Bold v Reed
[2005] WASCA 165
•29 AUGUST 2005
BOLD -v- REED [2005] WASCA 165
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 165 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:161/2003 | 2 JUNE 2005 | |
| Coram: | ROBERTS-SMITH JA MCLURE JA LE MIERE AJA | 29/08/05 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JEFFREY WILLIAM BOLD SAMANTHA JAYNE REED |
Catchwords: | Appeal Negligence Duty of care owed to road users |
Legislation: | Nil |
Case References: | Pledge v Roads and Traffic Authority & Ors (2004) 205 ALR 56 Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 Trompp v Liddle (1941) 41 SR(NSW) 108 Bird v McShea (1999) 29 MVR 103 Fardon v Harcourt-Rivington [1932] All ER 81 Kappos v Berghoffer (1990) 11 MVR 480 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Paua Nominees Pty Ltd v Miller [2005] HCA Trans 232 Pennington v Norris (1956) 96 CLR 10 Pritchard v Evans (1996) 23 MVR 149 Rowes Bus Service Pty Ltd v Cowan (1999) 29 MVR 430 Teubner v Humble (1963) 108 CLR 491 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BOLD -v- REED [2005] WASCA 165 CORAM : ROBERTS-SMITH JA
- MCLURE JA
LE MIERE AJA
- Appellant
AND
SAMANTHA JAYNE REED
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GROVES DCJ
Citation : [2003] WADC 226
File No : CIV 2515 of 2001
Catchwords:
Appeal - Negligence - Duty of care owed to road users
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr G Droppert
Respondent : Mr K N Allan
Solicitors:
Appellant : Ilberys Lawyers
Respondent : K N Allan
Case(s) referred to in judgment(s):
Pledge v Roads and Traffic Authority & Ors (2004) 205 ALR 56
Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416
Trompp v Liddle (1941) 41 SR(NSW) 108
Case(s) also cited:
Bird v McShea (1999) 29 MVR 103
Fardon v Harcourt-Rivington [1932] All ER 81
Kappos v Berghoffer (1990) 11 MVR 480
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Paua Nominees Pty Ltd v Miller [2005] HCA Trans 232
Pennington v Norris (1956) 96 CLR 10
Pritchard v Evans (1996) 23 MVR 149
Rowes Bus Service Pty Ltd v Cowan (1999) 29 MVR 430
Teubner v Humble (1963) 108 CLR 491
Wyong Shire Council v Shirt (1980) 146 CLR 40
(Page 3)
1 ROBERTS-SMITH JA: For the reasons given by Le Miere AJA, I agree there was no breach by the respondent of her duty of care towards the appellant. I too would dismiss the appeal.
2 MCLURE JA: I agree with Le Miere AJA.
3 LE MIERE AJA: The appellant appeals from the judgment of a Judge of the District Court by which the appellant's claim for damages was dismissed. The appellant had claimed damages for injuries sustained by him when he was run over by a motor vehicle driven by the respondent. The appellant claimed that his injuries were caused by the negligence of the respondent.
The Accident
4 The accident that caused the appellant's injuries occurred on 21 September 2001. The appellant was then 50-years-old. He was employed as a sales consultant. His job required him to call on prospective clients to solicit business. On 21 September 2001 at between 8.30 am and 8.45 am the appellant called on prospective clients on Welshpool Road, Welshpool. He had parked his motor vehicle in a parking area adjacent to those businesses on the northern side of Welshpool Road. Having completed his business there he observed that over the road and on the southern side of Welshpool Road was the business premises of Opposite Lock. He had sometime previously been referred to that business as a prospective client and decided to make a call on Opposite Lock.
5 In the area where the appellant intended to cross, Welshpool Road has a four lane carriage way and runs approximately in an east/west direction. The northern side two lanes are divided by a broken white line for traffic proceeding in an easterly direction. The southern side two lanes are also divided by a broken white line for traffic proceeding in a westerly direction. The east and west bound lanes are divided by a double white line. Welshpool Road is for some distance in this area straight and flat.
6 The weather was sunny and clear and the roadway was dry. Before stepping from the kerb onto the roadway the appellant looked back to his right. About 100 to 150 metres west of him Swansea Street joins Welshpool Road at an angle on the northern side. Beyond that intersection to the west is the intersection of Albany Highway with
(Page 4)
Welshpool Road. When the appellant looked to his right he observed a white motor vehicle approximately 30 to 40 metres beyond the Swansea Street intersection and in the kerbside lane travelling towards him. He looked left and observed approximately 300 to 400 metres to the east that the boom gates at the railway crossing over Welshpool Road were rising and traffic was commencing to move from the crossing in a westerly direction towards him. The appellant stepped from the kerbside onto the roadway proceeding in a southerly direction.
7 The appellant's evidence as to what happened thereafter was not accepted by the trial Judge. The trial Judge accepted the evidence of the respondent.
8 The respondent gave evidence that she was driving her Suzuki Sierra in an easterly direction along Welshpool Road in the kerbside or northern most lane. The speed limit in the area is 60 kilometres per hour and she was travelling at that speed. She is familiar with the area and whereas the traffic on Welshpool Road is usually quite heavy at this hour of the morning she observed that on this occasion it was sparse. There were no other vehicles travelling in the same direction in near proximity to her.
9 As she was proceeding along Welshpool Road the respondent observed a male person walking across the footpath on her left ahead of her. She was not able to say how far ahead. She had a clear view of the person as he walked in a southerly direction across the footpath off the kerb and onto the roadway and across the kerbside lane in which she was travelling. The respondent did not adjust her speed as the person cleared her lane and moved into the adjoining or centre most lane for traffic travelling east. She said that the person did not proceed as far as the centre double line when without warning he "turned on his heel away from her" ie to his left (which would indicate that he turned with his back to her), "and without warning double backed in the direction from which he had come without stopping". He walked immediately into the path of her vehicle. As she was now only a short distance from him it left her no time to avoid the person. When she realised the dangerous situation she applied her brakes. She was unable to say whether the brakes had any retarding effect prior to impact. She maintained her line of travel in the kerbside lane throughout and did not deviate. The front right-hand side (driver's side) of her vehicle struck the appellant. She observed him to go across the bonnet to her left and towards the kerb.
10 After the accident the appellant was conveyed to Royal Perth Hospital by ambulance. A summary from the Royal Perth Hospital stated
(Page 5)
- that the appellant had received multiple abrasions and a fracture of the infera pubic raumus of the pelvis on the left side. At the time of trial the appellant's symptoms comprised of neck pain, pain in the left side of the pelvic area and headaches every couple of days which were quite severe and for which he took Panadeine Forte. His walking was limited, there were restrictions on standing or sitting for any length of time.
11 The learned trial Judge accepted that the accident occurred in the way enunciated by the respondent and accepted her account in its totality. The learned trial Judge made the following findings. At all times the respondent's vehicle was travelling wholly within the kerbside lane in an easterly direction. The respondent had a clear and uninterrupted view of the appellant as he proceeded from the northern kerb across her path of travel into the centre lane and back into the path of her vehicle and accordingly she kept a proper lookout. The point of impact was in the kerbside lane in close proximity to the broken white line dividing the kerbside lane and the centre lane. The appellant was proceeding back towards the northern kerb when the impact occurred. Before proceeding back towards the northern kerb the appellant did not look to see if there were any oncoming vehicles in near proximity so as to ensure that it was safe for him to cross back to the kerb. The respondent was proceeding along Welshpool Road at no more than 60 kilometres per hour which is the speed limit for the area. The respondent did apply her brakes immediately the risk became apparent. Her braking was of little if any effect prior to impact. The respondent stopped her vehicle within a very short distance from the point of impact and in the kerbside lane.
12 The appellant submits that the trial Judge found that from the point where the appellant turned, he would have taken at most two or three steps back to the point of impact. The appellant submits that combined with the evidence that the impact occurred at the front of the respondent's vehicle, this must have meant that the appellant was no more than two steps from the edge of the respondent's motor vehicle when he turned back and stepped directly into the path of the respondent's motor vehicle. This must also have meant that the appellant had barely crossed into the centre lane before he turned. In those circumstances, the appellant submits, the effect of the learned trial Judge's findings are that the appellant was in the lane on the road in which the respondent was travelling and in front of the actual path of travel of the respondent's motor vehicle for all but a very short period of time. Given the findings of the trial Judge that the respondent did not reduce speed at any time as she approached the appellant, it was submitted that the trial Judge ought to have found that the respondent's failure to reduce speed was negligent.
(Page 6)
- The appellant submits that approaching a pedestrian on the roadway in front of your vehicle at a speed of 60 kilometres per hour on the assumption that he will keep walking across the road is too fast and not an exercise of reasonable care.
13 The appellant gave evidence that he was positioned and stationary in the centre of Welshpool Road when he was struck by the respondent's vehicle. The trial Judge rejected that evidence. The trial Judge found that the appellant had no idea where on the roadway he was when struck by the respondent's vehicle and it was equally possible that the appellant turned before he reached the double lines to head back to the safety of the kerb to wait for the traffic to clear before again attempting to cross the road. It was in that context that the trial Judge said:
"It would only have taken at most two or three short steps back to the point where, on the defendant's account, the plaintiff was struck."
14 The appellant's case at trial was that he was standing on the double white lines in the centre of the road when he was struck by the respondent's vehicle. The statement by the trial Judge that it would only have taken the appellant at most two or three short steps back to the point where, on the respondent's account, the appellant was struck, was part of the trial Judge's discussion of the conflicting evidence of the appellant and the respondent as to where the impact occurred. The learned trial Judge rejected the appellant's account and accepted the respondent's account. The trial Judge found that the point of impact was in the kerbside lane in close proximity to the broken white line dividing the kerbside lane and the centre lane. The trial Judge did not find, as the appellant submits, that the appellant was no more than two steps from the edge of the respondent's motor vehicle when he turned back and stepped directly into the path of the respondent's motor vehicle.
15 The appellant's submission that this must also have meant that the appellant had barely crossed into the central lane before he turned back and that the appellant was in the lane on the road in which the respondent was travelling and in front of the actual path of travel of the respondent's motor vehicle for all but a very short period of time are unjustified conclusions. Those hypotheses depend on too many imponderables which are really little more than matters of speculation: see Pledge v Roads and Traffic Authority & Ors (2004) 205 ALR 56 per Callinan and Heydon JJ at [48]. The imponderables include how many steps the appellant took after he turned back, the size of those steps, the speed at which he was
(Page 7)
- travelling and precisely where in the kerbside lane the respondent's vehicle was positioned at the time of impact. The imponderables include the manner in which the appellant turned. In her evidence the respondent said the appellant "was just walking along and turned back". The respondent described the appellant's movement by saying that "he turned on his heel". The respondent demonstrated the appellant's movement. The trial Judge had the benefit of that demonstration, a benefit denied to this Court.
16 For those reasons, I do not accept the appellant's submissions that the appellant had barely crossed into the centre lane before he turned back and that the appellant was in the lane on the road in which the respondent was travelling and in front of the actual path of travel of the respondent's motor vehicle for all but a very short period of time.
17 The conclusions which the appellant now seeks to draw were not put to the respondent in cross-examination. It was the appellant's case at trial that the appellant had been in the centre lane when struck by the respondent's vehicle. It was put to the respondent that she had difficulty describing where her car came into contact with the appellant because "it happened very quickly and [the respondent] hadn't been watching him carefully before the impact took place". The respondent rejected that proposition saying "I did have my eye on [the appellant] walking across the road". As I have said, the respondent's evidence was accepted by the trial Judge.
18 In the end, it is unsafe to draw any conclusions as to the precise point the appellant reached before he turned back and where on the roadway he was in relation to the respondent's vehicle beyond those made by the trial Judge. Those findings are that the point of impact was in the kerbside lane in close proximity to the broken white line dividing the kerbside lane and the centre lane and the appellant was proceeding back towards the northern kerb when the impact occurred. Importantly, the trial Judge accepted the evidence of the respondent that she had the appellant within her view for some distance prior to impact and that she observed the appellant step off the kerbside some distance ahead of her. The trial Judge found that the appellant was "sufficiently far ahead of her not to necessitate her having to reduce speed".
19 The appellant submits that the respondent was negligent because she failed to reduce speed at any time as she approached the appellant. The appellant submits that the respondent's action in approaching a pedestrian on the roadway in front of her vehicle at a speed of 60 kilometres per hour
(Page 8)
- on the assumption that he will keep walking across the road is too fast and is not an exercise of reasonable care.
20 The learned trial Judge concluded at [87]:
" … I am satisfied that the possibility of danger emerging was only a mere possibility and then when the danger presented itself as a consequence of the [appellant] changing direction and stepping into the path of the [respondent's] vehicle it was too late to take any evasive action so as to avoid the plaintiff."
21 In its context, the finding that the possibility of danger emerging "was only a mere possibility" is a finding that it was not reasonably foreseeable that continuing to drive at 60 kilometres per hour in the kerbside lane involved a risk of injury to the appellant or to a class of persons including the appellant.
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.
23 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; Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416.
24 The respondent observed the appellant step off the kerbside some distance ahead of her. The learned trial Judge made no finding, and it is not possible for this Court to make a finding, as to the distance that the appellant was at that time ahead of the respondent. The learned trial Judge found that the appellant was sufficiently far ahead of the respondent
(Page 9)
- not to necessitate her having to reduce speed. The learned trial Judge found that the respondent observed the appellant to proceed across her path and clear the kerbside lane. At no time prior to the appellant clearing the kerbside lane did he slow down or otherwise give any indication that he might not proceed directly across the kerbside lane and out of the path of the respondent's vehicle. There was nothing to alert the respondent to the possibility that the appellant might not clear the kerbside lane sufficiently ahead of the respondent so as to necessitate her having to reduce speed. Once the appellant had cleared the kerbside lane a reasonable person in the respondent's position would not have foreseen that the appellant might, without warning and without looking back in the direction of oncoming traffic, turn and walk into the path of oncoming traffic. In those circumstances there was no breach of duty by the respondent in continuing to travel in the kerbside lane at the speed limit of 60 kilometres per hour.
25 It was open to the learned trial Judge to make the findings of fact he made. On those findings the trial Judge was right to find that the respondent's conduct involved no breach of the duty of care she owed to the appellant and other road users.
26 The appellant needs to establish not only that the respondent breached the duty of care she owed to the appellant and other road users but also that that breach of duty caused the appellant's injuries. The appellant would need to establish that the respondent should have slowed down at some distance before the point of impact and that if she had done so the appellant would not have been injured. The learned trial Judge's findings do not permit this Court to make a finding on the issue of causation. However, in view of my conclusion that the respondent was not negligent it is not necessary to consider that issue further.
27 For the reasons stated, I would dismiss the appeal.
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