Clarke v Freund

[1999] NSWCA 197

CITATION:	Clarke v Freund [1999] NSWCA 197
FILE NUMBER(S):	CA 40152/98
HEARING DATE(S):	18/05/99
JUDGMENT DATE:	18 May 1999
PARTIES :	Merle Patricia CLARKE Michael John FREUND
JUDGMENT OF:	Handley JA at 20; Sheller JA at 21; Beazley JA at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	7504/96
LOWER COURT JUDICIAL OFFICER:	Sinclair DCJ

COUNSEL:	Appellant: S Norton Respondent: C Charteris
SOLICITORS:	Appellant: John D Hancock Respondent: Windeyer Dibbs
CATCHWORDS:	Motor vehicle accident; negligence ; pedestrian emerging onto road from between stationary cars in outside lane; driver failing to slow; whether negligence; contributory negligence of pedestrian
ACTS CITED:	Suitor's Fund Act 1951 (NSW)
CASES CITED:	Stocks & McDonald Hamilton Co Pty Limited v Baldwin (1996) 24 MVR 416
DECISION:	Appeal Allowed

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40152/98
DC 7504/96

HANDLEY JA
SHELLER JA
BEAZLEY JA

Tuesday, 18 May 1999

Merle Patricia CLARKE v Michael John FREUND

JUDGMENT

1 BEAZLEY JA: The appellant was injured in a motor vehicle accident on 1 August 1990 when she was struck by a motor vehicle owned and driven by the respondent. The accident occurred along Maitland Road at Mayfield.
2 The circumstances of the accident and the contemporaneous evidence of the appellant, the respondent and the witnesses as given to the police who attended the scene of the accident are set out in his Honour’s judgment and it is not necessary for me to repeat it.
3 The trial judge concluded his judgment by setting out seven findings of fact. It has not been established that findings one to six were not open to his Honour. I would like to say in due course, however, something in respect of finding four where his Honour stated:

“When the plaintiff emerged from in front of the stationary vehicles the defendant’s vehicle was travelling at a speed slightly in excess of 40 kilometres per hour.”

4 I will return to that in a moment. His Honour concluded in finding against the appellant that he was not satisfied that the respondent was not keeping a proper lookout and he was not satisfied that he was driving at a negligent speed in the prevailing circumstances.
5 However, it seems to me that there was a question which was central to this case which his Honour did not consider. The accident should, in my opinion, be considered as having occurred in the following circumstances: the respondent was, as he said, travelling along Maitland Street at Mayfield approaching the intersection of what I will call Havelock Street, although to be accurate that cross street was called Havelock Street on the respondent’s right and Corona Street on the respondent’s left.
6 As he was approaching that intersection, which was controlled by traffic lights, the traffic lights were red against his direction of travel. He was in the lane closest to the centre dividing line. Maitland Street itself comprised two lanes in his direction of travel. The kerbside lane was a wide lane sufficient to take a parked car and a line of traffic or, alternatively, two lines of traffic.
7 In that kerbside lane there were, as the respondent was approaching the set of traffic lights, a number of stationary vehicles in that part of the lane immediately next to his lane of travel. There were probably about five cars stationery in that lane.
8 The respondent approached the traffic lights at about 40 kilometres per hour, which was not a speed which was said to be excessive. The traffic lights turned green and at that point the respondent accelerated to a greater speed. The precise degree of acceleration is unknown, as would be expected. At one stage he thought he might have accelerated up to 60 kilometres per hour, but he was not sure of that.
9 Mr Lewis, who was travelling in the opposite direction, did not put any particular speed upon it, but said that the respondent’s vehicle was, as the light turned green, just increasing speed from previously slowing.
10 Whilst the respondent was thus approaching the intersection the appellant stepped from the footpath at the lights on the respondent’s left hand side and started to cross the road. As she was crossing the road the traffic lights changed colour to green. In her attempt to negotiate the full length of the roadway she started to hurry and may have started to run. In doing so, she entered the path of the respondent.
11 The respondent said, and the trial judge accepted, that he did not have an opportunity to observe the appellant before she commenced to cross the lane in front of him. However, the question which the trial judge did not consider was whether it was negligent for the respondent not to slow down when he realised that there was a line of stationary cars in the lane next to him.
12 In my opinion the respondent was negligent in failing to slow down in that circumstance. He should have been aware of the possibility that a pedestrian might cross the road by passing through the stationary line of vehicles and then onto the part of the road with moving traffic.
13 The respondent did say that that was a possibility of which he was aware, but did not countenance at that particular point of time. It was also a possibility about which he had been educated in the course of his driving tests. Even without those concessions I am of the opinion that the respondent would have been negligent.
14 This Court has consistently held that the standard of care for drivers of motor vehicles is high. The standard, of course, always remains that of the reasonable driver, but in this Court’s decision in Stocks & McDonald Hamilton Co Pty Limited v Baldwin (1996) 24 MVR 416, the then President of the Court, Mahoney P, set out why the standard of care is a high one and why it must take into account the fact that there is a likelihood, for example, that pedestrians will suddenly come into the path of an oncoming vehicle.
15 The trial judge did not refer to Stocks v Baldwin. In my opinion he failed to ask himself the precise question which was determinative of the appeal, namely whether it was negligent of the respondent to commence to accelerate in circumstances where there was a stationary line of vehicles to his left, notwithstanding that he at that point of time had a green light controlling his direction of travel.
16 It follows from my remarks that I am of the opinion that the respondent was negligent, that there should have been a verdict for the appellant and that the trial judge’s verdict should be set aside.
17 That, of course, does not conclude the matter. The question of contributory negligence was raised on the pleadings and clearly had to be dealt with. I have largely focused upon the respondent’s conduct. However, the appellant crossed this road in circumstances where she was considerably culpable for the damage which she sustained. She crossed on that part of a roadway where there was no pedestrian crossing. There was a pedestrian crossing on the other corner of Maitland Street to which she should have directed herself. She commenced to cross the road when the light would have otherwise been in her favour had there been a pedestrian light, but that crossing did not have the benefit of a pedestrian walk sign to warn her whether she had time to commence and complete her crossing. Because she deprived herself of those facilities which the traffic control authorities provide for pedestrians she placed herself in a dangerous situation. Having placed herself into a situation of danger, with the traffic light having changed from red to green, she then, rather than stopping on the lane line which divided the respondent’s lane and the lane of stationary traffic, continued to hurry across the respondent’s lane. Had she stopped, whilst she may have been in an uncomfortable position she would have been in a safe position. She did not care for her own safety at that point but continued to run and thereby came into collision with the respondent’s vehicle.
18 I think that there is a high degree of culpability on her part and in the circumstances I will apportion responsibility for the accident to her at two thirds and to the respondent at one third.
19 Perhaps I should include the comment that, as was found by the trial judge, when she emerged from the traffic in the kerbside land she did not look to her right. That does not add to the culpability which I have found but in the course of my remarks I had that in mind, having said at the commencement of my judgment that findings one to six were in effect not under challenge.
20 HANDLEY JA: I agree.
21 SHELLER JA: I also agree.
22 HANDLEY JA: The orders of the Court, in accordance with the reasons given by Beazley JA will be:
(i) Appeal allowed;
(ii) Set aside the judgment for the respondent with costs entered by the trial judge. In lieu thereof enter judgment in favour of the appellant in the action with an apportionment of responsibility to the appellant of sixty six and two thirds percent and to the respondent of thirty three and one third percent;
(iii) The respondent is to pay the appellant’s costs of this appeal, such costs not to include material included in the appeal book relevant only to quantum;
(iv) Order that there be a new trial of the action limited to damages, the respondent to have a certificate under the Suitor’s Fund Act 1951 (NSW);
(v) Order that the costs of the first trial abide the order of the judge presiding at the second trial.