Judgment date: 17 May 2010. Butt v Mrowka 2010 NSW CA 1081, NSW Court of Appeal
- The benefit of hindsight cannot be used to conclude that a defendant failed to exercise reasonable care simply because action which would have avoided a collision was not taken. Whether a reasonable person would have taken those precautions is determined by a number of factors, including reasonable expectations about the manner in which other vehicles that may be on the roadway are being driven.
- For a defendant to secure an order for indemnity costs in circumstances where a plaintiff does not establish negligence, it must be shown that their Offer of Compromise contains a real or genuine element of compromise.
On 29 December 2003, the appellant, who was then 16 years of age, was riding a motorcycle in a southerly direction along Spring Creek Road, a narrow gravel–logging track within the Queens Lake State Forest. The respondent was driving a Toyota HiLux 4WD Station Wagon in the opposite direction. The appellant was confronted with the respondent's vehicle as it travelled around a curve in the road. The motorcycle collided with the front near side of the station wagon, causing the appellant to sustain serious injuries.
District Court of NSW – Boulton ADCJ
A verdict was entered in favour of the respondent after it was found that none of the particulars of negligence alleged by the appellant had been established. The effective cause of the accident was found to be the appellant's failure to keep to the left of the road and his excessive speed in the circumstances. To guard against the prospect of a successful appeal, damages were assessed at $346,998.25, in the event negligence had been established. The appellant was ordered to pay the respondent's costs on the ordinary basis only.
The appellant conceded that whilst he was partially at fault for the accident, it had been incorrectly found that the respondent was not shown to have been in breach of his duty of care.
He sought an order entering judgment on liability and invited the Court to assess the extent of his contributory negligence.
The respondent sought to cross-appeal the decision of Judge Boulton to decline to order the appellant to pay costs on an indemnity basis from 20 July 2006. This was when it served an Offer of Compromise, being a verdict for the defendant with each party to bear their own costs, which the applicant did not subsequently accept. It was contended that Judge Boulton erred in concluding that the offer did not involve a genuine element of compromise by failing to take into account the strength or weakness of the appellant's case.
Court of Appeal – Sackville AJA with whom Tobias JA and McColl JA agreed
Given the basis upon which the appeal was lodged, it was incumbent on the Court to give consideration to the findings made by Judge Boulton, which included:
- The appellant's motorcycle was travelling close to the edge of the road, on its incorrect side. The appellant failed to keep a proper look out and was travelling at such a speed that when he initially saw the respondent's vehicle he was precluded from applying the brakes on the motorcycle or taking evasive action prior to the impact.
- The respondent's vehicle was travelling at a moderate speed close to the left hand side of the road as it approached the curve and skidded some 16 m to a stop, or near stop, at the point of impact.
- The head-on impact occurred at the very edge of the gravel track at the line of the left headlight on the bullbar of the respondent's vehicle, with the motorcycle upright.
The appellant submitted that Judge Boulton made errors of fact and law and failed to analyse the evidence properly, specifically, the positions of the respective vehicles on their approaches to the point of impact, the actions of the respective drivers, fundamental conflicts in the evidence, the topography of the track and surrounding area, the narrowness of the track and the tightness of the blind corner when considering the actions of the appellant and respondent.
The respondent did not dispute that he owed a duty of care to the appellant. However, it emphasised that the duty was confined to the need to take reasonable care to avoid other road users as distinct from every measure which, with the wisdom of hindsight, may have avoided a collision and, as a consequence, harm to the appellant. It was submitted that the findings of fact were not only open but wholly in accordance with the incontrovertible evidence.
When assessing the appellant's submissions, the Court considered two important matters, being the appellant's evidence and the physical evidence.
The Appellant's Evidence
It was noted that Judge Boulton found the appellant's evidence unreliable in a number of significant respects because he had not had the opportunity, at the time of the collision, to absorb what occurred and had later attempted to reconstruct events. This finding was made for a number of reasons. Firstly, he had, at different times, given varying estimates of the speed at which he had been travelling, leading to discrepancies. Secondly, his suggestion that he saw the station wagon and attempted to brake and swerve further to the right was contradicted by other evidence he gave, police witnesses and the physical evidence.
The Court was not satisfied an error had been shown in the findings made by Judge Boulton as to the appellant's line of travel, failure to keep a lookout, speed or failure to brake.
The Physical Evidence
Emphasis was placed on a report which was prepared by Mr Wright, a Senior Constable with the Crash Investigation Unit at the time of the accident who inspected the site two days following the collision. The length, location and deviation of two parallel skid marks on the roadway made by the respondent's station wagon led Mr Wright to draw two conclusions, which were not challenged:
- The marks placed the respondent's station wagon to the left of the carriageway at both the commencement of the skid and at the time of impact.
- The station wagon was either at, or very close to, the end of its skid at the time of impact.
This evidence made it impossible to accept the appellant's submission that the respondent breached his duty of care by failing to keep sufficiently to the left side of the road. It was noted that the left tyre of the respondent's station wagon was within 0.6 m of the western edge of the road at the commencement of the skid and, 13 m later at the point of impact, it finished only 0.3 m from the western edge of the road. The Court was not told how the respondent could have reasonably been expected to drive even closer to the western edge of the road than he did, particularly against his evidence that he was "hard up on the left hand side of the road" as he was approaching the curve.
The appellant also failed to satisfy the Court as to how the accident would have been avoided if the respondent had driven closer to the western side of the road as he approached the curve, for three reasons. Firstly, the appellant's motorcycle collided upright and head on with the station wagon, without him braking or swerving, and the point of impact was on the left hand side of the station wagon. Since the respondent applied his brakes harshly and went into a skid, he presumably would have been unable to swerve to the left. Secondly, had the respondent travelled closer to the western edge of the road, or veered as far as he could to the left, the collision would simply have occurred at a point closer to the centre of the bullbar on the station wagon. Thirdly, doing so would have limited even further the respondent's line of vision towards the appellant's motorcycle.
The Court could not reconcile the inconsistency between the physical evidence and the appellant's submission that Judge Boulton should have found that the respondent was travelling at an excessive speed in the circumstances. The evidence of the respondent, his passenger and Mr Wright was that, despite him being prevented from seeing the appellant until very late due to the path the appellant took across the curve, he had come to a complete stop, or nearly a complete stop, at the point of the collision. Accordingly, no error was made in Judge Boulton concluding that it was the appellant's speed, unchecked by any braking, that caused him to collide with the respondent's stationary, or almost stationary, station wagon.
The appellant submitted that the conclusions reached by Mr Wright in relation to the speed of the respondent's vehicle were incorrect. This was based on evidence from the appellant suggesting that his motorcycle had come to rest behind the station wagon, indicating the latter may have been travelling faster than Mr Wright had thought. In rejecting this argument the Court noted that the evidence of the respondent and his passenger was that, following the collision, the appellant landed on the grass some 2 m to the front and side of the station wagon, consistent with the physical evidence in the report by Mr Wright.
The final submission made by the appellant was that the respondent had breached his duty of care by failing to sound his horn as he approached the curve. The Court noted the provisions of s 5B(1)(c) of the Civil Liability Act 2002 and found that the response of a reasonable person would be dictated by a number of factors, including reasonable expectations as to the line that oncoming traffic would follow. The Court highlighted that the findings of Judge Boulton were such that, had the appellant been travelling along the left hand side of the track as he approached the curve, not only would he have seen the respondent's station wagon earlier, but also the respondent would have seen the motorcycle earlier and would have had no difficulty in avoiding a collision. In rejecting the appellant's submission, the Court remarked:
In dismissing the appeal the Court endorsed the respondent's submission that it is not permissible to reason from the fact that, in hindsight, action might have been taken that would have avoided a collision to conclude that the defendant failed to exercise reasonable care.
The Court noted that, after he referred to Rule 42.15A of the UCPR and the state of authorities, Judge Boulton considered that the application for indemnity costs was flawed in the sense that the respondent had filed a Defence only two months prior to conveying the Offer of Compromise, by which stage its costs would have been minimal and contained little, if anything, by way of compromise. In dismissing this aspect of the appeal the Court highlighted that Judge Boulton actually referred to the appellant's case as being "rather thin from the outset" and took that into account in determining the offer contained no genuine element of compromise.
When determining whether or not a driver has breached a duty of care to another road user, the evidence of each driver and any witnesses, as well as the physical evidence, must be considered in the context of the response of a reasonable person in the circumstances. A party who conducts this exercise using the benefit of hindsight will not succeed.
In matters involving questions of liability and contributory negligence, insurers should closely consider whether their Offer of Compromise contains a real or genuine element of compromise. This will lend support to an order being made for indemnity costs in the event the plaintiff does not establish negligence. Two factors which should be reviewed are the costs the insurer has accrued at the time the offer is conveyed and the strength or weakness of the plaintiff's case.
1. Sackville AJA, Tobias JA and McColl JA
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