Anikin v Sierra & Anor [2003] HCATrans 507 (2 December 2003)

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Anikin v Sierra & Anor [2003] HCATrans 507 (2 December 2003)

Last Updated: 5 December 2003

[2003] HCATrans 507

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S81 of 2003

B e t w e e n -

SERGE ANIKIN

Applicant

and

ALFONSO SIERRA

First Respondent

STATE TRANSIT AUTHORITY

Second Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 2 DECEMBER 2003, AT 12.18 PM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC: May it please your Honours, I appear with my learned friend, MR I.S. McLACHLAN, for the applicant. (instructed by Warren & Warren)

MR K.P. REWELL, SC: If the Court pleases, I appear with my learned friend, MS A.R. BEARDOW, for the respondents. (instructed by Keddies)

MR TOOMEY: Your Honours, the first application I have is that your Honours grant us leave to rely on the supplementary submissions which were filed on Friday subject to your Honours granting the - - -

KIRBY J: Why would we not do that?

McHUGH J: What do you say about it, Mr Rewell?

MR REWELL: It is a matter for your Honours.

KIRBY J: We would have such a tedious argument about it if we did not.

McHUGH J: What about restating the special leave questions? They are in a form which we frequently see and which, I have to say, Mr Toomey, are completely useless from this Court’s point of view.

MR TOOMEY: Yes, your Honour. I understand what your Honour is putting to me. Really what we can say is this case falls in the justice of the case - - -

McHUGH J: You have to say that the question is whether the review by the Court of Appeal of the trial judge’s finding was so inadequate that there has been a miscarriage of justice sufficient to require the intervention of this Court.

MR TOOMEY: That is really what we have tried to construct, your Honour.

McHUGH J: You cannot say, I do not think, that the decision was so manifestly erroneous, can you, that the Court should not grant leave on the ground there was a miscarriage of justice?

MR TOOMEY: Your Honour, I am not sure that we cannot.

McHUGH J: I thought it was rather an error in the process of reasoning that you focused on.

MR TOOMEY: Yes, but that arose, your Honour, in our respectful submission, from an apparent failure of the majority in the Court of Appeal to appreciate the evidence that was before the trial judge. The vigorous dissent of Mr Justice Santow considers and analyses the whole of the evidence that was before the trial judge and arrives at the conclusion having considered the judgment of the majority which he had available to him before he finished his grounds, considered that it was open to the judge on matters he considered which do not appear to have been considered by the majority. There are two essential points which were found by the majority.

McHUGH J: It is paragraph 92 in Justice Santow’s judgment which is the strength of your case, is it not?

MR TOOMEY: Yes, your Honour, it is. That deals with the presence on the road and the visibility but there is also the question of evasion. In our respectful submission, the majority were clearly in error in saying that it was not open for her Honour to find that if her finding on the visibility was right, that he - - -

KIRBY J: In fact her Honour said there is no evidence to support the basis upon which the trial judge found that the first appellant was negligent.

MR TOOMEY: Yes. That is on the basis of the statement of the question as, in a rolled-up fashion, “Was there material sufficient to found an inference that the respondent was on the roadway at a point where the first appellant would have seen him, reacted and taken action to avoid the accident?” So it was the rolled-up question. The two separate questions were, “Was there evidence he was on the road; was there evidence that he could have been avoided?” In our respectful submission, there clearly was. The reason that the supplementary submissions are important, your Honours, really is for the photographs.

KIRBY J: Did it come down to this, that at the trial her Honour had the advantage of having the bus driver and the expert evidence about lighting and the flow of the light and the way the road was contoured and the distance that the bike would have revealed a person?

MR TOOMEY: Yes.

KIRBY J: It is pretty hard to say there is no evidence. I mean, it may be that in the end you would say, “I’m not convinced”, but there was some evidence, I would think.

MR TOOMEY: There certainly was, your Honour.

McHUGH J: No one seems to have referred to the presumption of continuance in the sense that - - -

MR TOOMEY: No, your Honour. If he was standing on the road facing the bus, one would have thought that prima facie that suggested he had been walking on the road. With great respect, we think that is a powerful part of the case but it was not referred to.

KIRBY J: Was there some suggestion that because of his fight with his girlfriend that he was acting in some disordered way?

MR TOOMEY: He had acted during the night in what appears to be an irrational way, but we do not know whether it was irrational because of course, by reason of his injuries, he had no memory of the events.

McHUGH J: But he did not take his own car. What is the explanation of that? Where were the keys?

MR TOOMEY: I do not know that, your Honour. I think he may have had them on his person. But there is a possible explanation for that. He could have been substantially upset by the fight with his girlfriend and might have thought he was not in a fit state to drive a motor car.

McHUGH J: But he spoke to his father on the phone.

MR TOOMEY: He spoke to his father to arrange for his father to pick him up and then started to walk, her Honour found, to Epping station to get a train. It was when he had walked substantially more than a kilometre, it would appear, that this accident happened. Can I just take your Honours to the photographs which are annexed to the supplementary submissions because it seems to us they demonstrate what it was open to her Honour to find.

KIRBY J: Bear in mind that I only have photocopies of the photographs. Justice McHugh as the presiding Judge has the actual photographs.

MR TOOMEY: I am so sorry. We can give your Honour a copy like this which are - - -

KIRBY J: Justice McHugh has colour photographs.

McHUGH J: I have the same as you.

MR TOOMEY: We can give your Honour a coloured lot. I am sorry, it is important that your Honour has the coloured ones. If I can just take your Honours quickly through them, photograph 1 is looking east. The applicant was walking towards the camera, the bus was going in the direction the photo was taken. The material on the side of the road - - -

McHUGH J: Does that show 50 metres? It obviously shows more than 50 metres, but down to the line that you can see, the end of the line on the left-hand side, how far is that?

MR TOOMEY: I am not sure that is right, your Honour, but I think it - - -

KIRBY J: These are a bit tricky, these photographs. I had many a case with Mr Taylor taking photographs and always sort of showed it to the advantage of the plaintiff. It is just a bit suspicious.

MR TOOMEY: Your Honours, all I want to do is this. Your Honours will see the debris on the side of the road, which does not look very great, above the yellow line to the north of the fog line. These, I might say, are the police photographs taken within an hour or two of the - - -

KIRBY J: They might be infra light photographs. They do seem to have a very great - - -

MR TOOMEY: A very fine definition.

KIRBY J: How long after the accident were these taken?

MR TOOMEY: Within a couple of hours, your Honour. They were taken on the night.

KIRBY J: Is that a skid mark on the ground?

MR TOOMEY: It was taken by the trial judge to be the mark caused by the white facing on the shoes of the applicant but, for reasons which if I have the opportunity to do so I will develop, we do not believe it could have been. In any event, if one goes to the next - - -

McHUGH J: That is because of where the vehicle hit him?

MR TOOMEY: Yes.

KIRBY J: It is against you if it is his white shoes because it is really in the middle of the lane.

MR TOOMEY: Not quite, but it could have been, your Honour. But for reasons I will explain, possibly not. If you go to photograph 2 to get a look at the debris a little more, if you go to photograph 6, you realise that rather than a few odd scraps of debris on the side of the road, there is in fact a reasonably substantial amount. If you go to photograph 7, you see that there is a very considerable amount and it is not to be supposed that a person would have walked along the shoulder, which is of course the case made by the respondent, that he walked along the shoulder and suddenly flung himself out in front of the bus.

KIRBY J: Does the evidence reveal whether that blood was the blood of the impact or the blood of the trajectory that he followed when he hit the wall?

MR TOOMEY: Neither, with respect, your Honour. If your Honours look at photograph 8, you will see the mark in the middle of the photograph to the left of the green outcrop. That is the blood from where the applicant was flung to the rock wall. If you then go back to photograph 7, you cannot there see the blood but it is near the left-hand edge of the photograph and the blood on the fog line is where the applicant’s body was lying when the policemen got there within a minute or so of the accident. There is no reason and no evidence to suggest that he had been moved, so he hit the wall and he came at more or less an acute angle to lie on the fog line. If one goes back to 6, the bloodstain is just above and to the left of the light blue bag. Your Honours will see the green outcrop. If you have a glass, you will see the green outcrop directly above that bag and the blood mark is just to the left.

The reason for all of that is this, that it was accepted that the impact occurred probably about nine metres west of the point where he hit the rock wall. So he was on the road some metres, not very many, four or five metres, past the debris when he was hit. It is our submission that the inference is overwhelming that he must have come onto the road to walk past the debris. One would not wade through that sort of stuff. The inference is substantially more than a probability that he continued to walk on the road, having come onto the road, until the point where he was hit front on by the bus. That removes the difficulty of the Court of Appeal majority who said it is mere speculation as to where he came onto the road. It is not speculation, in our respectful submission, it is inference.

The alternative is that he came out onto the road to pass the debris, then went back off the fog line and then came back in onto the road. There is no evidence that he did that because the only evidence of him coming suddenly onto the road came from the bus driver, whose evidence was utterly rejected by her Honour because it was so incredible. So it is solely a circumstantial case. He was struck by the bus with the bus entirely within the lane. The lane was 3.2 metres wide, the bus was 2.5 metres wide. If the bus was entirely within the lane and he was struck on the extreme nearside of the bus, as it was accepted he was – and if your Honours go to the next photograph you will see the police photograph of the bus which shows the point of collision and a slight piece of damage two or three inches in from the extreme nearside of the bus. So if you put all those things together with the bus in the lane, as her Honour found, the point of impact cannot have been more than .7 of a metre onto the road.

KIRBY J: Mr Toomey, this all sounds like the sort of argument Justice McHugh and I used to hear in the Court of Appeal back circa 1985. What is so special about the case? We have heard in recent months I think six cases which are purely factual cases.

McHUGH J: And we granted one today on a question of whether there is evidence of a breach of duty.

MR TOOMEY: That was Swain, I take it, your Honour?

McHUGH J: Yes.

KIRBY J: We cannot just become another general court of appeal. What is special about this case?

MR TOOMEY: Your Honour, what is special about this case is, in our respectful submission, that it is a clear miscarriage of justice because their Honours in the majority did not properly consider the evidence that was before the trial judge. The trial judge made findings which were open to her. The Court of Appeal almost per incuriam have upset that decision and there is in our favour the vigorous dissent of Mr Justice Santow in which he considered the evidence before her Honour and reached the conclusion that it was open to her to make the finding she did.

Your Honours, I know you are not a court of appeal simply to correct errors, but it must be of importance to the result of the case. The result of this case is that a 23-year-old plasterer who lost his arm has lost his verdict. It was a substantial case. Damages were agreed at a million dollars, so we are not asking your Honours to consider a trivial case and we are not asking your Honours to consider it on the basis of any other basis than the Warren v Coombes, Jones v Dunkel basis, that your Honours are in as good a position as the Court of Appeal, and indeed the trial judge, to make findings on inferences.

There were two crucial bases on which the Court of Appeal rejected the finding of the trial judge and both of them, in our respectful submission, are readily proven to be wrong. Justice Santow disagreed with them and they can be manifestly demonstrated to be wrong.

KIRBY J: Justice Santow disturbed the contributory negligence finding.

MR TOOMEY: Yes.

KIRBY J: That would not be before us, would it? Are you sustaining Justice Santow’s opinion?

MR TOOMEY: We would seek to challenge it, your Honour, because we would say that if we are right on the inference to be drawn from the applicant being driven onto the road, as it were, by the presence of the debris, which was not referred to by Justice Santow in considering the question of contributory negligence, that that is an extremely relevant question.

McHUGH J: First of all, you do not have a ground about it.

MR TOOMEY: No, I know that, your Honour.

McHUGH J: Your notice of appeal, Mr Toomey, I have to say - - -

MR TOOMEY: It is not mine, your Honour.

McHUGH J: I am sorry, filed on behalf of your client. It would have to be one of the worst I have ever seen. How could it be a ground of appeal in this Court that “There was a division between the judges at appellate level in both fact and law” or that “The interests of the Administration of Justice in this case require consideration by the High Court”? They are not grounds of appeal.

MR TOOMEY: No, your Honour.

KIRBY J: When do you promise to have a proper notice of appeal, if you were given special leave?

MR TOOMEY: 48 hours, your Honour. I will not be as brave as the last counsel, who said I think 24 hours.

KIRBY J: Yes, very well.

MR TOOMEY: May it please your Honours.

McHUGH J: Yes, Mr Rewell.

MR REWELL: Your Honours, this really was just an ordinary running down case. There is no novel principle of law involved in this case. The case turned on its facts which were only unusual facts because of the bizarre nature of the conduct of the applicant on the evening that the accident occurred. His conduct was inexplicable, irrational on any view of it, and yet her Honour the trial judge was able to draw some inferences which we say and said in the Court of Appeal were wrong.

KIRBY J: But an absolutely central part of the inference drawing was the lighting of the road by the bus lights. You will have read, as I did, Mr Toomey’s quotation from the expert about the way in which lighting has evolved over the years, and the judge found that the driver would have had a 50 metre vision. Now, that is a long vision.

MR REWELL: But the trial judge found that the plaintiff was on the roadway to be seen, and that was the nub of her Honour’s decision, that is the trial judge’s decision, which was that when the bus in effect was 50 metres away, Mr Anikin was on the roadway walking towards the bus.

KIRBY J: That is contributory negligence and that explains no doubt why Justice Santow upped the ante, but it still does not excuse a bus driver with 50 metres vision to run a person down.

MR REWELL: No, but one must look, your Honour, with respect, at what was the basis of the trial judge’s inference that Mr Anikin was on the roadway when the bus was 50 metres away.

McHUGH J: But why not? What about the presumption of continuance, which nobody seems to have ever mentioned in this case? If he was on the roadway in lane 1 at the point of impact, why does not one presume he was still on the roadway 50 metres back?

MR REWELL: That, your Honour, was not the way the case was run at trial or on appeal.

McHUGH J: It may not have been but - - -

MR REWELL: Your Honour, the basis of the trial judge’s finding, if it was a finding, that Mr Anikin was on the roadway was that it was, to use her Honour’s words, inherently improbable that he would lean towards or move into the path of an oncoming bus in effect at the last moment. What her Honour did not consider was the equal, or perhaps greater, inherent improbability of a person walking face first towards an oncoming bus, which he had the opportunity of seeing, according to the evidence, for a distance of 108 metres, which had its headlights on facing directly towards his eyes and of course had its engine on, allowing him to hear it even if he had his eyes closed. Her Honour the trial judge did not consider the inherent improbability of walking smack into an oncoming bus that one could have seen for 108 metres. The Court of Appeal did consider it and said that there were a number of possibilities, one of which was that Mr Anikin was on the road, one of which was that he was off the road and stepped onto the road at the last minute.

McHUGH J: The garbage tells against that, together with the broken nature of the road.

MR REWELL: But does it? When one looks, for example, at photograph 6, Mr Toomey puts it to your Honours that the extent of the debris on the side of the road is such that a person behaving as Mr Anikin was behaving would have surely stepped around it onto the roadway despite the presence of an oncoming bus and remained on the roadway. If you look at photograph 7, what is clear from those photographs is that there was ample opportunity for Mr Anikin, had he wished to do so, to continue to walk to the right or off the roadway to the north of the fog line. There is no reason to infer that that is not exactly what he did. If one looks at photograph 1 in particular, it illustrates the point that we make that if he was not on the roadway at a distance of 50 metres wearing dark clothing except for a strip on his sandshoe, he would have been invisible.

McHUGH J: Is that right? What about paragraph 92 of Justice Santow’s judgment where the expert evidence of Mr Woodward who was called was to the effect that the “beam was directed down and to the left”.

MR REWELL: That is so. There was no evidence that it was directed so far to the left that it would pick up someone off the road surface. Indeed, as Mr - - -

McHUGH J: It would not have to be too far off the road. After all, they are not blinkers on a racehorse that cannot see anything except directly ahead.

MR REWELL: The expert evidence was actually set out in the judgment of Justice Santow. At paragraph 51 was the evidence of Mr Anikin’s expert, Mr Woodward; in paragraph 53 the evidence of the respondents’ expert, Mr Joy. What Justice Santow pointed out correctly was that neither expert at trial was asked, “Could the bus driver have seen Mr Anikin if he was off the surface of the roadway?” No one was asked; there was no evidence to the effect that the bus driver could see him.

Now, the evidence given by the two experts does not go so far as to say that the road shoulder was illuminated by the headlights of the bus, assuming that they were properly trained and slightly to the left. What the photographs show is that if Mr Anikin was more than slightly off the edge of the roadway, he would have been invisible. Your Honours will see the competing evidence there. It does not go anywhere near so far. This point was recognised by Justice Santow himself in paragraph 67.

KIRBY J: When I think back on the cases that I have had, you have a long, straight road, you have a bus driver who not only has good lighting – one would assume it is regularly checked and it is efficient – but is in an elevated position, you have a long distance of trajectory to see it and you have a person who is struck on a road surface. You have 50 metres of vision and you have a presumption which I would infer that the person has continued in the same position unless there is some reason why not. The judge disbelieves the bus driver and the judge draws the inference of negligence. It just seems to me as cases go that it is not a case where you can say there is no evidence. You can argue about the contributory negligence and I can understand that, but to say there is no evidence is, it seems to me – when I think of the thin cases that I got up in my day, this seems a rather good case from a plaintiff’s point of view. I am just giving you my reaction.

MR REWELL: I am not sure that, your Honour, that is the standard that we ought to apply.

KIRBY J: No, I am sure it is not, but it is not a case with no evidence, and that is what the majority in the Court of Appeal said: no evidence.

MR REWELL: There was no evidence to indicate one way or the other whether the plaintiff was on the roadway when the bus was 50 metres away and it was just as illogical for him to be there as it was for him to be on the road shoulder and suddenly step out. The point that her Honour missed is it was so inherently improbable that the man would simply walk up the roadway straight into an oncoming bus facing it that that ought to have been something her Honour took into account, and surely it was more improbable that he would be walking on Epping Highway on the surface of the roadway into the face of oncoming traffic where there was an opportunity available to him to walk off the roadway in a position of relative safety.

If one is looking at presumption, surely the presumption would be that in an attempt to preserve his own life he would walk off the side of the roadway, given the nature of the roadway, in the road shoulder, albeit in darkness. The lighting was in fact very poor at the scene of the accident in all respects. There were three overhead lights, of which two were not working. That was the evidence. So the bus driver was faced with the situation that one sees in the photographs, especially photograph 1, that it was in fact a very dark section of roadway.

McHUGH J: The problem about your reliance on the 108 metres of his visibility is that it destroys your own argument. On that hypothesis, although he himself would have seen the bus for 108 metres, nevertheless he took no notice of it or he did not see it until too late and then he just suddenly stepped into the path of it.

MR REWELL: Is that less probable than that he saw it, took no notice of it and walked straight into it?

McHUGH J: It seems to me that it was open to the trial judge to think so. After all, there is the question of the swerving or the sounding of the horn. He was only hit on the edge of the bus. It was not as if he was hit on the right-hand side of the bus.

MR REWELL: But the bus driver had to see him to do either of those things.

McHUGH J: Exactly.

MR REWELL: But the point the majority in the Court of Appeal was making was that it was just as improbable that he jumped out in front of the bus, walked out in front of the bus, stepped out in front of the bus or walked face first into the bus. All of those were available. Her Honour chose one with no good reason to do so.

McHUGH J: Yes, there was a good reason. There was this garbage and the broken nature of the area beside the road. After all, it was only 1.2 to 2 metres wide. It was not as if you had alongside an eastern suburbs footpath to walk along.

MR REWELL: But there was plenty of room to the north of that fog line even at the precise point where the debris occurs.

McHUGH J: Of course there was, but you have to step around, step onto.

MR REWELL: One thing seems to be certain and that is that, for some reason none of us will ever understand, the plaintiff was blissfully unaware of the approach of a government bus up to and including the point of impact. That seems painfully obvious, unless he was attempting to do himself harm. Therefore, the plaintiff, whatever he did, did so with a total unawareness of the presence of the bus.

McHUGH J: Not necessarily. He may have made a misjudgement. Given the sort of garbage that you have beside the road, he thought he could step aside and he just made a mistake, misjudged the distance, misjudged the speed of the bus, could have slipped; all sorts of things could have happened.

MR REWELL: Or he may have walked up the traffic lane, as her Honour found that he did, and believed that the bus would go around him, but it did not. All of these things are open but the nub of the Court of Appeal’s decision was that there was no basis for her Honour to choose the inference that her Honour drew, namely that he had been walking up the road for a period of time which allowed the driver 50 metres of view.

KIRBY J: We have an arguable error in the way the majority reasoned, we have a serious injury to the plaintiff. It is a verdict that has been taken aside and we have a dissent from Justice Santow and we have two very persuasive counsel and memories of times gone by. It seems a suitable sort of case to bring up.

MR REWELL: Except for this, your Honour, that even if all the points made by Mr Toomey are accurate, it is not an appropriate vehicle to take up. To take up on what principle? The same principle as Derrick v Cheung and many other cases have already determined, and that is that the driver of a motor vehicle who is otherwise obeying the law, that is driving within a speed limit and within his traffic lane, as this respondent was, must be provided with a reasonable opportunity to avoid an accident or he will not be negligent.

That is the principle. It is a well-known principle. There is nothing additional that arises in this case. This is a fact case and it is not a vehicle which is necessary or sufficient for a reconsideration of those principles. After all, Derrick v Cheung is but two years old. There has been no change in the law and there will not be. It seems to be trite law almost to say that if the bus driver had a reasonable opportunity to avoid the plaintiff but did not, he is guilty of negligence. If he did not, he is not guilty of negligence because in all other respects he was driving in accordance with his duty. The roadway was one upon which pedestrians would not be expected. That was the finding of the trial judge and the Court of Appeal. The roadway was very dark, the plaintiff was in very dark clothing, and it was on the facts a poor case so far as the plaintiff was concerned. The plaintiff completely failed, it appears, to appreciate the bus, either its line or its existence. So for those reasons we would submit that this is no vehicle for reconsideration of what is, after all, established law.

McHUGH J: It is not a question of – there is no such thing as established law, with respect, Mr Rewell. Cases like Cheung do not lay down any principle of law. The only question is whether a driver has taken reasonable care in all the circumstances of the case. That is the only principle of law. There is no rule that you must drive so that you can avoid the car in front of you. They are questions of fact.

MR REWELL: Then one rhetorically asks: what is new about this case?

McHUGH J: No, the question is whether or not there is a miscarriage of justice in that the Court of Appeal has not adequately examined the evidence in the case. It is a miscarriage of justice – in the interests of the administration of justice that there should be a grant of leave.

KIRBY J: Some people think we should only sit here and deal with fine points of law but justice does not go out the window when you get to the High Court of Australia.

MR REWELL: I am sure that is correct, your Honour, but one cannot see, with great respect, a plain miscarriage of justice in this case in the Court of Appeal’s decision. All the Court of Appeal did was find what we would respectfully submit was obvious, namely that there were a number of possibilities.

McHUGH J: You have a seriously injured person and you have two judges out of four finding for the applicant. Arguably the majority in the Court of Appeal have made an error when they said there is no evidence and where nobody has referred to the presumption of continuance.

MR REWELL: There are two judges out of four who found that the respondent was not negligent and one who found that the overwhelming share of responsibility lies with the pedestrian and one who did not.

McHUGH J: That goes to contributory negligence.

MR REWELL: So it goes to whether there has been a miscarriage of justice sufficient for this case to find its way to this Court.

McHUGH J: It cannot possibly – even if the plaintiff was 90 per cent guilty of contributory negligence, it would not mean that the administration of justice did not apply to a grant of leave.

MR REWELL: Your Honour, I believe I have said what I can say in answer to the application.

McHUGH J: Yes, thank you. Yes, Mr Toomey.

MR TOOMEY: Your Honours, can I just point out that the presumption of continuance, having regard to the fact that the plaintiff would only have been in the vision of the bus for the period of time he was in the lights of the bus, only need be for three or four seconds.

McHUGH J: I know. Some three seconds, is it not?

MR TOOMEY: Yes. In our respectful submission, that really is part of the vice in the majority in the Court of Appeal, that they seem to have been talking about his availability to vision as if he moved 50 metres. He would have moved four or five metres; the bus moved 50 metres. It is pretty hard to escape the presumption of continuance with a person walking for four or five metres. May it please your Honours.

McHUGH J: Mr Toomey, subject to you redrafting your notice of appeal and filing it by 4.00 pm on Friday, there will be a grant of special leave in this matter.

MR TOOMEY: Your Honours, can I go back for my hat and ask can we include a challenge to the Court of Appeal finding on contributory negligence?

McHUGH J: There is no finding of contributory negligence against you.

MR TOOMEY: No, quite. Thank you, your Honour.

McHUGH J: You understand what I mean?

MR TOOMEY: Yes, your Honour.

McHUGH J: That was in a dissenting judgment. The Court will now adjourn to reconstitute.

AT 12.55 PM THE MATTER WAS CONCLUDED