Blackburne v Thomopoulos

[1990] HCATrans 111

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl35 of 1989

B e t w e e n -

MARK JOHN BLACKBURNE

Applicant

and

ANGELO THOMOPOULOS

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J

DEANE J

Blackburne

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MAY 1990, AT 12.54 PM

Copyright in the High Court of Australia

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MR M.J. JOSEPH: If Your Honour pleases, I appear for the

applicant. (instructed by G.H. Healey & Co)

MR P. R. GARLING:  May it please the Court, I appear for the

respondent. (instructed by G.M. Meadows, Solicitor

for the GIO of NSW)

MR JOSEPH:  Your Honours, the issue of importance that we

submit does arise out of the judgment of the

Court of Appeal is the question as to the duty

of care a driver of a motor vehicle on a busy street

such as Parramatta Road, Lidcombe has to to

children pedestrians.

MASON CJ:	He has a duty of care, has he not?
MR JOSEPH:	Yes. Well, the attitude, in our submission,

of the - well, the approach of the Court of Appeal

was - there is no doubt he has a duty of care -

in our submission, to look at the question as to
the level of duty from the point of view of the

practicability of avoiding pedestrians on such a

road and, in our submission, that is an error

of law which is important that this Court, from

the point of view of the general public, should not

allow to stand.

MASON CJ:  But the standard of care depends on the fact

situation, does it not?

MR JOSEPH:  Yes, but the way the Court of Appeal approached

it, in our submission, was that at one point

of time it denied there could be a duty of care

because of the facts in this situation.

MASON CJ: Well, can you point to that particular statement?

MR JOSEPH:  Yes, at page 25, at the bottom of that page, at

point 25, His Honour Mr Justice Samuels states:

if drivers have to keep themselves alert

against dangers of this kind it is

obviously going to place a very heavy

burden upon the way in which motor

traffic ordinarily proceeds.

MASON CJ: But he is addressing that remark to the standard

of care appropriate to the circumstances of this

particular case, is he not?

MR JOSEPH: Well, except that further down that page he goes

on at point 20:

And I do not consider that the defendant

was under any obligation -

and I submit, legal obligation -

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to proceed at any slower speed so as

to enable him to avoid a wholly reckless

pedestrian.

Now, in my submission, His Honour there is

directing himself that there was no duty of care

because of the manner by which the pedestrian

approached his crossing of the roadway.

MASON CJ: Well, he cannot be talking of the duty of care

in an abstract sense. He must be talking about

what is the appropriate standard of care as the

facts that he is postulating.

MR JOSEPH: Well, in our submission, he is putting the standard

so low at that point of his judgment as to amount to

a significant error of law. Indeed, Mr Justice Priestley,

in our submission, similarly does it at page 28.

At page 28 point 5:

it does not seem to me that the duty extends

so far that the driver in the inside lane

is required to go so slowly as to be able
to stop if the pedestrian appears so
quickly in front of him as to show that the

pedestrian is acting without any thought

whatsoever of his own safety.

Now, again, in our submission, His Honour there is
placing the duty of care so low that to deny

that in law the driver - the duty extended to this

pedestrian, in our submission, that must be wrong

and secondly, it is not in accordance with the

principles in SHIRT's case as to the legal obligation

to avoid possible risks of injury as opposed to

fanciful risks of injury.

BRENNAN J:  How would you restate that proposition of law?

MR JOSEPH: Well, it would be my submission that the duty

does extend to a driver in the inside lane as to

at all times owe a duty to any pedestrian who

appears in front of that vehicle so as to possibly

avoid that vehicle in the circumstances of the

case. Obviously, I am not denying that there is

not an aspect of facts to - - -

BRENNAN J: It seems to me that the difficulty of restating

as a general proposition is one which rather points

up that this is a fact case. One has to say

that the duty extends so far that the driver in

the inside lane is required to go so slowly as to
be able to stop if a pedestrian appears so quickly in

front of him as to what?

MR JOSEPH:  As to prevent a danger to himself. I mean the duty

is owed to the pedestrian and the fact that people

act recklessly does not mean there is devoid of a

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duty of care to that person. It appears, in my

submission, that there is - Mr Justice Priestley

is stating that there is no duty of care to a

reckless pedestrian and, in my submission, there

is a duty of care to a reckless pedestrian.

BRENNAN J: Well, it depends. There is a duty of care.

Obviously, there is a question of where there is a

breach of a duty, according to the speed at which

the driver is going, according to the circumstances
of the case, in which the recklessness of the

pedestrian - - -

MR JOSEPH: Well, His Honour, I accept there, is talking about

the conduct of the pedestrian and not the conduct

of the driver and, in my submission, His Honour

there is saying that there is no duty to a pedestrian

-who acts recklessly. Now, in my submission, that is

wrong and the question of breach relates to whether

or not the driver could have avoided that

pedestrian in the circumstances.

MASON CJ:  But when you look at the top of page 25, particularly

the last sentence, true it is that what the judge is

there doing is summarizing the submission that is

being made in the case, and he ends up rejecting

it but on the facts of the case.

MR JOSEPH: Well, that does raise this point. I wonder if I

could refer Your Honours to page 4, in fact, of the

trial judge's judgment. He says this at point 5:

The conclusion I have come to regarding

the Defendant's conduct is this. In the
general area in question, still daylight,
three youths were in various stages of

crossing this six lane highway from the

driver's right to left. He apparently failed

to see any of them and there is no suggestion
that his vision to the right was obstructed

until he came upon this large stationary Coach.

Had any prudent driver been aware of the

presence on the highway of one or more young

people hurrying across he would have modified

his driving to be alert for any emergency.

Now, at that point of Mr Justice Samuels' judgment

where he tries to summarize the submission of the

respondent to that appeal, at least. Sorry, I

should go on: Master Sharpe's judgment, line 15:

His failure to see the Plaintiff, excused

by the presence of the Coach, once both

parties were in that situation, does not

excuse his failure to be alert to the

possibility that a pedestrian might emerge

from this -

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and I interpose there, temporary -

blind spot.

Now, it is my submission that ultimately the Court

of Appeal rejected that finding of fact by

Master Sharpe.

MASON CJ: It does seem a little improbable though, does it

not, that somebody coming up on the inside of a

bus would be able to see what was happening on the

other side of the bus in the other three lanes?

MR JOSEPH:  But Master Sharpe did not say he should have seen

him. What he says is he should have been aware of

the presence of pedestrians coming across a road

and that is where the Court of Appeal, with respect,

committed a serious error as to the findings of

Master Sharpe. They have assumed that Master Sharpe

has simply found that, because he did not see him

just prior to the accident - that because Master Sharpe

found that there was a blind spot at one point, that

therefore there was no duty of care to these

pedestrians. Now, it is my submission that the Court

of Appeal went off on an error in respect of that

finding by Master Sharpe in assuming that the simple finding was because the driver did not

see the pedestrian, in the circumstances of this case

there was no breach. Whereas, the finding of

Master Sharpe was that he should have been alert

to the pedestrians as they crossed the roadway.

True it was that there was a temporary blind spot

but that this did not mean that the driver did not
breach the duty of care owed to the pedestrian

who was injured.	They would be the submissions
I rely on.

MASON CJ: Yes, thank you, Mr Joseph.

The Court need not trouble you, Mr Garling.

MR GARLING: If the Court pleases.

MASON CJ:  The outcome of this case depends on its own

facts. The case raises no question of general

principle and is therefore not appropriate to the

grant of special leave.	The application is
accordingly refused.

MR GARLING:	I seek an order for costs?
MASON CJ:	You do not resist costs, Mr Joseph?
MR JOSEPH:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 1.05 PM THE MATTER WAS ADJOURNED SINE DIE

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