Chouseas v Edis S185/1996 [1997] HCATrans 120 (10 April 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S185 of 1996

B e t w e e n -

KERRY CHOUSEAS

Applicant

and

VALERIE ELIZABETH EDIS

Respondent

Application for special leave to appeal

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 10 APRIL 1997, AT 11.34 AM

Copyright in the High Court of Australia

MR G.T.W. MILLER, QC: May it please the Court, I appear with my learned friends, MR R.S. BELL and MR P.J. BAMBAGIOTTI. (instructed by H.C. Stathis & Co)

MR C.T. BARRY, QC: May it please the Court, I appear for the respondent. (instructed by G.E. Lazar, Solicitor for Sun Alliance and Royal Insurance Australia Limited)

TOOHEY J: Yes, Mr Miller.

MR MILLER: Your Honour, there is an application which is unnecessary, that is the application to file the application for special leave out of time. It was not necessary as it transpires. The application was filed within time.

TOOHEY J: Yes, thank you.

MR MILLER: Your Honours, this matter, we say, there are four reasons as to why special leave should be entertained and granted. The present application firstly raises the question of determination of causation in civil cases, which is important both in tort and in contract, particularly in relation to law development in the post- March v Stramare era. It is not merely an application of March v Stramare. The second reason arises out of the - - -

GAUDRON J: How do you say that arises in the context of a case in which your client went through a red light?

MR MILLER: It goes to the method or analysis of determination of causation, whether an objective or subjective approach is the appropriate one. We submit that the approach which was adopted by the trial judge was - - -

GAUDRON J: So the rules of the road and causation will depend upon what is in the mind of the particular road user at any given time?

MR MILLER: With respect, your Honour - - -

GAUDRON J: That is equivalent to phasing in driving on the left-hand side of the road.

MR MILLER: Your Honour, there was a period of time in which that was the only method of approach and, indeed, the New South Wales Court of Appeal, in Trompp v Liddle, in effect held that to be the case, that one could proceed, if one had the traffic control light, with almost disregard as to the way in which another vehicle might be approaching the intersection. We say that in this particular case the trial judge correctly applied the approach that should be applied, namely to have regard to primacy of traffic control lights but also to recognise the fact that other road users will not always be able to react or will necessarily not have regard for their own safety.

TOOHEY J: But it was an extraordinary result before the trial judge, was it not? I mean not only was there a finding that the plaintiff went through a red light, but also a finding that the defendant, in turning out of Coward Street into Bourke Street, was turning with a green arrow in his favour.

MR MILLER: Your Honour will appreciate that the vehicles - - -

McHUGH J: And what was even more extraordinary to my mind is that the defendant was held to be 85 per cent responsible for the accident.

MR MILLER: This degree of alarm was that which was exhibited by the Court of Appeal in the judgment of his Honour Mr Justice Handley. Your Honours have seen the pejorative language used by his Honour in regarding that as somewhat fantastic. But when one approaches the matter on the basis of analysis, it is our respectful submission it would be quite clear that his Honour at first instance got it right and the appeal court fell into error and into appealable error in this Court.

The reason for that is - if we take the simple situation. When two motorists approach an intersection, as is the case here, they are subsequently in a civil court relaying their perceptions of what occurred at the time. We say applying the common sense test in post- March v Stramare test, that the Court is required to determine what happened, applying common sense principles, not on the basis of an appreciation of the subjective mind of the motorists in question. It is of significance, but it is not exclusive.

TOOHEY J: But there is sort of subjective element introduced by the trial judge because the footing upon which the then defendant, the present respondent, was held at fault was that by travelling slowly in some sense this induced the plaintiff to think that it might be all right if he continued through a red light.

MR MILLER: She had come to a stop, or virtually to a stop. On the evidence - there was competing evidence, of course, and both claimed that they had the green light. The amber light, to which reference was made by Mr Justice Handley, would not have, of course, been seen or appreciated by the motorist who was turning right, the defendant. She had a green arrow, he so found. But he also found, and it was not subject to appeal and, indeed, was not open, we say - one of the major findings of fact which was not adequately dealt with at intermediate appellate level was to be found at application book 3, lines V to Y:

She had seen the motor vehicle. She said that when she first saw it, it was beyond the intersection, and it was travelling fairly fast. To a police officer she said that the vehicle was travelling very fast, and although she was taken up on this in cross-examination, I do not think that very much turns on that, but the fact of the matter is that it was obvious to the defendant on her own evidence that this motor cycle was proceeding towards her at a pace and in a manner which would have made it obvious if the defendant was taking the requisite care which she was required to take, so far as keeping a look out is concerned, that this motor cycle was continuing on its way without intending to stop at the intersection.

Now, if I go back to what your Honour Justice Gaudron raised as to the primacy of the lights, at one particular stage of the law it was accepted that the Trompp v Liddle test would be appropriate, namely if you have got a traffic light, that is it, you do not worry about anyone on the roadway. Now, the law developed since then and we now are in a stage, not only in law but in relation to traffic management, where defensive driving - - -

GAUDRON J: Yes, all of that may be true, but at least when it comes to causation, which is where this discussion started, you would have to think that in driving in the manner there described and going through a red light, that the causation was fairly much one way and not that of the respondent.

MR MILLER: Your Honour, if one applied that analogy, with respect, that would be the same result as was held in the intermediate appeal court in March v Stramare and in first instance where, but for the presence of the vehicle on the road way, the collision would not have occurred, but for the vehicle being left in the road way.

GAUDRON J: I do not think March v Stramare adopted the "but for" test but, in any event - - -

MR MILLER: No, we say it did not.

GAUDRON J: - - -but for your client's driving in the manner there described, through an intersection contrary to a red light, the same holds true. I mean, you could do "but for" at any point.

MR MILLER: Your Honour, we say that the appropriate test to be applied, having regard to March v Stramare and its development, is that which was applied by - - -

GAUDRON J: Where did this development take place?

MR MILLER: Its application I should say, your Honour - was that applied by this Court in Medlin, which is No 4 in the bundle we provided to your Honours, and appropriately in the judgment of Justice McHugh at page 20. Your Honours, with respect, the judge at first instance applied there in relation to causation, a test somewhat similar to that which your Honour Justice Gaudron would apply in this case, namely entirely justified. At page 20 at point 2 his Honour held:

This Court has recently considered the nature of causation in March v Stramare (E. & M.H.) Pty Ltd and Bennett v Minister of Community Welfare. In those cases the Court held that, in order to determine whether something was the cause of an occurrence, the tribunal of fact must look at the matter in a commonsense way. The "but for" test, applied as a negative criterion of causation, has an important role to play but it is not the exclusive test of causation.

In the Supreme Court, Debelle J. applied a "dominant cause" test in deciding whether the plaintiff's injuries brought about his retirement.

This was the university professor that had retired some 3 years earlier, your Honours.

TOOHEY J: This is in the context of an assessment of damages.

MR MILLER: True it is, your Honour, but causation is very important. Your Honour has dealt with causation in the last case, and in Wardley recently, this Court held that for the purposes of damage of the Trade Practices Act the approach to the assessment of damages was once again going to be in a common sense way. The problem that we say arises, of which this is a classic example and is a very good vehicle, is that whereas there is liberality of approach by the development of the common sense principle, what the trial judge at first instance and the intermediate Court of Appeal no longer have is the guidance and certainty which they had in the pre-March v Stramare era and that that is to be answered in part by reference to concepts of causation and as to whether the measure is an objective, as distinct from subjective, test.

Your Honours, in the present case, one of the vices or one of the errors in the intermediate Court of Appeal in the judgment of Mr Justice Handley was that he appeared to have no regard to apportionment of responsibility.

McHUGH J: You do not get to apportionment of responsibility until you find negligence. Negligence requires causation. If you ask any person, as a matter of common sense, who was responsible for this accident, the person who went through the red light or the person who was turning with the green arrow in her favour, I would think 100 per cent of people would tell you that it was the person who went through the red light.

MR MILLER: Well, your Honours, what about the actual facts as were found by the trial judge and which were not disturbed on appeal and were not open to be disturbed on appeal, namely, that yes he went through a red light but it occurred in a very short period of time and that her behaviour was such that she had seen him, she appreciated the speed with which he was travelling, she braked her vehicle - he was an experienced mechanic. The motor vehicle dipped as the brakes were applied, indicative of the fact that she was going to allow him to proceed in front of her, and then she apparently disregarded his presence on the road and immediately turned in front of him.

TOOHEY J: There is no finding, is there, that she - - -

MR MILLER: Yes, there is.

TOOHEY J: Let me finish. That the defendant was aware that the plaintiff intended to go through a red light into the intersection.

MR MILLER: Yes, there was. The finding was that had she been keeping a look-out - she was aware of the speed, she had seen the motor cycle - if I can go back to the passage application book 3R and following:

She had seen the motor cycle. She said that when she first saw it, it was beyond the intersection, and it was travelling fairly fast......the fact of the matter is that it was obvious to the defendant on her own evidence that this motor cycle was proceeding towards her at a pace and in a manner which would have made it obvious if the defendant was taking the requisite care which she was required to take, so far as keeping a look out is concerned, that this motor cycle was continuing on its way without intending to stop -

That is a very important finding of fact and it is a finding of fact which, we say, was not disturbed, indeed was disregarded at intermediate appellate level and improperly disregarded.

TOOHEY J: But look at what follows, Mr Miller, on page 4:

it seems to me that the manoeuvre which she did make, so far as her vehicle was concerned, led the plaintiff into a full -

I take it that means false -

MR MILLER: That must be false, we would say your Honour.

TOOHEY J:

sense of security as it were, and I would accept.....that he took the view in effect that the defendant's vehicle was going to stop for him.

But that is a most extraordinary - - -

MR MILLER: Not in everyday life, it is not, your Honour. If your Honour adopts - and I assume, with respect, your Honour does - defensive driving techniques, when your Honour comes to an intersection, if you are going to turn right and you have got a green light to do so, and if it appeared to you that a motor cyclist was coming in the opposite direction, you were proceeding slowly and you had stopped your vehicle - applied your brakes such that it had dipped, I would submit that your Honour would not commence to execute or complete that right-hand turn until you were sure that that cyclist was going to stop.

McHUGH J: You may or may not, but assuming that you did, I mean, the fault of this plaintiff just so overwhelms the whole situation that, as a matter of common sense, it just seems to me impossible to say that the defendant was negligent in these circumstances.

MR MILLER: Well, your Honour, that goes to the very analysis of what we are talking about. What is common sense with respect to your Honour was not common sense with respect to the trial judge and minds will differ. There has to be some - - -

GAUDRON J: I do not know. I think almost everybody on the road will take the view that if you have got a green arrow and you are in the right, then you are entitled to turn right without worrying about what is not stopping at red lights.

MR MILLER: That, with respect, is why we have so many collisions at intersections.

McHUGH J: You may, but this is just a question of fact, at the best, and the highest you can put it is the Court of Appeal disagreed with the trial judge and, in my view, correctly disagreed with him, and that is the beginning and end of the case. There is no special leave point in this case, Mr Miller.

MR MILLER: It seems to be the consensus so I must accept it. We had three other points to develop, your Honours. They were all very interesting, they all needed attention - - -

TOOHEY J: You might have some time left.

MR MILLER: Your Honours, I hear that your Honours are against me.

GAUDRON J: Your other points do depend on the first point, do they not?

MR MILLER: Not, with respect, your Honour.

TOOHEY J: It is a matter for you whether you wish to advance them.

MR MILLER: We say the application of Warren v Coombes and the fact that the trial judge determined facts and drew inferences when the primary facts upon which he necessarily must draw the inference were found against the defendant and were not disturbed on appeal. Now, in Warren v Coombes - this Court has recently dealt with the matter to some extent in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; (1996) 71 ALJR 29 and particularly at page 31.

TOOHEY J: Is it in your material?

MR MILLER: That is not in there, no. I am indebted to my learned friend, Mr Barry, who was in the case and he drew our attention to it yesterday afternoon, so I am indebted to him. But it still leaves open the matters which we formulate in our written submissions in relation to this particular point. We say that notwithstanding the liberty which was given to an intermediate appeal court to draw inferences, it should not do so where the primary findings of fact are not capable of being disturbed or are not disturbed. If your Honours please.

TOOHEY J: Thank you, Mr Miller. We need not trouble you, Mr Barry.

This application turns entirely on the facts and upon the assessment by the Court of Appeal of those facts as found by the trial judge. The decision of the Court of Appeal is plainly correct. Accordingly, the application must be refused.

MR MILLER: Would your Honour hear me on costs. Notice has been given to our learned friend. There was a change of solicitors between trial and appeal. There are currently proceedings in another jurisdiction relating to former solicitors as there were witnesses who were not located at the particular time. We would ask that there be a stay of any costs order here. We obtained a suitor's fund certificate in the intermediate court and the only basis of it is the impecuniosity of the plaintiff.

TOOHEY J: When you say stay - - -

MR MILLER: Pending the determination of the proceedings which are instituted against the former solicitors.

TOOHEY J: Yes. There is a certain ambiguity in that. I am not sure whether you are saying that there should be no order for costs at this stage or whether that there could be an order, but that the order itself be stayed.

MR MILLER: The order itself be stayed, your Honour.

TOOHEY J: Until?

MR MILLER: Until those proceedings are determined. There are proceedings on foot in the Supreme Court of New South Wales.

TOOHEY J: But viz-a-viz the respondent, are those proceedings likely to affect the respondent's position?

MR MILLER: I think not, is the answer to that, your Honour. There have been some discussions, but I cannot take it any further than that.

GAUDRON J: Mr Barry, are you in any position to indicate some leniency on the part of your client?

MR BARRY: No. I wish I was, your Honours, but I am not.

TOOHEY J: Mr Miller, we think in the circumstances - and that includes the absence of material before the Court - the appropriate course for us is to make the usual order as to costs and if circumstances then warrant an application for a stay, then no doubt such an application can be made.

Therefore the order of the Court is that the application be dismissed with costs.

AT 11.57 AM THE MATTER WAS CONCLUDED