. Thus, whilst it may have been reasonable to proceed on the basis that the longer any inquiry was delayed, the greater the risk that any film may not remain available to be accessed, "due" inquiry and search did not require that the request be made within 28 days rather than, say, 3 months of the accident.
8That being the position, the respondent showed that due inquiry and search in relation to the existence of CCTV footage would not have established the identity of the relevant vehicle because such an inquiry and search could have been made after the CCTV footage was destroyed.
9I agree with the orders proposed by Hoeben JA.
10HOEBEN JA:
Nature of Appeal
The respondent, Dr Ysaiah Ross, sued the Nominal Defendant in the District Court of NSW for damages for injury suffered when an unidentified minibus collided with him outside Terminal 2 at Sydney Airport on 30 May 2008. The Nominal Defendant did not dispute that a collision occurred at the time and place alleged by the respondent. The Nominal Defendant denied that the driver of the minibus was negligent. Alternatively, a high degree of contributory negligence was alleged.
11The Nominal Defendant also asserted that the respondent failed to comply with his duty of due search and inquiry.
12The District Court proceedings were heard by the primary judge on 25 - 27 February, 1 March, 18 and 24 April and 6 June 2013. The primary judge delivered judgment on 19 July 2013. His Honour found that the driver of the minibus was negligent and that there was contributory negligence. He assessed contributory negligence at 20 percent.
13The primary judge found that the respondent had satisfied his duty of due search and inquiry.
14The primary judge assessed the respondent's damages in the sum of $409,175. After deduction for 20 percent contributory negligence, judgment was entered in favour of the respondent in the amount of $328,540.
15The appellant challenges the finding of the primary judge that the driver of the unidentified minibus was negligent. If the driver of the minibus were negligent, the appellant challenges the assessment of contributory negligence. The appellant challenges the finding by the primary judge that the respondent satisfied his duty of due inquiry and search under s34(1) of the Motor Accidents Compensation Act 1999 (MAC Act). No challenge has been made to the assessment of damages.
Factual background
16The respondent was born in New York in 1939. After practising law in the USA for a number of years, in 1970 he commenced an academic career. Since 1973 he lived in Australia and was admitted as a barrister in New South Wales in 1983, practising principally as an academic. At around 2.30pm on 30 May 2008 the respondent drove to Sydney Airport to meet a colleague arriving from Melbourne at Terminal 2. Having discovered that the flight's arrival was delayed, the respondent decided to return to his car to check the expiry time on his parking space.
17There was a wide footpath outside the terminal. The nearest pedestrian crossing was more than 100 metres from the doors through which the respondent walked out of the terminal building. There were two traffic lanes adjacent to the exit from the terminal building used by the respondent. Vehicles travelled from the respondent's right as he exited the terminal.
18At trial the respondent described the occurrence of the accident as follows:
"Q. You moved at that stage from the doors of the terminal into what area outside, what was there?
A. There was a footpath, a wide footpath outside and I, I walked down to that footpath.
Q. Having been on the footpath where did you go next?
A. I walked up to the kerb, I looked to my right, I stepped off into the street. Into the carriageway as you say." (Black 12K-M)
"Q. You've said when you got to the edge of the footpath, the kerb, that you looked to your right?
A. That's correct.
Q. What if anything did you see by way of approaching traffic?
A. There was no traffic in, in the - to the right when I looked.
Q. Were there two lanes or one or more outside Terminal 2 when you did this?
A. When I looked to my, my right, I could see there were two lanes, I could see the lane immediate to the kerb and down the road to the other lane.
Q. Any traffic approaching in either of those?
A. No.
Q. As to people in the immediate vicinity, what if any people were around you as you stepped off the kerb?
A. I hadn't, I didn't even see anybody.
Q. How many steps did you take before a problem occurred?
A. I - well it depends how you count steps, I took the step out with my right and brought my left foot out just after that.
Q. Then did you feel something occur to you?
A. Yeah almost simultaneously I felt my left knee I think it was just below the knee and my right foot with an impact.
Q. From which side of your body did the impact come?
A. My right side.
...
Q. Did you hear this vehicle approach?
A. No." (Black 13W-14P)
"Q. Mr Ross, when you came out onto the footpath, did you stop at the kerb before you entered the roadway?
A. I slowed down at the kerb and looked to my right and then stepped out.
Q. Did you stop at the kerb before you entered the roadway?
A. Did I completely stop.
Q. Yes?
A. No, I just slowed down.
Q. When you say, "slowed down", what do you mean by that?
A. To give myself a chance to look to my right before I stepped out.
Q. You had a clear view to your right, didn't you?
A. To the right hand lane, yes.
Q. You don't recall seeing any cars parked in the right hand lane, do you?
A. No, there were no cars parked.
Q. And you couldn't recall seeing any other cars coming down in your direction from your right, correct?
A. That's correct.
Q. And that not only included lane 1, that is, the lane closest to the kerb, but also lane2; correct?
A. I can see part of lane 2 when I was turning to my right further down, not as easily closer up." (Black 58C-N)
"Q. And you had a view back down to the right down the terminal, correct?
A. I had a view to the, to the right. Yes. To - when you, when you turn to the right, I can see the right hand lane and my vision would have picked up some of the second lane too, but not the whole.
Q. Mr Ross, you would have been able to see both lanes, wouldn't you, when you looked to your right?
A. I don't know. All I saw is I didn't see any vehicles." (Black 59F-I)
"Q. The first you knew of the minibus at all, in terms of it being there, was when it hit you?
A. That's correct." (Black 60I)
"Q. Mr Ross, do you agree that what you're saying there is that you realised the white minibus was there before you had actually stepped onto the roadway itself, that's what it's saying, isn't it?
A. That's a mistake it was simultaneous with me stepping onto the roadway that it was there.
Q. Sorry. So do you say that in fact as you were stepping on the roadway the vehicle was there you realised it was there?
A. No. As I was on stepping on the, on the roadway, the vehicle was there as I had stepped onto the roadway.
Q. You had already -
A. It was almost, it was almost simultaneous." (Black 64Q-V)
"Q. But somehow through a process of reconstruction when you go back in 2011 or 2012 you can then work out where the van had come from?
A. Yes.
Q. But you'd never seen it until it hit you?
A. Yes.
Q. You had no idea where it came from?
A. At the time in the accident yes.
Q. And in 2010 you had no idea where it came from?
A. Yes.
Q. Even to this day you still have no idea where it came from?
A. No.
Q. But you'd never seen it before it hit you?
A. Yes." (Black 67J-Q)
19The minibus came to a halt almost immediately in such a way that the nearside, front wheel was on the respondent's foot (Black 14R, 72N,73K). In a statement made to an investigator on 27 March 2009 the respondent said:
"PG: But sorry when, when that vehicle the Driver brought the vehicle to a halt ...
YR: Yeah
PG; ... did you say it, it came to a halt with the front wheel ...
YR: Yep.
PG: ... on your foot?
YR: Yeah. Well, well, well I was able to get my foot out. So it came out to a halt just right here, right on, on, on the top of, of the, of the, of the foot. That's why I thought I wasn't injured that bad because I was able to pull my shoe you know I was wearing shoes, I was able to pull the, you know the foot out.
PG: So correct me if I understand you correctly, the, the front passenger side wheel exerted pressure on your feet but didn't actually completely pass over it.
YR: No, it didn't completely pass over it.
PG: Okay.
YR: Because if it had passed over, I wouldn't have had to pull it out." (Blue 27M-U)
20The respondent had apparently suffered some cuts as a result of the collision. The driver of the minibus alighted and attended to the respondent who by that time was already standing. The respondent said that he could see the minibus but he could not see the licence plates. All that he could say was that it was white in colour. When the driver approached him, the driver said "I did not see you" (Black 21D).
21The driver went to the minibus and returned with a box of tissues to assist the respondent tend to his bleeding abrasions. The driver asked the respondent whether he was all right to which the respondent replied that he was. The respondent observed the driver to return to the minibus. The respondent was still bending down, tending to his abrasions. He said that "the next time I looked up he [the driver] wasn't around" (Black 22M). The driver and the minibus had gone.
22The respondent said that he did not ask the driver his name, nor did the driver provide it. When the primary judge asked the respondent why he did not take the name of the driver, he said "I was groggy and didn't think of it at that moment" (Black 22S). The respondent said that he did not know that the driver was about to leave when he returned to the minibus. The respondent said that he was concerned about the abrasion to his right leg and the injury to his right foot at the time. The respondent did not obtain any identifying particulars from any of the persons who were in the vicinity at the time.
23At the scene of the accident, the respondent thought that he had not been seriously injured. He walked to his parked vehicle and made mobile telephone contact with his visitor who then made his way to the respondent's vehicle. While they drove from the airport, the respondent decided that he should seek medical attention and proceeded to do so.
24It should be noted that at an early stage, the respondent wrongly assumed that the accident had occurred at Terminal 3, whereas in fact it had occurred at Terminal 2. That error was not realised until 27 March 2009, some 10 months later, when the respondent was interviewed by the insurance investigator.
25Initially the respondent went to the Prince of Wales Hospital but because the waiting time in the Accident and Emergency Department was so long, he attended a nearby general practitioner, Dr Mundell. That consultation occurred about 90 minutes after the accident. In his initial examination, Dr Mundell noted that the respondent presented in mild distress, having suffered an injury to his right foot, the patella region of his left knee and multiple abrasions and several lacerations, including to his left hand and fingers.
26Dr Mundell observed the respondent's right foot to be bruised, swollen and tender. An x-ray showed a small avulsion fracture at the base of the second metatarsal bone. The x-ray was misinterpreted and a Lisfranc fracture went undetected until some seven weeks later. Dr Mundell advised that the avulsion fracture would resolve within about 6 - 8 weeks without long term complication.
27Not long after the accident, the respondent went overseas. It was while he was overseas that he experienced increasing problems with his right foot. Subsequent examinations revealed a rupture or fracture of the Lisfranc ligament of the right foot with lateral subluxation of the bone of the metatarsal region. Multiple small fracture fragments were also revealed.
28Without going into detail, the respondent has experienced considerable problems with the right foot, since the time of the accident. The orthopaedic evidence (which was unchallenged) was to the effect that his ability to lead a normal life because of his accident related foot problems, was significantly impaired.
Liability of minibus driver
29The primary judge accepted that the respondent had made earnest endeavours to be accurate and truthful when giving his evidence (Red 67T). His Honour set out his findings as to the factual circumstances of the accident as follows:
"85 I find that as the plaintiff walked towards the kerb outside Terminal 2, and before entering onto the roadway from the kerb to walk to his vehicle, he had looked to his right, and at that time he did not see any vehicles approaching from that direction. I find that he then looked away from his right, and he then looked ahead as he continued walking towards his vehicle. At the time when the vehicle made its approach on the curved roadway, and at an angle to the kerb, the plaintiff was no longer looking to his right. In my view, this explains why he had not seen the vehicle approach, notwithstanding that the plaintiff had an unobstructed view to his right. (T67.43)
86 At that time, just before stepping off the kerb, the plaintiff continued to walk forward and placed at least one, if not two, feet onto the roadway, leading with his right foot. He undertook that manoeuvre as a continuum without stopping before entering onto the roadway.
87 Exhibit "E" is a plan of the roadway in question. It identifies a curved or angled section of the roadway near traffic islands at the location of the boom gate. The photograph comprising Exhibit "F" assists in understanding the plaintiff's evidence that the roadway was curved at one point.
88 That evidence assists in assessing the plaintiff's evidence that he looked to his right with an unobstructed view and saw no vehicles approaching before he commenced to cross onto the roadway. When the location of the traffic island is considered, it is apparent that vehicles entering the Terminal roadway to get to the kerbside would have to be driven at an angle to the kerb in order to get to the kerbside. In my view, this explains why the plaintiff did not see the vehicle that hit him until immediately before impact when it was too late for him to stop or step back because his legs were in motion. It also suggests that in the moment between when the plaintiff looked away from his right and when he was hit, the vehicle had approached relatively quickly, although on the evidence its actual speed is not capable of being estimated." (Red 69R-70Q)
30Based on those findings of fact, his Honour concluded that the driver of the white minibus was negligent (Red 71-72)in the following respects:
(i) Failed to anticipate that the respondent might walk from the kerb into the path of the minibus.
(ii) Failed to brake earlier than he did.
(iii) Failed to sound his horn to warn the respondent of the approach of the minibus.
(iv) Drove towards the kerb outside Terminal 2 rather than veering away from the kerb in case the respondent stepped onto the roadway as he approached.
31The appellant's submission as to liability was relatively simple. It was that the findings made by his Honour as to the factual circumstances of the accident were not open. It submitted that for the accident to have occurred in the way described by the respondent, the minibus must have been travelling at a very slow speed, sufficient for the driver to have brought it to a halt so that the left, nearside front wheel was positioned on the respondent's right foot. The plan, exhibit "E", with its photographs made it clear (and this was confirmed by the respondent's evidence) that the respondent had an unobstructed view for at least 25 metres to his right. On the respondent's evidence, as he approached the kerb he did not stop but slowed down, looked to the right and continued walking onto the road. He had not completed two paces when the collision occurred. On that scenario, the minibus must have been only 2 or 3 metres away at the time when the respondent stepped onto the roadway. Had the respondent looked to the right when he said he did, he must have seen the minibus.
32The appellant submitted that the overwhelming inference is that the respondent did not look to the right at the time when he said he did, or if he did, he did not properly look. It was on that basis that the appellant submitted that crucial findings of the primary judge were glaringly improbable and should not be accepted. These were the findings that at some time "before" entering the roadway, the respondent had looked to his right and that at that time had not seen the white minibus so that between then and when the respondent stepped onto the road, the minibus had "approached relatively quickly" and that this explained why the respondent had not seen it. The appellant submitted that this was the purport of pars [85] and [88] of his Honour's judgment (Red 695X, 705Q).
33The appellant submitted that his Honour's findings were not in accordance with the evidence and were in fact inconsistent with the evidence. It submitted that those findings could not stand.
34I agree with that part of the appellant's submissions. This is one of the situations identified in Fox v Percy [2003] HCA 22; 214 CLR 118. It was not a case where documentary or objective evidence pointed to a conclusion different to that arrived at by the trial judge, but was a case where the only evidence on the subject pointed to a different conclusion.
35The appellant submitted that because the minibus was there to be seen had the respondent looked, no liability should be found against the Nominal Defendant. Such a conclusion does not follow. If the minibus was there to be seen by the respondent had he looked, the respondent was also there to be seen had the driver of the minibus been keeping a proper lookout. This is particularly so when the evidence was that there were no other pedestrians in the vicinity. In that regard, the particulars of negligence found by the primary judge at Red 71-72 are not applicable. The basis for a finding of negligence against the minibus driver is that he failed to keep a proper lookout. The particulars of negligence identified by the primary judge comprise actions which the minibus driver could have taken had he seen the respondent. The strong inference from the evidence, including the comment attributed to the driver that he did not see the respondent but not dependent upon it, is that the driver was not keeping a proper lookout.
36The obligations of a driver in such circumstances were recently restated in Warth v Lafsky [2014] NSWCA 94 by McColl JA (with whom Preston CJ of LEC and Tobias AJA agreed) where her Honour said:
"55 The principles concerning the duty of care a driver owes to other road users, and those germane 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."
56 Notwithstanding the conclusion in Derrick v Cheung [2001] HCA 48; 181 ALR 301, it is accepted that drivers must take into account the possibility of careless behaviour by pedestrians and the fact that they are in charge of frequently lethal machines: Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 (at 418) per Mahoney P; Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249 (at [16] - [17]) per Emmett JA (Ward and Gleeson JJA agreeing). A greater standard of care is required of motorists when young children are in the vicinity of a road, or reasonably expected to be in the vicinity: Gunning v Fellows (1997) 25 MVR 97 (at 98) per Beazley JA (with whom Mason P and Cole JA agreed); Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 (at [87]) per McColl JA (Macfarlan JA agreeing). Motorists should "exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections": Turkmani v Visvalingam [2009] NSWCA 211; (2009) 53 MVR 176 (at [28]) per Hodgson JA (Beazley and McColl JJA agreeing)."
37In this case had the driver of the minibus been keeping a proper lookout, he would have seen the respondent striding towards the kerb and could have taken any one of the steps identified by the primary judge, all of which would have avoided the accident, i.e. apply his brakes, sound his horn or steer away from the kerbside lane.
38Negligence was clearly established against the driver of the minibus. That part of the appellant's appeal should be dismissed.
Contributory negligence
39It was the appellant's submission that the primary judge erred in assessing contributory negligence against the respondent at 20 percent. It submitted that an appropriate apportionment which had regard to the culpability and causal potency of the respondent's conduct insofar as it contributed towards the accident, would be 60 percent.
40In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 529 (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) said in relation to apportionment of liability:
"8 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 p 201. Such a finding, if made by a judge, is not lightly reviewed."
There have been many other decisions to similar effect.
41That having been said, there were as indicated in the analysis of primary liability, errors in fact finding made by the primary judge which affected his assessment of contributory negligence. This is clear from [103] of the judgment (Red 74N) where his Honour said:
"105 ... I do not accept that the plaintiff had not properly kept an initial lookout. This is because I accept that he had first looked to his right and saw no vehicles approaching in the kerbside lane as he moved to the edge of the kerb to the point where he intended to enter upon the roadway. ..."
42There were also the factors identified at [112] (Red 76N-V). There his Honour said:
"112 In contrast, to the plaintiff's actions, there were successive failures on the part of the driver of the unidentified vehicle to adhere to the standard of reasonable care. These failures were, in order, whilst driving, failure to have regard to the plaintiff's direction of travel towards the roadway, failing to steer a course away from a potential collision with the plaintiff, changing direction in an angled manner towards the kerb and driving almost in the gutter, failing to observe that the plaintiff was not looking to his right as the vehicle approached, failure to adjust the speed of the vehicle to avoid a collision and failure to stop his vehicle in time to avoid a collision. These failures all occurred simply because the driver did not see the plaintiff in circumstances where he ought to have done so. ..."
43As earlier indicated, these matters do not constitute separate instances of negligence. The relevant particular of negligence was (as his Honour appreciated) a failure on the part of the driver to keep a proper lookout. The other matters referred to by his Honour were actions which the driver could have taken to avoid the accident had he been keeping a proper lookout. They were not "failures" on the part of the driver, but rather illustrate that there were available to the driver a number of options which could have been taken to avoid the accident had he been keeping a proper lookout.
44Accordingly, as well as errors in the fact finding process, his Honour took into account irrelevant considerations when considering the apportionment of liability between the respondent and the driver of the minibus. In those circumstances, this Court is able to re-exercise the discretion.
45The exercise of the discretion was considered by Basten JA in a similar factual context in Gordon v Truong; Truong v Gordon [2014] NSWCA 97 at [13] where his Honour said:
"Relevant principles
13 The assessment of contributory negligence is to be conducted in accordance with the requirements of s 138 of the Motor Accidents Compensation Act 1999 (NSW). This provision, relevantly, adopts two principles. The first is that "damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case": s 138(3). That language reflects the standard applied by the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1).
14 Secondly, the Motor Accidents Compensation Act requires that the "common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section": s 138(1). The reference to the common law may be put to one side: apportionment of liability on account of contributory negligence is a creature of statute in this jurisdiction. Importantly, however, the "enacted law as to contributory negligence" picks up Divs 2 and 8 of Pt 1A of the Civil Liability Act 2002 (NSW) which expressly apply to motor accidents: s 3B(2)(a). Division 8 includes s 5R which is in the following terms:
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.
15 The principles applicable in determining whether a person has been negligent include the "General principles" set out in s 5B. Applying these principles as required by the statute is not without its difficulties. Where the plaintiff and defendant are both drivers in control of similar vehicles, questions of negligence and contributory negligence can readily be assessed according to the same broad standards. However, where the plaintiff is a pedestrian and the defendant a driver of a vehicle, the negligence of the defendant is to be assessed against the risk of harm to the plaintiff, while the contributory negligence of the plaintiff is, generally, to be assessed against a risk of harm to him - or herself. (It is possible that the carelessness of a pedestrian may create a risk of harm to other drivers, for example, if a car is forced to swerve to avoid a pedestrian, but that is not this case.) The harm which the motor vehicle is likely to cause to the pedestrian is, on one view, precisely the same harm which should have been foreseeable to the pedestrian. However, the precautions which each should reasonably take will be different in kind.
16 The purpose of s 5R may be gleaned from the recommendations in the Review of the Law of Negligence: Final Report (September 2002) which are, in this case, reflected in the statute. At par 8.7, the Report stated:
"Should the law allow people to take less care for their own safety than it requires others to take for their safety? ... Another way of putting this question is to ask whether the standard of care applicable to victims of the negligent conduct of others should be different from that applicable to the negligent person merely because they are victims?"
17 The Report then stated at par 8.11:
"Leading text book writers have asserted that in practice, the standard of care applied to contributory negligence is lower than that applied to negligence despite the fact that, in theory, the standard should be the same. There is a perception (which may reflect the reality) that many lower courts are more indulgent to plaintiffs than to defendants. In some cases judges have expressly applied a lower standard of care for contributory negligence. This may result, for example, in motorists being required to keep a better lookout than pedestrians. In the Panel's view, this approach should not be supported."
18 The penultimate sentence was supported by reference to three judgments in the High Court and two in the South Australian Supreme Court. The comments of Murphy J in Watt v Bretag (1982) 56 ALJR 760 at 762-763, are in point. Referring to the South Australian equivalent of the 1965 Act, s 9(1)(b), Murphy J stated:
"The speed and size and weight of the vehicles in contributing to the severity of the damage should be taken into account, not merely those factors which contributed to the collision. ... For example, where the collision is between a semi-trailer or other juggernaut vehicle and a pedal bicycle, even if the driver and the plaintiff rider each made an equal contribution to causing the collision, it would generally be just and equitable to reduce the plaintiff's damages not by half, but by much less. Similarly, excessive speed may greatly increase the damage, even though the fault of the other driver was the major cause of the collision."
19 The application of the principles in the present case is complicated by the fact that, the appellant having admitted liability, there was no proper consideration of the nature of his breach of duty. Counsel for the plaintiff submitted that such a consideration was unnecessary given the concession: however, that is not correct. If a defence of contributory negligence requires an apportionment of liability based upon the responsibility of each for the accident, the comparative exercise cannot be adequately carried out unless the degree of responsibility of the driver is assessed. On the other hand, what the plaintiff could fairly submit was that because the proof of contributory negligence lay with the driver, who had an interest diminishing the degree of his responsibility, to the extent that he did not undertake that task, he could not be heard to complain if the assessment of contributory negligence was less than it should have been.
20 Apart from the mistake in relation to the traffic lights, the responsibilities of each for the accident fell within a similar range. Thus, each should have seen the other in ample time to take evasive action. It might have been arguable that the negligence of the plaintiff was greater because it should have been easier to see a large van approaching than for the driver to see a pedestrian against a background of parked cars. On the other hand, the driver's evidence did not allow much room for leniency: the proper inference was that he was simply not looking.
21 In terms of possible responses, the culpability of the driver was probably greater. If he had seen the plaintiff in reasonable time, he could either have slowed down or changed lanes so as to leave ample room to avoid the plaintiff. The options open to a pedestrian may be more limited."
46While it may be said that the negligence on the part of the respondent and the driver of the minibus was of a similar kind, i.e. neither kept a proper lookout, other considerations are also relevant. A failure by a pedestrian to keep a proper lookout might result in injury to himself. A failure by a driver of a large vehicle, such as a minibus, might result in not only injury to himself, but serious injury or death to an innocent party. In that regard, moral culpability weighs more heavily against a driver than against a pedestrian, even though their actions may, to a similar degree, have contributed to the accident. That has been the approach traditionally adopted by the courts.
47In Pennington v Norris [1956] HCA 26; 96 CLR 10 the court (Dixon CJ, Webb, Fullagar and Kitto JJ) made similar observations at p16 in an analogous case. There both the driver and the pedestrian failed to keep a proper lookout but the driver was travelling at an excessive speed:
"15 Here, in our opinion, the negligence of the defendant was in a high degree more culpable, more gross, than that of the plaintiff. The plaintiff's conduct was ex hypothesi careless and unreasonable but, after all, it was the sort of thing that is very commonly done: he simply did not look when a reasonably careful man would have looked. We think too that in this case the very fact that his conduct did not endanger the defendant or anybody else is a material consideration. The defendant's position was entirely different. The learned judge found only that he was negligent in not keeping a proper look-out, but there were several other important elements in the case, as Mr Wright pointed out. We think, indeed, that the equal allocation of responsibility by his Honour must have proceeded from an overlooking of these elements. The first matter is his speed. It could not on the evidence have been found to be less than thirty miles per hour. Again, there was a large number of people in the vicinity ... It was a misty night, and the road was wet. Visibility must have been impaired by these factors, and it was further impaired by mistiness on the inside and outside of the windscreen. To drive at thirty miles per hour in a town at night under these circumstances seems to us to have been to do an obviously dangerous thing, and to have amounted to negligence of far greater culpability than anything that can possibly be attributed to the plaintiff."
48In Hawthorne v Hillcoat [2008] NSWCA 340 Hodgson JA (with whom Ipp JA and Gyles AJA agreed) said at [47]:
"... The standard in respect of a driver ... to be able to take reasonable steps to react to events is itself a standard of reasonable skill and care; and although the standard of reasonable skill and care required of drivers is a high standard (because cars are so dangerous, and can so easily cause serious injuries), it is not a standard measured by success or perfection assessed with the wisdom of hindsight. "
49Taking those matters into account, and having particular regard to the findings of fact available on the evidence, I would apportion liability as to 65 percent against the Nominal Defendant and 35 percent against the respondent.
Whether there was due inquiry and search for the identified vehicle
50The evidence on this issue was:
"Q. Dr I got you to the position where you were on the roadway, having pulled your foot out from under the wheel. The little bus is stopped where you've described it and you said a man came running over?
A. That's correct.
Q. Did he have anything with him?
A. No.
Q. When he arrived did he have a conversation with you?
A. He said "I did not see you".
Q. Then did he say anything further concerning your health?
A. He saw the - I'm not - I can't recall correctly what words he used but he saw the blood and he - and whether he said "I'm going to get you tissues" or he just went and got them, I can't recall but he ran back to the bus to get a box of tissues.
Q. Shortly afterwards did he return?
A. He returned with the box. Gave me some tissues.
...
Q. And while you were there on the ground, when this was going on did any passers by come to give you any assistance?
A. No. But when I stood up there were a few people who looked at me as they walked past but that was all. There was nobody when I was on, on the ground that gave me assistance.
Q. Did any of the people who passed by after you were on the ground speak to you?
A. No. No-one spoke to me.
Q. So by the time the little bus driver returned with his tissues were you still on the ground?
A. No.
...
Q. Age roughly? Are you able to help at all?
A. Dark hair, in his thirties. He was not wearing a uniform.
Q. So he brought some tissues?
A. Yes.
Q. You were then in what position?
A. I was standing and a little groggy.
Q. From the position where you were standing, could you see any number plate?
A. No I could not.
Q. Did you use the tissues?
A. Yes, I used the tissues. I bent down and started to wipe away the blood.
...
Q. So while your attention was down towards your feet wiping off the blood, what happened to the bus driver?
A. We - he asked me if I was okay. I said "yes" and then he ran back to the bus and when I started wiping more. The next time I looked up he wasn't around.
Q. Could you see where the bus had gone then?
A. Just was gone. From my memory he was just gone.
Q. The exchange between the two of you did he ever tell you his name?
A. No, he never told me his name.
Q. Did you ever ask for his name?
A. No, I did not ask for his name.
...
Q. Is there any reason why you didn't ask for his name at the time?
A. I, I was, I was groggy and I didn't think of it at that moment.
Q. Had he given you any indication that he proposed just to leave, that he told you "I'm going to leave now" or anything of the sort?
A. No he just ran back to the bus.
Q. Did you know why he was going there?
A. I have no idea.
...
Q. You've said that you were groggy, can you describe please what you mean by that?
A. I was confused about what happened in a sense that I just wondered what happened, that's all I thought at the time." (Black 20V - 23F)
"Q. By the time he came to you with tissues, were you standing up at that stage?
A. Yes.
Q. So you were mobile?
A. I was standing, yes.
Q. And he comes back and he stands with you -I withdraw that - when he first came round to speak to you, how long was he standing there with you before he went back to his van to get the tissues?
A. No time, not time at all. He ran back because he saw I was bleeding.
Q. And I take it he was there for a short time before he returned with the tissues?
A. That's correct, a very short time.
Q. And then there was a further discussion that you had?
A. No discussion, just, "Are you okay?" And I said, "Yes." And then he ran back to the bus and was gone." (Black 74K - S)
"Q. You were standing up and you were mobile?
A. I was standing up but I was groggy.
...
Q. How long had you been standing up when he came back with the tissues?
A. A few seconds maybe. Maybe ten seconds, whatever time it took for him to run back to the van when he ran back is when I started to get myself up and then he came running back with the tissues - five, ten seconds.
Q. He gave you the tissues?
A. That's correct, that's correct.
Q. And there was a further conversation that you had with him, correct, where he asked you are you okay?
A. That's all he did ask, yes.
Q. And then he returned to the van?
A. Yes.
Q. As I understand your evidence, you were still standing there when the van drove off?
A. Yes but I actually did not see him drive, drive off because what I was doing was wiping the blood at that particular moment and looked up and the van was gone." (Black 92L - V)
"Q. When you agreed with the proposition that there was an opportunity to get details of the van, is that an opportunity you agree was available to you at the time or is it a view that you take now?
A. At the time, I didn't think I had an opportunity. I take that view now that I had about a minute, a minute and a half I could have asked him but I was more concerned with my injuries." (Black 99W - 100B)
"Q. When you were still at the airport did you think of going and contacting airport security and telling them what had happened?
A. I was concerned about my injuries and having them looked at first.
Q. But can you answer the question, did it occur to you at that stage to go back to airport security or someone in some official capacity and tell them what had just happened?
A. No.
Q. Did you think about, after you had been to the doctor and been treated, did you think of going to the police or back to the airport and to tell them what had happened?
A. No, because I only had a minor injury according to the doctor.
Q. So is the reason, at that stage why you didn't go and report it any further, was because you considered you had a minor injury? A. Yes." (Black 106B - J)
"Q. When you were being asked about your state after this impact, you used the word "groggy" a number of times?
A. Yes.
Q. Can you just explain what you mean by the word "groggy"?
...
A. I might have been using "groggy" in, in the wrong term. In my knowledge in American terms, it's, it means being a little woozy or - and it actually relates to be - when you're in shock, you become a little woozy on your feet. Is woozy a good word? I don't even know if woozy is a good word." (Black 131M - T)
51In his statement to the insurance investigator on 27 March 2009, the respondent said the following (Blue 20P):
".... and the fact was I didn't think it was serious and I didn't take ah, I mean the other thing was ah to be honest, I was somewhat in shock but during that period I looked back on it because I, you know, as you probably know I'm a lawyer and I'm, I'm amazed if I give anybody advice I would take down the licence plate, the driver's licence and everything. I just didn't even think about it. I just thought it was this minor, it was a minor injury and I wasn't hurt so, ah, I just walked away and actually I didn't even think about it, ah, for a while until I really found out later on, weeks later that it was really serious."
52It was common ground that five or six days after the accident, the respondent departed for the USA and the United Kingdom. This was a trip which had been arranged well before the accident. It was not disputed that the respondent was overseas for six weeks and that during this period that his foot became swollen and significantly deteriorated. It was not submitted by the appellant that any special weight should be given to the fact that the respondent was a lawyer.
53In October 2008 the respondent's solicitors wrote to Qantas Airways and the Sydney Airport Corporation requesting the provision of any CCTV footage of Terminal 3 in relation to the accident. The response of both Qantas and Sydney Airport Corporation was that CCTV footage was retained for 28 days only.
54The primary judge was satisfied that the provisions of s34(1) of the MAC Act (which was the relevant section at the time that the accident occurred) had been met. That section provided:
"34(1) An action for the recovery of damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle on a road in New South Wales may, if the identity of the vehicle cannot after due inquiry and search be established, be brought against the Nominal Defendant."
55His Honour's reasons for reaching that conclusion were:
"129 In those circumstances, the plaintiff had no notice that the driver was about to leave the scene of the accident, contrary to his legal obligation to remain at the scene to assist and to provide particulars. The plaintiff only ascertained that the driver had in fact driven away from the scene after he had looked up from tending to his bleeding wound.
130 At that time it was too late for the plaintiff to do anything about identifying the vehicle or its driver. Furthermore, there was no evidence that persons who had been passing by at the time of the collision had remained at the scene and could have been in a position to take a note or an identifying photograph of the vehicle, or to record relevant identifying details from the driver.
...
132 In my view, at the time the plaintiff realised that the vehicle had left the scene he was in reality faced with the prospect of what Barwick CJ described as taking steps that would amount to no more than an unproductive ritual: Harrison v Nominal Defendant (1975) 7 ALR 680; 50 ALJR 330, at p 681- 682; p 331. In that sense, the trail was already effectively cold and without clues as to the identity of the vehicle or the driver, especially given that the events took place at an airport terminal where the pedestrian and vehicular traffic was very likely to have been transitory. This was unlike a setting with shops, houses or businesses located in the vicinity, where more permanently located persons might have been able to make a relevant observation as to the identity of the vehicle.
133 In those circumstances, like in the case of Harrison v Nominal Defendant where the driver had left the scene, I consider that there was nothing which the plaintiff or the police or anyone else could have done that was likely to establish the identity of the driver that had caused the collision ..." (Red 80I - 81H)
56The appellant submitted that the sequence of events which involved the driver of the minibus speaking to the respondent on two occasions and moving backwards and forwards between him and the minibus gave the respondent ample opportunity to obtain the driver's name and address and the registration number of the minibus. The appellant submitted that had the respondent done so, the Nominal Defendant would not have been involved in the proceedings. The appellant submitted that his Honour erred in finding that a reasonable person in the position of the respondent would not have ensured that he obtained the registration number of the minibus and/or details of its driver as soon as possible after the accident, but in any event before the minibus was driven away.
57The appellant submitted that the respondent's assertion that he was "groggy" was not a sufficient answer to that proposition. In that regard, the appellant relied upon what the respondent said to the investigator in March 2009 (see [51] hereof). The appellant submitted that an objective analysis of that answer would lead inevitably to the conclusion that the respondent had ample opportunity to record the details of the unidentified minibus and its driver, but simply did not think to do so.
58The appellant submitted that the other conclusion to be drawn from that answer was that the applicant would not have obtained the details of the vehicle or its driver, even if the driver had not departed unexpectedly. This was because the respondent regarded the incident as very minor and did not think it was necessary to record the driver's details. That would not have changed, even if the driver had remained at the scene longer than he did.
59The appellant submitted that if it were unsuccessful in that first submission, it ought still succeed because the primary judge was mistaken in finding that after the parties had left the accident scene without the minibus or its driver being identified, "the scent became cold". The appellant submitted that the request for CCTV film took place more than four months after the accident and was made in circumstances which did not satisfy the "due search and inquiry" test. It submitted that the likely existence of CCTV film of the area where the accident occurred should have been obvious from the time of the accident. It submitted that the probabilities overwhelmingly favoured that this part of the airport would have been covered by CCTV cameras.
60In relation to this submission, the appellant relied upon the following failures by the respondent:
(i) The inquiry was made far too late in that the CCTV film should have been sought within one month after the accident.
(ii) The request by the respondent's solicitor nominated as the location of the accident an area outside Terminal 3 instead of Terminal 2.
(iii) The inquiry directed to Sydney Airport Corporation specified a wrong date of the accident.
The appellant submitted that had the CCTV film been sought promptly and accurately, it was reasonable to infer that the identity of the minibus might well have been established.
Consideration
61It was agreed by the parties that a helpful statement of principle in relation to s34(1) MAC Act was set out in Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380. In that case, a pedestrian was struck by a vehicle while crossing a city street. He had a short conversation with the driver of the vehicle who was allowed to leave the scene without providing particulars. The pedestrian then proceeded to go to a scheduled appointment in the city. The evidence was that it was only after he had attended the appointment, that he realised that he had sustained injuries which affected his wellbeing. It was then that he put steps in train to investigate the issue of liability.
62Sackville AJA (Basten JA and McColl JA agreeing) held that:
60 ... "due" inquiry and search required the respondent to have taken steps at the time of the accident to obtain the registration details of the vehicle that struck him."
This was because there was no difficulty in identifying the vehicle or the driver and because the pedestrian appreciated immediately after being struck that he had sustained some injury.
63An important point in Meakes, which was confirmed in Nominal Defendant v Browne [2013] NSWCA 197, was that when considering s34(1) the question was "not whether it was "understandable and excusable" for the respondent not to have recorded the vehicle identification details immediately after the accident", nor whether it was "unreasonable" for the respondent to have allowed the driver to leave the scene without taking his or her details, but rather "whether the respondent had shown that the identity of the vehicle would not be established after due inquiry and search".
64An important consideration in the interpretation of s34(1) is the meaning of "due". In Cavanagh v Nominal Defendant [1959] HCA 57; 100 CLR 375 Dixon CJ (with whom Kitto, Taylor, Menzies and Windeyer JJ agreed on this point) said at 380:
"There are two elements in the condition that the identity of the motor vehicle cannot after due inquiry and search be established. One is that there must exist an inability to establish the identity. The other is that there must have been a due inquiry and search. The first relates to the plaintiff and that part of the condition must be satisfied sufficiently if the plaintiff and those acting for him or on his behalf or in his interest in prosecuting the claim are unable to "establish" the identity of the vehicle.
The second element or part of the condition stands on a different footing. It is not satisfied unless due inquiry and search has been made. Doubtless the failure of the draftsman of the provision to say by whom it is to be done was deliberate. For the situations to which the provision might be expected to apply would vary infinitely in their nature and circumstances. But the word "due" brings with it the circumstances of the case as the test of what inquiry and search will suffice. And it is the circumstances of the case of the person suffering bodily injury or, where death has been caused, of the claimant that must be considered. It is the word "due" which connects the inquiry and search with the person injured where, as here, the claim is for bodily injury. You must look at the circumstances in which he or she was placed and, bearing in mind that the question is one affecting that person's rights, say whether in those circumstances enough was done by or on behalf of or in the interest of that person to warrant the description "due" inquiry and search."
65A statement to similar effect was made by Barwick CJ (McTiernan, Stephen, Mason and Jacobs JJ agreeing) in Harrison v The Nominal Defendant [1976] 50 ALJR 330 at 332. That was a case which was factually similar to the present case in that the driver who had caused injury drove away without warning from the scene of the accident. Barwick CJ said:
"It is a mistake in my opinion to divorce the words "after due inquiry and search" from the total expression of the condition on which the action against the Nominal Defendant may be brought. Whether or not the tribunal of fact is satisfied that the identity of the vehicle cannot be established after such inquiry and search of which the circumstances admit will depend on all the circumstances of the case. An affirmative finding that the identity of the vehicle cannot be established in terms of the subsection is, in my opinion, a finding which a Court of Appeal must rarely be able to set aside as erroneous.
The instant case is an example of what I have so far said. Nothing which the plaintiff or the taxi driver or the police could have done was likely to enable the identity of the vehicle to be established. This is not to say that where there is available a clue to the identity of the vehicle, it ought not to be followed up or the trail allowed to grow cold; but where there is no clue of any kind, it seems to me that it is open to a tribunal of fact to find in the circumstances of the case that the identity of the vehicle cannot be established as in the terms of the subsection."
66In Oztan v NSW Ministerial Corporation [1995] 23 MVR 259 Kirby P said in relation to the word "due":
"The questions then arise, what is meant by due inquiry and search and is there any evidence on which reasonable men could find that due inquiry and search had been made? I think the due inquiry and search means such inquiry and search as is reasonable in the circumstances. To be reasonable it must be as prompt and thorough as the circumstances will permit. It must be such as a reasonable man who had recourse only against the actual offender would make if he were desirous of identifying the offender in order to commence proceedings against him. The inquiries must if possible be set on foot before the scent is cold and they must be made by all such means as are reasonably practicable in all quarters in which there is a reasonable prospect of obtaining useful information."
67Giving proper weight to the word "due" in s34(1) I am satisfied that "due" inquiry and search did not require the respondent to have taken steps at the time of the accident to obtain the registration of the minibus, nor the identity of the driver. An analysis of the particular circumstances of this case supports that conclusion.
68The respondent had about a minute and a half to obtain the relevant information before the driver left the scene. Quite understandably the respondent was "groggy" and in "shock" for much of that one and a half minutes immediately following the accident. From where he was positioned, the respondent was not able to observe the number plate of the minibus. This was not a situation such as occurred in Meakes where the injured party left the scene in order to attend an appointment, thereby allowing the opportunity to obtain the relevant details to be lost. Such a choice was taken away from the respondent by the actions of the driver.
69Although he was bleeding, the respondent did not immediately realise that he had suffered anything other than a superficial cut. This is why when asked by the driver whether he was okay, he answered in the affirmative. It is clear that the respondent at that time considered that any injury which he might have suffered was trivial. Given the respondent's mental state of being groggy and in shock during the one and a half minutes available to him, I am satisfied that "due inquiry or search" did not require him to record the registration number of the vehicle or the identity of the driver during that time.
70Contrary to the appellant's submissions, the circumstances of this case are significantly different to those in Meakes. In this case the respondent was not focused on attending an appointment so that he rapidly left the scene of the accident. Rather, any realistic opportunity which he had to identify the vehicle or the driver was removed by the actions of the driver. The apparent injuries of the respondent were less than those in Meakes where the pedestrian was thrown into the air, landing on his right shoulder, elbow and knee so that he suffered immediate pain and was only able to limp away from the scene of the accident. In this case, it is readily acceptable that during the approximate minute and a half available, the respondent did not focus on obtaining information concerning the vehicle and driver because of his groggy and shocked state. Unlike the plaintiff in Meakes the respondent had not previously been involved in a motor vehicle accident of this kind.
71It is not to the point to submit that even if the driver had remained, it was unlikely that the respondent would have sought information from him. That is not the correct inquiry. The actions of the driver in leaving the scene so quickly after the accident, effectively prevented any inquiry and search being carried out. For the appellant to succeed on this part of its argument, the Court would have to be satisfied that during the approximate one and a half minutes available to him, the appellant should have obtained the relevant information either from the driver or by his own inspection. For the above reasons, I am satisfied that in the circumstances of this case due inquiry and search did not require that of the respondent.
72That does not end the matter. The appellant submitted that even if due inquiry and search immediately after the accident was precluded by the actions of the driver, that concept required that access to the relevant CCTV footage be requested within 28 days. Clearly that did not happen. Does that mean that the precondition of due inquiry and search, required by s34(1) before proceedings can be commenced, has not been satisfied?
73As was said in Meakes:
"71 In assessing the "due inquiry and search" that should have been undertaken in this case it is appropriate to treat the respondent as a reasonably informed member of the community."
74When considering the knowledge of a "reasonably informed member of the community" one has to look at the particular circumstances of the proposed plaintiff and assess his or her actions prospectively, not in hindsight. To do otherwise would not be to give proper effect to the word "due", as explained in Cavanagh, Harris and Oztan.
75There are a number of difficulties with the appellant's submission. It is by no means clear that a "reasonably informed member of the community" would be expected to know in May 2008 that CCTV camera footage taken at the airport would be kept for only 28 days. The respondent had seen a doctor and been told that he had only a minor injury (Black 106H). He was due to go overseas for six weeks within five days of the accident occurring. In those circumstances, did "due" inquiry and search require him to have consulted solicitors within the five days available to him, or to have made his own inquiries during that time of the airport authorities? If so, this might have meant abandoning his long planned overseas trip. Certainly if he made the inquiries himself he would need to remain in Australia to receive replies and act upon them if they were positive. Even if he had retained solicitors, he might need to remain in Australia to provide instructions or at least be readily accessible while overseas.
76All of this presupposes that if an inquiry of the airport authorities had been made within 28 days, there would have been CCTV film available which covered this particular part of the airport. It also presupposes that the CCTV cameras would have been so positioned and that the film would have been of such quality as to provide an image of the registration number of the minibus. There was no evidence on those matters.
77Such an approach places the due inquiry and search test at too high a level and is contrary to the "less stringent interpretation of s34 and its predecessors" required by recent cases. Moreover, I do not accept that a reasonably informed member of the community would have been aware in May 2008 that CCTV footage at a location such as an airport would only be kept for 28 days.
78For that reason and because of his particular circumstances, I am not satisfied that due inquiry and search required the respondent to make an inquiry concerning CCTV footage at the airport within 28 days of the accident and most particularly, in the five days between the accident and when he departed for overseas. This is particularly so when at that time the respondent believed that he had suffered only a minor injury. I am also mindful of the qualification expressed by Barwick CJ in Harris to the effect that "a Court of Appeal must rarely be able to set aside as erroneous" an affirmative finding that the identity of a vehicle cannot be established in terms of the subsection by a first instance judge.
Conclusion
79It follows from the above that the appellant's appeal in relation to primary liability fails and should be dismissed. The appellant's appeal against apportionment should be allowed. The appellant's appeal against the finding that due search and inquiry took place should also be dismissed. The practical effect of that outcome is that the judgment in favour of the respondent should be reduced to $266,939.
80The orders which I propose are:
(1) The appeal is allowed in part.
(2) Other than the orders for costs, the judgment entered by Judge Levy SC in favour of the respondent against the appellant in the sum of $328,540 is set aside and in lieu thereof, judgment is entered in favour of the respondent in the sum of $266,939.
(3) The parties are to file agreed Short Minutes of Order as to the costs of the appeal within 7 days. In default of agreement, the parties are to file and serve proposed orders and short submissions not exceeding 3 pages, and any evidence upon which they wish to rely within 21 days.
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Decision last updated: 03 July 2014