Bratton v Sharp

[2004] NSWSC 505

CITATION:	BRATTON v SHARP [2004] NSWSC 505
HEARING DATE(S):	2-5 June 2003; 22-25 September 2003
JUDGMENT DATE:	11 June 2004
JUDGMENT OF:	Hulme J at 1
DECISION:	Stood over for short minutes of order
PARTIES :	Wayne Gordon Bratton Raymond Neville Sharp S Crowther & Sons Pty Limited
FILE NUMBER(S):	SC 20693/01
COUNSEL:	Plaintiff: A Hartcher (Solicitor) 1st Def: J Poulos QC; M Morris; K Andronos 2nd Def: J McIntyre SC
SOLICITORS:	Plaintiff: Watkins Tapsell 1st Def: Sparke Helmore 2nd Def: Dexter Healey

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HULME J

Friday 11 June 2004

20693/01


WAYNE GORDON BRATTON v RAYMOND NEVILLE SHARP AND ANOR

JUDGMENT

1 HULME J: At about dawn on 11 June 1999 the Plaintiff in these proceedings was injured when he was struck by a car in Gannons Road, Caringbah. At the time the Plaintiff was assisting Mr Herrmann, the driver of a bus which was being reversed slowly into Gannons Road from a bus depot. The bus and depot were owned by the Second Defendant by whom the Plaintiff was employed as a bus driver. He had been so employed since February 1999. The driver of the car is the First Defendant.

2 Gannons Road runs approximately north-south. The bus depot is situate on the eastern of the road. By walking out onto the road and raising his hand in the usual halt signal, the Plaintiff had induced the drivers of two south bound cars to stop and then called out to the bus driver, the rear of whose vehicle was then at about the fence alignment to “come on”. By this time the Plaintiff was in, approximately, the middle of the road.

3 As the bus traversed the two south bound lanes, the Plaintiff walked, it would seem backwards, across one of the north bound lanes and into the second where he was struck. His estimate is that at that time he was approximately 2 metres from the western kerb of Gannons Road and the same distance from the bus which, with a view to proceeding south in Gannons Road had, in the course of its reversing, been angling somewhat to the north. He seems to have previously told a psychologist whose report was tendered by the First Defendant that he was one metre from the kerb. Evidence of Mr Herrmann and an eyewitness, Ms Highfield, further confirms that the Plaintiff was in the kerbside lane.

4 Although not all of the Plaintiff’s evidence was to this effect, the tenor of his evidence seemed to me to be that the bus stopped with its rear wheels on the centre line and its body occupying the southbound lanes and one of the northbound lanes.

5 Mr Herrmann said that he could not be sure but thought he stopped the bus when it was partly blocking the northbound carriageway. He said that he stopped when he did because he saw a car proceeding north and it did not appear that the car was going to stop. It did not and passed behind the bus.

6 On a drawing that became Exhibit 2.4, the Plaintiff estimated the angle of the bus to the kerb to be, on my reading of the drawing, about 60 degrees. In oral evidence he had previously estimated the angle at about 45 degrees.

7 A comparison between the width of the south bound lanes and the length of the bus indicates that if not absolutely necessary, it was likely that the bus would have protruded into the northbound lanes. Scaling from an RTA drawing and another drawn by Mr Keramidas, an expert called by the First Defendant, indicates that the southbound side of Gannons Road outside the bus depot is about 6 metres wide. In Exhibit 1.6, one of the expert reports, its width is said to be 6.5 metres. The evidence of Mr Crowther, the proprietor of the bus company is that the average bus length is about 11.8 metres. There was evidence that the bus driven by Mr Herrmann at the time was one of the biggest. Mr Joy, an expert whose report was tendered on behalf of the Plaintiff said that the bus was 11.7m long. The difference does not matter. As a matter of elementary geometry, if the bus was at an angle of 45% or more to the kerb alignment, it would not fit within the 6 or 6.5 metres width. Indeed, the angle would need to be very substantially less than 45 degrees for the bus to do so.

8 These matters lead me to conclude that the Plaintiff was not overstating the position when he said that if the bus reversed no further than the centre of the roadway, clearing the kerb could only be done with difficulty. No doubt this would to some extent depend on where, relative to other objects, such as fences, gate posts an other buses, a bus was parked before reversing but my impression is that, so long as the Second Defendant’s premises remained as they were and as a bus depot, intrusion onto the northbound lanes could not sensibly be avoided.

9 At all material times the driving lights and reversing lights of the bus were on. It seems to me probable that, because of the angle of the bus, the lights on its rear were not visible to someone approaching along Gannons Road from the south. However, the driving lights included small side lights, one near the rear and one near the front on each side, showing red for their latter half and orange for their forward half, and visible to persons approaching from or at an angle to the side of the vehicle. Whether the headlights would have been visible to any appreciable extent to someone approaching along Gannons Road from the south would much depend on the angle of the bus and possibly how far those lights were from the footpath on the eastern side of Gannons Road.

10 There was some evidence from both the Plaintiff and the bus driver, a Mr Herrmann that the interior lights were on but, given the totality of their evidence, I think the probability is that the interior lights were not on.

11 There was also some evidence that on the side of the vehicle were reflectors. Some of the evidence as to these was unsatisfactory in that it seemed to refer to the situation of the bus after it had been repainted. However, the probabilities are that there were such reflectors at the time of the accident. Reflectors are designed to be seen and there is no reason to think that those on the bus were not inherently capable of performing that function.

12 At the time of the accident the side of the bus was painted in 3 colours, blue, white and black. I am satisfied by Mr Herrmanns’ evidence that white extended for the length of the bus, except where there was a shark painted and was of appreciable height.

13 During this manoeuvre, the Plaintiff said he remained within sight of the driver via the latter’s externally mounted driver’s side mirror. Mr Herrmann said that the Plaintiff was visible in the mirror for part of the time and then went out of sight “not a great deal of time before the thump” Mr Herrmann heard. If I have to choose between these accounts, I prefer the evidence of Mr Herrmann whose memory was not subject to the same trauma as was the Plaintiff’s. That said, I am not satisfied that the Plaintiff’s disappearance from view was not the result of the accident. I deal with the topic of illumination below but there is no basis for concluding that the loss of sight of the Plaintiff through the mirror was due to insufficient, or a change in, illumination.

14 Both the Plaintiff and Mr Herrmann gave evidence that I accept that the reversing lights on the bus had or would have had the effect of lighting up the area to the rear of the bus. Mr Herrmann said that they had this effect for a couple of feet but I think that I can take judicial notice of the fact that the illumination of such lights generally – I would say invariably - is for an appreciably greater distance than this and then infer that this was probably so in the case of the reversing light on the bus. This view is reinforced by oral evidence of Mr Keramidas, one of the experts called in the case who said that they provided illumination for more than 2 or 3 metres. Mr Herrmann did say that he could not remember whether the reversing lights illuminated the Plaintiff on the occasion in question.

15 The Plaintiff said that on that morning he was wearing a blue jacket, with grey pants and black shoes, “dark clothing”. Having regard to the onus of proof, I am not persuaded that his clothing was otherwise despite evidence from the Plaintiff that the company uniform included a pink lined shirt, that he did not say he was not wearing such a shirt and Ms Highfield who regularly ran past the depot in the morning gave evidence that she had seen bus company employees helping buses out on other occasions and that the bus company uniform included white shirts which were clearly visible. Mr Herrmann’s description of what he had worn on other occasions tends to corroborate the Plaintiff’s evidence that his clothing was dark.

16 On the other hand, Ms Highfield seems clearly to have seen the Plaintiff for an appreciable period from a distance she estimated to be about 100 metres away. It must be recognised that she was looking south to southwest at the time. This, the lighting at an intersection nearby and the fact that the headlights of the Plaintiff and Mr Digby were pointing from the south were relied on in support of an argument that the Plaintiff would have been silhouetted against such lighting and more visible from Ms Highfield’s direction than from the south.

17 The Plaintiff claimed that he remembered the events to which I have referred but that everything then went blank (or black) until he came around and noticed blood on the road and that he was in pain. His evidence is of then blacking out a couple more times in an ambulance, finally waking up in hospital. Although one must recognise the possibility of post-traumatic amnesia, the probability which arises from the Plaintiff’s account of events is that he did not consciously see, or see in sufficient time to do anything about it, the vehicle which struck him.

18 As I have indicated, Gannons Road, where the accident happened, has two south bound and two north bound lanes. About 50 metres north of where the Plaintiff was struck, the northbound lanes merge into one lane. A short distance south of the accident site, Denman Avenue crosses Gannons Road at an intersection controlled by traffic lights. Some short distance further to the south a railway line crosses Gannons Road and further south again Gannons Road intersects with The Kingsway. According to one of the reports which was tendered and became Exhibit 1.6, this is about 115 metres south of the railway bridge. The topography is such that a person standing on the eastern kerb alignment of Gannons Road outside the bus depot can see not only the traffic lights at the Denman Avenue intersection but also those on the western side at The Kingsway.

19 South of the Denman Avenue intersection, Gannons Road contains one lane for southbound traffic and 2 for northbound traffic. Where the railway line crosses Gannons Road, the abutments of the bridge carrying the railway line somewhat narrow Gannons Road although the three lanes to which I have referred remain. Drivers travelling north are required to slightly divert to the east under the bridge and then divert back a little to the west. The western kerb alignment of Gannons Road north of the Denman Avenue intersection commences and continues for some distance to the west of the general western kerb alignment south of the Denman Street intersection.

20 Mr Herrman said, and I accept, that when he commenced to reverse out of the bus depot the lights at the Denman Rd intersection were red for traffic travelling in Gannons Road. How long that was before the accident is a matter upon which there is no precise information. I accept also his evidence that the northbound vehicle he later stopped for was seen by him south of the railway bridge. I accept his evidence that he saw, by which I infer noticed and/or remembered, only one.

21 Shortly before the accident the First Defendant in his car, a Toyota Camry, had been stopped in the kerbside lane at a red light at The Kingsway intersection. In the lane beside him, a Mr Digby in his vehicle was also stopped. When the lights turned green both resumed driving north. Mr Sharp said that the Denman Avenue lights had turned amber just as he entered that intersection and he denied speeding up at that time. He said that his speed was about 40 to 50 kph.

22 The First Defendant said the he did not see the Plaintiff or the bus prior to the impact. He said that he did not know why but gave as a possible explanation that he had been looking in his side rear view mirror to check on the position of another vehicle, he being aware that to the north of the point of impact the northbound lanes of Gannons Road merged. The other vehicle was presumably that of Mr Digby.

23 At some time after the accident, and apparently contrary to legal advice, he pleaded guilty to a charge of negligent driving causing grievous bodily harm. Asked why, he replied, “Well I hit somebody. It was my fault.” In the course of a recorded interview with police he said that he had been along Gannons Road probably a thousand times.

24 Mr Sharp also said that he was aware of the bus depot and had seen buses moving in and, at about 9 or 10 am in the past moving out of it.

25 A statement from a Constable Lister who attended at the scene became an exhibit. In it he records that Mr Sharp told him that he had been driving at about 55 to 60 kph at the time of collision and also said, “I heard a terrible, terrible bang. A second or so after I hit the brakes.” In light of some evidence indicating that the First Defendant must have braked before the collision, it should be noted that it is only the full stop and the division of this account into 2 sentences which leads to the conclusion that the bang occurred before the braking.

26 Mr Digby also said that just before or as he negotiated the Denman Avenue intersection, the traffic lights there turned from green to orange but both cars proceeded through. According to Mr Digby he was travelling at about 60 kph prior to decelerating and he was content to allow the other vehicle, i.e. that Mr Sharpe was driving, to go in front of him. He told the police that the other car appeared to be in a bit of a hurry. That other car accelerated and then after it got in front of him its brakes were applied hard resulting in a deal of smoke. Mr Digby saw no reason for the First Defendant who he estimated to be one or two car lengths in front at that time, to brake. Mr Digby did not see the Plaintiff.

27 Mr Digby says he saw the bus though he can’t really recall where it was. He said, however, that he stayed in the lane nearest the middle of the road. The substance of his evidence is that he cannot recall any part of the bus intruding into his lane.

28 Although “in front” does not necessarily mean “directly in front”, and not all Mr Digby’s evidence points the one way, the tenor of his evidence, or at least the inference I draw from it, seems to be that, at the time the Plaintiff braked, he was at least in part, directly in front of Mr Digby. For example, Mr Digby gave the following evidence:-

“Q So as it true to say you didn’t know why it was that that Camry suddenly locked up its brakes, producing all that white smoke, did you?
A Well, my first reaction was that I thought he was some sort of idiot like, you know, trying to break in front of me sort of thing. And so that my only reason for stopping was because he stopped in front of me.”

29 If one accepts, as I think is clear, that the First Defendant remained, at least substantially, in the kerbside lane when he struck the Plaintiff, then Mr Digby would seem to have, at least partially changed lanes. He certainly seems to have been unconcerned by the presence of the bus and, although he says he did not, a change of lane does help to reconcile that lack of concern with the evidence that the bus was in his lane. His evidence must be taken into account on that issue but I do prefer the evidence of the Plaintiff and Mr Herrmann as to where the bus probably was and the inference from the skid marks.

30 Mr Digby’s own lights were on low beam and he cannot recall noticing that the First Defendant’s driving lights were not on.

Busyness

31 Another matter to which evidence was directed, was the busyness of Gannon’s Rd. It seems clear that it is a significant arterial link and in the morning the northbound lanes carry very substantially more traffic than the southbound lanes. Mr Digby said that normally when he leaves home at about 6.30 the road is very busy but on the morning in question when it would seem that he left home at 6 am, traffic was light and the only cars he remembers are his and the First Defendant’s.

32 Ms Highfields said it was not particularly busy at that time. The tenor of the evidence of Mr Digby who said that the cars of the First Defendant and himself were the only ones nearby travelling in a northerly direction at the time was to similar effect. The Plaintiff agreed that there was a continual stream of cars going north and that it was unusual to see pedestrians at that hour. I accept this last mentioned evidence of the Plaintiff but on the topic of busyness, I prefer the evidence of Ms Highfields and Mr Digby, if indeed there is a conflict between that and what the Plaintiff said.

The Scene

33 Because one of the issues which arose in the case was whether, although he did not see the Plaintiff, the First Defendant should be held liable, it is necessary to say more about the physical surroundings and the state of illumination of the scene.

34 In addition to the drawings to which I have referred and a number of photographs, there was evidence from 4 expert witnesses as to a variety of matters including the distances, deceleration values, speed, visibility and illumination. Although some of their evidence was necessary and I intend to rely on some, I cannot avoid the observation that much of their evidence strengthens my view that the extent of reliance on expert witnesses in modern litigation adds enormously to the cost and is a great waste of time and money.

35 To consider some of the issues which arise, including the time in which the First Defendant may have had to react, it is appropriate to record distances between some of the features of the area. Scaled from the RTA drawing, and taken along the western kerb of Gannons Road, south of Denman Avenue and the prolongation of that line north, the distance from the southern alignment of the railway bridge to the following places is:-

(i) Northern alignment of railway bridge 7 m.
(ii) Southern edge of stopping line on
southern side of Denman Avenue 20.2m.
(iii) Northern kerb alignment of Denman Avenue 39.5 m

36 (It is appropriate to note here that there were also some plans prepared by Mr Keramidas. Although purporting to be to the same scale, i.e. 1 : 200, scaling from those plans yields different results in some respects. The most obvious is in the width of the railway bridge but there are other, albeit lesser, differences also. That fact was not adverted to during the hearing. It seems to me that the RTA drawing is likely to be more reliable.)

37 Denman Avenue and the railway bridge are, or are very approximately, parallel. However they do not cross Gannons Road at right angles. Assuming Gannons Road is exactly north-south, Denman Avenue is, rather than east-west, more east-south-east to west-north-west. Thus the kerb alignment of Denman Avenue on the eastern side of Gannons Road is approximately 2.5 metres south of the position identified in (iii) above. The southern alignment of the railway bridge where it crosses the middle of Gannons Road is 1.4m further south than where that alignment crosses the western kerb.

38 (Although in these reasons, I have used fractions of a metre in the above and other measurements, I do not suggest that engineering precision is required or that I have adopted it, but a metre is sufficiently long that it seemed preferable to use those fractions rather than merely the nearest metre. I also recognise that there is liable to be a degree of imprecision – although, in the scheme of things I think relatively small - in some of the places identified, e.g. “kerb alignment”.)

39 The prolongation of the western kerb of Gannons Road to which I have referred runs approximately 2 metres from the western kerb of Gannons Road to the north of Denman Avenue. That, it will be remembered, is the approximate distance from the kerb that the Plaintiff said in Court he was when hit.

40 Mr Joy, whose report was prepared on the Plaintiff’s behalf, said that the driveway of the bus depot was about 8 metres wide and between 20 and 28 metres from the northern kerb of Denman Avenue. Mr Joy is a civil engineer and the organization he founded in 1990 specialises in the fields of traffic engineering, traffic safety/risk management and crash studies. I infer from other information in his Curriculum Vitae, that he himself has expertise in these areas.

41 In his report, Mr Keramidas, an engineer specialising in motor vehicle accident reconstruction, said that the southern end of the driveway was approximately 17 metres north of the intersection of Gannons Road and Denman Avenue, “defined by the southernmost pedestrian crossing line”. He said that the driveway was approximately 9 metres in width. His plan would suggest that this “the southernmost pedestrian crossing line” is somewhat to the north of where I would place the kerb alignment.

42 Dr Adams, a professionally qualified ergonomist and a consultant in safety management, prepared a report on behalf of the First Defendant. He said that he measured the southern side of the bus depot entry to be 16m from the nearest side of Denman Avenue and to be 6m in width.

43 Scaling from Mr Keramidas drawing – the RTA drawing does not show the driveway - indicates that the nearest edge of the driveway is, taken along the eastern kerb of Gannons Road, 18 metres from the northern kerb alignment of Denman Avenue and that the driveway itself is about 9 metres wide.

44 I do not forget the reservations expressed above concerning Mr Keramidas’ drawing but adopting that 18 metre figure as reflecting a fair average of the figures, if the Plaintiff had walked out from the southern edge of the driveway of the bus depot, at right angles to Gannons Rd, to a position 2 metres from the western kerb of Gannons Rd, he would have been 55m from where the southern alignment of the railway bridge crosses the kerb. (39.5 – 2.5 + 18). This is in close proximity to where Mr Keramidas placed the likely impact although I have not relied on his opinion in coming to my conclusion. Given the activity in which the Plaintiff was engaged, the direction of movement of the bus and the Plaintiff’s conduct in, at least for a time, remaining within the sight of Mr Hermann via the side mirror and near the rear of the bus, it is a legitimate inference he was no further to the south and very probably some metres further to the north. I draw that inference.

45 The First Defendant’s vehicle left one or more skid marks. In his statement Constable Lister said that he saw a skid mark ending near the rear of the Camry and estimated this to be about 20 metres long. Also in evidence was a statement by Senior Constable Foster of the Crash Investigations Unit. He attended the scene and assisted in taking measurements. He said that there were 2 tyre burn marks made by the Toyota Camry, one 20 metres long and the other 27 metres long. It seems to me that Constable Foster’s duties make his assessment of the situation more reliable and I accept the figure of 27 metres as the length of the longest skid mark made by the First Defendant’s vehicle. I do not need to rely on this but it might be mentioned that a number of the experts who attended the scene and saw markings of the nature of those made by the Crash Investigation Unit were content to act on this figure.

46 One topic about which the evidence was less clear than might have been expected was where the skid marks started. Constable Foster’s statement did not refer to the topic and there was not tendered any other document from the Crash Investigations Unit.

47 Constable Lister’s statement recorded that the (only) skid mark he saw was from a point on the roadway near the intersection of Gannons Road and Denman Avenue. He does not say how near.

48 The evidence of Mr Joy and the report of Mr Keramidas makes it clear however that there is practice of the Crash Investigation Unit to paint yellow marks on a roadway at the commencement and end of skid marks. Both witnesses saw such marks in this case notwithstanding that Mr Joy first attended the scene on 31 October 2000 and Mr Keramidas first did so on 4 June 2002. By reference to these marks, Mr Joy measured the commencement of the skidding to be 22.1 metres from the northern kerb alignment of Denman Avenue.

49 By simple addition, this position is 61.6m from where the southern alignment of the railway bridge crosses the kerb. It is 6.6m north of the southern edge of the driveway of the bus depot.

50 Constable Lister’s reference to “near the intersection” is not easily reconciled with this figure of 22.1 metres but it is possible to do so and the figure seems to me to have sufficient reliability that, subject to allowance for tolerances, I should accept it.

51 Attention was given to the slip resistance of the roadway and deceleration limits and on the basis of the assessments in this regard and the length of the skid mark, calculations made as to the speed of the First Defendant’s car.

52 Mr Joy conducted a braking test on an identical model Camry to that of the First Defendant. The test returned an average deceleration result equivalent to 0.69g. In his report of 27 November 2000, Mr Joy concluded that, based on deceleration values of 0.6 to 0.7g and the 27 metres skid distance, the likely pre-skidding speed was in the range of 64 kph to 69kph. In a further report of September 2002, he expressed the matter somewhat differently. He said that “the minimum speed of the Toyota pre-braking was unlikely to have been less than 64kph, and was quite possibly in the vicinity of 70kph. In oral evidence he agreed that he had conducted the test on a different section of roadway but said that variations in roadways are relatively small.

53 In cross-examination, Mr Joy agreed that moisture on the road would be an important factor. While accepting that it is possible for there to be dew on a pavement, he said that “by and large suburban asphalt roads, unless they are heavily shaded don’t – or unless they’re unusually damp, humid conditions tend not to get dew on them” and that commuter traffic which typically commences between 4 and 5 am, usually helps to dry a road off. He did not see the question of moisture as important in this case because there was no evidence of there having been any moisture. It may be noted that although he looked at the skid marks at an early stage after the accident Constable Lister made no mention of dew and there was other evidence that driving conditions were perfect.

54 Mr Keramidis opined that the skid resistance of the bitumen was likely to be 0.7g in dry conditions. In his view 0.8g was somewhat high. He also said that he would have expected some moisture on the roadway at the time of the accident, reducing this resistance. He said that he thought the First Defendant’s likely speed to have been of the order of 65 to 70kms per hour or less depending on the condition of the road surface.

55 Mr Cowling who is a specialist engineering consultant called on behalf of the Second Defendant said that although he did not carry out any formal resistance tests, on inspection the road surface offered excellent slip resistance. He estimated the friction resistance would be approximately 0.8. Upon that basis, a skid distance of 27 metres would indicate a speed at commencement of locked wheel braking of about 74kph. He also said that he was in general agreement with Mr Joy’s findings that “the minimum speed of the Toyota pre-braking was unlikely to have been less than 64kph and was quite possibly in the vicinity of 70kph”.

56 Mr Adams added nothing useful on this topic.

57 Mr Joy provided the formula used in determining the relationship between speed and skidding distance, viz.

____
V = 2 a d where,
“V” is in metres per second,
“d” is the skid distance in metres, and
“a” is the deceleration in m/sec/sec, calculated as the coefficient in friction x 9.8.

58 Calculation shows that Mr Joy arrived at his 64 kph by using 0.6 as the coefficient of friction. There was no challenge to his formula.

59 The totality of the evidence would suggest that in his use of 0.6, Mr Joy was being conservative. My inclination is to think that there was no dew or other moisture but that even if there was, the 0.6 figure should not be reduced.

60 Mr Joy concluded that the First Defendant’s reaction time might well have been 0.6 seconds during which period, at a constant 64kph to 69kph a vehicle would travel 10.7 to 11.5 metres. Mr Joy said it was therefore probable Mr Sharp saw the Plaintiff at least 10.7 metres before skidding commenced.

61 Mr Keramidis said a normal reaction time was 1.5 seconds but the impact with the Plaintiff could have inspired a shorter time perhaps in the order of 1 second. He also said “…it is likely that impact with the Plaintiff would have produced a very rapid reaction time [perhaps of the order of 1 second].” He also said in his report that a perception or reaction distance of 18 to 19.5 metres, when regard is had to the start of the skid marks, meant that either the First Defendant was able to react in less than half a second, or he did in fact observe the plaintiff momentarily before impact. In oral evidence he said that a half second reaction time was out of the question..

62 I am satisfied that the Plaintiff’s speed was not less than 64 kph. It is not proved to have been higher. I defer for the present any decision as to the likely reaction time.

Visibility

63 Even putting aside the topic of illumination, there was disagreement between some of the experts as to when it was possible for the First Defendant to see the Plaintiff or the bus. Mr Joy said that vision of the bus would have been available to Mr Sharp as he passed under the railway line. In his second report Mr Joy pointed out that “the entire ‘envelope’ of the location which the bus and Mr Bratton would have been within is visible in photograph 1 of the report of (Mr Keramidas)”.

64 Mr Keramidas observed that the site of the accident was partially obscured to drivers in the kerbside lane south of the railway bridge due to the constriction of the roadway by the bridge piers. He said:-

“The site becomes clear on the northern side of the bridge and visibility to a pedestrian standing within the western side of Lane 1 would become clear by about midway across the intersection of Denman Avenue. Essentially, pedestrians would need to be illuminated by an approaching vehicle’s headlights in order to be visible.”

65 It should be noted that Mr Keramidis considered that the Plaintiff would have been standing 1 to 1.5 metres from the western kerb and “within the bounds of the driveway to the bus depot”.

66 He said he had driven along Gannons Road on a number of occasions in dark conditions and found that visibility to the area where the Plaintiff was likely to have been standing only occurred once the vehicle was in line with the bridge piers just to the north of the bridge itself. This conclusion is demonstrated to be wrong by photograph No. 2 within the report itself and also by other photographs and the plans. Insofar as it is suggested that vision of the bus first became available as Mr Sharp passed under the railway line, so is the statement of Mr Joy first quoted in this section.

67 Mr Cowling who is a specialist engineering consultant said that he had inspected the scene with Dr Adams. Having arranged for the bus involved in the incident to be reversed out of the bus depot so as to occupy the position it was in at the time of the Plaintiff’s collision, he said he saw the bus as soon as his vehicle entered the kerbside lane of Gannons Road at the Kingsway intersection. Dr Adams agreed. Mr Cowling recounted that while still south of the railway bridge with Dr Adams, remarks exchanged between them included “you couldn’t fail to see a bus” and “lit up like a Christmas tree”. Dr Adams said that he would accept that description of the bus.

68 I accept the evidence referred to in the immediately preceding paragraph. I am also of the view that, as demonstrated most obviously by photograph 2 included in Mr Keramidas’ report, that subject to issues of illumination, the Plaintiff would have been visible to the First Defendant from when the First Defendant was some appreciable distance south of the railway bridge. That visibility may well have been from as far south as the position from which photograph 1 in that report was taken, i.e. approximately half-way . Against the evidence that the distance from The Kingsway to the railway bridge was about 115 metres and the fact that the railway bridge is some 15 metres or so from Denman Avenue, I am certainly satisfied that that visibility extended at least as far as 25 metres south of the southern alignment of the railway bridge.

Illumination

69 One matter clearly relevant is the extent of illumination of the area where and near where the accident happened. Mr Sharp said that the lighting of the impact site was not as good as that at The Kingsway and on the southern side of the railway bridge.

70 There is a street light on the north eastern corner of the intersection which protrudes some little distance into Gannons Road. There is another “situated over the westbound lane of Denman Avenue, approximately in line with the western kerb of Gannons Road north of the intersection” Those words are taken from Mr Joy’s first report and the light is apparent on photo 10 in Dr Adams report. Dr Adams’ own description of the corners where these lights were seems to be erroneous. There is another street light approximately 45 metres to the north of the intersection – according to Mr Joy about 22 metres north of the bus depot entrance and, according to Dr Adams, about 20 metres north of the northern side of that entrance. This light is attached to a pole on the eastern footpath but the light itself is located marginally to the east of the centre line of Gannons Road. There seems to be a fourth light on the western side of Gannons Road some distance north of the Denman Street intersection but trees are likely to have prevented any illumination from this light reaching the area where the Plaintiff was injured. The lights at the intersection are high pressure sodium lamps and that on the eastern side, a mercury vapour lamp.

71 The extent of illumination at the position where the Plaintiff was struck was the subject of contention. In his report of 27 November 2000, Mr Joy said:-

“The street lighting equipment provided in the vicinity of the incident site provided a moderate level of illumination. Night time inspection confirmed that this illumination would have been sufficient to make the bus which was being reversed across Gannons Road readily visible to northbound drivers on Gannons Road approaching the intersection with Denman Avenue.”

72 In his later report, after referring to the opinions of Mr Cowling, Mr Keramidis and Dr Adams on the topic of lighting, Mr Joy referred to his description “moderate level of illumination” and went on to say the bus would have been readily visible to Mr Sharp as he travelled under the railway line but the Plaintiff’s attire was such that he would have been less conspicuous. In oral evidence Mr Joy described the street lights in Gannons Road as “very good”. Asked whether one or both of the two lights on the eastern side of Gannons Road would have illuminated the area near the commencement of the skid mark, he said both.

73 Dr Adams said:-

“The location where Mr Bratton was standing appeared to me to be reasonably well illuminated by those various lights, in addition to my own car headlights as I approached the intersection along Gannons Road from the southern side and as I drove through the traffic lights.” And later:-
“Although, as noted earlier in this report, the street lighting, in conjunction with lights from the headlights of a vehicle, ought to have illuminated the area where Mr Bratton was standing, he would not have been nearly as visible in his dark clothing as would a white bus part way across the roadway at almost the same distance from the traffic lights.”

74 Mr Keramidas said this on the topic of lighting:-

“It was also noted during the night inspection that the overhead street lighting provided reasonable route guidance, but was of insufficient strength to illuminate pedestrians in the vicinity of where the Plaintiff is likely to have been standing (assumed to be within the area immediately to the west of the driveway)… Essentially, pedestrians would need to be illuminated by an approaching vehicle’s headlights in order to be visible.”

75 Mr Keramidas expressed a similar view in his supplementary report.

76 Mr Cowling’s experience over the years has included the assessment to the extent to which different types of clothing have been capable of being illuminated by motor vehicle headlights. Mr Cowling’s remarks on the topic of illumination included the following:-

“… At a distance of about 10 to 15 metres south of the (railway) bridge… I looked at that space (where the witness understood the impact to have occurred) very carefully and I formed the view that a person in dark clothing would certainly be able to be seen, given that my own tests have indicated that a distance of 50 metres is a distance whereby you can see a person in dark clothing.”

77 It is apparent from what I have said above on the topic of distances, that the Plaintiff was or may have been further away from the point of observation than 50 metres. 10 to 15 metres south of the railway bridge would be 49.5 to 54.5 metres south of the northern kerb alignment of Denman Avenue and it seems clear that the Plaintiff was some distance north of that.

78 In cross-examination, and from Exhibit 2.6, it appeared that in tests Mr Cowling had conducted in the past, a person moving could be expected to be picked up in headlights at 60 metres, a person not moving could be expected to be picked up at no more than 55 metres and in a situation of surprise, less than this. Mr Cowling would not accept the distance might be as little as 25 metres. Earlier, the tenor of the witness’ evidence was that he accepted that circumstances of surprise as distinct from when a driver was alerted to the possibility that something might occur, tended to reduce or delay observation or reaction. It is clear that in the above evidence Mr Cowling was referring to a person in dark clothing and headlights on low beam.

79 Other evidence on the topic of headlight illumination included the following. Mr Joy said that the main standard requires headlights to provide a reasonable illumination of the road at 50 metres but that modern day headlights on low beam are probably good for 60 or 70 metres. There is a bias to the left and, in the case of the left light, slightly up.

80 Mr Keramidas agreed that from the railway bridge the headlights would illuminate the impact point but said that from there they would not be of sufficient strength. He also said that until he reached the crown of Denman Avenue he was “unable to detect the area of the impact with sufficient brightness to shine up an object”. He said that the crest created by the camber of Denman Avenue where it intersected with Gannons Road would have interfered with the illumination provided by the headlights of the First Defendant’s vehicle thus reducing the distance at which objects would become visible in the beam.

81 I have a number of difficulties with this evidence. Denman Avenue is approximately 17 m wide. Half of that distance added to the 22.1 metres before the skid started, yields a figure of 30.6 metres. That is a long way short of the 50 or more metres of which Messrs Joy and Cowling spoke. Secondly, I do not see how the crest of which Mr Keramidas spoke could have had the effect he claims. There is no suggestion that, apart from the crest, the road was undulating. Headlights are some appreciable distance above road height and I am unable to see how the crest could have interfered with the illumination given by the lights except, possibly, - and I doubt even then - at a level less than a few centimetres above the road. And I do not see how interference or blocking at that level can have had any impact above crest level. Thirdly, Mr Joy said that the Denman Avenue hump was barely noticeable, and while this may understate the situation, the photographs indicate the crest was not high enough to be a major, or I would say significant, impediment to light.

82 I should also mention that the intersection of Gannons Road and Denman Avenue was more brightly lit than the area where the Plaintiff must have been. Mr Joy described this difference as slight.

Time

83 One issue raised as possibly bearing on the topic of illumination was the time at which the accident occurred and the extent of natural light which there was. The evidence as to the time the accident happened and the state of natural light at that time was not all consistent.

84 In a statement Mr Digby made to the police on 18 June 1999, he said that it occurred at 6 o’clock. He said that to go to work, he always left home at about that hour and his home was about 2 kilometres away from the accident site. He agreed he had told the police that it was still dark but was firm in evidence that light was breaking. Asked about the time, Ms Highfields said “It was dark, I mean, I ran at 10 past 5. It takes an hour to do the complete loop so probably it could have been 6, 10 past 6. I’m really not sure.” She agreed that she had told a police officer it was about 5.50 am. The Plaintiff said that it must have been after 6am because the bus was going out after 6. He also said that the morning was not completely black, but just turning dawn.

85 Mr Sharp said that the time of the accident was about 10 to 6 and denied strongly that dawn was breaking. He also related the time to when the gates of the National Park where he was intending to fish opened, saying he was trying to get there about 6 o’clock. Earlier he had said that he was generally there half an hour early.

86 Mr Herrmann said that he arrived at work at about 10 to 6. The Plaintiff then checked the buses for water and oil. They were ready to go so he, Mr Herrmann, made a cup of coffee, “had a bit of a chat with the guys” and then started the bus.

87 It was agreed between the parties during the hearing that the ambulance service received a call, presumably to attend to the Plaintiff, at 6.15 am.

88 I think the appropriate conclusion to draw on the issue of time is that the accident happened at about 10 past 6. It strikes me that the evidence of Mr Herrmann, supported to some degree by the Plaintiff has stronger points of reference than does that of some of the other witnesses. I accept the evidence of Mr Digby and the Plaintiff that dawn was breaking.

89 Dr Adams attended the scene on 11 June 2002 between 6 and 6.10am. His view was that “it was still dark enough to warrant all vehicles using their headlights and there was insufficient illumination without headlights for a pedestrian or a driver clearly to discern any items of objects that were not illuminated either by headlights or streetlights”.

Other Expert Evidence

90 There are a number of other matters referred to by the experts to which I think it unnecessary to refer. I should however refer to evidence of Dr Adams that it had been established that collisions between pedestrians and motor vehicles occurred at significantly higher frequency at locations immediately beyond traffic lights where the attention of a driver has been focussed on the conditions at the lights. He suggested also that the narrowing of the road or lane merging north of the point of impact would significantly and adversely have affected a driver’s ability to concentrate attention of aspects of the roadway 10 to 20 metres from the lights. As other possible distracting factors the railway bridge abutments and the turning of the traffic lights to amber as the Plaintiff entered the intersection were mentioned. I have previously referred to Mr Digby’s vehicle and the possibility that the Plaintiff might have been watching it in his side mirror rather than looking ahead. There was some cross–examination of Mr Joy on this topic but it did not advance the matter appreciably. Mr Cowling agreed that distractions can affect perceptions and reaction times. Included in his evidence was agreement that in this case the First Defendant’s bus and Mr Digby’s vehicle constituted such distractions. However, Mr Cowling also expressed the opinion, which I would probably have taken account of as a matter of common experience, that “the existence of competing visual stimuli forms a quintessential element of the driving task in a city like Sydney”.

91 I have also had regard to a report which was tendered, “Forensic Aspects of Driver Perception and Response”.

Second Defendant’s Premises

92 Particularly in light of an argument advanced by the First Defendant, it is appropriate to say more about the bus depot. Adjacent to the footpath but separated from it by walls and gates, is an open area where buses, particularly at night, are parked. There is also a hoist used in the servicing or repair of the buses. The area does not seem to be big enough to make 180 degree turns practicable. Behind most of that area is a shed. At its front the shed is large enough for three buses to park side by side. Towards the rear of the shed there is room for a fourth bus in the middle but the north east corner of the shed is occupied by an office and the south east corner by a shower and toilets, lunch room, locker room and workshop. There are doors at the front of the shed but the rear is solid.

93 Beside the shed on its northern side is a driveway which ends in a gate near the north-east corner of the shed. The gate provides access to a large car park owned by the local council and primarily used by the patrons of a golf club. Immediately to the north of the northern boundary of the bus depot, there is another driveway, leading from Gannons Road to the car park.

94 At the time of the Plaintiff’s accident the Second Defendant’s general practice at night time was for four buses to be parked in the shed, three coaches – larger than the buses - to be parked in the side driveway in the First Defendant’s premises and additional buses parked between the footpath and the shed. The doors of the shed and the gates to the premises would be chained and padlocked. There was evidence that from time to time buses had been driven along that driveway, and out that gate into the council car-park. However Mr Paul Crowther, the or a principal of the Second Defendant, said that this could only occur when the hoist was not being used. Obviously, the process required the absence or removal of other vehicles from the driveway. He also said that the area, or perhaps part of it was very narrow and indicated that damage to property, presumably the buses was liable to result.

95 According to Mr Hermann, the number of buses operated from and kept at the premises has increased during the time he worked for the Second Defendant from about 4 to, in 1999, 9 including the coaches.

96 There was evidence that from time to time buses have been parked in the car park from whence they could be driven forwards along the car-park driveway onto Gannons Road. The Plaintiff gave evidence that the parking area was large enough to perform a comfortable turn with a bus. However, Mr Herrmann gave evidence that at times there would not be enough room to turn a bus around in the car park - I infer due to the presence of parked cars - and at times the car park is full. Mr Crowther said that the company was not allowed to park in the car park on a regular basis but had “been permitted to get away with it for a period of time”.

97 It was suggested by counsel appearing for the First Defendant that the dangers and difficulties associated with reversing onto Gannons Road could have been avoided by the removal of some portion of the rear wall of the shed enabling buses to be driven via this route into the car park. Mr Herrmann’s response was that it could be done, although there was some difference in ground height, and an office and a couple of trees would need to be taken out.

98 Mr Crowther rejected the suggestion. He said that there were limits on the number of vehicles which could be taken into the council car-park because of ongoing issues with neighbours concerning noise. The floor of the shed was about 2 feet higher than the level of the car park. Asked whether the excavating of part of the floor to form a ramp down to that level would affect the toilets, showers, amenities and office facilities shown on a plan in evidence, Mr Crowther said that it would render them almost useless because staff would then have to step straight out the doorway, I infer of those facilities, into the dropped area.

99 Mr Crowther acknowledged that for some years prior to the Plaintiff’s accident difficulties with the site had been recognised. He had had discussions with a neighbour with a view to buying the land at the corner of Gannons Road and Denman Avenue, an advantage of which would be that buses could be driven forward both in and out of the depot. These discussions had commenced as long ago as 1996 but had been unsuccessful until shortly before the trial.

100 Mr Crowther said that he had also explored the use of other premises but there were difficulties in running what he referred to as a split operation and a decision had been made to keep the depot where it was. There would seem also to have been some difficulties with the local Council. When it was put to him that moving would have eliminated the risk of drivers having to reverse out onto the road, Mr Crowther said that that was not perceived to be a big issue. Prior to the Plaintiff’s accident there had been only one minor accident in which a motorist had decided to speed up and whip around the outside of a vehicle, clipping it and causing something like $300 worth of damage.

101 One of the propositions advanced at the trial was that the Second Defendant should have so arranged its affairs that buses drove front wards out onto Gannons Road, instead of reversing out. It was suggested that they could have been reversed into the shed. The Plaintiff said that that was more difficult than driving in and was liable to damage the buses. Furthermore, it would be necessary for the buses to be reversed in from Gannon’s Road, after stopping in the traffic first. Mr Herrmann gave similar evidence. Indeed he placed the consequential traffic dislocation and other difficulties somewhat higher. I accept the evidence as to the difficulties of reversing into the shed and, although no doubt from time to time, the extent of the traffic dislocation would vary, I accept the general thrust of the evidence in that regard also.

Second Defendant’s Practices

102 The course which was followed by the Plaintiff of going on to the roadway in the course of assisting another driver to reverse out of the bus depot was one which was commonly adopted by other drivers and which the Plaintiff has seen undertaken by the Messrs Paul and Barry Crowther. He had carried out the activity on other occasions although, with one or two exceptions, in daylight hours. Mr Herrmann had provided this assistance on other occasions mostly at about 6 am and he had himself been assisted by persons going out onto the road.

103 There was in evidence a document dated 11 June 1999 which had been put up on the company notice board ordering staff of the company not to go onto the road at the front of the depot and that, if it was necessary for them to cross the road, they were to use the pedestrian lights. There was evidence that the cost of reflective vests was relatively small and that the company had provided such vests for its drivers after the Plaintiff’s accident. It would seem however that the purpose of the supply of those vests was for their use in the event a driver had to exit from his vehicle while it was away from the depot, and not in aid of the practice which the Plaintiff had been following when he was injured.

Conclusions

104 I turn then to the issues I have to decide. There can be no doubt that in no insubstantial measure the Plaintiff’s accident was due to a failure on his part to exercise reasonable care for his own safety. Had he looked, Mr Digby’s car, or at least its lights, would have been clearly visible. Taking the view, as I do that the First Defendant probably had his lights on also, the same may be said of his vehicle. Reasonable care for his own safety should have led the Plaintiff not to venture onto, or remain on, any part of the roadway without satisfying himself as often as necessary to ensure that there was no vehicle approaching in circumstances where it was likely to collide with him.

105 Although it is hard to understand how the Plaintiff could possibly have avoided seeing the First Defendant’s vehicle approaching, the circumstances disclosed in evidence indicate that he did not and that the most likely inference for this is that he was concentrating on the bus and his attention too absorbed in that connection. Even if one concluded that, despite his evidence, he must have seen the vehicle, it is clear that he did not see it in sufficient time to do anything useful to avoid it.

106 It was submitted on the Plaintiff’s behalf that his conduct should be regarded as but momentary inadvertence or inattention and, given the reasonableness of attending to the bus so as to ensure it did nor run over him, not such as to constitute contributory negligence. I am unable to agree. Firstly, the obviousness of the danger of being on Gannons Road was great. Indeed, dealing with traffic was the very reason the Plaintiff had chosen to be on the road and the first task he had undertaken was to stop that moving south. Watching and dealing with traffic was “the matter in hand” – c.f. McLean v Tedman (1984) 155 CLR 306 at 315-6. The seriousness of any possible injury was also great and obvious. Nor was there the slightest need for the Plaintiff to place himself where there was any risk, without adequate warning, of being run over by the bus. At the time with which I am concerned, there was no occasion to be directly behind the bus as distinct from off to the side. The southbound traffic had stopped and even if the plaintiff felt the need, about which he gave no evidence, to ensure that some of that traffic did not become impatient and try to “whip around” the rear, he could well have done this without being behind the bus.

107 I appreciate that being off to the side would still have put him further to the west than the back of the bus but it did not have to put him behind the bus so as to risk being run over by it. It may be accepted that, if the Plaintiff off to the side but close enough, the turning of the bus while in reverse was liable to result in an impact between him and the side of the bus or the front wheel, but the relatively slow sideways movement of the bus in such a situation meant that there was likely to be little danger and plenty of warning of any such impact.

108 It seems clear also that the First Defendant did not see the Plaintiff on the roadway before the time of impact or, if the Plaintiff was seen earlier, until it was too late to do anything useful to avoid the impact. Because the choice between these 2 possibilities may have some bearing on the Issue of the First Defendant’s liability, I should say more about them. The first is firmly supported by the First Defendant’s own statements. However it is appropriate to also consider the evidence of distances and positions.

109 It is an inevitable conclusion that some time must have elapsed between the First Defendant acquiring notice of the Plaintiff or something amiss and the operation of the brakes. That notice must have been when the First Defendant was south of the commencement of the skid marks. On the basis of the evidence here that notice is likely to have been between 0.6 and 1.5 seconds. 60 kph is 16.66 metres per second. 64 kph, which is more probably the least speed the First Defendant was going is 17.77 metres per second. Thus between notice and operation of the brakes, the First Defendant would have travelled between 10.6 and 26.6 metres. Upon the basis of the evidence that the skid marks commenced 22.1 metres north of the northern kerb alignment of Denman Avenue and, as I have said, therefore 6.6 metres north of the southern edge of the driveway of the bus depot, the notice to the Plaintiff must have occurred while the First Defendant was some distance to the south of that southern edge.

110 As I have said, it is a legitimate inference which I draw that the Plaintiff was no further to the south than that southern edge and very probably further to the north. Hence it seems to me probable, notwithstanding the First Defendant’s evidence, that he did in fact see the Plaintiff. The unreliability of his evidence that he did not is further demonstrated by his evidence that he did not see the bus. I regard that as impossible. I do not mean to infer by what I have just said that I regard the First Defendant as a liar. I am satisfied that he was badly shocked by what occurred and it seems to me to be a case where that shock has driven recollection from his mind.

111 My conclusion that the First Defendant did see the Plaintiff before applying the brakes is supported by evidence from a number of the experts but I have been able to reach my own view without the assistance of their opinions.

112 When did the First Defendant see the Plaintiff? The evidence as to reaction times and the circumstances leads me to the view that it was probably not more than 1 second before the skidding started. I am not persuaded that it was less than this. Thus I would infer that the First Defendant saw the Plaintiff when the First Defendant was south of about 4 (22.1-17.77) metres north of the Denman Avenue kerb alignment. This is 43.5 metres north of the southern alignment of the railway bridge and 68.5 metres after the Plaintiff was, subject to the issue of illumination, within the First Defendant’s field of view. 68.5 metres is, of course, appreciably in excess of the width of a football field and about two-thirds of its length.

113 I am also satisfied that for this distance, and indeed from the time the First Defendant left The Kingsway intersection the bus was both within his field of view and visible across a substantial portion of the south bound lanes. I am satisfied that for some of this time the bus was reversing, i.e. moving.

114 I turn then to the issue of illumination. I have set out the substance of the evidence. Sacrificing some accuracy for brevity, the opinions of the four experts on the topic of street lighting was:-

Mr Joy Moderate making the bus readily visible; the Plaintiff would be less conspicuous.
Dr Adams Reasonably well illuminated.
Mr Keramidas Insufficient strength to illuminate pedestrians.
Mr Cowling A person in dark clothing would be able to be seen from 10-15 metres south of the railway bridge.

115 I have previously rejected some of Mr Keramidas evidence as demonstrably wrong and I have indicated that I have problems in accepting some of that given on the topics of lighting and the effect of headlights. I regarded his evidence as the least reliable of the expert evidence. Mr Joy struck me as careful and reliable. I wondered whether Dr Adams was arguing a case for the First Defendant although obviously his evidence as to the lighting did not fall into this category. Mr Cowling, I thought generally impressive. On balance, the evidence of the experts leads to the conclusion that the street lighting was sufficient to have enabled the Plaintiff to be seen from south of the railway bridge.

Judge’s View

116 So far I have sought to consider these matters upon the basis of the evidence called by the parties. However, at the request of the parties I also held a view of the area on an anniversary of the Plaintiff’s accident. With their concurrence that view involved me driving from the Kingsway as the First Defendant had done. Because the evidence was not all consistent as to the time when the accident happened I performed this activity twice, at about 5.50 and 6.10.

117 During the course of submissions I said to counsel that my initial impression was that at both times there was no significant amount of natural light. No counsel sought to argue the contrary and to the view so expressed I adhere.

118 My own observations also led me to the conclusion that the general area where the Plaintiff was, was sufficiently illuminated by street lighting as to make the Plaintiff visible from appreciably south of the railway bridge. Those observations were not sufficiently precise in terms of distance to confirm Mr Cowling’s 10 to 15 metres but certainly did not inspire any doubts about them.

119 The extent of that illumination would have increased by reason of the First Defendant’s headlights the nearer the First Defendant got to the Plaintiff and even though the headlights themselves may not have been sufficient outside 50 metres or so, their effect would have been supplemented by the street lighting.

120 Nor do I regard the presence of the railway bridge abutments, the Denman Avenue intersection, the somewhat stronger lighting there, the presence of the bus or Mr Digby’s vehicle, the change of lights from green to amber or any other matter, or a combination of these things as providing an adequate reason why the First Defendant did not see the Plaintiff well before he did. While I accept that these things have a tendency to distract, most are not inherently different from matters experienced every day and matters which drivers can reasonably be expected not to allow themselves to be distracted by, at least to the extent of not paying proper attention to the road ahead. It must also be borne in mind that the First Defendant was very familiar with Gannons Road.

121 I can accept that the position of the bus was unusual and no doubt demanded attention. However, that attention should have, and may have been, from near to The Kingsway. I incline to the view that the presence of the bus should also, as the area to the west of the bus came into view, have directed the First Defendant’s attention to that area which, from a distance, was a very few degrees from the bus itself. However, that inclination is not critical to my conclusions. I am satisfied that the presence of the bus did not provide a legitimate reason for neglecting to attend properly to that area.

122 Although again not critical to my conclusions, I suspect that a major reason for the First Defendant’s failure to see the Plaintiff earlier was too long an attention to Mr Digby’s car with a view to ensuring that it was safe to merge soon after the accident site.

123 As I have said, the distance from the southern alignment of the railway bridge to the southern edge of the bus depot driveway is 55 metres and the Plaintiff was probably some metres further to the north of that edge. The Plaintiff was visible from appreciably south of the railway bridge. It follows, even allowing for some, but limited, imprecision in the 55 metres, that there was time for the First Defendant to both see and act so as to avoid hitting the Plaintiff. The fact of his driving and the other matters to which I have referred lead to the conclusion that he should have done so. My conclusion is that the First Defendant was negligent and that his negligence led, or at least contributed, to the Plaintiff’s injuries.

124 Although the conclusions just expressed mean that I do not rely on this, it may not be inappropriate to observe that, had the only lighting been from the First Defendant’s headlights, the 50 metres or so illumination they provided would probably have been sufficient to either avoid the accident or at least serious injury. The Plaintiff’s stopping distance was 27 metres. At the calculated 64 kph, in one second’s reaction time the distance travelled was 17.8 metres. Even if the reaction time was 1.5 seconds during which the First Defendant would have travelled 26.7 metres, he would have been almost stopped by the time he had covered 50 metres. I appreciate that in these figures I have allowed no time for a legitimate glance at Mr Digby’s car in the First Defendant’s rear view mirror but neither have I used Mr Cowling’s experience, which I accept, that someone stationary is visible at 55 metres. I have also assumed that the Plaintiff was stationary and, as I have said, allowed nothing for the fact of some illumination from the street lights.

125 I do not find that in the simple fact of exceeding the speed limit to the extent of the 64 kph established, there was any negligence in the First Defendant. However in any exercise similar to that conducted in the immediately preceding paragraph, it would not be inappropriate to recognise that travelling at 60 rather than 64 kph would have reduced the stopping distance from 27 to 24 metres.

126 So far as the Second Defendant’s position is concerned, I have no difficulty in recognising that it may have been difficult at times to take buses out of the bus depot without creating risks of collision with cars on Gannons Road. I think it was impracticable to take the buses out otherwise than in reverse. I do not regard the suggestion that buses should have been reversed into the shed as a reasonable alternative. I accept the evidence as to the difficulties of such a course. Furthermore, It seems to me that this course would be likely to have involved a greater disruption to traffic and no less risk to persons than the reversing out. Certainly, I am unpersuaded of the contrary.

127 I would also reject the suggestion advanced by Counsel for the First Defendant that an alternative and practicable course which the Second Defendant would reasonably have adopted was to remove part of the rear wall of the shed and drive all of its buses out on to the car park, turn them there and then enter Gannons Road in a forward direction. Mr Crowther provided persuasive reasons why this course was not feasible. Furthermore, it is not without significance that the First Defendant called no evidence upon which one could determine that the cost of the proposed changes would have been reasonable or that there was any likelihood of the Second Defendant being allowed to use as a public carriageway the car park, or as to the extent to which such use would have been interfered with by patrons of the golf course, on occasions when the car park was largely or fully used by them.

128 So far as the practice which was followed is concerned, it might fairly be said that adults, as its bus drivers including the Plaintiff were, could reasonably be expected to generally look after themselves in and about venturing out onto Gannons Road. Crossing, or venturing onto roads is, after all, something that everyone is taught about from an early age. Furthermore, someone engaged in guiding a bus out has a degree of refuge by staying close to the bus. Car drivers do try to avoid such vehicles.

129 On the other hand, crossing or other entry onto a moderately busy road, particularly a road carrying traffic in both directions or having more than one lane is commonly a matter of judgment. Even if there are no timetables to be adhered to, most people feel they have better things to do than simply standing by the side of the road waiting for lengthy periods for complete gaps in the traffic. The frequency with which one sees persons standing on the centre line of roadways with traffic passing in each direction 1, 2, or 3 feet away bears witness to that. Despite the relative lack of accidents prior to the Plaintiff’s, the practice followed did have some element of foreseeable risk. The notice put on the notice board after the Plaintiff’s accident indicates that it was practicable for the buses to be reversed onto the road without that risk and having regard to the high duty which employers have to their employees – see O’Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 229-230 and for a sample of later cases, Boral Transport Limited v Whitehead [2001] NSWCA 395 at [42] et seq. - it seems to me that the Second Defendant was negligent in the practice it allowed.

130 That negligence was compounded by the failure to take the simple precaution of providing and requiring the use of vests or perhaps other ways of making the presence of persons who did go onto the road obvious. On the other hand, I am unpersuaded that any instruction short of forbidding employees to go onto the road would have made the slightest difference in this case.

Apportionment

131 Barisic v Devenport (1978) 2 NSWLR 111, Daniels v Anderson (1995) 37 NSWLR 438 and Powell JA in Kelly v Narrandera Shire Council (unreported, NSWCA, 16 December 1998) make it clear that an assessment of what is a just and equitable reduction in the Plaintiff’s damages and what is his share of the responsibility for the damage involves a comparison of the responsibility of the Plaintiff with the combined responsibilities of the Defendants. One looks at relative culpability and causal potency – Jones v Bradley [2003] NSWCA 81 at [104]

132 The Plaintiff’s contribution on both of these bases was substantial. In this case, it seems to me appropriate to assess the Plaintiff’s responsibility at one third.

133 As between the Defendants it seems to me that their liability should be equal. While it may fairly be said that the fault on the part of the First Defendant was a more immediate cause of the Plaintiff’s injuries, there is also the factor of the standard of care owed by the Second Defendant as employer.

134 In arriving at the conclusions that I have, I do not ignore some psychological reports tendered by the First Defendant and bearing on the Plaintiff’s pre-accident mental state. I do not regard the matters therein referred to altering the conclusions at which I would have arrived in any event. Particularly relevant in this regard is the elementary nature of the task the Plaintiff was undertaking when he was injured and of his negligence.

Damages

135 During the course of the hearing, the parties agreed on the quantum of damages to which, but for issues of contributory negligence or apportionment, the Plaintiff would be entitled.

Orders

136 In these circumstances, and as foreshadowed during submissions, it seems to me appropriate to publish these reasons and give the parties an opportunity to provide short minutes of order to reflect my conclusions and the agreement they have reached.

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Last Modified: 09/08/2004