| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DELAPORTE -v- BREWER [2003] WADC 237 CORAM : WILLIAMS DCJ HEARD : 28 AUGUST 2003 DELIVERED : 5 NOVEMBER 2003 FILE NO/S : CIV 3284 of 2000 BETWEEN : MELISSA GAYE DELAPORTE Plaintiff
AND
ADAM COURTNEY BREWER
Defendant
Catchwords: Negligence - Plaintiff running across busy intersection against the lights - No opportunity for defendant to see plaintiff
Legislation: Nil
Result: Plaintiff's claim dismissed
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Representation:
Counsel:
Plaintiff : Mr B G Bradley
Defendant : Mr J P T Olivier
Solicitors:
Plaintiff : Kuscevich & Associates
Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Cheetham and Anor v Bou (1989) 10 MVR 242
Clarke v Freund (1999) 29 MVR 361
Government Insurance Office (NSW) v Ergul (1993) 18 MVR 339
Ma v Keane (2003) 38 MVR 212
Needham v Divitini [2001] WADC 43
Pennington v Norris [1956] 96 CLR 10
Schieb v Abbott (1998) 27 MVR 285
Scott v Numurkah Corporation [1954] 91 CLR 300
Stewart v Carnell [1984] 2 MVR 147
Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416
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1 WILLIAMS DCJ: The plaintiff was born on 15 September 1978 and was at all material times a kitchen hand.
2 About 8.50 am on 1 April 1999 the plaintiff was crossing Guildford Road, Bayswater in a northerly direction at its intersection with Garrett Road when she was hit by the defendant's Audi sedan which was being driven in a easterly direction along Guildford Road. 3 The plaintiff alleges that the defendant was negligent. The defendant denies negligence and says that the accident was caused, or contributed to, by the negligence of the plaintiff. 4 Garrett Road runs in an approximately north/south direction. Guildford Road runs in an approximately east/west direction. The intersection is controlled by traffic lights. For vehicles travelling east on Guildford Road there are two lanes for eastbound traffic together with a filter lane for traffic turning right into Garrett Road to travel in a southerly direction. For vehicles travelling west on Guildford Road there are two lanes for eastbound traffic together with a filter lane for traffic turning left into Garrett Road to travel in a southerly direction. 5 The plaintiff resided on the eastern side of Garrett Road some 500 metres from the intersection. On the morning in question she left home with the intention of going to a job interview in the city. She crossed Garrett Road in a westerly direction and walked along the footpath on the western verge of Garrett Road towards the intersection. 6 According to the plaintiff when she arrived at the intersection she crossed the filter lane for traffic turning left into Guildford Road when it was safe to do so and moved to the traffic island. According to the plaintiff she pushed the button that controlled the signals and it was her intention to cross on a walk sign. She remained there until traffic heading west in Guildford Road cleared. When that occurred she crossed to the middle of the road on a no walk sign. She waited for traffic travelling east in Guildford Road to clear and then took off. According to her it was a brisk walk to a jog. She moved past the median strip and past a vehicle in the filter lane. As she was crossing she checked for cars coming from her left. She moved across to the middle lane. She was struck, she thinks, somewhere about half to three quarters of the way across the middle lane. All she remembers is seeing a silver car. She woke up later on the road. 7 The plaintiff denied that she had run across the road and stated that it was a brisk walk to a jog. She accepted that she was excited because she had an appointment in relation to a cafe job in Murray Street, Perth. She
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accepted that the traffic lights were green for the traffic travelling in Guildford Road. 8 Wayne Lucas is an engineer. He was driving a Holden Rodeo commercial utility with a high fibre cabinet over the rear section. He had approached the intersection from a westerly direction in Guildford Road and was in a stationary position in the filter lane waiting to turn right into Garrett Road. He had a red arrow against him but the light was green for eastbound traffic in Guildford Road. 9 Mr Lucas first noticed the plaintiff on the pavement on the south-west corner of the intersection. The plaintiff moved across the filter lane to the island at a brisk pace. She then moved briskly across the westbound lanes on Guildford Road and crossed in front of Mr Lucas. As she crossed in front of him her body rose in the air and she landed on the north-east corner of the intersection. At the time that she was hit she was near to the left fender of his motor vehicle. 10 In cross-examination Mr Lucas accepted that on 7 July 2003 he had made a statement in the following terms: "Whilst stopped at the red signal I noticed a female person on the pavement outside of the Mazda dealership yard on the south-west corner of the intersection. I had clear vision of the person. The female then ran from the pavement to the traffic island which allows vehicles to turn left from Garrett Road onto Guildford Road, and then to the traffic island in the centre of the road which was on my immediate right. I watched this female person as she left the traffic island and look in an easterly direction for traffic travelling west. There were vehicles approaching, but they were some distance from her and I observed her run hastily across to the centre island. It appeared that her speed was such that when she came to stop on the centre island her momentum carried her across in front of my stationary vehicle.
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11 Mr Lucas stated in evidence that what he had stated in that statement to the best of his recollection happened and he signed the statement to that effect. 12 The defendant is a dentist. On the day in question he was on his way to work. He was travelling along Guildford Road in an easterly direction at approximately 60 kilometres per hour. Approximately 300 to 400 metres from the intersection with Garrett Road the vehicle in front of him indicated that it was turning left. He moved from the kerbside lane to the centre lane. There were quite a few vehicles and a number of pedestrians in front of him. According to the defendant as he approached the intersection there were vehicles in the filter lane waiting to turn right into Garret Road. He first saw the plaintiff running out in front of Mr Lucas' vehicle. His foot went for the brake. His next sighting of the plaintiff was when she was on the road. He described the initial impact with the plaintiff as being almost directly to the front of his driving position. According to the defendant he applied the brakes at or about the intersection. The speed limit in the area was 60 kilometres per hour and that was the speed at which he was travelling. According to the defendant there was a clear line of cars in the filter lane. 13 Ms Troy Sweeney is a Crown Prosecutor. On the day in question she was travelling in a westerly direction on the centre lane of Guildford Road approaching the intersection. As Ms Sweeney approached the intersection she saw a pedestrian run across the road. Her impression was that the pedestrian was in the north-east quadrant of the intersection. The pedestrian was running towards the median strip on the north-west of Garrett Road. She was of the view that the vehicle which struck the plaintiff was not speeding but was unable to estimate the speed. As the pedestrian was running she was not looking about her. She hesitated, looked left and was struck by a vehicle. 14 In my view the evidence establishes that the plaintiff was running across the road. Mr Lucas, Ms Sweeney and the defendant all say that the
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plaintiff was running. Ms Sweeney appears to be confused as to where the point of impact was but in my view the only conclusion that can be reached is that the plaintiff was running. 15 The defendant in evidence said that there was a number of vehicles in the filter lane. Ms Sweeney was certain that there were other vehicles waiting in the filter lane behind Mr Lucas. The defendant's statement to the police said nothing about vehicles being in the filter lane but that may be because he may not have been asked. It is my finding that there were a number of vehicles waiting in the filter lane but I am unable to say how many. 16 In my view Mr Lucas was in the best position to observe the plaintiff's movements and I accept his evidence in its entirety. 17 The plaintiff says that the defendant was negligent in the following respects: 1. Having previously observed the plaintiff to be crossing Guildford Road in a northerly direction from Garrett Road failed to stop, slow down, steer or otherwise manoeuvre his vehicle so as to avoid collision with the plaintiff. In my view there is no evidence to support this allegation. The first time that the defendant saw the plaintiff was when she moved out in front of Mr Lucas' vehicle. The impact immediately followed that event. The defendant had no time to avoid the collision with the plaintiff. There is no evidence that the defendant observed the plaintiff crossing Guildford Road before the impact. 2. He failed to keep a proper lookout. It is the submission of counsel for the plaintiff that if the defendant had been keeping a proper lookout he would have seen the plaintiff. He accepted that there was no evidence that the defendant saw the plaintiff earlier than when he said he did and that is when she emerged from in front of Mr Lucas' vehicle. It is the submission of counsel for the plaintiff that a vigilant motorist would have detected the plaintiff running across the road. There is in my view no evidence that the defendant was not being vigilant. There was other traffic on the road, including vehicles travelling west in Guildford Road. There was a line of vehicles in the filter lane. There are
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many reasons why the defendant would not see the plaintiff in those circumstances. In my view there is no evidence that the plaintiff failed to keep a proper lookout. 3. He failed to keep the plaintiff under watch so as to observe her movements across Guildford Road and so as to be in a position to avoid collision with her. I have already stated under par 1 above that the defendant did not observe the plaintiff until she crossed in front of him. It cannot be said in those circumstances that the defendant failed to keep the plaintiff under watch so as to observe her movements across Guildford Road. He did not see her until the last second and there was nothing that could be done about it. 4. He drove at a speed which was excessive in all the circumstances. In my view there is no evidence that the defendant was travelling at an excessive speed. According to Mr Brewer he was travelling at approximately 60 kilometres per hour on a major road with a green light at the intersection. Ms Sweeney was doing 60 kilometres per hour in the other direction. She did not consider that the defendant was driving at an excessive speed. In my view there is no evidence to establish that the defendant was driving at a speed which was excessive in all the circumstances. There was an attempt on the part of counsel for the plaintiff to establish that the defendant was late for work. In my view this attempt wholly failed and amounted to nothing more than speculation. 5. Failed to apply the brakes of his vehicle in adequate time or at all. This aspect has already been examined in the paragraphs above. The defendant saw the plaintiff at the last moment and had no opportunity to apply his brakes to avoid a collision with the plaintiff. The plaintiff ran out from in front of Mr Lucas' vehicle and the defendant had no opportunity to apply his brakes. 18 In my view the plaintiff's claim wholly fails. The plaintiff is the author of her own misfortune. In my view the plaintiff's claim should be dismissed.
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