Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Lyons v Fletcher [2014] NSWCA 67
• Hearing dates: 14/02/2014
• Decision date: 18 March 2014
• Before: Macfarlan JA at [1]; Emmett JA at [9]; Gleeson JA at [61]

Decision

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

[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 - road accident cases - liability of drivers of vehicles - failure to look-out - pedestrian accidents - whether defendant should have had headlights on high beam - whether breach of duty - whether causation established
• Legislation Cited: Civil Liability Act 2002 (NSW), s 5D
• Cases Cited: Derrick v Cheung [2001] HCA 48; 181 ALR 301; South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; 55 NSWLR 113; Marien v Gardiner [2013] NSWCA 396
• Category: Principal judgment
• Parties: Suzanne Therese Lyons (Appellant); Clay Fletcher (Respondent)
• Representation: Counsel: L King SC with C Hickey (Appellant); K Rewell SC with J Turnbull (Respondent); Solicitors: Everingham Solomons (Appellant); McInnes Wilson Lawyers NSW (Respondent)
• File Number(s): CA 2012/377239
• Publication restriction: No

Decision under appeal

• Date of Decision: 2012-11-09 00:00:00
• Before: Mahony SC DCJ
• File Number(s): 10/2633476

Judgment

1 MACFARLAN JA: I agree with Emmett JA that the appeal should be dismissed with costs and, subject to the following, agree with his Honour's reasons.

2 Although the breach was not causative of Ms Lyons' injuries, for the following reasons Mr Fletcher was in my view in breach of duty in not having his vehicle's headlights on high beam immediately prior to the accident.

3 The distance between the two well-lit roundabouts was agreed to be about 425 metres. Mr Fletcher described that stretch of the road as being in "complete darkness" as he drove along it (Transcript p 87). He said in cross-examination that he had previously seen people walking at night on the strip of concrete in the middle of the road (Transcript pp 88-9), although in re-examination he qualified the impression created by that evidence by saying that he had not seen such people for "years". Nevertheless, there was thus a possibility of which he was aware that there might be people on or near the road, even in the middle of the night. Indeed, the reason he gave for not stopping after the accident was that he did not know that he had hit someone but thought that children (presumably at or near the roadside) had thrown a brick or rock at his vehicle. Other possible hazards would have included material on the roadway such as might have fallen off a truck, an animal crossing the road or a pothole in it.

4 On low beam, Mr Fletcher's headlights illuminated the roadway ahead for about 25 metres. On high beam, the distance was between about 70 and 90 metres. A driver is not expected to know precise distances such as these but he or she is expected to know, as Mr Fletcher accepted that he did, that putting headlights on high beam adds considerably to the extent of illumination in front of a vehicle. Likewise, it is commonsense that a driver of a vehicle travelling between 55 and 60 kilometres per hour could not expect to bring the vehicle to a halt within 25 metres of the point at which he or she was when a hazard first came into view.

5 In these circumstances, a reasonable driver in Mr Fletcher's position would have realised that, if he or she had the vehicle's headlights on low beam, hazards might be encountered on the roadway which might not be able to be avoided by stopping the vehicle. That a driver is in such a position is not necessarily indicative of negligence on his or her part as the proposition that "a person travelling in the dark must be held to be negligent if he is driving at such a speed that he is not able to pull up safely" was rejected by this Court in South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; 55 NSWLR 113 at [61].

6 The question however remains whether the plaintiff has established that a defendant who owed a duty of care has in all the circumstances not acted in accordance with reasonable care (see Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]). Consideration of the steps, if any, that a reasonable person in the position of the defendant would have taken in response to an identified risk must take account of the ease with which the steps might have been taken. Here the simple step of flicking a switch to change the headlights from low beam to high beam would have considerably reduced the risks inherent in the defendant's driving. He was driving with his headlights on low beam at a speed that did not enable him to stop in time if a person or object on the roadway came into his vision. It is not using hindsight to conclude, as I do, that a reasonable person in his position would have had his headlights on high beam to maximise his field of vision in what the defendant accepted was a completely dark area.

7 Mr Fletcher did not suggest that the approach of oncoming vehicles inhibited his use of high beam. Rather, his explanation for not using high beam was that he was "coming into a built up area" and that it was against the law to use high beam in such circumstances. This is not a sufficient excuse. First, the built up area he was referring to was still some distance away at the time of the collision. If he had in mind also the illuminated roundabout ahead of him, that was, he said, not yet in view because the road sloped upwards. Secondly, his understanding of the law was erroneous and his ignorance cannot excuse him from acting as a reasonable person would have acted. The road rules relating to the use of high beam are referred to by Meagher JA in Marien v Gardiner [2013] NSWCA 396 at [43]. They do not preclude the use of high beam unless preceding or oncoming vehicles are within 200 metres. There was no suggestion that that was the case here.

8 The fact that Mr Fletcher may have had to flick his high beam on and off within a short period was no excuse for it not being used. Driving at night outside built up areas, reasonable drivers frequently and without difficulty engage and disengage their high beam as vehicles travelling in the same or opposite direction are encountered.

9 EMMETT JA: This appeal is concerned with the circumstances in which the appellant, Ms Suzanne Lyons, suffered serious personal injury when she was struck by a motor vehicle driven by the respondent, Mr Clay Fletcher. The accident occurred at 12.40am on 21 September 2007 on Gunnedah Road, Tamworth. Ms Lyons sued Mr Fletcher in the District Court for damages in respect of the injuries she suffered in the accident.

10 After a trial at Tamworth in September 2012, on 9 November 2012, a Judge of the District Court directed the entry of a verdict for Mr Fletcher. However, against the possibility that an appellate court might reach a different conclusion on liability, the trial judge made an assessment of Ms Lyons' contribution to her own injuries and an assessment of the damages to which she would have been entitled had she succeeded fully in her claim against Mr Fletcher. His Honour found that Ms Lyons' contribution to her own injuries would have been assessed at 75 percent and assessed her damages at $811,941.84.

11 On 4 December 2012, Ms Lyons filed a Notice of Intention to Appeal from the orders of the District Court and filed a Notice of Appeal on 7 February 2013. On 13 March 2013, Mr Fletcher filed a Notice of Cross Appeal in respect of the assessment of damages. By Amended Notice of Cross Appeal filed on 5 August 2013, Mr Fletcher purported to appeal from certain findings made by the trial judge in the course of determining liability.

The Circumstances of the Accident

12 At the location of the accident, Gunnedah Road runs generally east-west. The accident occurred between two roundabouts, which are approximately 425 metres apart. The accident occurred approximately 70 metres from the eastern roundabout. At that point, Gunnedah Road is elevated so as to pass over a railway line. The overpass in question is on the outskirts of Tamworth. While there is some residential development to the west of the overpass, the overpass itself could not be described as being in a built-up area.

13 At the relevant point, Gunnedah Road consists of four lanes, two for traffic travelling east and two for traffic travelling west. Each lane is approximately 3.95 metres wide. The east bound and west bound lanes are separated by a concrete median strip of approximately 1.2 metres. On the southern side of the roadway is a pedestrian walkway separated from the roadway by a concrete and steel barrier.

14 While there is some street lighting in Gunnedah Road between the two roundabouts, at least one of the street lights on the southern side of Gunnedah Road, close to the eastern roundabout, was not working. Each of the roundabouts is well lit.

15 At the time of the accident, Ms Lyons was in her early 30s. On 20 September 2007, Ms Lyons, together with two friends, Ms Stacey Dixon and Mr Jason Dawson, had spent the day and evening together consuming illicit drugs, as well as alcohol. The consumption of the drugs and alcohol affected the capacity of each of them to perceive and recall what actually happened early in the morning of 21 September 2007.

16 During the evening, Ms Lyons and her companions were at Mr Dawson's mother's house. Some time prior to 12.40am on 21 September 2007, the three decided to leave Mr Dawson's mother's house and walk to Ms Lyons' house. There was no evidence as to the location of either of the houses. However, it appears to be common ground that, in order to walk from Mr Dawson's mother's house to Ms Lyons' house, it was convenient to travel by way of the Gunnedah Road overpass.

17 On the evening in question, Mr Fletcher finished his shift at an abattoir outside Tamworth at about 12.30am. He drove his vehicle along Gunnedah Road towards Tamworth. The abattoir is not in a residential area and when Mr Fletcher left the abattoir, his high beam lights were illuminated. When driving through the built-up area to the west of the western roundabout, Mr Fletcher switched off the high beam lights of his vehicle. He proceeded through the western roundabout and headed towards the eastern roundabout. The speed limit at that point was 60 kilometres per hour and Mr Fletcher was travelling at between 55 kilometres and 60 kilometres per hour. As he approached the overpass, Mr Fletcher looked down at his dashboard to check whether the warning light for the driving lights on his vehicle was activated. In doing so, his eyes were diverted from the roadway for a short period of time. There is some question as to how long the period was. The trial judge found that it was "a number of seconds".

18 As Mr Fletcher's vehicle approached the overpass, Ms Lyons, who was wearing dark clothing, entered Gunnedah Road by climbing over the barrier between the pedestrian walkway and the west bound lanes of Gunnedah Road. She did so at a location where the roadway was poorly lit. She was well affected by the illicit drugs that she had consumed during the day. Having climbed over the barrier, Ms Lyons proceeded to cross Gunnedah Road generally at right angles to the road at a faster than walking pace. The trial judge found that, on the balance of probabilities, she was jogging.

19 At the point where Ms Lyons climbed the barrier and entered Gunnedah Road, she would have had the opportunity, had she availed herself of it, of observing Mr Fletcher's motor vehicle proceeding towards her from the west from a distance of well over 100 metres. However, it appears that Ms Lyons did not look to the west or, if she did, she failed to perceive the oncoming vehicle being driven by Mr Fletcher.

20 Ms Lyons crossed the two west bound lanes of Gunnedah Road, the median strip and the first, or southern-most, east-bound lane and was in the lane closest to the northern barrier of Gunnedah Road when she was struck by Mr Fletcher's vehicle. She was hit by the front of the vehicle, first near the number plate and then the near side left headlight. She was then thrown into the left-hand side of the windscreen of the vehicle, causing the windscreen to smash. At no time prior to the collision did Mr Fletcher see Ms Lyons, or anything else, on the roadway.

21 Mr Fletcher did not stop following the collision. He gave an explanation for failing to do so, which satisfied the trial judge that no inference should be drawn of any acknowledgement of guilt. His Honour found that Mr Fletcher knew that the place of the accident was one where people might be seen, even in the early hours of the morning. He was aware that things had been thrown at cars and his initial reaction was that that was what was happening and that was why he decided not to stop in the middle of the night. He subsequently went of his own accord to Tamworth Police Station and reported the fact of the collision.

The Decision of the Trial Judge

22 The primary judge found that, on low beam, the headlights on Mr Fletcher's vehicle would have illuminated the roadway ahead for at least 25 metres. Allowing for a perception reaction delay of 2.5 seconds, his Honour found that, while driving the vehicle at between 55 kilometres and 60 kilometres per hour, Mr Fletcher could have brought his vehicle to a stop within approximately 60 metres. His Honour also found that Ms Lyons was crossing Gunnedah Road at a jogging speed of approximately 3.8 metres per second, relatively directly from south to north. Accordingly, she covered a distance of approximately 15 metres on Gunnedah Road prior to colliding with Mr Fletcher's vehicle. His Honour found that it would have taken Ms Lyons between four and five seconds to cross from the southern side of Gunnedah Road to the point of collision. Finally, his Honour found that, had Mr Fletcher's headlights been on high beam, they would have illuminated the roadway ahead for a distance of between 70 metres and 90 metres.

23 The trial judge found that, by diverting his gaze from the roadway for a few seconds to his dashboard to check whether his driving lights were illuminated, Mr Fletcher drove in a manner that meant that he did not know what was happening in the vicinity of his vehicle in time to take reasonable steps to react to those events. His Honour found that there were two alternative methods by which Mr Fletcher could have checked whether his driving lights were illuminated, namely, by handling the switch on the stalk, or by looking in the immediate vicinity of the road in front of his motor vehicle. His Honour found that the fact that Mr Fletcher did not see what he hit, and left the scene of the accident not knowing what he had hit, established that he was paying insufficient regard to the roadway and was therefore in breach of his duty to take reasonable care.

24 His Honour observed that Ms Lyons did not contend that Mr Fletcher's departure from the scene of the accident without stopping gave rise to any inference of consciousness of guilt on his part. Nevertheless, the trial judge considered that Mr Fletcher's reason for leaving the scene, namely, the possibility of people in the vicinity of Gunnedah Road, underlay the necessity for his being alert to the possible presence of people on the roadway. It will be necessary to return to that question later.

25 While the trial judge found that Mr Fletcher breached his duty of care to Ms Lyons by failing to keep a proper lookout, his Honour did not find that Mr Fletcher breached that duty of care by failing to illuminate his high beam lights as he proceeded over the overpass and approached the eastern roundabout. His Honour observed that Mr Fletcher had passed through a built-up or residential area prior to approaching the overpass, the eastern roundabout was well lit and he was only a relatively short distance from the eastern roundabout. In those circumstances, his Honour concluded that there was no obligation for him to have his headlights on high beam.

26 In any event, the trial judge was not persuaded that having the high beam lights illuminated would have enabled Mr Fletcher to see Ms Lyons in sufficient time to take evasive action. His Honour found that Mr Fletcher would have seen Ms Lyons only after she had entered Gunnedah Road and commenced crossing from the southern to the northern side. His Honour found that, given that Mr Fletcher's lights would not have illuminated the southern edge of Gunnedah Road, he would not have had the opportunity to observe Ms Lyons until she was well onto the roadway. As there was no pedestrian facility on the northern side of Gunnedah Road, immediately to Mr Fletcher's left, he could not reasonably have anticipated any pedestrian activity moving from the southern side to the northern side of Gunnedah Road.

27 The trial judge found that, at most, Mr Fletcher would have had three seconds or less in which to perceive Ms Lyons on the roadway and to respond to that risk. Given an average perception time of 2.5 seconds, travelling at 55 kilometres per hour, Mr Fletcher would have had insufficient time within which to respond by braking, or controlling his vehicle, so as to avoid hitting Ms Lyons. His Honour accepted that it was unlikely that Mr Fletcher would steer his vehicle to the right, in the direction from which Ms Lyons was coming, so as to avoid her.

28 Under s 5D of the Civil Liability Act 2002, a determination that negligence caused particular harm comprises two elements, being that the negligence was a necessary condition of the occurrence of the harm (factual causation), and that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). Thus, his Honour observed that, to determine whether Mr Fletcher's negligence caused the particular harm to Ms Lyons, it was necessary for him to be satisfied that the negligence was a necessary condition of the occurrence of her injury (factual causation) and that it was appropriate for the scope of the Mr Fletcher's liability to extend the harm so caused (scope of liability). The trial judge was not persuaded that, but for Mr Fletcher's breach of duty, Ms Lyons would not have suffered injury. His Honour therefore concluded that Ms Lyons had not established factual causation, for the purposes of s 5D.

The Issues in the Appeal

29 In relation to the question of liability, Ms Lyons relied on several grounds, which may be summarised as follows:

(a) having found that Mr Fletcher failed to keep a proper lookout, the trial judge erred in not finding that that failure caused Ms Lyons' injuries;

(b) the trial judge erred in not finding that, in the circumstances and having regard to his knowledge of the location, Mr Fletcher was in breach of duty, either by driving at the speed at which he was driving without having his headlights on high beam or by driving at an excessive speed (albeit within the speed limit) while his lights were on low beam;

(c) the trial judge erred in not finding that either breach of duty in paragraph (b) caused the injuries suffered by Ms Lyons.

Ms Lyons also purported to appeal against the degree of contributory negligence found by the trial judge.

30 Mr Fletcher cross-appealed against the finding of breach of duty and also appealed against the finding in relation to certain heads of damage. Having regard to the conclusion that I have reached concerning liability, there is no utility in dealing with the degree of Ms Lyons' contribution to the accident or with the assessment of damages.

Breach of Duty

31 There are two bases upon which Ms Lyons contends that Mr Fletcher breached the duty of care that he owed to her when driving his vehicle on Gunnedah Road. The first was that he took his eyes off the road for a short time in order to look at his dashboard to see whether his driving lights were activated. The second has two aspects. Either Mr Fletcher should have had his headlights on high beam, having regard to the speed at which he was travelling, namely, 55 kilometres to 60 kilometres per hour; or he should have been driving at a slower speed - which the evidence suggested would have had to be 25 kilometres per hour - with his headlights on low beam. It is necessary to consider both bases in the light of all of the circumstances in which Mr Fletcher found himself while driving on Gunnedah Road in the early hours of 21 September 2007.

32 Mr Fletcher's motor vehicle had two sets of lights. It had headlights, as well as driving lights below the main lights. The driving lights were located below the headlights and provided further illumination immediately in front and to the side of the vehicle. The headlights have two settings, being a low beam and a high beam. Thus, the headlights are different from the driving lights with different switches to turn them on. There is a section on the steering column where the headlights are turned on, and the column is pushed forward to turn on the high beam lights, to give more lighting when on the open road. By turning a different knob on the steering column, the driving lights can be turned on.

33 Mr Fletcher also accepted that it was a lot brighter when one has the two lighting systems - the headlights on low beam as well as the driving lights - on at the same time, but not brighter than with high beam. The high beam is a lot brighter than when the normal driving lights are on. Mr Fletcher described the driving lights as being there to provide an extra bit of lighting for when one is driving.

34 Mr Fletcher was accustomed to driving his motor vehicle every day. On the night in question, he was working at the Spotless Cleaning Service at the Tamworth Abattoirs, which are about 10 kilometres to 15 kilometres from the centre of Tamworth. There are only industrial buildings around the abattoir. On the night in question, he was working a night shift, which finished at about 12.30am. When he finished the shift, he left the abattoirs in his motor vehicle. As he drove away from the abattoirs, he activated his driving lights and put his headlights on high beam because it was dark. After the leaving the abattoirs, Mr Fletcher turned right onto Goddard's Lane and then left onto Gunnedah Road. At that point, Gunnedah Road is known as the Oxley Highway and has two lanes, one going in each direction.

35 After the western roundabout, the road is level and then it goes up a hill to the other roundabout on top of the hill. The eastern roundabout is on the top of the overpass, where the accident occurred. There are streetlights over the eastern roundabout where the lighting is fairly good. Between the two roundabouts, there are two lanes in each direction. Mr Fletcher accepted that that part of the roadway was dark at the time in question.

36 Mr Fletcher had driven over the overpass many times. He had seen pedestrians walking on the southern side of Gunnedah Road at that point, but not on the northern side.

37 As Mr Fletcher approached that part of Gunnedah Road, he had his headlights switched on low beam, but he was not sure whether his driving lights were on. As he approached the western roundabout, he was travelling at between 50 kilometres and 60 kilometres per hour. His speed decreased as he went through the roundabout. As he left the western roundabout, his speed increased.

38 As Mr Fletcher drove up the incline towards the eastern roundabout, he could not see that roundabout. He could not recall whether there were any other cars on the road. As he drove up the incline, he looked down at his dashboard to see if his driving lights were off. He knew that he was coming into a built-up area and it was his understanding that it was against the law to have driving lights or high beam headlights on. He looked at the dashboard because he wanted to make sure that the driving lights were turned off. There are lights on the dashboard, just below the speedometer and the tachometer, to show whether the headlights and the driving lights are on or off. The driving light indicator is yellow. When he looked down, he observed that the driving lights were off and that the headlights were on low beam.

39 Relevantly, Mr Fletcher said (during cross-examination) that, when the headlights are switched on low beam and the driving lights are also switched on, both sets of lights blend in together, such that it is not possible to discern whether the driving lights are on simply by looking ahead through the windscreen. As a result, Mr Fletcher said, the only way to be sure was to look for the light on the dashboard.

40 Mr Fletcher said that he looked down for a matter of "a couple of seconds". As he looked down he heard a bang. As he looked up, he observed that the left-hand side of his windscreen was smashed. He did not see what caused the windscreen to smash.

41 There is no lane where one can pull over to the left-hand side of the overpass. Mr Fletcher continued driving. He said that he did not stop because, "in that period, there were a lot of things happening on the bridge, like kids". Mr Fletcher said that there had been a lot of things thrown at cars at some earlier time. He did not want to stop because he was on his own and it was the middle of the night. From the way the windscreen was smashed, it appeared to Mr Fletcher that it was a brick or rock that had hit his vehicle.

42 Mr Fletcher drove into Tamworth to pick up his partner and two children. When he arrived there, he observed the damage to his vehicle, including the smashed windscreen and a dent in the front left-hand side of the vehicle. A clear plastic protector on the front of the motor vehicle was broken. After speaking to his mother, and telling her what had happened, his mother told him he should go straight to the police station. He did so and told the police what had happened. They told him to wait until they found out what was going on. He was subsequently interviewed by the police.

43 In cross-examination, Mr Fletcher agreed that he had driven over the relevant part of Gunnedah Road many times. The night in question was a dark night and he was coming from a non-residential area into a residential area. The residential area began after the eastern roundabout.

44 Mr Fletcher agreed that, with his lights on low beam, he did not have a good view of both sides of the road ahead of him. Between the two roundabouts, it was complete darkness and he agreed that his vision was impaired between the two roundabouts because of the darkness. It was, he said, not like driving along a normal suburban street. Mr Fletcher knew, because he had driven between the two roundabouts at night on previous occasions when it was dark, that one could not see as well on low beam as on high beam. He knew that, if he put his motor vehicle lights on high beam, he would have had the roadway illuminated almost to the second roundabout.

45 Mr Fletcher said in cross-examination that the driving lights were in addition to the normal headlights and cast light immediately in front of the motor vehicle so that one could see pot holes and such things. He accepted that the driving lights assisted one to see immediately in front of the car in front of the roadway and that they assist the other lights. However, they do not assist in seeing the other side of the road.

46 Mr Fletcher also agreed that, at any time of the night, there could be someone on the relevant stretch of Gunnedah Road. He had seen people on the road late at night, as well as on the median strip, even though he would not think that there would be people on the road because they are not supposed to be there. In re-examination, however, Mr Fletcher said that it had been years since he had seen people on the roadway in question. He said that it did not happen all the time and that it was only once that he had seen people there before. He said that, prior to the accident, he had never seen anyone running on the relevant stretch of Gunnedah Road.

47 At the point where the accident occurred, there were barriers on both sides of Gunnedah Road, which was elevated above the railway line. Having regard to the barriers and the presence of a walkway on the southern side of the elevated stretch of the roadway, a motorist who was familiar with the road would not expect to find pedestrians on the roadway. Nevertheless, there would be a possibility that there was some object on the roadway or that an animal could have wandered onto the roadway. In those circumstances, a prudent motorist may take advantage of high beam to ensure that maximum vision was available to see anything on the roadway. On the other hand, there may be nothing imprudent in glancing at the dashboard to confirm the state of one's headlights.

48 The question is whether Mr Fletcher acted in breach of a duty to take care to avoid injuring a pedestrian who had behaved in the way in which Ms Lyons behaved on the night in question. I may be disposed to conclude that Mr Fletcher was not in breach of any duty that he owed to Ms Lyons, either by looking down or by not driving with his lights on high beam. Nevertheless, for the reasons indicated below, whether or not Mr Fletcher was in breach of a duty owed to Ms Lyons, any such breach was not relevantly the cause of the injury because, even if he had activated his high beam headlights and had not glanced down at his dashboard, the accident would not have been avoided.

Causation

49 The trial judge found that Mr Fletcher's response time would have been 2.5 seconds. At the time, he was travelling between 55 and 60 kilometres per hour. At that speed, the stopping distance was approximately 60 metres, which equates to a braking time of about 2.3 seconds. Thus, the time that would have been taken between Mr Fletcher's perception of Ms Lyons and his coming to a full stop was 4.8 seconds.

50 The distance covered by Ms Lyons from crossing the barrier to the point of impact, assuming she jogged at about 90 degrees to the roadway, was 15 metres. If she was jogging at 3.8 metres per second (as the trial judge found that she was), she would have travelled 18 metres in 4.8 seconds. If she was jogging at 3.35 metres per second - which was an alternative speed discussed during the trial - she would have covered 16 metres in 4.8 seconds. In either case, therefore, at the latest moment that Mr Fletcher could have perceived Ms Lyons and begun braking to avoid hitting her, she would not yet have crossed the southern barrier onto Gunnedah Road. The trial judge found that, even with Mr Fletcher's headlights switched on high beam, while they would have illuminated the roadway ahead for a distance of 70-90 metres, and further to the side than low beam headlights, Mr Fletcher still would not have been able to see Ms Lyons in sufficient time to take evasive action.

51 Thus, on the basis of the findings made by the trial judge, it follows that, even if Mr Fletcher had not glanced down at his dashboard and had his high beam headlights illuminated, he would not have been able to avoid colliding with Ms Lyons in the circumstances in which she jogged across his path. Whether the impact would have been as serious does not appear to have been investigated. However, on the basis of the findings made by the trial judge, the collision would have occurred even if there had been no breach of duty on the part of Mr Fletcher along the lines complained about by Ms Lyons.

52 The only factual finding that was put in issue by Ms Lyons on the appeal is the speed at which she was travelling on the roadway. The only witness evidence as to that question came from Ms Dixon and Mr Dawson.

53 Ms Dixon said in evidence that she had only a vague recollection, in bits and pieces, of what happened during the day of 20 September 2007. She had been taking drugs and that affected her ability to perceive and recall what occurred on that day. Ms Dixon remembered walking along Gunnedah Road. She said that she was behind Mr Dawson and Ms Lyons and was therefore not talking to them. She remembered a commotion and vaguely remembered seeing Ms Lyons in the air. Ms Dixon said that Ms Lyons walked from the pathway to the lane on the roadway where she was struck. She said that she did not remember climbing over the barrier. She was not sure why they were not walking on the walkway, but they had to go to the other side, since they were intending to cross Gunnedah Road.

54 Mr Dawson, who was called to give evidence by Mr Fletcher, said that Ms Lyons went up the footpath on the overpass. She was walking and then started running. When she got to the top of the overpass, she stepped over the railing and ran across Gunnedah Road and was struck by Mr Fletcher's vehicle. At the time she was hit, Mr Dawson was just jumping over the railing. He described Ms Lyons' running as "just a jog, I suppose". He said that she headed straight across after she stepped over the barrier.

55 Mr Dawson agreed in cross-examination that Ms Dixon was behind Ms Lyons and him. He said that they were walking in a line when Ms Lyons started running. He would not agree that he and Ms Lyons were walking along the road. He insisted that Ms Lyons was running up the road. He said that Ms Lyons walked along the walkway and then started running and jumped over the barrier and was hit by Mr Fletcher's vehicle. He disagreed with the proposition that at no stage did Ms Lyons jump over the barrier and would not agree with the proposition that at no stage did Ms Lyons run.

56 In the light of the evidence just summarised, it was clearly open to the trial judge to find that Ms Lyons was jogging across Gunnedah Road when she collided with Mr Fletcher's vehicle. The speed of between 3.35 and 3.8 metres per hour was derived from evidence given by Mr William Keramidis concerning the mechanics of the collision, which the primary judge accepted. Mr Keramidis has the degree of Master of Engineering Science (Traffic and Transportation) from Monash University. He has studied road safety vehicle dynamics, road safety audits, and road safety statistical analysis.

57 The trial judge accepted that Ms Lyons was crossing Gunnedah Road at jogging speed and was therefore crossing at a rate of approximately 3.8 metres per second. His Honour found that she crossed relatively directly from south to north and therefore covered a distance of approximately 15 metres prior to the collision with Mr Fletcher's vehicle. His Honour found that it would have taken between four and five seconds to cross from the southern side of Gunnedah Road to the point of impact. That finding was open to the trial judge and is not seriously open to doubt.

58 Mr Michael Griffiths gave evidence on behalf of Ms Lyons. Mr Griffiths is a biomedical and mechanical engineer. He is a road safety, crash and injury investigation consultant of considerable experience. Mr Griffiths accepted in cross-examination that, if Ms Lyons had been running across Gunnedah Road at approximately 90 degrees to the roadway, it is entirely possible that Mr Fletcher would not have had time to see and avoid Ms Lyons, even if he had his headlights on high beam. While Mr Griffiths had given an opinion different from that of Mr Keramidis, the only difference between them depended upon the assumptions that they were asked to make. There can be no real doubt that, if Ms Lyons was jogging across Gunnedah Road, as the trial judge found, Mr Fletcher would not have had time to see her and avoid hitting her, even if he had his high beam headlights illuminated.

59 It follows that the trial judge did not err in concluding that there was no causal connection between any breach of duty on the part of Mr Fletcher and the injury to Ms Lyons. That is to say, the injury would not have been avoided, even if there had been no breach of duty.

Conclusion

60 It follows that the appeal must be dismissed with costs. The orders of the Court should be:

(1) The appeal be dismissed;

(2) The appellant pay the respondent's costs of the appeal.

61 GLEESON JA: I agree with Emmett JA that the appeal should be dismissed with costs. I agree with his Honour's reasons other than on the issue of whether Mr Fletcher was in breach of his duty by driving with his lights on low beam. On this issue, I agree with the reasons of Macfarlan JA that Mr Fletcher was in breach of duty in not having his vehicle's headlights on high beam immediately prior to the accident. However, for the reasons given by Emmett JA, this breach was not causative of Ms Lyons' injuries.

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Decision last updated: 18 March 2014