Bartholomaeus v Newcombe
[2007] WADC 94
•13 JUNE 2007
BARTHOLOMAEUS -v- NEWCOMBE [2007] WADC 94
| Link to Appeal : | [2008] WASCA 136 |
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 94 | |
| Case No: | CIV:536/2006 | 21 MAY 2007 | |
| Coram: | COMMISSIONER O'NEAL | 13/06/07 | |
| PERTH | |||
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for plaintiff Liability apportioned | ||
| PDF Version |
| Parties: | JAMES ANTHONY BARTHOLOMAEUS PAUL REGINALD NEWCOMBE |
Catchwords: | Negligence Duty of care to road users Contributory negligence |
Legislation: | Nil |
Case References: | Alexander v Manley [2004] WASCA 140; (2004) 29 WAR 194 Bold v Reed [2005] WASCA 165 Derrick v Cheung [2001] HCA 48 MA v Keane [2003] NSWCA 50; (2003) 38 MVR 212 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 Turner v South Australia (1982) 42 ALR 669; (1982) 56 ALJR 839; (2001) 181 ALR 301; (2001) 33 MVR 393 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
PAUL REGINALD NEWCOMBE
Defendant
Catchwords:
Negligence - Duty of care to road users - Contributory negligence
Legislation:
Nil
Result:
Judgment for plaintiff
Liability apportioned
(Page 2)
Representation:
Counsel:
Plaintiff : Mr D R Clyne
Defendant : Mr J R Brooksby
Solicitors:
Plaintiff : Edwards Lawyers
Defendant : Greenland Brooksby
Case(s) referred to in judgment(s):
Alexander v Manley [2004] WASCA 140; (2004) 29 WAR 194
Bold v Reed [2005] WASCA 165
Derrick v Cheung [2001] HCA 48
MA v Keane [2003] NSWCA 50; (2003) 38 MVR 212
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416
Turner v South Australia (1982) 42 ALR 669; (1982) 56 ALJR 839; (2001) 181 ALR 301; (2001) 33 MVR 393
Wyong Shire Council v Shirt (1980) 146 CLR 40
(Page 3)
1 COMMISSIONER O'NEAL: On 29 September 2005 the plaintiff was injured when a Transperth "Cat" bus ran over his left leg. The accident occurred about 9.00 am on Hay Street, Perth, just to the west of the intersection with Colin Street. At the time of the accident, in circumstances that I will describe later in more detail, the plaintiff was shifting boxes containing small glass bottles of juice from the rear of a station wagon, into the back of a 4½ tonne truck. Both vehicles were parked in the southern parking lane on Hay Street immediately to the west of the Colin Street intersection.
2 The defendant was the driver of the Cat bus that ran over the plaintiff's leg. The plaintiff claims that the accident that caused his injuries was caused by the negligence of the defendant. The negligence was particularised as follows:
"6.1 Failing to keep any or any proper lookout or have any sufficient regard for pedestrians on the … road.
6.2 Failing to have or to keep any proper control of the (bus).
6.3 Failing to stop, swerve or in any other way to manage or to control the (bus) so as to avoid colliding with the plaintiff.
6.4 Failing to sound the horn on the bus so as to warn the plaintiff of his presence on the roadway."
3 The allegations of negligence were denied by the defendant. The defendant pleaded that the accident was in fact caused by the negligence of the plaintiff "as he walked into the side of a bus being driven by the defendant as it was passing him". The defendant says that he:
"(1) saw the plaintiff and left enough room to drive past him;
(2) controlled his bus adequately;
(3) moved his vehicle in such a way that he had sufficient room to pass the plaintiff who moved or alternatively walked into the side of the bus."
4 The plaintiff, who is now a university student, was in September 2005 a delivery driver employed by Metro Beverage Co Pty Ltd. On 29 September 2005 the plaintiff started work about 7.00 am in the morning. At the Metro Beverage Depot in Welshpool he loaded the company's 4½ tonne Isuzu truck with the products that were to be
(Page 4)
- delivered to Metro Beverage customers that day. This particular type of truck had no rear doors. Rather, it had three doors on each side to allow cargo to be loaded and unloaded.
5 At some point shortly after he left the depot for the morning he spoke with his boss Mr Velkovski. The plaintiff and Velkovski arranged to meet to transfer from Velkovski's Toyota Corolla station wagon some containers of juice that the plaintiff needed to complete his rounds. As it turned out, an opportunity for them to meet arose while the plaintiff had his truck parked on Hay Street, just past its intersection with Colin Street at about 9.00 am.
6 Hay Street is a one-way street for much of its length and that is the case in the area of its intersection with Colin Street. There are two lanes for west bound traffic with a parking lane on each side of the street west of the Colin Street intersection. The two lanes of traffic are divided by a broken white line. From the photographs tendered as Exhibit P1 it appears that the area of Hay Street west of Colin Street has at some point in recent years undergone some improvement to the paving of sidewalks and parking lanes as well as kerbing. At the corners and along the street for a distance of what appears to be a bit less than 10 metres the sidewalk is very wide. The parking lanes start about 8-10 metres from the street corners and the paving of the sidewalk narrows to accommodate the parking lanes. The parking lanes appear to be paved with a mixture of reddish-brown coloured asphalt. A distinct band of concrete continues a line projecting from the kerbing of the sidewalk area and divides the parking lane from the grey asphalt of the two lanes for traffic.
7 From the photographs it does not appear that the parking lanes are of a particularly generous width. Even a car of moderate size, sensibly parked close to the southern kerb, would need to open its driver's door into the southern most lane of traffic to some degree to allow a driver to get in or out of their vehicle.
8 This particular area of Hay Street is, from the photographs, obviously a shopping precinct of sorts. There are a number of small shops in the area, most notably on the north side of the street across the road from where the plaintiff's accident occurred.
9 Shortly before 9.00 am the plaintiff parked his truck in a spot that was available in the parking lane on the south side of Hay Street. As it turned out when Mr Velkovski contacted him there was sufficient room behind the plaintiff's truck for Mr Velkovski to park immediately behind
(Page 5)
- it. When he did this, their two vehicles occupied the first two parking spots on the left side of the street (in relation to the direction of travel), after the intersection with Colin Street. The wider part of the sidewalk was immediately behind Mr Velkovski's station wagon.
10 The intersection at Colin Street is controlled by traffic lights. There are traffic lights on the south west and the north west corners of the intersection controlling the west bound traffic.
11 The defendant has at various times over the last 20 years earned his living as a bus driver. On the morning of 29 September 2005 he was driving a "Cat" bus on a circuit which took him up Hay Street. By 9.00 am he was on his second or third circuit.
12 According to the plaintiff, prior to the accident, he made five or six trips carrying boxes of juice from the rear of Mr Velkovski's station wagon to the plaintiff's truck. He alone did the carrying. The only storage area available in the plaintiff's truck was in the back section on the right side of the truck. The plaintiff loaded the boxes of juice into his truck through the rear door on the right-hand side.
13 According to the plaintiff when he picked up the last box of juice from the back of the station wagon he stopped for a moment. He said:
"I turned and spoke something to Mr Velkovski. I proceeded to step out onto the road making sure it was clear at that present (sic). It wasn't, so I waited a second and continued to walk down the car pausing against the car at the wing mirror, and as I turned my head to the right I was struck on the back by what I found out to be a Cat bus."
14 Later the plaintiff explained that when he paused before stepping out from the rear of Mr Velkovski's station wagon it was to allow a car, a white Falcon, to go by. He says there was then a pause in the traffic that allowed him to walk down the side of the station wagon towards the wing mirror. He paused just before he stepped out around the wing mirror and at that stage he was struck on his right side, on the back of his shoulder. He says he was "just clipped". The plaintiff says that at the time he was struck he was walking "on the brown" that is within the parking lane.
15 After he was "clipped", he was spun around. As he fell he says his head hit the car. As he lay on the ground, the rear wheel of the bus ran over his leg. The plaintiff says he did not see the bus before the accident.
(Page 6)
- I accept his evidence that he did not see the bus before the accident, where his body contacted the bus, and what happened thereafter.
16 The description of the accident given in evidence by the plaintiff was slightly at odds with the statement he gave on 29 September 2005 to a policeman investigating the accident. In that statement he said:
"I was taking some cartons out of (Velkovski's) car and putting them in my truck. I was picking up a carton. I had one foot on the kerb and one foot on the road. I was standing near the right hand corner of (Velkovski's) car. I bent down to pick up the carton. I then stood up. Something hit me in the head on the right front part of my head. I fell over backwards. I fell over a short distance. The back left wheel ran over my left shin whilst I was on the ground. When I was hit I walking (sic) alongside (Velkovski's) car. I don't remember anything else about it."
17 It was not clear from the evidence, whether the reference to "kerb" in the statement was a reference to the kerb to the rear of the station wagon or the white concrete line dividing the parking lane from the lane of traffic as shown in the photographs that were tendered as exhibits. In re-examination Mr Bartholomaeus said that he gave the statement while he was in the emergency ward of Sir Charles Gairdner Hospital after receiving "plenty" of medication or pain relief.
18 While differing about the number of trips the plaintiff made carrying boxes of juice, Mr Velkovski's evidence was to similar effect as the plaintiff's. Mr Velkovski says that, after he parked behind the plaintiff's truck, he opened the rear of the station wagon and started handing the plaintiff the cartons of juice. He recalled that the plaintiff had made two trips while he himself had made one trip to the truck. Mr Velkovski recalled that as the plaintiff collected the last box "he looked left and right" before he walked out around the station wagon. He says that as the plaintiff walked down the side of the station wagon he was struck by the bus. As the accident occurred, Mr Velkovski says that he was standing on the "verge", that is the paved area that is part of the sidewalk, speaking on his telephone. He watched as the plaintiff walked alongside the station wagon and saw that he was struck as he was "between the front and rear doors". Several of the photographs tendered as part of Exhibit D3 showed damage to the right passenger door of Mr Velkovski's station wagon. From the photographs there appeared to be one or perhaps two dents approximately in the middle of the right rear passenger door.
(Page 7)
19 In my view there is nothing significant in the difference in the evidence with respect to the number of trips made carrying boxes. It is apparent that prior to the accident there had been at least two and probably more trips from the station wagon to the Isuzu truck. With each trip the plaintiff, and perhaps on one occasion Mr Velkovski, walked down the right side of Mr Velkovski's station wagon to gain access to the right rear door of the Isuzu truck. I doubt very much however that the plaintiff "looked left and right" as recalled by Mr Velkovski. It would have been pointless to look left, the street being one way. And, if the plaintiff had actually looked to the right, he should have seen the bus at least beginning to move through the intersection.
20 As the defendant drove his Cat bus towards the Colin Street intersection of Hay Street, the traffic light turned red. His bus was the first vehicle stopped in the southern or left lane at the traffic light. The defendant says that as he sat, stopped at the traffic light, he observed "two gentlemen at the back of the vehicle on the left hand side of the road. The one gent with his back to the road had a box in his hands and they were talking". Later, he said "the two people on the side – they weren't on the road, they were in the … the lay-by part behind that silver Commodore (referring to a vehicle shown in Exhibit D1, photographs 3 and 4). The one gentleman had his back to the footpath side holding a box … the last thing I saw was that person give Mr Bartholomaeus the box and I passed". He said while he did not keep his eye on the two men for the entire time that he was stopped at the light, from what he observed they were not walking anywhere: they were "just standing there" and one man was holding a box. In cross-examination the defendant said that the two men were not standing in the roadway, rather they were on the red part or "lay-by area" and, to the extent that he observed the two men, he did not know what they were doing.
21 The defendant said that as he passed where the two men were standing he heard a crash and he pulled up and stopped. He got out of the bus and went back and saw someone lying on the ground. The defendant also said when he went back and saw the plaintiff lying on the ground he spoke to him. He said the plaintiff said to him "It's alright, don't worry, it's not your fault".
22 Counsel for the plaintiff, with justification, complained that that conversation had not been put to the plaintiff or Mr Velkovski in cross-examination. The defendant gave a statement to the police shortly after the accident (Exhibit P2). While that statement recounts how the defendant got out of his bus after the accident and "saw one of the males
(Page 8)
- lying on the ground with the other male over him", there is no reference to any conversation. The defendant however was not cross-examined about the significance of that omission from his statement. Ultimately, however, it was not suggested by counsel for the defendant in closing submissions that I should not accept the plaintiff as an honest witness as to his version of events. Rather, the submission was that his evidence had been apparently unconsciously influenced by what he may have been told by others. In any event I would not have been prepared to give any significant weight to the kind of statement reported by the defendant from someone lying in the street with a significant injury and I do not regard it as having any probative value.
23 A passenger on the bus, a Mr Steven Allen, was called to give evidence for the defendant. Mr Allen was sitting on the seat behind the driver on his way to work when the collision occurred between the plaintiff and the bus. Mr Allen said that as the bus sat at the light he could see two men adjacent to the cars parked on the south side of the street across the intersection. His recollection was that the two men were standing between the first parked vehicle and the second parked vehicle. He said in his evidence he did not pay much attention to them, but he was looking in that general direction. In cross-examination he said that one of the men was off to the left, "on the pavement side of the vehicle" and the other man was "somewhere between the pavement and the street". He was asked to make a mark on the photograph 4 of Exhibit D3 to indicate where he thought he saw that man. The area marked extends on to the traffic lane and the man was drawn standing on the concrete boundary between the parking lane and the lane of traffic. Mr Allen said that the man was "anywhere in that area, I don't recall where that person was …".
24 Mr Allen said that the acceleration as the bus pulled away when the light turned to green was "very smooth". In cross-examination he was asked whether the Cat buses "make a lot of noise when taking off". To this he answered "not noticeably". In his evidence-in-chief he said that as the bus moved up Hay Street he lost sight of the two men by the car. He was asked whether he saw the front of the bus hit anything and to this he answered "very front of the bus – no". He was asked if he heard anything and he said "not until I heard breaking glass". He said that when he heard that it was "to my left and rear". The only evidence of glass that might have broken in the accident was the glass bottles in the cartons carried by the plaintiff. That, in my view, is what Mr Allen heard breaking.
(Page 9)
25 According to the defendant, after the collision the defendant's supervisor came, checked the bus and drove it back to the depot. While the defendant says that he did not personally "check the bus" his supervisor and others did. The defendant says that about 20 to 40 minutes later he did look at the bus to see if there was any damage. While he did not see any damage he says he saw a "brush mark or scratch, scuff mark in the dirt on the side of the vehicle". By reference to photograph 8 in Exhibit D3 he located the "scuff mark" as being "just past the rear doors" where a large black and blue circular figure is painted in the abstract design on the side of the bus. From my observation, that circular figure appears to be about 1 metre in front of the rear wheels. When the defendant's counsel sought to tender a statutory declaration of another one of the bus company personnel, apparently to similar effect, there was a concession by counsel for the plaintiff that one of the defendant's co-workers "looked at the bus some time after it got back to the depot and noticed that there was some dust scuffed off the bus just behind the rear door".
26 The defendant said, in his evidence before me, his bus was travelling at 20 kilometres per hour in second gear as he approached the men standing behind the station wagon. He was asked about his rate of acceleration and said, "It's not a GT by no means … it's just a bus". He said he pulled away from the traffic light "as normal … you can't accelerate really because you have passengers on the bus so you pull away as gently as you normally do". In cross-examination he was confronted with a statement that he provided to the police immediately after the accident (Exhibit P2). There he told the police he was doing "about 25 kilometres per hour at the time of the crash".
27 In cross-examination he said that he had told the police that his speed was between 20 and 25 kilometres per hour and they wrote down 25 kilometres per hour. Ultimately he accepted that the bus was travelling at approximately 20 or 25 kilometres per hour. As counsel agreed, that would mean that at the time of the collision the bus was travelling at between 5.3 and 6.7 metres per second. To put that in perspective, the front of the bus would have travelled down the length of the Toyota Corolla station wagon in about half a second.
28 Exhibit P1 gives some perspective of the kind of proximity that cars moving in the lanes of traffic would bear to the cars parked in the parking lane. Exhibit D3 illustrates the width of the Cat buses and the extent to which they fill the lane of traffic. Photograph 6 of Exhibit D3 shows a Cat bus which, as appears from the photograph, is driving quite closely to
(Page 10)
- the centre white line. Despite this, the apparent gap available between parked cars and the bus is very narrow. There would be little room for an average sized man, like the plaintiff, to walk.
29 The way in which the trial was conducted means it was difficult to say with great certainty exactly where and how the plaintiff's body came into contact with the bus. There were no measurements provided of the width of the various lanes of traffic or vehicles. Apart from a photograph showing damage to the right passenger door of Mr Velkovski's station wagon, there was no evidence from either the plaintiff or the defendant as to where the plaintiff ended up after the collision. There was no evidence as to the duration of the traffic light where the defendant's bus waited.
30 While there was oral evidence from the defendant as to a "scuff mark" towards the rear wheels of the bus there is no evidence as to the size of the scuff mark or its height. There was no photograph of the mark. There is in fact no way of knowing whether that scuff mark had anything to do with the collision of the plaintiff. I find that evidence to be of no probative value.
31 While no submission was made on behalf of either party that any witness should be disbelieved because their evidence was said to be untruthful, it was obvious that all of the witnesses except perhaps Mr Allen gave evidence based on reconstructed versions of events. It would be unrealistic to expect that even unconscious reconstructions would not result in a version of events slanted towards the result that the witness thought desirable. By contrast, Mr Allen's observation of the events prior to the accident was limited and brief and his evidence reflected that.
32 In the end there are only a few facts that I can be reasonably certain about. However, based on the testimony of all of the witnesses I will set out what I find to be the way in which the accident occurred.
33 Whether there were three trips between the station wagon and the Isuzu truck prior to the collision or six, Mr Velkovski and the plaintiff were involved in shifting boxes from the station wagon to the Isuzu truck for at least a minute and probably several minutes before the light turned green for the bus driven by the defendant. After Mr Velkovski parked his vehicle he would have opened the rear door of the station wagon. At that point the trips back and forth between the station wagon and the Isuzu truck began.
(Page 11)
34 With each trip the plaintiff walked down the outside, that is, the lane of traffic side, of the Toyota Corolla station wagon so that he could place the boxes in the only area of the truck where space was available at the right rear cargo door. He had to stand right at the boundary between the parking lane and the traffic lane in order to stow the boxes in the back of the truck. That activity should have been visible from the elevated position of the bus (shown by Exhibit D3, photos 6 and 7) while approaching the intersection at Colin Street and waiting at the light. I do not accept the plaintiff's evidence that he remained entirely on the "brown part" of the road, that is, within the parking lane during this time. It was inevitable in my view that he would have had to have been partially on the traffic lane. Exhibit P1, photographs 2-6 show that even with an average sized vehicle parked very close to the kerb there is scarcely 30 centimetres between the side of the vehicle and the lane of traffic.
35 It was apparent to the defendant, at least, that the two men were dealing with a box at the rear of the station wagon. I accept the defendant's evidence that he did not know where the box was coming from or where it was going or indeed what the two men were doing. The evidence of Mr Allen was that one of the men was standing close to the edge of the lane of traffic and perhaps, according to his marks on photograph 4 of Exhibit D3, on the traffic lane.
36 The evidence of the defendant was that the two men were apparently facing each other and talking at the rear of the station wagon and one of them had his back to the sidewalk. It was not suggested that he made eye contact with the men at any point. On all of the evidence I infer that he could not and he did not know whether they had observed the bus.
37 The defendant of course could not know where the men might go, as he did not know what they were doing. He could not know whether the man holding or receiving the box would wait in a position of safety or foolishly blunder towards the shops on the opposite side of the street. He could not know whether one or both of the men might walk down the driver's side of the station wagon either to access one of its side doors or to walk towards the truck parked in front. He assumed, no doubt, that the two men would take care for their own safety. He accelerated "normally" making no allowance for the chance that they would not. He did not sound his horn as he came through the intersection and, other than perhaps shifting somewhat to the right within his lane of traffic, he did not otherwise pull out around the area where the two men were standing. That was despite the fact that, as I have found, the plaintiff was standing close to the edge of the lane of traffic.
(Page 12)
38 While the defendant's evidence was that it was his practise to keep as far to the right-hand side of the traffic lane as possible in this area of Hay Street, there is no evidence that the defendant thought to swing wide by pulling even slightly into the northern most traffic lane. There is no evidence to suggest that he could or could not have done so. However, if it was not possible for him to do so, for the reasons set out below, I find that that made it all the more imperative that he sound his horn to warn the two men of the approach of the bus.
39 Whatever the plaintiff had done on prior occasions as he shifted boxes down the side of the station wagon and put them in his own vehicle I find that on the last trip he did not check for oncoming traffic. It may well be that he had looked on prior occasions and that has influenced Mr Velkovski's evidence. However, had the plaintiff actually looked behind him prior to his last trip, it is inevitable he would have seen the bus accelerating towards him through the intersection.
40 As the plaintiff took the box or boxes and prepared to again walk down the side of the station wagon, at least partly within the traffic lane, the bus was accelerating towards him. He was oblivious to its approach as it accelerated smoothly and with relatively little noise "relatively slowly, perhaps relatively quietly" as counsel for the defendant said. The bus accelerated to between 20 and 25 kilometres per hour. The plaintiff probably took no more than a step or two down the side of the station wagon before he was struck a glancing blow by the side of the bus, in all probability, just past the position where Mr Allen sat at the front behind the defendant.
41 As appears from Exhibit D3 photograph 6, there would have been very little space between the Cat bus and a station wagon to allow a man to walk safely between them. Even a small lateral movement by the bus or a lurch or misstep by the pedestrian could easily cause contact between the bus and the pedestrian in that gap. It is probable that the plaintiff stepped laterally into the side of the bus as he walked along the side of the station wagon, at the instant the bus passed him. That is, a slight sideways movement brought the plaintiff and the bus into contact.
42 The close proximity between the bus and the station wagon is shown by the fact that when the plaintiff was struck a glancing blow by the bus he was propelled into the station wagon with sufficient force to cause the damage that is seen to its rear passenger door. That in turn caused him to fall to the ground where his leg was then run over by the rear wheels of the bus. The bus was of course travelling between 5.3 and 6.7 metres
(Page 13)
- per second. As counsel for the plaintiff submitted, correctly in my view, if in fact the initial point of contact with the bus had been at the "scuff mark" immediately in front of the rear wheels of the bus even allowing a half second for the plaintiff to carom into the station wagon and fall to the ground, then the rear wheels of the bus would have already been past him.
43 Unremarkably there was no issue in this case with respect to the question of whether a duty to take reasonable care was owed by the defendant to people in the position of the plaintiff. Issue was joined on the question as to whether or not the defendant had breached any relevant duty owed to the plaintiff. Putting aside the question of the lack of care taken by the plaintiff with respect to his own safety, in determining whether the defendant acted reasonably requires:
"… a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." Wyong Shire Council v Shirt (1980) 146 CLR 40 per Mason J at 47; Turner v South Australia (1982) 42 ALR 669; (1982) 56 ALJR 839.
- With respect to the magnitude of the risk there are several matters that are relevant. The plaintiff was standing at the edge of a lane of traffic that the bus would pass through when the traffic light changed. It was apparent that his attention was engaged to some extent in the handling of the box. So far as the defendant was aware the plaintiff had not observed the bus.
44 Pedestrians, from time to time, act carelessly. They do so:
"… with sufficient frequency that a prudent driver would take account of it. The likelihood of that occurring is not a 'far-fetched or fanciful' risk which is to be put aside or discounted. It is something which occurs often enough for the prudent driver to foresee it and take it into account." Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 per Mahoney P at 418.
45 And, in any collision between a pedestrian and a bus even at "just" 20 to 25 kilometres per hour the pedestrian will inevitably come out second best. The possibility for serious injury is great.
(Page 14)
46 This is not a case where the defendant could think that the plaintiff had seen him and for that reason could reasonably expect that the plaintiff would remain in a position of safety until the bus passed:cf MA v Keane [2003] NSWCA 50; (2003) 38 MVR 212 at 215. It is not a case where the defendant was unaware of the presence of the plaintiff at the roadside until the very instant before the collision leaving no time to take any action: cf Derrick v Cheung [2001] HCA 48; Turner v South Australia (2001) 181 ALR 301; (2001) 33 MVR 393. Rather, the defendant had ample time to observe the plaintiff and Mr Velkovski, and to see that they had apparently not observed him. He could see that they were occupied in dealing with a box for some purpose, and talking to each other. In my view he should have perceived that there was in fact the kind of risk that eventuated and that a pedestrian in the circumstances that he observed could fail to take care for his own safety.
47 It remains to be considered what the defendant could have done by way of alleviating action, how difficult such action would have been, and whether it would have conflicted with other responsibilities that the defendant had. In my view, what was necessary was for the defendant to ensure that he did not bring the bus so close to the position where the plaintiff was standing that a moment of carelessness on the plaintiff's part could result in a collision, unless the plaintiff was warned of the approach of the bus. That meant that the defendant either had to be confident that the plaintiff had observed the bus, or had committed himself to some path taking him away from the direction of travel of the bus, or that the defendant brought the bus no closer to the plaintiff than was prudent until he knew what the plaintiff was going to do. A "prudent distance" in that context would be a distance within which he could bring the bus to a stop if in fact the pedestrian began to blunder on to the road. If it was inconvenient to lessen his rate of acceleration or even stop, or to shift over into the right lane to some extent, then he should have sounded his horn.
48 Common experience may suggest that the horn of a motor vehicle is primarily used as a means for a driver to express his or her displeasure about the conduct of other users of the road after some "near miss" or real or perceived discourtesy. It is however the means provided for ensuring that other users of the road in a potential position of danger are alerted to the approach of a vehicle. In dealing with this particular of negligence counsel for the defendant submitted that it was not necessary to sound the horn because at the time of the collision the "defendant had passed the plaintiff". With respect I do not accept that. The time to sound the horn was before the bus began to pass the plaintiff.
(Page 15)
49 I find that the accident occurred almost instantly, that is in a second, as the very front of the bus passed the position where Mr Velkovski and the plaintiff had been standing. The plaintiff had not set out to cross the street but rather to walk down the side of the station wagon. It may be that he assumed that was a relative position of safety. It may well have been with cars of average or smaller size in the adjacent lane of traffic. However, both Mr Velkovski and the plaintiff were oblivious to the approach of the bus. The probability is that the plaintiff and the bus collided in the instant that the plaintiff moved to walk down the side of the station wagon.
50 Counsel for the plaintiff relied on the decision of the Full Court of the Supreme Court of Western Australia in Alexander v Manley [2004] WASCA 140; (2004) 29 WAR 194. With respect, there is nothing in Alexander v Manley which as a matter of principle assists in the determination of this case. Like most such cases, it represents an application of well established principle to its particular facts. Alexander v Manley (supra)was an unusual case where the defendant was ultimately found liable for 30 per cent of a plaintiff's damages after running over the plaintiff who lay drunk on a road at 4.00 am in the morning. The defendant's negligence in that case was continuing to drive at a speed of 60 kilometres per hour and changing the direction of his vehicle while taking his eyes off the road for 2 to 3 seconds when distracted by another person at the roadside. The Full Court held that had the defendant not taken his eyes off the road he might reasonably have observed the man lying on the road. It was in that context that Le Miere J (with whom Steytler and E M Heenan JJ agreed) stated at [50]; (2004) 29 WAR 194 at 205, said:
"It is clear that the respondent owed a duty of care to all users of the road. That duty of care was not confined to persons who are careful and sober but extend to all foreseeable users of the road, including bad and inattentive drivers or pedestrians and those whose facilities were impaired either naturally or by reason of the affect of alcohol: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 520 per Deane J. Thus, for example, an inattentive driver of a slowly travelling car has been held to be liable for breach of a duty of care to a pedestrian who, dressed in a dark overcoat on a rainy night, sought to cross the light (sic. road) at a 'highly unlikely' spot without any real lookout for oncoming traffic: see Teubner v Humble (1963) 108 CLR 491."
(Page 16)
51 In Bold v Reed [2005] WASCA 165, the Full Court upheld the decision of the trial Judge that there had been no breach by the defendant/respondent driver of her duty towards the appellant, a pedestrian. The pedestrian had started to walk across a dual carriageway, some distance ahead of the respondent who was travelling at 60 kilometres per hour. The appellant walked across the respondent's lane of travel and moved into the adjoining or centre most lane. The respondent did not reduce her speed. Without warning the appellant turned on his heel and doubled back in the direction from which he had come without stopping. At that point it was too late for the respondent to stop her vehicle and it struck the appellant.
52 In upholding the trial Judge's decision that there had been no breach of the driver's duty of care the Full Court said:
"Drivers must travel along busy city streets that are also used by pedestrians. In general, the driver of a vehicle in a busy street is entitled to act on the assumption that pedestrians whom she is approaching and who have the appearance of normal adults will take normal precautions for their own safety, unless there is something to indicate the contrary. Traffic would become impossible if this were not so. If an accident occurs only because such a pedestrian acts abnormally and without warning, the driver is not at fault. Quite different considerations apply and special precautions would be called for from the driver, if, assuming she was taking proper care, she would see that she was approaching the vicinity of a young child, or a person who appeared to be drunk, blind or crippled or behaving recklessly: see Trompp v Liddle (1941) 41 SR (NSW) 108; Stalks & McDonald Hamilton Co Pty Ltd v Baldwin(1996) 24 MVR 416."
53 The Full Court's conclusion however was subject to this principle stated earlier in their reasons, at [22]:
"In deciding whether there has been a breach of the duty of care the Court must first ask itself whether a reasonable person in the respondent's position would have foreseen that her conduct involved a risk of injury to the appellant or to a class of persons including the appellant. If the answer be in the negative, the respondent's conduct does not amount to a breach of the duty of care owed by her to the appellant."
(Page 17)
54 In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 435-533, the High Court was unanimous in holding that:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care for the reasonable man … and of the relative importance of the acts of the parties in causing the damage …
It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
55 In my view the primary responsibility for the accident and the resulting injuries was that of the plaintiff. It was for him to see that he could safely step from around the station wagon while carrying the box and to ensure that there was not a bus or other large vehicle approaching, or a smaller vehicle approaching that was travelling close to the parked cars. If he had looked he would have seen the defendant's bus crossing the intersection. The lack of room between the parked vehicles and traffic in the adjacent lane was a fact that was obvious to him as well as the defendant.
56 However, while "in general" a driver in a busy street may act on the assumption that pedestrians will take normal precautions for their own safety, that assumption gives way in the face of "something to indicate the contrary". In this case the defendant could see that the plaintiff and Mr Velkovski were standing in the parking lane and that the plaintiff was close to the lane of traffic. He could see that they were dealing with a box and talking. He could see that they were doing something but he had no indication as to what that was and where the plaintiff might go with the box. He could see that they had not seen him. He had no indication that the plaintiff and Mr Velkovski were aware that the bus was approaching. From all of the evidence it would seem, as counsel for the defendant submitted, both of them had their backs to what was happening and they did not observe the bus bearing down behind them. The bus was accelerating smoothly and relatively quietly. The narrowness of the margin for a misstep by the plaintiff and the consequences of such a misstep required that the defendant do something.
(Page 18)
57 In the particular circumstances here, it was incumbent on the defendant to at least briefly sound his horn to ensure that a pedestrian in the parking lane and at the edge of the lane of traffic was aware of the presence of the bus. He did not do so and he did not otherwise alter the course or speed of the bus to take account of the risk of a blunder by the plaintiff. To that extent he contributed to the accident and the injuries suffered by the plaintiff. That contribution I find to be one-third and I find the defendant liable in that portion.
58 I will hear the parties with respect to costs.
11
1