Anikin v Sierra & Anor [2004] HCATrans 203 (16 June 2004)

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Anikin v Sierra & Anor [2004] HCATrans 203 (16 June 2004)

Last Updated: 16 June 2004

[2004] HCATrans 203

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S631 of 2003

B e t w e e n -

SERGE ANIKIN

Appellant

and

ALFONSO SIERRA

First Respondent

STATE TRANSIT AUTHORITY

Second Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 JUNE 2004, AT 12.10 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 appellant. (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 Litigation Lawyers)

GLEESON CJ: Yes, Mr Toomey.

MR TOOMEY: Thank you. Your Honours, this is a running down case; not the sort of case that often comes before your Honours. It comes before your Honours because a trial judge found a verdict for a plaintiff who was struck by a bus on Epping Road. The Court of Appeal, by a majority of two to one, substituted judgment for the defendant, and special leave was granted. The basis of the plaintiff’s claim for special leave was that the majority in the Court of Appeal had failed to appreciate, or failed to consider, the evidence which was before her Honour Judge Sidis in the District Court which had entitled her fully to make the findings and to enter the judgment that she had entered. In particular, perhaps I should tell your Honours the basic facts so that this will mean something.

The appellant, Mr Anikin, was a 23 year-old man who had been to a rock concert at the Macquarie University. He was walking from the University to Epping Station along the northern side of Epping Road, which runs east and west and which has two lanes each way. The point on the road at which he was walking was one where there was no footpath and where pedestrian traffic was effectively directed, by the shape of the end of the footpath, with a ramp down onto the side of the road and the fact that there was a five metre rock wall on the northern side of the road. Pedestrians were directed onto the shoulder of the road.

KIRBY J: There is a mention somewhere of a narrow path, but does that run out before the point in the road near where the plaintiff was injured?

MR TOOMEY: Your Honour, there is a normal concrete footpath which terminates and there is then a narrow path which goes five metres up onto the top of the rock wall. It was accepted by the respondent before the Court of Appeal that it was reasonable that the appellant should have been using the road, which is commonly done. The photographs show that actually at the end of the footpath there is a ramp leading down onto the road and the entry to the path up onto the rock wall is obscured. The plaintiff did not know the area and it was dark when he reached there. I do not think it is in issue that he should not have been in the area. It was what follows which created the issue.

The plaintiff was, to use a neutral term, in the vicinity of the fog line walking west when the bus of the second respondent driven by the first respondent came from the west travelling east. The plaintiff was struck by the nearside front corner of the bus at a point which indicated damage - the police officer who was on the scene and who inspected the bus said that the damage extended only two to three inches in, so the contact between the bus and the pedestrian was at the extreme nearside front of the bus. The plaintiff was spun around into the door cavity of the bus, smashed the glass of that with his body and was flung against the rock wall and then ricocheted from the rock wall onto the fog line which was about 1.2 metres south of the rock wall. From that your Honours will deduce there was a distance of approximately 1.2 metres between the rock wall and the fog line.

HAYNE J: Which side of the fog line did the collision occur?

MR TOOMEY: It occurred on the road, your Honour, on the south side of the fog line.

HAYNE J: By how much?

MR TOOMEY: It is not quite decided, your Honour, but it appears at a point about 0.7 of a metre, which is about two feet, four inches onto the road. The contention for the plaintiff appellant was that he was struck on the shoulder, because the major injury he suffered was an evulsion of the brachial plexus which led to him losing his arm.

HAYNE J: He was facing the bus?

MR TOOMEY: That is the contention and has always been the contention of the plaintiff.

HAYNE J: And thus, the point of his left shoulder was approximately - - -

MR TOOMEY: About 0.7 of a metre, yes, your Honour.

HAYNE J: About 1.9 metres away from the rock wall, is that right?

MR TOOMEY: That is so, your Honour. Between the fog line and the rock wall at the point, as shown on the photographs which we annexed to our submissions and which were exhibits in the case, there is a substantial amount of rubbish. These photographs were taken by the police within a short time of the accident. If your Honours look at photographs 1 and 2, they are a long shot, showing the view the bus had approaching the scene of the accident, a closer shot, and, next, that is the photograph with the number 6 in the bottom right-hand corner, that shows the rough condition of the area between the rock wall and the fog line at about the point of the accident. If your Honours look at photograph 7, that shows the blood on the fog line where the plaintiff came to rest and shows the nature of the material which would have prevented him walking, we say, on the northern side of the fog line.

Photograph 8 shows the material under the mark on the rock which shows where the plaintiff was flung against it. Photograph 11, the last of the annexed photographs, shows the nature of the damage on the extreme nearside front of the bus. The findings made by the learned trial judge on the basis of expert evidence which to a large extent did not disagree was that the - - -

CALLINAN J: Did they purport to reconstruct the accident? They did, did they not, in part? She referred to the dynamics which were given in evidence by one of the so-called experts.

MR TOOMEY: Well, they did what these forensic engineers do, your Honour, which is to say this is what happened when one knows it is quite impossible to say what happened.

CALLINAN J: Well, you can believe in fairytales if you accept that.

MR TOOMEY: Yes, your Honour. But, they did - - -

CALLINAN J: Some of it was no doubt useful, what was at the scene and the distances and things like that; but the reconstruction - I really do not know why parties allow it to be given and why judges pay any attention to it.

HAYNE J: Can I just understand what are the base facts from which it is said inferences are to be drawn?

MR TOOMEY: Yes, your Honour.

HAYNE J: First, there is a collision at night, correct?

MR TOOMEY: Yes, your Honour.

HAYNE J: Two, the collision occurs in an at least poorly lit section of the road, is that right?

MR TOOMEY: Yes, your Honour, there was some doubt.

HAYNE J: There was some doubt about the degree of lighting, but it was at the least not especially well lit.

MR TOOMEY: It certainly was not well lit, your Honour.

HAYNE J: The plaintiff is a pedestrian wearing dark clothing subject to this qualification about the footwear?

MR TOOMEY: Yes.

HAYNE J: The collision occurs on the roadway.

MR TOOMEY: Yes, your Honour.

HAYNE J: To the extent of about half a metre, perhaps a little more.

MR TOOMEY: Yes, your Honour.

HAYNE J: Is there any evidence which shows whether the plaintiff was walking straight, diverted, lurched, stumbled from the side of the road onto the roadway, that is, is there any evidence that shows why he was on the roadway?

CALLINAN J: Well, was there not the first respondent’s own evidence, that he said the appellant jumped out in front of him?

MR TOOMEY: Yes, your Honour, the first respondent’s evidence was that he jumped out onto the roadway in, the first respondent said, an attempt to stop the bus.

CALLINAN J: It rather looks as if he was trying to hail the bus down, does it not?

MR TOOMEY: Yes, but, of course, the bus was going east and he was going west - - -

KIRBY J: The trial judge did not accept the first respondent, and there was a statement to police - - -

MR TOOMEY: No, the trial judge totally rejected the evidence of the bus driver for that reason and for other reasons. There was independent evidence of what happened. A man named Fatches, who was a passenger in a car going in the opposite direction, said that the bus did not deviate, did not slow and was wholly within its lane. The evidence of the bus driver was that he saw the pedestrian, swerved to the right, straightened up and then hit him. Her Honour rejected that, as, with respect, she was of course entitled to do, because it was proved that what the bus driver said he had done was in any event physically impossible. He claimed, for instance, to have seen the pedestrian 10 metres in front of him when he was doing 70 kilometres an hour and to have swerved, straightened and then hit him, none of which was possible. The expert evidence which was of assistance to the court was that the standard illumination power of buses of this nature is - - -

HAYNE J: Sorry, before you pass to that, just to conclude the question I had asked you, other than the evidence of the bus driver – evidence you say was rejected – was there any evidence that showed why the plaintiff was where he was when he was struck?

MR TOOMEY: We say there was, your Honour, and we say it is shown by the photographs that we have drawn the Court’s attention to.

HAYNE J: Is there any evidence that shows for how long the plaintiff was either standing or walking along a line on the roadway?

MR TOOMEY: No, but the material which would have prevented him being on the offside of the fog line would have had him on the road for three or four seconds, that is, on the road as opposed to on the other side of the fog line, because he is moving at only – one assumes, if he is moving, he is moving at a pedestrian pace of, say, 1.3 metres a second.

HAYNE J: Where this is leading is that after lunch I would be glad if you would tell me why the reasoning of the kind described in Nesterczuk v Mortimore [1965] HCA 60; 115 CLR 140 would not lead to the conclusion that the plaintiff failed. Better you have an opportunity to consider it, but important to the answer will be a consideration of what facts were revealed and what inference is open to be drawn from the facts as revealed.

MR TOOMEY: Can I just deal with the factual basis on that very point. The basis on which the Court of Appeal entered judgment for the defendant was that there was no evidence of when the plaintiff came onto the road and that he might have come from anywhere, but it did not stop there. It went on to say, “and accordingly there was no evidence that, although the lights lit up the road for 50 metres, he would have been visible had he not been on the road before he came onto it”. That was the reasoning of the Court of Appeal.

HAYNE J: But the negligence you allege against the driver is assumedly failure to keep proper lookout, failure to take evasive action either at all or in time. Is that the nub of the case in negligence?

MR TOOMEY: Yes, that is the nub of the case, your Honour.

HAYNE J: Do those propositions depend upon any inference about for how long the plaintiff was, in effect, on the roadside of the fog line? That is perhaps the basic question that underpins my inquiries. As I say, if you wish to deal with those after lunch, by all means do.

MR TOOMEY: I am happy to deal with the factual basis, your Honour, but I would like the opportunity of looking at Nesterczuk v Mortimore over the lunch hour. The factual basis, we say, is that the plaintiff was on the road because that was the only appropriate place for him to walk at that section of the road. He was visible, we say, on the expert evidence at a distance of 50 metres whether he was on the road itself or on the road shoulder. So what he did and where he went for that 50 metres at least – in fact, the expert witness said 50 to 60 metres; the plaintiff said 60 to 70 metres would be the area illuminated by the bus – that with him being in view for that period of time, with him being struck in a position which demonstrated that he was facing the bus, from which one could infer, we said, that he was in fact walking in the direction opposite to that of the bus, the presumption of continuance – I see your Honour’s reaction and, with respect, I understand it, but - - -

HAYNE J: I simply raised an eyebrow, Mr Toomey.

MR TOOMEY: I thought it was two, your Honour, but be that as it may.

KIRBY J: Justice McHugh referred to it on the special leave hearing.

MR TOOMEY: Yes, he did, your Honour, and it is worth something because he was on the road, he was progressing along the road, he had walked some, I think, 2 kilometres from Macquarie University so he was not just hanging around on the side of the road to jump in front of a bus. He was walking. He was struck in an attitude which was the attitude of a pedestrian progressing west, and the evidence which suggested that he had acted in an irrational matter and jumped out in front of the bus was rejected by her Honour on proper grounds, so - - -

KIRBY J: What did the people in the car that passed by – did they see anything of the plaintiff or only of the bus?

MR TOOMEY: Not at all, your Honour. Mr Fatches was aware of the bus coming from the west, his particular attention was drawn to it when he saw the glass shattering, at which time the impact had occurred.

GLEESON CJ: How much traffic was there on the road?

MR TOOMEY: Little, your Honour, very little.

GLEESON CJ: What day of the week was it?

MR TOOMEY: It was a Saturday night.

GUMMOW J: What time?

MR TOOMEY: Nine o’clock, your Honour.

KIRBY J: The driver was on his way home. He had finished his shift, I think.

MR TOOMEY: He was on his way to the depot to finish his shift. He did not have the lights on on the bus but he had a special sign on. Your Honours, as I said, and I recognise it does not directly meet the point your Honour Justice Hayne has raised, but the reason for the Court of Appeal entering judgment for the defendant was that there was no evidence that the lighting on the bus would have thrown up the pedestrian if he were not actually on the surface of the – on the trafficable portion of the road. That was the basis of their finding, and - - -

KIRBY J: You were going to tell us about the expert evidence concerning the trajectory of the night.

MR TOOMEY: Indeed, your Honour. The Court of Appeal dealt with it at paragraphs 8 to 12 of the majority judgment, which are to be found at page 455 of volume 3. Their Honours say at paragraph 8:

Her Honour found that given the range of the headlights on the bus, he had a capacity to see the respondent for 50 metres. She held that he could have taken some action to avoid the accident, by stopping the bus, or by taking evasive action by deviating slightly from his path of travel or sounding his horn, had he seen the respondent at a distance of 30 metres. As a consideration of the material in para 10 below makes clear, her Honour must have meant that had the respondent commenced to react to the presence of the respondent on the roadway at a distance of 30 metres he could have taken some action to avoid the accident. Her Honour found that the appellant’s failure to do so meant he was negligent.

I should say to your Honours that a little exegesis is needed there because the finding of the trial judge, which was accepted in the Court of Appeal, was that the reaction time for a professional driver would be one second, and, at the speed he was travelling at, which was accepted by all parties as being 70 to 80 kilometres an hour, he would have travelled about 20 metres in that one second. So his reaction time is one second, he travels 20 metres, he has a vision of 50 metres, he has 30 metres in which to do something. Their Honours went on:

It was relevant to this finding that her Honour rejected the first appellant’s evidence that there were vehicles behind him but in the farside (no 2) lane which would have made it dangerous to swerve to the right to avoid colliding with the respondent.

I should say her Honour’s rejection of the appellant’s evidence on that basis was the evidence of Mr Fatches, that the closest vehicles behind the bus were 100 metres away:

The appellants submitted that there was no evidence to support her Honour’s finding of negligence.

There is nothing in her Honour’s reasons to suggest that the first appellant should have seen the respondent when he was on the side of the road.

That is a crucial statement by their Honours -

Her conclusion, then, that the first appellant should have seen the respondent at a distance of 30 metres, involves a finding not only that the respondent was on the roadway but also that he was on the roadway for at least 50 metres prior to impact.

Now, what their Honours mean by that must be that he was on the road while the bus travelled 50 metres.

The second aspect of this reasoning derives directly from her Honour’s acceptance of the expert evidence as to stopping distances.

Their Honours then deal with those.

If the appellant was travelling at 70 kilometres per hour and based upon a reaction time of 1 second (given that the first appellant was a professional driver) he would have travelled 19 metres before “reacting” to the presence of someone or something on the roadway. It would have taken him another 22 metres to bring his vehicle to a complete stop – a total of 41 metres. At 80 kilometres per hour, the relevant distances are 22 metres “reaction distance” and 30 metres “stopping distance” – a total of 52 metres. It is apparent that her Honour used the higher figures relating to a speed of about 80 kilometres per hour upon which to base her ultimate finding of negligence. There was good reason for her Honour to do so as the first appellant’s evidence was that, as he was travelling down the hill towards the bridge, his bus picked up speed to between 75 to 80 kilometres per hour.

Your Honours, I have to say something about that because it is not apparent that her Honour did use a speed of 80 kilometres an hour. As for relying on what the first respondent said about his speed, he not only said that his bus picked up speed at between 75 to 80 kilometres an hour, he said at various times that he was travelling 65 kilometres an hour, 70 kilometres an hour, 75 kilometres an hour and 80 kilometres an hour. So to rely on the first respondent’s evidence as to his speed was, in our respectful submission, unsafe. Their Honours went on:

Had the respondent stepped onto the roadway at a time when the bus was 40 metres away, then the appellant would not have seen him, reacted and been able to take action to avoid the accident in sufficient time to avoid the accident even if he was only travelling at 70 kilometres per hour.

GUMMOW J: Mr Toomey, this question of stepping onto the roadway puzzles me a bit.

MR TOOMEY: Yes, your Honour.

GUMMOW J: Stepping onto the roadway from what? Can we look at photograph No 2?

MR TOOMEY: Yes, your Honour.

GUMMOW J: Is photograph No 2 looking back down Epping Road towards Macquarie?

MR TOOMEY: Yes, your Honour.

GUMMOW J: Down a hill, in effect?

MR TOOMEY: Yes, your Honour.

GUMMOW J: Was there any evidence – and there is a car right down in the top right-hand corner.

MR TOOMEY: It is actually the bus, your Honour, and that is where the bus stopped. It is variously described as 130 or 180 metres past the point of impact. I am sorry, your Honour, you were asking me a question?

GUMMOW J: And then we look at photograph No 8 and we see there is this wall.

MR TOOMEY: Yes.

GUMMOW J: Of stone, cut out of the side of the hill, I suppose?

MR TOOMEY: Yes.

GUMMOW J: Is there any evidence as to how far this continued back towards Macquarie University?

MR TOOMEY: It went back, I think, the best part of 100 metres, your Honour. So he had to be on the southern side of that rock wall, we say in the general area of the accident. He could not have been on the northern side of the fog line because of the mess and the stuff that was there, best perhaps demonstrated by photograph 7 and - - -

GUMMOW J: Photograph No 2 is taken from the top of the hill towards the Epping end of the road, is it?

MR TOOMEY: That is correct, your Honour. It is in the direction the bus driver was travelling.

GUMMOW J: So the photograph then is of the back of the bus, is it?

MR TOOMEY: Yes, that is so. The impact was somewhere in that general area. No one knows exactly where. There was a suggestion that the white mark on the road was the point of impact because it was said that the white band on the appellant’s gym shoes left that mark, but there is absolutely no evidence that that is so. It is merely speculation. It could have been there before or it could have been caused in any one of a number of matters. There was no evidence that it was caused in this accident and there is powerful reason, we would say, to find that it was not.

GUMMOW J: How many yards is the bus down the hill, as it were, from the position of the photographer?

MR TOOMEY: In that photograph?

GUMMOW J: Yes, in photograph 2. Do we know?

MR TOOMEY: Your Honour, I though it was 130 on a sketch mark, but my learned friend said just there 180 – my learned friend says it was 122 or 108. In any event, it stopped for the first time more than 100 metres past the point of impact. Your Honour’s question as to where did he jump from - - -

KIRBY J: That assumes a jump.

MR TOOMEY: It does assume a jump.

GUMMOW J: Well, it is somewhere to jump from other than the ditch.

MR TOOMEY: Yes. Well, there was nowhere to jump from except north of the fog line. He would not, one assumes, have been in the rubbish and so on because, well, one would not. He was travelling in a westerly direction. He was hit front on - - -

GUMMOW J: He was coming up the hill.

MR TOOMEY: Yes, he was.

KIRBY J: There was no evidence that he was intoxicated.

MR TOOMEY: No, in fact, there was a specific finding - - -

KIRBY J: Was a blood test conducted?

MR TOOMEY: No, but there was a specific finding that he would not have been affected because there was the substantial lay evidence that the group of which he was a member – I think, four young people – had shared two cups of beer among them during the whole afternoon.

GUMMOW J: Is there any evidence as to where any footpath stopped, coming from the university direction?

MR TOOMEY: Yes, it stopped at the start of the rock wall, which is, your Honour – I will check it over lunch, but I think it is about 100 metres back from the point of impact.

KIRBY J: Is that where the bus is now stationary?

MR TOOMEY: A bit this side of the bus, your Honour, a bit to the west of the bus, but he had walked from the point where the footpath stops along the whole of that distance.

KIRBY J: Now, crucial to the plaintiff’s case was this light that was thrown by the bus’s lights and the evidence of the experts about the evolution of lighting. I would like to know a bit more about that.

MR TOOMEY: It was, and it is dealt with at some length in the dissenting judgment of his Honour Mr Justice Santow in the Court of Appeal, but the experts – her Honour deals with the experts’ evidence at book 3, 435 at line 45, where her Honour said:

As to the first defendant’s view of the plaintiff, it was agreed by the experts that the minimum range of vision for headlights on low beam is required by traffic regulations to be 50 metres. Mr Joy stated that the typical range was 50 to 60 metres –

That is the defendant’s expert. The plaintiff’s expert, Mr Woodward, said at book 1, 177, in evidence, that:

On the type of lighting in that Scania 113 –

that is the make and model of the bus –

the [the plaintiff] should have been visible at about 60, 70 metres.

So when her Honour said at least 50 metres, the evidence before her was, visible a minimum of 50 metres but perhaps 70 metres.

GLEESON CJ: Was there daylight saving?

MR TOOMEY: It was 29 March, your Honour. I think it was just ended, but I do not know the answer to that. We will check over lunchtime. I see the time, your Honours. Would that be convenient?

GLEESON CJ: If that is a convenient time, we will adjourn until 2.15 pm.

MR TOOMEY: May it please your Honour.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

GLEESON CJ: Yes, Mr Toomey.

MR TOOMEY: Thank you, your Honour. Your Honours, can I deal with matters left over from this morning. May I say first, with respect to your Honour the Chief Justice’s query about daylight saving, this was the last weekend in March and we have been unable to find a particular answer but we believe the general answer is that is the weekend invariably in New South Wales when the change occurs from daylight saving to ordinary time. That would have occurred at 3.00 am on Sunday.

GLEESON CJ: On Sunday morning.

MR TOOMEY: Yes. So this would have been, we believe, the last day of daylight saving, your Honour. The accident happened at about 9.00 pm. In answer to your Honour Justice Gummow, the rock wall it appears extends for about 100 metres east of the point of impact.

In respect of the question raised as to how far from the point of impact the bus stopped, your Honours will remember the competing distances were 108 or 122 metres. The bus was 14 metres long, so it depends on whether you – there were two measurements it appears, one done to the back of the bus and one done to the front of the bus. Of course, the impact was with the front of the bus, so that means that the vehicle had travelled 122 metres before it was brought to a halt.

Can I turn to Nesterczuk v Mortimore. Your Honours, that case turned, in our respectful submission, on the fact that there were but two bodies of evidence, one from each driver who had been involved in the collision. The learned trial judge was unable to accept either of them to the exclusion of the other, so he was left in a position where he was simply unable to say that there had been negligence on the part of one or the other and there was no inferential evidence which assisted him with the decision.

There was, for instance, no evidence as to the point of impact, so it could have occurred wholly on one side, wholly on the other side of the road. It is to be distinguished from this case, in our respectful submission, because there is here inferential evidence which makes it probable that the plaintiff was walking in a westerly direction on the road. That evidence is the fact that the impact occurred with the plaintiff facing in a plane along the road. That is established by the nature of his injuries which were generally avulsion of the left brachial plexus, fracture of the left tibia and fibula, fracture of the left radius and ulna, fracture of the left scapula and contusion of the left pulmonary region; in other words, right down the left side of the body.

It is then to be observed that he had walked two kilometres in a westerly direction, that he had moved from the footpath onto, to use a neutral word, a roadside and had walked a further 100 metres, that in the area of the impact there was debris which would have prevented him walking off the road surface, and finally there was the matter referred to by the learned trial judge which is noted at 440 point 48, book 3, that is the inherent improbability that a young man would jump out in front of a bus. For what reason?

CALLINAN J: To hail it, to stop it.

MR TOOMEY: It was going the wrong way, your Honour.

CALLINAN J: His behaviour does not seem to have been other than erratic, anyway.

KIRBY J: That is what the driver said, but the judge rejected that evidence.

MR TOOMEY: I understand your Honour is putting this to me as an answer to my hypothetical, no, rhetorical, question.

CALLINAN J: It is almost inherently improbable that the appellant would have been there in the first place, walking aimlessly along. What was he doing, where was he going?

MR TOOMEY: He was not walking aimlessly, your Honour, with respect - - -

GUMMOW J: He was going to Epping Station, was he not?

MR TOOMEY: Yes, he was heading to Epping Station, which was about 800 metres up the road and there was no footpath.

CALLINAN J: Without his car? What happened to his car?

MR TOOMEY: He left his car at the university.

CALLINAN J: Why would he do that?

MR TOOMEY: One does not know, your Honour. He may have been upset. He may have thought that he should not drive. He had had an argument with his girlfriend.

CALLINAN J: It is all speculation, all of it. That is the problem.

MR TOOMEY: But, your Honour, it is our respectful submission that it is not speculation to say that he was walking in a westerly direction, because he had been doing it for two kilometres. I take your Honour’s point, but that he had been doing. He was progressing west and walking. With the other matters that we have raised, it is our respectful submission that the probability, and it need only be slight, was that he was walking along the road. If that be the case, we would turn then to the further finding of the Court of Appeal. I think I had not finished reading to your Honours the crucial parts of the judgment of the majority in the Court of Appeal. I was on paragraph 11 at page 456 of book 3, your Honours. In paragraph 11, their Honours in the majority say:

Had the respondent stepped onto the roadway at a time when the bus was 40 metres away, then the appellant would not have seen him, reacted and been able to take action to avoid the accident in sufficient time to avoid the accident even if he was only travelling at 70 kilometres per hour.

Your Honours, with the greatest respect to their Honours, on the evidence before the court, that is simply wrong, and the reason that is wrong is this. It was agreed between the parties that an appropriate reaction time was one second. It was agreed between the parties that that meant a travelling distance of about 19 metres and there was the crucial evidence referred to by Mr Justice Santow at page 478 of the book in his judgment of what was referred to by the defendant’s expert as “an empirical demonstration” using the same bus and what had happened was that Mr Joy had gone out in the bus with Mr Sierra and they had done an experiment to see whether deviation could be done in sufficient time to avoid an object and Mr Joy’s report was that in this empirical - - -

KIRBY J: You had better give us the reference to this.

MR TOOMEY: Yes, your Honour, I think I should give you the reference to the primary evidence and not in the judgment of his Honour. If your Honours will give me just one moment I will take you to the primary reference. It is at –

KIRBY J: If you just give us the citation. I am not suggesting you read it all now, but it is handy to have the references to look at.

MR TOOMEY: May it please, your Honour. It is referred to at paragraph 79 of Justice Santow’s judgment on page 478. The primary citation is in book 2, at page 272, and I would like to read your Honours what Mr Joy, the defendant’s expert, said at page 272. He said, starting at the top of the page:

The “swervability” of this 14.5 metre long Scania bus is not known with certainty, being affected by factors such as vehicle mass, steering responsiveness, tyre stiffness and suspension compliance. However, based on an empirical demonstration given by Mr Sierra using the actual bus, a lateral displacement of say one metre to take at least one second, covering at a constant 70 km/h about an additional 19.5 metres.

So that when their Honours say that if he had been seen 40 metres away he could not have been avoided, that is simply wrong. He could have been avoided by a metre because using the very bus, Mr Sierra had moved the vehicle to the right, deviated to the right by 1 metre within 19.5 metres. That is one of our major attacks on the judgment of the majority in the court below. Their Honours then went at paragraph 12 to a matter which appears to have determined the case:

There was no evidence however as to when the respondent first stepped onto the carriageway. He may have done so from the commencement of the unpaved portion of the roadway –

I think that probably means from the termination of the footpath, your Honours.

He could equally have done so at any point thereafter up until some metres prior to the collision. Nor was there any evidence to indicate when it was more probable that he stepped onto the road.

Now, our point about that, of course, is that if one looks at the photographs, it is apparent that there was a very good reason for him to step out onto the road when he came to the great pile of rubbish between the rock wall and the road.

HAYNE J: How is that proposition consistent with the trial judge’s finding at 442 about contributory negligence in paragraph 8.5(2), that an element of contributory negligence was failing to step off? What is the reconciliation you seek to make?

MR TOOMEY: Your Honour, I would make this reconciliation, that it could be said that he was walking along the road, but faced with that danger he should have subjected himself to stepping off the road, even if it meant stepping into the rubbish. It does not, with great respect, in our submission, mean that he was not walking on the road.

HAYNE J: Is there any evidence other than the photographs that describes the rubbish, describes where it was, how far it extended, matters of that kind?

MR TOOMEY: There was some evidence from one of the police officers, your Honour, and I will ask my learned junior to turn it up. Yes, I will go back to it.

HAYNE J: Do not pause now, but at some point could you direct me to any evidence that bears upon that fourth proposition that you advanced that the debris prevented him walking off the road surface.

MR TOOMEY: Your Honour, with respect, we do not put it so highly. We say that it is a matter logically going to the probability of him walking on the road, not that he could not have, but that he probably would not have. Their Honours went on:

All that is known is that the respondent was on the road at some point. The existence of a number of equally available possibilities is not sufficient to found an inference –

and then their Honours quote Luxton v Vines and other cases –

It follows that there was no evidence to support the basis upon which her Honour found that the first appellant was negligent.

We have read the judgment of the majority in the Court of Appeal to mean that the appellant failed for two reasons: one, that there was no evidence that he would have been visible to the bus, and, second, there was no evidence to establish that he was on the road as opposed to on the road shoulder or on the area between the edge of the road and the rock face. If we can turn first to the first of those questions, I think - - -

KIRBY J: Why would the second be a reason for rejecting negligence? If he is off on the shoulder, why is it not the obligation of a bus to stay within the fog line, I think it is called – to stay on the road surface, in short?

MR TOOMEY: I think their Honours used it in a different way, your Honour. I think what they were saying was that if he was not on the trafficable portion of the road, he would not have been visible. So if he suddenly moved onto the road, the bus driver would have had no warning. I think that is the way their Honours used it.

KIRBY J: But the evidence of the experts – and I think it was of the same degree – was that the evolution of lights in these buses, and, indeed, in motor vehicles generally, has been substantial, and includes throwing the light to the left for a very considerable space, obviously, for purposes of safety of people and things that may be on the left.

MR TOOMEY: With respect, that is correct, your Honour. If I could read your Honours that expert passage, it is at page 340 in volume 2 and it is the evidence of Mr Woodward, who was the plaintiff’s expert. It is at line 40. Mr Woodward wrote:

Present-day motor vehicle headlamps are the product of a long evolutionary process. Low-beam headlamps in particular are asked to provide adequate illumination for safe vehicle operation at all legal speeds, allowing the driver to safely detect objects on the rod and detect and read signs that can be placed on either side of the road, as well as overhead. In addition, the system should provide adequate illumination on hills and curves as well as straight flat sections. The system is biased away from approaching traffic, that is, to the left side of the road. In terms of the revealing power of the system, it clearly favours objects to the left. This would favour illumination of the Plaintiff.

May I just make a couple of points about that, your Honours. The lights on a motor car do not show merely the road in front of it. If that were the case, when one was driving down a street in a poorly-lit suburban area, but a populated one, then a pedestrian could come to the extreme edge of the footpath, ready to step out onto the road, and would not be within the sight of a driver. That is not the case.

As Mr Woodward says, lights are designed to illuminate the left side. They favour the left side. It is of common knowledge that when one is driving along, if there is a sign, it is not on the traffic surface; it is to the left of the traffic surface, perhaps by some feet. Whether it is low or high, it is available to view by reason of this bias which Mr Woodward elucidates in his report.

If one turns from that to the question of whether the plaintiff would have been visible in this case, it is our respectful submission that he would have been and that her Honour so found. At page 437, line 40 in book 3, she said:

The evidence also established that the range of the headlights on the bus driven by the first defendant was at least 50 metres and that the lights were trained towards the left hand side of the carriageway. There was nothing to obscure the first defendant’s view of the plaintiff as he walked towards his bus. Traffic conditions were light.

On the next page, she said, at line 5:

As to what the first defendant could have seen, my findings are:

(1) the first defendant had the capacity to see the plaintiff from a distance of at least 50 metres - - -

KIRBY J: Was that finding set aside on the review of the facts by the Court of Appeal?

MR TOOMEY: By inference at least, your Honours.

KIRBY J: Is that the “no evidence” finding?

MR TOOMEY: Yes, it is a “no evidence” point, your Honour. I am sorry, it has just gone out of my mind as to where it is, but their Honours did find that there was no evidence that the appellant would have been visible to the bus if not on the trafficable surface. There was a more direct finding and for the life of me, your Honours, I cannot - - -

KIRBY J: Is that the one at the top of 457 in paragraph 12?

MR TOOMEY: That appears to be directed towards the question of when the appellant came onto the roadway, your Honours, but there is a conclusion by the Court of Appeal that her Honour had not found that the appellant would have been in the view of the bus driver. I am terribly sorry about this your Honours, I feel embarrassed.

KIRBY J: Perhaps that can be picked up.

MR TOOMEY: Yes, I am grateful to my junior, your Honour, it is the first sentence on paragraph 10:

There is nothing in her Honour’s reasons to suggest that the first appellant should have seen the respondent when he was on the side of the road.

We say that is incorrect. There was evidence, both the expert evidence and what I have quoted to your Honours from her Honour’s judgment.

KIRBY J: Did the other expert come to a different view so that their Honours preferred one expert over the other?

MR TOOMEY: No, your Honour, there was no dissent between the experts as to that question. If it be the fact that the appellant was visible from a distance of 50 metres, that he should have been seen by the driver at a distance of 50 metres, that the driver’s reaction time, being a professional driver should have been a second, and that was accepted by all parties - the plaintiff’s experts said one second, the defendant’s experts said between 0.75 seconds and 1.25 seconds - that translated into a distance covered of about 20 metres, which means that about 30 metres away from the plaintiff as a minimum, because the finding was at least 50 metres illumination, then the bus driver should have been in a position to begin avoiding the accident.

Their Honours in the Court of Appeal confined themselves solely to the question of whether he could have braked. Much the most practical and probable means of evasion, in our respectful submission, would simply have been to swerve the bus. There was no traffic in the lane beside the bus. There was no traffic for a distance of 100 metres behind him - those findings made by her Honour the trial judge on independent evidence. There is the expert evidence to which I took your Honours a short time ago, that in 19.5 metres at 70 kilometres an hour the bus could have been deviated a metre to its right. But as Justice Santow commented in his judgment, the majority did not deal with the question of whether or not the respondent could have avoided the accident by avoiding the plaintiff. At paragraph 90 on page 481 his Honour Justice Santow said:

Finally, the majority view proceeds on the premise that the only evasive action that could have been taken was braking. No reference is made to evasive action by way of swerving (or sounding the horn). That indeed was a basis for the Trial Judge’s conclusion as to the First Appellant having been negligent.

KIRBY J: Which paragraph was that?

MR TOOMEY: That is paragraph 90 on page 481, your Honour, in the dissenting judgment.

GLEESON CJ: Justice Santow’s finding of contributory negligence attributed 60 per cent of the blame to your client.

MR TOOMEY: Yes, your Honour.

GLEESON CJ: On page 486 at paragraph 103, he refers to the basis of that finding. He says that your client could have seen the bus coming from a long way off and he was not travelling fast at all.

MR TOOMEY: No.

GLEESON CJ: Justice Santow talks about the “rubbish filled shoulder”. What does that mean?

MR TOOMEY: Well, he is referring there to - - -

GLEESON CJ: I thought that the rubbish was litter of some kind, when you were talking about it earlier, but that seems to talk about it as filling, or is that - - -

MR TOOMEY: I think it is merely an inexact description, your Honour.

GLEESON CJ: Like rubbish strewn?

MR TOOMEY: Yes, the rubbish strewn shoulder – yes, your Honour. In any event, it is undoubted that what his Honour was referring to was what was shown in those photographs that we have provided to the Court. Can I just read to your Honours - - -

KIRBY J: There is no notice of contention in this appeal, is there?

MR TOOMEY: No, your Honour.

HAYNE J: Those photographs do not show what the position was 50 metres away, do they?

MR TOOMEY: No, your Honour, they do not.

HAYNE J: They show the position at the point of impact.

MR TOOMEY: No, with great respect. They show - - -

HAYNE J: Where do they show?

MR TOOMEY: I think the experts agreed that the point of impact was within 10 metres past where the rubbish was, that is, to the west, your Honour, the direction in which he was travelling. Your Honour will remember that the photographs show the blood where he was flung onto the wall actually in the middle of the rubbish, as it were, and he was flung back, so the point of impact was to some indeterminate degree to the west of where the rubbish was. Our point was – and we made it in our submissions – that it is logical that if he pulled out to walk along the road to avoid the rubbish and was struck, it would be logical to assume that he was struck while still walking along the road, rather than that, in a few yards, he had gone back to the north and come back to the south.

Can I just read your Honours a piece of evidence. I was asked, I think by your Honour Justice Hayne, whether there was evidence other than the photographs about the rubbish. On page 207 in book 1, the evidence of one of the police officers, your Honour, Mr Shirdon, at line 23:

Q. What did you see north of the fog line?
A. North of the fog line it’s as depicted in the photographs. It’s basically where the proper laneway ends, it turns into an area of rough asphalt leading into a ditch which would channel water downhill and the ditch was full of vegetation, rubbish, et cetera, and to the immediate north was a rock wall.

The photos, I think, are the best description. There are some other references. Mr Fatches referred to a pile of rubbish. Mr Denev, another lay witness, remembers foliage there but - - -

HAYNE J: Can you give us the references?

MR TOOMEY: I am sorry, your Honour. Page 74, Fatches, “a pile of rubbish”. Page 81, Denev, another independent witness, does not remember rubbish but remembers foliage. Sergeant Guff, page 92, “very low growing debris.” Those are the only other matters, your Honours.

Your Honours, may I point this out from the photographs. It is distasteful but it is necessary to point it out. It is apparent from the photographs that the plaintiff was flung onto the wall. One can see in photograph 6 – unfortunately the reproductions are not as good as they should be, but if your Honours see the light blue bag, on the wall above the light blue bag there was the blood which is shown in close-up in photograph 8. In fact, your Honours can see the light blue bag in photograph 8 below that.

If one then goes back to photograph 7, one sees the blood on and near the fog line where the plaintiff came to rest. If one looks at an angle to the left, one sees the point where he hit the face of the rock. So what happened to him was that he was struck and flung in a north-easterly direction generally and he came out again at a complementary angle in a south-easterly direction until he was lying on the fog line.

GLEESON CJ: Mr Toomey, I think you told us earlier that the point of impact between the shoulder and the bus was, did you say, 0.7 metre?

MR TOOMEY: Your Honour, it was so said. Her Honour found – and we want to criticise this finding because we say on empirical evidence it cannot be right, but her Honour found that the point of impact with the bus was between 0.7 metre and 1.3 metre from the fog line.

GLEESON CJ: What I wanted to ask you about that was this: if it was 0.7 metre or 1 metre from the fog line, what would be the distance of the other side of the bus from the centre line? In other words, how close would the bus have been to the centre line?

MR TOOMEY: With great respect, your Honour has put your finger on our criticism of the finding. The lane was 3.2 metres wide, the bus was 2.5 metres wide. The lay evidence, the independent evidence, accepted by her Honour was that the bus was wholly in the lane and did not deviate at any time. For the impact to have been as far out on the road as 0.7, having regard to the very small distance from which the impact extended into the side of the bus, the bus would have had to be right on the lane line further from the fog line. I should add that there is no evidence establishing that 0.7 was the point of impact. This was a construct of the experts making various assumptions. There was the evidence accepted by her Honour of the independent witness that the bus was wholly within the lane. If it was in the middle of the lane, then the distance from the side of the bus to the fog line was 0.35 of a metre, that is a fraction over a foot. It could have meant, of course, that the plaintiff was walking on the fog line; he was a big young man and his body could have extended into the roadway.

That finding was made, it was made on available evidence and it was made on independent evidence that the bus did not deviate and was wholly within its lane. So when her Honour found that the point of impact was between 0.7 and 1.3 metres, she must have been wrong because it could not have been 1.3 metres. Had it been 1.3 metres, the side of the bus would have been well over into the adjoining lane.

GLEESON CJ: In lane two.

MR TOOMEY: Yes, your Honour. We say that she was wrong even on 0.7 because it would be unlikely, the bus not having deviated at all – and that was the importance of Mr Fatches’ evidence – it would be unlikely that it would be driving along on the extreme outside of the lane. Your Honours, that the appellant was lying where the blood is on the road is to be found in the evidence of Sergeant Guff at page 86 of the appeal book at line 5. I will not take your Honours to it.

To sum up our case, it is this. A young man who was walking in a westerly direction, and accepting the point made by your Honour Justice Callinan that he had behaved in an erratic manner, to adopt your Honour’s adjective, but he had walked 2 kilometres west in the direction of Epping Station, he was forced off the footpath because the footpath ended and no point can be made of that. The question which normally would be asked, “What’s he doing walking on a road?”, is here answered by the fact that because there was no footpath and because at about the point at which the accident happened there was material which would prevent him being further to the north, that is why he is on the road.

He fails to see the bus, but one can say of that that the buses going downhill would not have been under acceleration, would not have been making a loud, low gear noise - - -

GLEESON CJ: Was that his evidence, that he just did not see the bus at all?

MR TOOMEY: He gave no evidence, your Honour. He has no memory.

GLEESON CJ: He cannot remember what happened.

MR TOOMEY: No. He remembers being at the rock concert - - -

GLEESON CJ: The proposition that he failed to see the bus is a bit unlikely, is it not? I mean, if the bus driver is to be criticised for failing to see him, it might be thought fairly obvious that he is travelling much slower than the bus driver.

MR TOOMEY: He should have seen him, your Honour.

CALLINAN J: The trial judge found, did she not, that he could have seen the bus from 108 metres away?

MR TOOMEY: Yes, your Honour, she did. The bus was available to view for 108 metres. She could not find that he did see the bus because, of course, no one knows, but it was available to be seen.

GLEESON CJ: Was his evidence that he was in a state of some agitation or could he not remember that?

MR TOOMEY: I am sorry, the plaintiff?

GLEESON CJ: Yes.

MR TOOMEY: No, he had no memory of that, your Honour. He remembered being at the rock concert and nothing else.

GLEESON CJ: I may have misread something, but had he not telephoned his father and asked his father to come and pick him up?

MR TOOMEY: He had, and then he had left.

GLEESON CJ: Leaving his car behind him.

MR TOOMEY: Yes.

KIRBY J: His father did go to the university and could not find him but found the car locked up.

GLEESON CJ: Why did he need his father to pick him up if he had a car?

MR TOOMEY: It suggests that he might have been in a state of some agitation and thought he should not drive, your Honour, but I cannot - - -

GLEESON CJ: It suggests a number of possibilities. You can speculate.

MR TOOMEY: It does, but, your Honour, there was no suggestion of alcohol, none. The evidence accepted by her Honour and given by a number of lay witnesses was that they shared two cups of beer among four people. When the plaintiff spoke to his father, his father said he sounded very normal. That is at page 82.

GLEESON CJ: Did anybody explain the request for his father to pick him up when he had a car?

MR TOOMEY: No, your Honour.

KIRBY J: Could he have locked himself out of the car? Were the keys found on him when - - -

MR TOOMEY: No, he had the keys.

GLEESON CJ: He had not left the car in the charge of his girlfriend?

MR TOOMEY: No, your Honour.

KIRBY J: No, they stayed at the rock concert. He left early. That is the evidence, was it not?

MR TOOMEY: He did, yes, and he said he would meet them at the gate in his car, but he did not. One can speculate. There are all sorts of possibilities. He may not have had enough petrol to get home, who knows? He might have tried to start the car, it may not have started.

KIRBY J: He did shift the car.

MR TOOMEY: He did. He started the car and moved it from one car park to another. One could speculate that in that short distance something appeared to him about the unsatisfactory condition of the car. One just does not know, because he has no memory.

HAYNE J: What he told his father was, he had got lost. There is an explanation.

MR TOOMEY: It is, and he had been directed there, he did not himself know the area at all. He had been directed there, they had picked someone up at Epping Station, which is how he would have known where to go to Epping Station, and then driven from the Station to Macquarie. It is a difficult situation, but was decided on the facts as they were proved before the court.

HAYNE J: The plaintiff had to make its case by inference, did it not?

MR TOOMEY: Indeed, your Honour, it did. If the inference was that he was walking on the road, in our respectful submission, everything else fell into place and he won the case, because it was plain that he would have been available to view and it was plain that a properly managed bus could have avoided hitting him. May it please your Honours.

GLEESON CJ: Yes, Mr Rewell.

MR REWELL: Your Honours, my learned friend’s last statement was correct. If the plaintiff had been able to prove that he was on the roadway walking on the roadway for a sufficient time to enable the bus driver to see him from a range of 50 metres, then he would have succeeded. The evidence established that 50 metres was the minimum distance that the bus driver would have needed to react, and then to take appropriate evasive action. Where the plaintiff failed was that he was unable to adduce evidence either direct or by inference, that he was on the roadway for that period of time and that distance.

To put it in perspective, the bus was approaching the plaintiff at between 70 and 80 kilometres an hour, that is between about 19 and 22 metres per second. The bus was visible to the plaintiff for a distance of 108 metres, that is about five seconds. The plaintiff, if he had been on the roadway in the path of the bus, would have been visible for 50 metres, that is, about two and a half seconds. Now, the summary of the expert evidence was that at its minimum, the reaction time to be expected of the bus driver was one second, but I emphasise that is a minimum and I will come back to that, and that at a minimum, a further one second would be consumed by taking the appropriate evasive action, which means that at a minimum, about 40 metres would have been consumed, but if one took the speed up to 80 kilometres per hour and the majority said that was the prudent course and appeared to have been taken by the trial judge, then the figures go to 52 metres in order to take appropriate evasive action.

The target, if you like, was 50 metres at which the bus driver needed to be able to see the plaintiff in a position of danger, that is, on the roadway, and I will come to the significance of those words also. May I commence though, by dealing with Nesterczuk. My learned friend submitted that the case was, in effect, irrelevant to the present situation, but it is not so. The principle to be drawn from the majority judgments in Nesterczuk is simply stated. It is this. Where there a number of competing possibilities as to the cause of a road accident, that is, that one road user was negligent wholly causing the accident or that the other was, or that both of them were, and none of those three possibilities are more probable or proved to be more probable than the other, then a court ought not speculate that both road users ought share in the blame. If the court is faced with the possibility that one was wholly to blame, or the other, or both, it should not take the short course to both in the absence of evidence which makes one of the three possibilities probable.

KIRBY J: There is an important difference, is there not? In Nesterczuk the trial judge said he could not resolve it, whereas in this case, the trial judge did, by the application of reasoning, resolve it by reference to inferences. Now, you can attack the inferences and that is the role of the Court of Appeal to consider whether in the rehearing on the facts, the trial judge got it wrong, but it is a very different case.

MR REWELL: The Court of Appeal in this case said that the trial judge could not draw inferences which made one possibility more probable. That is exactly where she went wrong.

KIRBY J: That is what Justice Beazley said and Justice Heydon agreed, but Justice Santow by reference to a series of facts reached a different view.

MR REWELL: Yes. Certainly in Nesterczuk the trial judge could not draw any inference which made one possibility more probable. Here the trial judge did but the majority of the Court of Appeal said that her Honour was wrong to do so.

KIRBY J: I am just drawing to attention the fact that the starting point is quite different in the two cases.

MR REWELL: Yes, it is.

KIRBY J: There is a question as to whether any cases on these issues, which are all factual questions, lay down legal principles, but assuming Nesterczuk does lay down a legal principle, it relates to what judges should do if they cannot resolve conflict, and then it is not their duty to resolve it in the favour of one side or the other. If they cannot resolve it, that is it, but in this case the trial judge felt that she could resolve it and the question was, did she do so correctly or not? That is the usual appellate question. It is not the Nesterczuk question.

MR REWELL: But once, with respect, one reaches the stage that the Court of Appeal finds that her Honour could not, in fact, resolve the conflict correctly, then one is left back in the Nesterczuk situation and that is what brings us here. In other words, it is our submission that we are now in the same position in this case. The fact that the trial judge took a different view is of no effect because the majority of the Court of Appeal said that her Honour was not entitled to do so. The principle, with respect, your Honour, remains the same, we would submit.

One matter Mr Toomey raised has taken us quite by surprise. That is Mr Toomey’s assertion that the trial judge must have been wrong about her finding as to the point of impact. That was not the subject of the proceedings before the Court of Appeal.

KIRBY J: There is a hint of that in the written submissions, is there not?

MR REWELL: Only a hint. It is not one of the grounds of appeal, despite the grounds, as your Honour would be aware, having been amended subsequent to the special leave application.

KIRBY J: We are certainly aware after Justice McHugh had a go at them.

MR REWELL: So one must assume that the amended notice of appeal has been dealt with with a certain amount of care and precision and it does not raise this suggestion that the trial judge was wrong about the point of impact. As my learned friend said, it was a finding derived from a combination of expert and lay evidence.

KIRBY J: This is an appeal from the Court of Appeal.

MR REWELL: Yes, but the Court of Appeal was not asked to consider any error in establishment of the point of impact.

GLEESON CJ: We know how wide the lane was and we know how wide the bus was and it is not rocket science to work out how that reconciles with some conclusion or other about the point of impact.

KIRBY J: Especially if you add what the witnesses who were independent of the parties said concerning the trajectory of the bus and the presence of other vehicles on the road.

MR REWELL: But the trial judge, being aware of all of that evidence and being aware that when one adds 1.3 metres to 2.5 one gets 3.8, causing the bus to be over the lane dividing line, made that finding and it has never previously been challenged. One must assume that her Honour was quite aware of the consequences of her Honour’s finding. It was a matter of simple mathematics for her Honour to put the two together. There cannot be any suggestion that her Honour - - -

KIRBY J: What does it matter really when in the end you have a person in charge of a bus which is a fast moving and potentially dangerous object, you have a very long straight road, you have a downhill road, you have modern lighting equipment, you have the bus driver going home or going back to the depot, the lighting throws the light for a considerable way as it is intended to and the plaintiff is hit, apparently, somewhere on the road surface. Now, why, in that concatenation of facts, do you not have a basis on which the primary judge can find that to some extent there is evidence? It is not a “no evidence” case, as the Court of Appeal said. There is some evidence of negligence on the part of the bus driver.

MR REWELL: Your Honour has, with respect, compressed the issue and I will deal with it in parts, I hope logically and sequentially. The reason I am taking issue with the discussion as to the correctness of the point of impact finding is this. It has not previously been suggested that the plaintiff might have been walking on the fog line at the time he was hit by the bus. Now, I understand that Mr Toomey now makes that suggestion for the first time. The clear finding of the trial judge was that he was walking on the carriageway, that is, on the trafficable portion of the roadway, when he was hit. He was not walking on the fog line.

KIRBY J: I would have thought having him on the carriageway is more against you, because then he is within the area which undoubtedly and without hesitation the driver must be paying attention to.

MR REWELL: Depending entirely on the length of time for which he was there. That, of course, was the nub of the decision of the majority of the Court of Appeal, that the evidence did not and could not establish that it was more probable than not that he had been on the trafficable portion of the roadway for the period and distance required to give the bus driver an opportunity to avoid him. That was the whole point.

HAYNE J: What was that period of time?

MR REWELL: The period of time I can translate for your Honour is about two to two and a half seconds. The distance was 50 metres. There was not - - -

HAYNE J: Leave aside the distance because that is the distance the bus is travelling, not the distance the plaintiff is travelling. The question is whether it is more probable than not that the plaintiff was in a position equivalent to the position where he was hit for something of the order of two and a half seconds.

MR REWELL: Yes, that is right.

HAYNE J: Now, where the alternative, that is, the cutting side of the fog line, was as uninviting as it was, why was it not open to conclude that more probably than not the plaintiff had been on that line, that is, on that part of the roadway for two, two and a half, three seconds?

MR REWELL: Well, your Honour takes me ahead just slightly to an examination of the photographs which are the only evidence said to justify the proposition that walking upon the road shoulder, which was obviously the preferred course if it was available, was, in fact, unavailable. Could I take your Honours to photograph 1 to commence with.

The first thing I must say about this photograph is that it is not indicative of the lighting that was available on the night. This is a photograph taken under police lighting; it has nothing to do with the view that was available to the bus driver. I will come to the evidence that was supportive of that proposition in a moment.

As I understand it, the photograph numbered 1 shows the approximate position where the plaintiff was ultimately found as being around the area of the rubbish, about one third of the way down the photograph. One sees some papers there and what looks like a green item, but in fact is probably blue, and something that looks like a piece of newspaper past it, and that will tie in with another photograph. If one looks at photograph 2, one sees a slightly closer view of the same thing. This time, the white mark on the roadway is in the foreground - - -

KIRBY J: Now, the plaintiff is coming towards the photographer.

MR REWELL: Towards the photographer, your Honour.

KIRBY J: Could I just suggest to you that for a plaintiff to traverse the road over the period from where that rubbish begins to the period where the photograph ends, which is approximately where the plaintiff is hit, is going to take the plaintiff, walking at a normal pace, more than two and a half seconds.

MR REWELL: It may well do, your Honour.

KIRBY J: I mean, two and a half seconds is - - -

MR REWELL: It is about three paces, yes.

KIRBY J: So, on that inference, to avoid that rubbish, which is a natural human sort of thing to want to do, he is on the carriageway for two and a half seconds.

MR REWELL: May I take issue with the first part of your Honour’s statement, that is, that it was natural to want to avoid the rubbish. Let us for a moment ignore the fact that it is incredible that the plaintiff was unaware of the presence of the bus, but leaving that aside for one moment - - -

KIRBY J: He says that it is incredible that the bus was unaware of the presence of him. The bus is the one with the very dangerous object in hand.

MR REWELL: I hope to demonstrate why there is no comparison between what was available to be seen - - -

KIRBY J: The plaintiff cannot hurt the bus. The bus can do a lot of harm to the plaintiff.

MR REWELL: I accept that completely, your Honour, but that does not remove the proposition that the bus driver must be afforded a reasonable opportunity to see and avoid the plaintiff. That was the difficulty in Derrick v Cheung that led the New South Wales Court of Appeal into error.

If your Honours look at photograph 6, it is this photograph and photograph 7 which are said to show the area where the plaintiff was, in effect, compelled or at least persuaded to move out onto the roadway because of the rubbish and debris. The photographs clearly show that the plaintiff was not so compelled. There was ample space between the white fog line and the commencement of any debris for the plaintiff to remain to the western side of – that is, off the roadway – of the fog line.

GLEESON CJ: Was there evidence about the traffic conditions that evening that would indicate how many vehicles would have gone past the plaintiff in two and a half seconds or three seconds?

MR REWELL: No, your Honour, the only evidence about the traffic conditions, other than that it was relatively light, was that there were vehicles approaching the respondent’s bus, and that was relevant.

GLEESON CJ: What the expression “relatively light” means in relation to the Epping Highway on a Saturday night may not be entirely clear - - -

MR REWELL: It is not, your Honour, but we cannot - - -

GLEESON CJ: - - - but it was not only the bus that a pedestrian would have to look out for.

MR REWELL: That is certainly correct. If the plaintiff walked at least 100 metres on the road shoulder or near the roadway there can be little doubt that he would have been passed by other vehicles before being struck by the bus. On their Honours’ findings there was no one immediately in front of the bus, but it would be unlikely that in the time it took the plaintiff to walk 100 metres, particularly in the dark, it is likely that he was passed by other vehicles.

GLEESON CJ: Whether it helps you or helps Mr Toomey, it strikes me as highly unrealistic to think that on the Epping Highway on a Saturday night at 9 o’clock there was just the bus and the plaintiff.

MR REWELL: I think we both agree with your Honour. The point that I seek to make at this stage is that photographs 6 and 7 simply do not make out, in answer to Justice Hayne’s question, that the area outside the fog line was unavailable. The area outside the fog line was quite available.

KIRBY J: In 7, there is not a lot of space between the rock and the fog line and you could not very easily tread on that white then the blue plastic bag. Even if you were not a fastidious person it would not be a pleasant thing to do, you do not know what is in it, anything might be there.

MR REWELL: I am not disagreeing with your Honour but if, for example, the plaintiff walked - - -

KIRBY J: What sort of irresponsibility would lead people to throw their rubbish there?

MR REWELL: But if the plaintiff, for example, walked along the innermost of the two painted lines, that is not the fog line but the line outside the fog line, which is shown more clearly in photograph 6, the accident would not have occurred. It is as simple as that. With respect, your Honour, there is nothing in photographs 6 or 7 which compels or even implies a conclusion that it was impractical or unavailable or unattractive to the plaintiff to walk along the line of that inside broken painted line. That was the prudent course for him to take.

GUMMOW J: This broken line, how far does that continue?

MR REWELL: If your Honour looks again at photograph 1 and photograph 2 your Honour will see that it seems that for some reason there are what look like yellow broken lines painted down alongside the fog line. One can see clearly one line - - -

GUMMOW J: It looks like a decayed earlier fog line.

MR REWELL: It could be, but I use it only for the purpose at the moment of showing that there was, in fact, a clear path for the plaintiff to take without walking onto the carriageway so it is quite wrong, we would submit - - -

GUMMOW J: The clearest path is along the fog line, actually, which would have been lighter - - -

MR REWELL: And her Honour’s finding was that if the plaintiff had walked on the fog line, the accident would not have happened and that is why I resist some alternative calculation of the point of impact never raised before, but it is why I can see why Mr Toomey raises it at the death, as it was, but it has never been part of the case.

KIRBY J: Where exactly on photograph 2 did her Honour, the trial judge, place the plaintiff when struck?

MR REWELL: Her Honour did not do so by reference to these photographs. Her Honour did so by approximate reference to a sketch plan which we noted with interest a moment ago has not been reproduced. It was a police sketch plan.

KIRBY J: That was in the contemporaneous police notebook, was it?

MR REWELL: It was. That is where the 1.3 metres came from, the 0.7 - - -

KIRBY J: Was that in evidence before her Honour?

MR REWELL: It was in evidence.

KIRBY J: The parties got it? If so, maybe we should look at it.

MR REWELL: Yes, your Honour.

KIRBY J: Fox v Percy I think was greatly influenced by the discovery of the contemporaneous police plan.

MR REWELL: We do not want your Honours to have all the evidence at once. We will supplement it as time goes on.

MR TOOMEY: This was exhibit 6, your Honours.

GLEESON CJ: Thank you. Presumably, this sketch plan was prepared by the police on the basis of information they were given by the bus driver as to what happened.

MR REWELL: No, they were at the scene, your Honour. They had information from the bus driver and other sources, including the other motorists, and, of course, there was glass and other debris on the roadway.

KIRBY J: Could you explain it to us, according to the evidence? This is exhibit 6.

MR REWELL: Yes, your Honour.

KIRBY J: Where is the point of impact? Is it where the “H” is?

MR REWELL: No, her Honour as I recall it, located it at approximately in the area of “H”. My junior will just find the reference in her Honour’s judgment.

KIRBY J: That is well into the road surface, is it not?

MR REWELL: Your Honour, we will find the reference - - -

GLEESON CJ: Mr Rewell, we encounter the problem that we have with Mr Joy and all the other expert witnesses and the police. Let me seek to raise the problem by just asking you two questions. Did the person who drew this plan hear the bus driver’s account of what happened?

MR REWELL: I do not know, your Honour – I do not know. He was an investigating police officer which - - -

GLEESON CJ: Assuming he heard the bus driver’s account of what happened, did he believe it or disbelieve it?

MR REWELL: I cannot answer the second question because I cannot answer the first.

GLEESON CJ: Assuming the person who drew this plan heard and believed the bus driver’s account of what happened – and we know that the trial judge disbelieved it – how does this help us?

MR REWELL: Your Honour, all I can say is this. If your Honours turn to page 438, your Honours will see the point that I am making. I think this answers the Chief Justice’s question because her Honour relied on the evidence of Mr Fatches, not on the first defendant or first respondent’s evidence. It is point A, not point H.

GLEESON CJ: But whether the expert in question is an expert engineer or an expert police officer or just an expert witness, as some of them are, their evidence is only as good as the factual assumptions that they are making.

MR REWELL: But having heard all the evidence, with respect, her Honour in the last two lines of page 438 made this statement:

it is distinctly more probable that the point of impact was in the vicinity of point A on the sketch plan –

I am sorry, not H, but A, and that, as your Honours would see, is approximately a metre in. Now, her Honour had had the benefit by that stage of hearing the first defendant’s argument which she rejected. She had heard evidence from Mr Fatches, another witness, Mr Denev, a couple of police officers and the two experts. Having regard to all of that evidence, her Honour came - - -

GUMMOW J: Yes, but not having regard to the width of the road and the width of the bus.

MR REWELL: As I say, her Honour must have been acutely aware of the consequences of her Honour’s mathematical calculation, and it has never been challenged.

KIRBY J: I just think this is a bit of a red herring. The rock wall is definitely there and that has the plaintiff’s blood on it, I think, so we can assume it is somewhere in relationship to that and also in relationship to that is the rubbish. The bus driver had very properly stopped and was down the bottom of the map, so he was available to the police when they drew this map, and anything he said in this respect putting the plaintiff on the carriageway is against interest. Therefore, one would incline to accept it. Did the bus driver say the point of impact was near A or not?

MR REWELL: My understanding is he did, yes. The bus driver certainly - - -

GLEESON CJ: Did not the bus driver say that the plaintiff jumped out in front of the bus?

MR REWELL: Yes, he did, as if to hail the bus.

KIRBY J: In one version, but in a second version he said he was walking along. The primary judge did not accept the bus driver’s evidence that the plaintiff jumped out.

MR REWELL: Neither of us has paid any attention in our submissions or our arguments to the evidence of the bus driver. Importantly, it was given no significance in the Court of Appeal either. No one cavilled with her Honour’s rejection of the evidence of the bus driver.

GLEESON CJ: Has anyone at any stage of the proceedings suggested you could accept that part of the evidence of the bus driver that said he was well over into the carriageway, but you would reject that part of it that said he jumped there?

MR REWELL: No. Everybody has accepted the trial judge’s view that the evidence of the first defendant should be disregarded because it was rejected.

GUMMOW J: All of it?

MR REWELL: All of it so far as the circumstances of the accident are concerned.

MR TOOMEY: He was driving a bus. We accept that.

GLEESON CJ: Nobody suggested at any stage, I presume, either that the plaintiff was trying to commit suicide or that the first defendant was trying to commit murder?

MR REWELL: No. I leapt ahead in order to answer Justice Kirby’s questions, but while I am ahead may I complete my answer to Justice Hayne about the unattractiveness of the area off the fog line. There is one piece of evidence which is critical in that regard and it is evidence of the plaintiff’s expert, Mr Woodward. That is at page 165, line 26. It was put to Mr Woodward in cross-examination:

Q. Might I suggest to you that in your analysis of the accident it would have been equally available to the plaintiff to remain in what you’d choose to call a walkway –

that was the area outside the fog line –

while the bus went past him?
A. That is correct.

So Mr Woodward, the plaintiff’s expert, could not embrace the argument that is now put before this Court.

GLEESON CJ: This is a puzzle that I have about this whole case. It was not just the bus that was going past him. There must have been cars going past him about once every couple of seconds.

KIRBY J: But the bus is wider than the cars, the bus is much wider.

GLEESON CJ: We do not know whether the other vehicles were motor scooters or huge transport lorries. There is just no evidence on that.

MR REWELL: If we attempt to find some logical reason in the conduct of the plaintiff up to and including the moment of impact, none of us will sleep tonight because it is not possible to conclude other than his behaviour was erratic from the time that he left the rock concert at Macquarie University.

Quickly, firstly he said the evidence was that he would wait in his car for the girls that he had conveyed to the rock concert. He did not do so. He started his car, we do not know when. His car ended up parked in a different part of the Macquarie University car park, we do not know whether he left the University or not, and his car was locked. He rang his father and said he was lost and his father asked him to wait but he did not. His father said that he would come to the Macquarie University office to pick the plaintiff up but the plaintiff left. The plaintiff, who said he did not know, in effect, where he was and that he was lost, was walking in what is suggested to be the direction of Epping Railway Station and is, but there is no evidence that the plaintiff knew that that is where Epping Railway Station was. His consistent evidence was that on the way to the rock concert he did not know where he was and needed directions - - -

GLEESON CJ: I thought Mr Toomey told us he had picked somebody up at Epping Station?

MR REWELL: Yes, he was directed - - -

KIRBY J: That was on the way to the rock concert. On the way back he was lost when he spoke to his father but, I do not know about you Mr Rewell, but if you are a walker then you occasionally bump into somebody and if you are lost, you speak in the English language and you say “Where am I?” and they say “You are here”.

MR REWELL: Well, I suppose at Macquarie University he could have asked someone how to drive to the nearest main road, given that he was on a main road but - - -

KIRBY J: He was quite close, I gather, to Epping Station at the point of impact, is that correct?

MR REWELL: No, he was some distance away.

KIRBY J: Yes, 800 metres, is that what we were told?

MR REWELL: I thought it was further, your Honour, but I cannot be precise.

GLEESON CJ: Where did his father live? Did he live at home with his father?

MR REWELL: Yes, his father lived a long way away. Cabramatta, my junior tells me, which is, as your Honour would know, a considerable drive from Macquarie University. The short point is that nothing the plaintiff did after leaving the rock concert made any sense, nothing, and we regard this point as very relevant to the finding of the trial judge that it was inherently improbable for the plaintiff to lean or stumble or walk into the path of an oncoming bus. Firstly, everything he did after leaving the rock concert was improbable, but secondly, the alternative, and this was her Honour’s reasoning, was that the plaintiff was walking on Epping Highway facing an oncoming bus which had been visible for 108 metres and audible for probably just less than that time, yet he walked into the bus.

KIRBY J: Or the bus drove into him.

MR REWELL: Whichever way it is put, your Honour, the fact is he did not step away.

KIRBY J: But he is not as in control of the movement of things as the bus. He is a pedestrian, he moves slowly. A bus is a fast moving trajectory.

MR REWELL: There are two answers to that point of your Honour’s. One is, it is a lot easier for a pedestrian to see a bus with its headlights on and its engine sounding than it is for a bus driver to see a man on a reasonably dark road, wearing dark clothing. That is the first point.

KIRBY J: Yes, but the law requires them both to keep a lookout.

MR REWELL: But the second answer to your Honour’s proposition is that if he was walking, as the trial judge suggested, and as she found, he had but to take one pace, on any view of it, to his right and the accident was avoided. It is simply - - -

KIRBY J: If he was at point A, the bus driver really hit him when he was on the carriageway.

MR REWELL: The bus driver did hit him on the carriageway. There is not argument about that. The bus driver never left the carriageway, so he could not hit him off the carriageway.

KIRBY J: Once you have him hit on the carriageway, unless you accept, as the trial judge did not accept, that he leapt out into the bus committing suicide or trying to get the bus to stop, you have a person who is on the carriageway apparently walking past the rubbish which we know is near the rock wall, and he only has to be on the carriageway two and a half seconds to oblige your client to try to avoid him.

MR REWELL: The difficulty, with respect, your Honour, is that it is at least equally probable that he simply stepped out onto the roadway either to avoid what he perceived to be some obstacle in the dark - - -

KIRBY J: Why would he do that? This is not a case of a person who has his back to the bus. He is facing the bus. Why would he step out into the carriageway of the bus?

MR REWELL: May I answer your Honour’s question with a question: why would he not take one step off the carriageway? As I have said, on any view of it, he was able to see the bus driver for a lot longer than the bus driver could see him – double the time, in fact. All he had to do in over five seconds – it was between five and six – was to take one pace to his right.

KIRBY J: And the bus driver only had to take one little swerve to the left and there was no car to the bus driver’s right according to the witnesses. By inference, as the Chief Justice has pointed out, lots of other vehicles passing by had managed to avoid him.

MR REWELL: Your Honour leaves one thing out of the formula: the bus driver had to see a pedestrian wearing dark clothing on a poorly lit piece of roadway. The pedestrian had to see a bus with its headlights on and its engine sounding.

KIRBY J: The bus driver had specially designed lights with a bias to the left and visibility for 50 metres.

MR REWELL: I am not going to avoid coming to that your Honour so I will come to it now.

KIRBY J: What I stumble over, Mr Rewell, I have to say to you, is the statement of Justice Beazley, “There is no evidence”. I mean there is evidence available to the primary judge. You may say it is not the preferable view or the Court of Appeal exercising its Warren v Coombes jurisdiction under the statute is entitled to reach a different view, but there is evidence. It is wrong for them to say there is no evidence – no evidence.

MR REWELL: The only evidence that is suggested to support on the probabilities the proposition that the pedestrian was probably on the roadway are photographs 6 and 7. Now, those photographs do not support the proposition for which they are put forward; they simply do not. There was plenty of room on the off-carriageway section for the plaintiff to walk. If the debris had come right out to the fog line, or even near to it, and if the debris was other than what appears to be a few pieces of paper and what looks like a cigarette box close to the broken line that I have referred to, then there might have been a different outcome. But the fact is those two photographs simply do not support the proposition for which they are proffered, and that, with respect, is the complete answer. The Court of Appeal was entitled to say, “If that is the evidence you have to support your argument, then you have no evidence”, and that was an entirely proper approach we would respectfully submit.

I had been meaning for some time to take your Honours to figure 2 in Mr Joy’s report, page 265. I emphasised when I showed your Honours particularly photographs 1 and 2 that the lighting in those photographs is the police lighting. I heard what the Court said earlier about accident reconstructionists, and I think that word now exists - - -

CALLINAN J: Is that what they called themselves here?

MR REWELL: That is what they call themselves, your Honour.

CALLINAN J: Why do not people object to them? It just seems to be a practice in the common law division in New South Wales you just let it all in and they speculate and they state some facts and they do some reconstruction and they draw some conclusions.

KIRBY J: There are some silly old judges who do not know much about motorcars and for them it is actually quite helpful to have a person who knows quite a bit about motorcars and motorbuses to explain things.

CALLINAN J: It is just not admissible, a lot of it.

KIRBY J: I do not agree with that, with respect. Anyway, it was not objected to here and it got in.

MR REWELL: The reconciliation of both of your Honours’ points of view is that it is the legal practitioners who appear for the parties have a difficult dilemma in that if they fail to put forward such evidence and their client fails, whichever client it may be, then they may be subject to criticism. I suppose that is why the practice has been perpetuated, although I am sure the majority agree with the point that has been put.

KIRBY J: Which point?

GLEESON CJ: That expert witnesses should confine themselves to their area of expertise and that their evidence is only as good as the validity of the facts upon which their opinions are formed is based.

MR REWELL: Obviously, one issue in this case was, what could the bus driver see? Mr Joy, in his effort at accident reconstruction, re-enacted the passage of the bus taking time lapse photographs, as he did. Now, I can almost sense the horror, but the fact of the matter is this was in - - -

KIRBY J: He is your witness.

MR REWELL: He was our witness.

KIRBY J: He wants to show a lot of dark on this side of the road.

MR REWELL: I could make the opposite comment about Mr Woodward, but we will not get into that, your Honour. The fact of the matter is this. The photograph on page 265 was in evidence. Mr Woodward launched an all-out assault on the validity of time-lapse photography, but Mr Joy explained what he did in his evidence in page 215 - - -

KIRBY J: Is this the Mr Joy who used to give evidence back in the 1950s or is it the son of Mr Joy?

MR REWELL: I do not know if it is the son of Joy, but Mr Joy has been around for some time.

GLEESON CJ: Not Mr Dempsey Joy.

MR TOOMEY: No. It might be his son, your Honour.

KIRBY J: Mr Foster Joy, was it not?

MR REWELL: This is Mr Alan Joy.

GLEESON CJ: What is the evidence on page 265 that you want to direct us to?

KIRBY J: Dark – darkness and gloom, the encircling gloom.

MR REWELL: No, your Honour.

GLEESON CJ: What were the meteorological conditions on this night?

MR REWELL: Fine and clear.

GLEESON CJ: A fine, clear night. Do you agree with Mr Toomey that it was a daylight saving night?

MR REWELL: It was, but there was no dispute that the accident occurred in complete darkness, in the sense that it was not twilight.

GLEESON CJ: Well, 9 o’clock on a daylight saving evening on a clear night in Sydney is not stygian. It might be dark as compared with midday, but there are stars in the sky and the moon.

MR REWELL: What there also were were two street lights which presumably were put there for a purpose.

GUMMOW J: One was malfunctioning, was it not?

MR REWELL: Two were malfunctioning. That was the difficulty.

GUMMOW J: That appears at page 87, line 45.

MR REWELL: What you have in figure 2 on page 265 is what Mr Joy said was the actual view cast by the bus headlights where the street light was working, as you could see in the background of the photograph.

GLEESON CJ: So Mr Joy would have said, “This is what it would have looked like to the bus driver”?

MR REWELL: That is right. That is what he did say from line 10 to line 24 on page 215. He was attacked in report form by Mr Woodward over this technique of taking photographs. Senior counsel for the defendant then led from Mr Joy that he, in fact, took a large number of photographs, one after the other, and he selected from the range of photographs the one which accurately showed what he, that is Mr Joy, saw as he looked out the bus windscreen. Mr Joy was standing next to the bus driver. So figure 2 had validity because it was not a photograph contrived, as may be suggested, to show darkness. Mr Joy said, and was not cross-examined on this issue, that it showed what he saw.

KIRBY J: You can say that but it does not look like 9 o’clock on a daylight saving night to me. That is dark gloom. This is Cardinal Newman-encircling gloom.

MR REWELL: Your Honour, it is not I who said it; it was Mr Joy. As I say, the cross-examination of Mr Joy - - -

KIRBY J: But the judge did not have to accept it. That is why we have judges in this country. Unless they fall into error, then they are not irrelevant to the system.

MR REWELL: No, but they - - -

GLEESON CJ: I am not very good on distances in photos, Mr Rewell, but how far into this photograph do we see that white line extending? Do you see what I am getting at?

MR REWELL: Yes.

GLEESON CJ: There is the white line and your vision of it peters out, but how far is that?

MR REWELL: Mr Joy said it was about 50 metres. There was not any argument about “about 50 metres”. While judges are entitled to accept or reject evidence like this, they are sometimes at least assisted by cross-examination. That did not occur in this case. The cross-examination of Mr Joy was startlingly short, beginning at page 218, line 17, and finishing on the next page.

KIRBY J: Maybe the cross-examiner was a traditionalist like Justice Callinan.

CALLINAN J: No, not traditional, just orthodox.

GLEESON CJ: I see the evidence-in-chief was given in the form of written statements, is that right?

MR REWELL: No, the evidence-in-chief was largely based on the reports. Mr Wheelahan, who was then senior counsel for the defendant - - -

GLEESON CJ: I am looking at Mr Sierra’s statement on page 220. Was that tendered as his evidence-in-chief or was it a document?

MR REWELL: I confess immediately that I had not focused on Mr Sierra’s statement for the reason that it was rejected.

GUMMOW J: We do know something from Officer Guff, the policeman, do we not, about what the bus driver said to him when he arrived?

MR REWELL: Could your Honour direct me to the page to which your Honour refers?

GUMMOW J: As Justice Hayne reminds me, page 86, line 40. That is not being rejected. It would be much better if we attended to some of the direct evidence of some of the witnesses than what these other experts are doing.

MR REWELL: Yes. That is at about line 42, your Honour?

GUMMOW J: Yes. We also know it was 600 metres to Epping Station. That appears at page 90, line 30. We also know from page 90, line 40 that people tended to go out and walk on the road because of the structure of the overhang in the footpath and so on and the dish drain, as it is called.

MR REWELL: Could I deal with that - - -

HAYNE J: Saying they were walking in the dish drain as - - -

MR REWELL: Yes, but the dish drain is not in the area that I have suggested was available to the plaintiff. It is not in the area where the broken line exists. The dish drain is against the rock face as is logical, because it conveys water coming down the rock face as well as running off the roadway and away down to the bottom of the hill. If I could just deal with the statement on page 86, line 43, one observes that this evidence was led from the police officer by senior counsel for the plaintiff. This was not evidence put in in the defendant’s case. The police officer said:

“He just stumbled out, I tried to swerve”, words to that effect.

So the word “stumble” is in evidence in that sense, led in by the plaintiff’s senior counsel, not as part of the defendant’s case.

GUMMOW J: And we also know there was no footpath on the other side of the road, page 92, line 20.

MR REWELL: Yes. May I suggest to your Honour, because there are a number of those references, that all of that evidence is negated by the trial judge’s finding that the bus driver was entitled to expect that there would not be pedestrians on that part of the roadway. That was the finding. Having heard all of that evidence, her Honour simply concluded that at that time on a Saturday night on Epping Road, the bus driver ought not have anticipated the presence of pedestrians, so all the evidence about school children using it as a footpath and so forth did not persuade the trial judge that this was, to use Mr Toomey’s words earlier, “commonly used as a footpath”, certainly not at the relevant time of night in the relevant conditions.

KIRBY J: It was commonly used by some fellow citizens as a tip.

MR REWELL: Well, all by passing motorists, regrettably.

KIRBY J: Remarkable, extraordinary and disgraceful though that is.

MR REWELL: But your Honour, the presence of that regrettable rubbish is simply insufficient to ground the plaintiff’s case as it is supposed to do. May I tidy up a few other matters. There was some discussion and perhaps confusion about whether the critical distance for the bus driver was 50 metres or 30 metres. The trial judge made a finding which confused the issue. Most of the time her Honour said that the bus driver needed to see the plaintiff 50 metres away in order to take effective evasive action.

The Court of Appeal sorted out the confusion and both the majority and Justice Santow sorted out the confusion, firstly, at page 455. In paragraph 8 of the majority judgment the Court of Appeal said:

Her Honour found that given the range of the headlights on the bus, he –

that is, the bus driver –

had a capacity to see –

the appellant here –

for 50 metres. She held that he could have taken some action to avoid the accident, by stopping the bus, or by taking evasive action by deviating slightly from his path of travel or sounding his horn, had he seen the respondent at a distance of 30 metres. As a consideration of the material . . . makes clear, her Honour must have meant that had the respondent commenced to react to the presence of the respondent on the roadway at a distance of 30 metres he could have taken some action to avoid the accident.

In other words, had the 20 metres-odd of reaction time already been consumed. Justice Santow noted the same apparent difficulty in her Honour’s reasoning at page 479.

KIRBY J: What paragraph?

MR REWELL: Paragraph 84, your Honour, “The Trial Judge concluded” and then he quoted the trial judge – it is the same quote I just read:

While that conclusion may be more questionable, despite the First Appellant’s concession, the Trial Judge had earlier concluded that the First Appellant had the capacity to see the Plaintiff from a distance of at least 50 metres.

Paragraph 83, your Honour, sums up why 30 metres was an error, if it was meant to indicate perception and response time, as well as stopping or swerving time. As I have already pointed out, there was not any argument that it took 20 to 22 metres to perceive the presence of the appellant and to react, then there was the time actually consumed in swerving, one second, or in stopping, more than one second, the bus. So the 30 metres, if it was intended to convey a first observation of the plaintiff, is wrong.

GUMMOW J: Where do we get the finding about dark clothing?

MR REWELL: Your Honour, I will turn that up for you quickly. It is laced throughout both judgments, but there is a - - -

GUMMOW J: I know that he was wearing black shoes.

KIRBY J: But with a white stripe.

MR REWELL: Her Honour refers to the evidence at page 436. This is in the decision of the trial judge:

Mr Joy noted that the plaintiff was wearing dark clothing and that this coupled with the effect of oncoming headlights could have made him less conspicuous to an approach driver.

KIRBY J: I hope you are not quoting the expert to give us the facts.

GUMMOW J: That is not the fact. What is the source of Mr Joy’s knowledge?

MR REWELL: I am going to come to both of those reports in a moment, but - - -

GUMMOW J: Do not worry about the report, what is there in the actual evidence? Presumably, this gentleman got hauled off to hospital.

MR REWELL: Yes, he did.

GUMMOW J: The policeman who saw him thought he was wearing light clothing.

MR REWELL: There was not any dispute that he was wearing dark clothing at any stage. I will just find the clearest statement in the various findings made by her Honour. Now, at page 438, line 5, in the findings on what should the first defendant have seen, her Honour said:

As to what the first defendant could have seen, my findings are:

(1) the first defendant had the capacity to see the plaintiff from a distance of at least 50 metres;
(2) even if allowance is made for the plaintiff’s dark clothing –

Now, I think her Honour in setting out the facts also referred to the plaintiff’s dark clothing. As I say, there was never any issue about it. The defendant’s expert dealt with the problems which arose because the plaintiff was wearing dark clothing. Can I take your Honours to that evidence.

GUMMOW J: Well, Officer Guff believed he was wearing light coloured trousers. Page 89, line 50.

MR REWELL: One thing about the defendant’s expert in this case was that he could not - - -

GUMMOW J: Wait a minute, what about the primary evidence?

MR REWELL: Yes, I accept that, your Honour.

GUMMOW J: Officer Guff saw him lying there, in extremis.

GLEESON CJ: Is there a hospital accident report in the evidence?

MR REWELL: Not, your Honour, that mentioned the plaintiff’s clothing.

KIRBY J: But that range of injuries on the left-hand side, they are reported somewhere. Mr Toomey was reading them to us and I know he would never read anything that was not in the record.

MR REWELL: My junior will search for the direct evidence but perhaps the shortest way - - -

GUMMOW J: Other direct evidence.

MR REWELL: - - - of dealing with this is to go to the report of Mr Woodward who could certainly not have been accused of - - -

GUMMOW J: He was as good as what he was told, poor man.

MR REWELL: Well, in some respects, your Honour, he was better, depending on which point of view you take.

KIRBY J: That is the problem that Justice Callinan is worried about.

MR REWELL: My learned friend Mr Toomey read from page 340 which concerned the bias of headlights towards the left side of the carriageway. Mr Woodward then went on to analyse what the consequence of the headlights being pointed towards the left side of the carriageway was. Page 341 is worth reading in whole – I will not read it here – because it illustrates from the point of view of the plaintiff’s expert – and I emphasise that – what the difficulty was confronting the first respondent as he drove his bus down the roadway.

The plaintiff’s dark clothing, accepted to be dark by the plaintiff’s expert, absorbed most of the light pointing towards him and in summary the expert said that if the plaintiff was standing close to the rock wall he would be very difficult to see. If he was standing at 90 degrees to the rock wall, he might cast a shadow on the rock wall which would be the easiest thing to see because the reflectivity, whatever that word means, of his clothing was only 5 to 10 per cent. That was taken up in cross-examination of Mr Woodward at page 165 when Mr Wheelahan asked Mr Woodward:

Q. Its reflectivity –

that is talking about the dark clothing –

would have been in the order of 5 to 10 per cent?

A. Yes.

Q. Close to nil, isn’t it?

A. Yes, it absorbs a lot of light.

That is the clothing. I hesitate to mention the other expert, but evidence was also given as to how conspicuous the plaintiff would have been by Mr Joy who said at page 271:

His dark clothing would reflect a limited proportion of any light directed on to them and so would contrast poorly with the dark brown rock cutting. This would limit his conspicuity.

The point of all that is this: it would on any view of it have been very difficult indeed for the bus driver to see the plaintiff if he was off the roadway. It would have been difficult but easier for him to see the plaintiff on the roadway, but off the roadway, no chance. I will come to the off-the-roadway situation in a moment, but I had taken your Honours to page 165. I already referred your Honours to line 26 where Mr Woodward, the plaintiff’s expert, conceded that the plaintiff could have used the walkway, that is, the area outside the fog line. It was “available” to use the word that Justice Hayne used earlier.

GLEESON CJ: What was the distance between – and it may not have been uniform – the fog line and the rubbish?

MR REWELL: I think the evidence established that the distance between the fog line and the rock wall was about a metre and a half and it - - -

MR TOOMEY: Varied between 1.2 and 1.9, I think.

MR REWELL: And the photograph – the best evidence of that, I suppose, is the photographs 6 and 7, which show that the majority of the rubbish had accumulated close to the rock wall, as one might expect if it has been washed from the roadway or even washed from other sources.

May I say something about the situation which obtained if the plaintiff was off the main trafficable portion of the roadway. As I understand it, the fall-back position put forward by Mr Toomey is that even if the plaintiff was not on the trafficable portion of the roadway until a moment before the accident, even if he was on the road shoulder, then the bus driver should have seen him anyway, because of the modern set of headlights the bus driver had.

GLEESON CJ: I am not quite sure how that question arises. I have said before, nobody is accusing the bus driver of attempted murder. The bus driver did not actually come after him. He did not leave the carriageway, did he?

MR REWELL: How the issue arises is this. The Court of Appeal said that there is nothing to suggest that it is more probable than not that the pedestrian had been on the roadway for sufficient time for the bus driver to see him. He may have stepped onto the roadway one moment before the accident occurred. That, of course, is a possibility, and we agree with the Court of Appeal that it is equally possible or equally probable or improbable as every other.

GLEESON CJ: But I do not understand Mr Toomey to dispute that at least part of his body was on the carriageway. The carriageway is where the bus was. It is what it is for; it is for carriages.

MR REWELL: What Mr Toomey is taking up as a fall-back position, as I understand it, is this, that even if the plaintiff only stepped onto the roadway a moment before the bus hit him - - -

GLEESON CJ: No, I thought he was talking about walking along the fog line.

MR TOOMEY: Yes, I was, with his body protruding out - - -

GLEESON CJ: I thought that what Mr Toomey was saying was that the primary judge was wrong when she located him as far into the carriageway as she did and that it is possible that he was walking along the fog line and if he was doing that, his body would extend into the carriageway and get clipped by the bus.

MR REWELL: That was certainly another position that Mr Toomey took, but I had understood - - -

GLEESON CJ: And the bus, because of its very width, was occupying a very large proportion of the width of the lane in which it was travelling.

MR REWELL: Undoubtedly. I had understood though that Mr Toomey was also taking up what Justice Santow spoke of when Justice Santow was concerned as to whether the bus driver should have seen the plaintiff anyway, even if he was walking off the roadway, outside the fog line, not on the fog line. Our point about that is twofold: one, that the evidence would not satisfy any court that the plaintiff was visible. But even if he was, let us assume for a moment that the plaintiff was 18 inches outside the fog line, walking in the area which, we submit, shows in photographs 6 and 7 as being a clear area. Let us assume he was walking there and that the bus driver could see him walking there, which we say is highly doubtful, what is the bus driver to do? Does he have a duty to do anything? The answer is no. He has a duty to continue driving his bus within its lane.

GLEESON CJ: A possible explanation of the plaintiff’s conduct, consistent with negligence on the part of the defendant, but also consistent with a substantial degree of contributory negligence as found by the judges, is that he was walking in a dangerous location but he assumed that the bus driver would take some relatively minor steps to avoid him. Pedestrians do that all the time.

MR REWELL: If he was walking 0.7 of a metre to a metre to 1.3 metres inside the fog line and he saw the bus approaching him driving within that lane and he took no steps at all to move out of that path, then he wholly caused the accident. I think the expression for that type of conduct is “playing chicken” with the bus, and that is a course of conduct which ought not lead to a verdict in his favour.

GUMMOW J: I note Mr Denev said it was “twilight to dark” at page 81, line 25, which sounds right.

MR REWELL: It could well be, your Honour. All I can say is this, that the hearing and the appeal to the Court of Appeal proceeded on the basis that it was dark, rightly or wrongly.

GLEESON CJ: That is a relative expression.

MR REWELL: Exactly. The alleged experts analysed the situation on both sides on the basis that it was dark.

GUMMOW J: We are not worried about the experts.

MR REWELL: Well, their evidence is in.

GUMMOW J: Yes, but their evidence is as good as that which was fed into them.

MR REWELL: Yes, but so far as judges have accepted their evidence and commented on their evidence, then we must deal with it.

HAYNE J: In the end, it is about as worthwhile as the police version of the investigation in their traffic collision report at 219. They give a version which would have the pedestrian stepping into lane one, into the path of the vehicle. That is what they said happened but - - -

GLEESON CJ: Which is presumably just based on an acceptance of what the bus driver told them, which was a very sensible thing for them to do, but the judge disbelieved the bus driver. It is hard to imagine how any expert reporting on this accident could possibly form a view without, amongst other things, reaching a conclusion as to the credibility of the bus driver, which is why the opinion of the policemen or the experts all involves, amongst other things, making a judgment about somebody’s credit, usually a subject on which they are not experts.

MR REWELL: I suppose the difficulty in this case is that no one saw what happened and could recall what happened, except the bus driver, no one.

GLEESON CJ: Exactly. If you wanted to know what happened, the most obvious person to ask is the bus driver, but you might or might not believe him.

MR REWELL: Her Honour heard the bus driver and rejected his evidence. That left her Honour with no direct evidence at all of what happened.

CALLINAN J: Rejection of the bus driver does not make the appellant’s case true or right.

MR REWELL: I think I made that point in our written submissions, your Honour, that one cannot draw a positive assertion in favour of the appellant from the fact that the bus driver’s evidence was rejected. It simply - - -

CALLINAN J: The onus is on the appellant throughout.

MR REWELL: I respectfully agree with your Honour, and the fact that the first respondent’s evidence was rejected simply leaves a vacuum. It does not create a positive finding or assertion or inference in favour of the appellant. That is what the appellant has to struggle with, bearing throughout, as he does, the onus of proving that the bus driver breached his duty of care.

HAYNE J: Then it comes to was there a basis for inferring that the plaintiff was visible when in a position of danger at a time sufficient to permit evasive action?

MR REWELL: That, in turn, comes down, we would submit, to four photographs 1, 2, 6, 7. That is it.

GLEESON CJ: We know that Judge Sidis put the plaintiff well into the carriageway at the time of the impact. Where did Justice Santow put him?

MR REWELL: Justice Santow, to my recollection, did not interfere or suggest any interference with the point of impact which, as I said, was not in issue in the appeal.

KIRBY J: You accepted where Judge Sidis put the plaintiff?

MR REWELL: Yes, we did. Both parties and both experts have regarded - - -

KIRBY J: Do not mention the experts.

MR REWELL: All right, both parties clearly took the view that that finding was unappealable.

HAYNE J: Well, Justice Santow at paragraph 98 says that:

It is also to be taken that the Respondent was walking between 1.3 and 0.7 metres south of the fog line at the time of impact.

MR REWELL: Yes.

KIRBY J: Which paragraph was that?

HAYNE J: Paragraph 98.

MR REWELL: Paragraph 98, page 484, your Honour. So as I have said it is a bit late to raise that issue today. Whether or not there was some hint in the written submissions, darkness has fallen on the case.

KIRBY J: It may even be against Mr Toomey’s case to try and push the plaintiff back closer to the rock. In a sense, it is in the plaintiff’s interest to be on the carriageway.

MR REWELL: That, of course, is right. It is a double-edged sword whichever way one looks at it in any event. All I can say is it has never been raised before and it is a bit late to raise it now.

GLEESON CJ: You, in your written submissions, alternatively seek to uphold Justice Santow’s finding on contributory negligence. In the alternative you say it will go back if the appeal is allowed. Did Justice Santow in making that attribution for the purposes of contributory negligence at 60 per cent take account of the respective capacities of the pedestrian and the bus to injure one another?

MR REWELL: I am sure his Honour did and your Honour has reminded me of an important point, that that is something we suggest the trial judge got wrong. Justice Santow’s reasons are on page 484 to 486 so far as contributory negligence is concerned.

CALLINAN J: What the Chief Justice put to you was what was said in Pennington v Norris, was it not?

MR REWELL: Yes, your Honour. Paragraph 100 on page 485, Justice Santow was clearly on top of the proposition, but if I may take you to the trial judge’s - - -

KIRBY J: Of course we have Unver which says we must never, never, never interfere with the trial judge’s contributory negligence.

MR REWELL: I think “never, never, never” is a bit much, your Honour.

KIRBY J: Justice Meagher said with his usual clarity – constrained to remind us that Podrebersek meant what it said.

CALLINAN J: Except since then we have looked more closely at section 75A of the Supreme Court Act to see what the Court of Appeal is obliged by statute to do when it is hearing appeals.

KIRBY J: That is what I said in Unver. I do not wish to belabour my dissent.

MR REWELL: Your Honour, no one is suggesting that an appellate court ought lightly interfere with a trial judge’s decision on contributory negligence, but where the trial judge is plainly wrong and outside any range of sound discretionary judgment, it is the Court of Appeal’s obligation to interfere.

KIRBY J: I agree with that.

MR REWELL: And that is exactly what Justice Santow thought and that is exactly what he did.

KIRBY J: Do you not need a cross appeal or notice of contention to raise this point in this Court?

MR REWELL: Your Honour, we gave great thought to that - - -

GLEESON CJ: I do not understand why this is a dissenting judgment of Justice Santow - - -

MR REWELL: That is why we could not.

GLEESON CJ: You are not seeking to uphold the decision of the Court of Appeal on a ground that they did not decide upon.

MR REWELL: Your Honour is right. A notice of contention would mean that we were saying that Justice Santow was right, for the wrong reasons, or that there were other reasons why he was right. We do not say that Justice Santow is right.

GLEESON CJ: You do not say anything about Justice Santow, do you? You are upholding the judgment of the majority.

MR REWELL: In our section of our submissions on contributory negligence, in the alternative – and it is very much in the alternative – we say that if the Court is against us on negligence, then Justice Santow’s estimate of contributory negligence is the low benchmark.

GLEESON CJ: But a notice of contention is what you file when you are trying to uphold the decision of the court below on a ground different from that on which they based their decision.

MR REWELL: Precisely, and that is why there is no notice of contention.

KIRBY J: I am only reminding you what Justice McHugh said at the special leave hearing. He pointed out that there is no order in issue except the order which the majority in the Court of Appeal made the order of the Court of Appeal.

MR REWELL: His Honour’s statement about that was, with great respect, a little cryptic, and we gave it a lot of thought - - -

KIRBY J: Well, anyway, Mr Toomey does not seem to be raising any objection to it.

MR REWELL: The point is, could we have put on a cross-appeal? A cross-appeal means that we are appealing against an order of the court. The answer is no, we are not appealing against an order of the court. The judgment was in our favour. There was no cross-appeal, nor was there a notice of contention.

KIRBY J: I can see how you have come at your position.

MR REWELL: May I say that we made it absolutely clear to the appellant that we would be raising the point we did, long before the written submissions were served.

GLEESON CJ: I do not think Mr Toomey is suggesting he is surprised by your approach on contributory negligence.

MR REWELL: I am sure Mr Toomey would have expressed his surprise by now if he was surprised.

GLEESON CJ: Mr Toomey is probably very difficult to surprise.

MR TOOMEY: It is all I have seen in the courts, your Honour.

GUMMOW J: In the Court of Appeal, how was contributory negligence in play in the Court of Appeal record?

MR REWELL: Because in the Court of Appeal we appealed on the primary basis that her Honour erred in finding negligence, but in the alternative we appealed on the basis that if there was grounds to find - - -

GUMMOW J: Exactly. The real question is whether, if we were to uphold Mr Toomey, we would not then send it back to the Court of Appeal to have another attempt.

MR REWELL: We would submit that in the particular case that is not necessary because your Honours have - - -

GUMMOW J: That is the question.

MR REWELL: I will try to address it, your Honour. Justice Santow gave careful - - -

GUMMOW J: Ordinarily we would send it back.

KIRBY J: But the majority did not consider it in the conclusions.

MR REWELL: Yes, they did.

GUMMOW J: Because it has not been considered.

KIRBY J: Contributory negligence.

MR REWELL: I am sorry, yes, they did.

CALLINAN J: Justice Beazley said if it were a case of contributory negligence, she would agree with that.

MR REWELL: In paragraph 14, in fact, she said that Justice Santow had been a bit conservative in only apportioning 60 per cent. This is paragraph 14 on page 457:

His Honour found contributory negligence on the part of the respondent –

that should have been her Honour –

to the extent of 60%. For my part I would place it somewhat higher than that, but as this is an area where minds may reasonably differ, I would have accepted his Honour’s apportionment.

Justice Heydon simply agreed with Justice Beazley. So one, therefore, has the three Court of Appeal judges, in effect, agreeing, albeit that Justice Beazley thought that 60 per cent was frankly a bit light on.

GUMMOW J: You are saying there would be no point in sending it back because they would be all agreed.

MR REWELL: And your Honours have more than sufficient to evaluate that position taken by the three members of the Court of Appeal on that issue and, therefore, it would be perhaps, with respect, wasteful to send it back, but if your Honours felt that that was the appropriate course your Honours would see in our submissions that we have submitted that that could be done, and there is no doubt that it can be done.

One must, with respect, be a little careful with looking at contributory negligence from the ponit of view of how big the vehicle was or whether one – the days when courts used to say the driver has the weapon are largely gone. Sure the relative importance of the acts of the parties is something to be considered, but “relative importance” surely means the causal significance of the conduct of the parties.

CALLINAN J: Nobody has ever said anything about Pennington v Norris, have they? Nobody in this Court has ever criticised it?

MR REWELL: No, but when one is looking at relative importance of acts, one is looking at a causative test, otherwise findings in excess of 50 per cent for contributory negligence for a pedestrian could never be made because the driver will always be more likely to inflict harm on the pedestrian than the other way around. It is one matter that has to be taken into account, but the fact is that when one looks at the relative importance of the acts of the two parties in this case one is driven at least to the conclusion to which Justice Santow came and we respectfully agree with Justice Beazley, that whilst undoubtedly Justice Santow’s assessment of contributory negligence is in an acceptable range, it is probably at the bottom end of it. Justice Beazley made it perfectly clear that that was her Honour’s opinion and Justice Heydon agreed with her Honour.

GUMMOW J: Do you have any more information on the light-coloured clothing?

MR REWELL: Would your Honour pardon me a moment?

GUMMOW J: Yes.

MR REWELL: I am told that no specific questioning took place about the clothing at all because - - -

GUMMOW J: I just want to know what is in the record.

GLEESON CJ: We know why, we can guess. They are experts in that, too.

MR REWELL: This may tickle your Honour, yes, the reality is the expert who put forward - - -

CALLINAN J: What the expert for the plaintiff was told may well be an admission against interest, and the Court could have regard to that. Is that not right?

MR REWELL: That is perfectly correct. The hearing was conducted on that basis, that is, that there was no dispute that the plaintiff was wearing dark clothing - - -

CALLINAN J: Well, the case was advanced on that basis by the appellant/plaintiff and it was an admission against interest.

MR REWELL: Yes, your Honour.

GLEESON CJ: Thank you.

MR REWELL: Yes, thank you, your Honour.

GLEESON CJ: Yes, Mr Toomey.

MR TOOMEY: Your Honours, can I turn to contributory negligence. Your Honour the Chief Justice will remember that when your Honour was Chief Justice in New South Wales, I argued a case before you in the Court of Appeal where a soldier had been standing beside a truck and he was hit by a bus which came down the road and he was protruding out onto the road, the bus hit him, and the trial judge had found, I think, 5 per cent contributory negligence, and your Honours substituted 15 per cent contributory negligence.

GLEESON CJ: Tripled it.

CALLINAN J: You obviously remember that case very well, Mr Toomey.

MR TOOMEY: I do, your Honour. I remember it very well. I have been saving it up, your Honour.

GLEESON CJ: I think you might have made it up.

MR TOOMEY: Your Honour, the case which persuaded your Honours in that case was Pennington v Norris because in Pennington v Norris, a very strong court said that where the Chief Justice of Tasmania had found where a man had walked from a hotel, crossed the street, did not see the car coming from his left, the doctor driving the car did not see the pedestrian coming from his right, and the Chief Justice of Tasmania said there is equal contribution to the accident, there will be a 50 per cent contributory negligence finding. This Court said the pedestrian did what may be done. He failed to take proper care for his own safety, as we all do, but the driver was in a position where he could cause gross injury and the pedestrian could not, and they altered the proportions to 80:20.

Now, I am not saying that that is in any way binding on your Honours, because, of course, it is not, but the reasoning is indicative of an approach to the apportionment legislation. In this case, her Honour took the view that the major cause of the accident was that a bus driver, who was under a duty to keep unremitting watch, who was driving a bus on a public street, in a place where he knew there were no footpaths and in a place where, although there were no pedestrians on that night, he knew and conceded that pedestrians used the road there because there was no footpath – he was under a stringent duty, as a public official driving a public vehicle, and he did not carry it out.

In our respectful submission, applying Podrebersek and Unver and the latest case, Joslyn v Berryman, your Honours would find that you may think that her Honour’s assessment of contributory negligence was light, but it was a matter for her Honour. It was her discretionary decision. In our respectful submission, a quarter in this case, where there was really, we say, quite serious negligence on the part of the bus driver, was appropriate. May I say that the finding of his Honour Justice Santow does not include any reference to that important factual matter raised in Pennington v Norris, the danger caused by one party and the danger to no one but himself by the other, and when one considers Justice Beazley’s finding on contributory negligence, or indication of what she would have found, it is made on the basis of wrong findings, in our respectful submission, because it was made on the basis of a person who may have, according to her Honour, stepped out in front of the bus.

Now, if we are right in the case and if the inference is available that he was walking down the road, the basis on which Justice Beazley and Justice Heydon have suggested that 60 per cent was enough or too light is destroyed. May it please your Honours.

KIRBY J: You do not raise any technical problem, if there be one, in the raising of contributory negligence in this Court?

MR TOOMEY: Your Honours, we considered it but I think my learned friend is right, with respect, that he could not cross-appeal, there was nothing to cross-appeal from, and there is no notice of contention.

KIRBY J: Anyway, there is no point that we have to decide.

MR TOOMEY: Clearly it was an alternative ground of appeal in the Court of Appeal, it had to be dealt with and it has to be dealt with here or your Honours will have to remit it. May it please your Honours.

GLEESON CJ: Thank you, Mr Toomey. We will reserve our decision in this matter and we will adjourn until 10.00 am tomorrow.

AT 4.24 PM THE MATTER WAS ADJOURNED