Grzelak v Passafaro

[1999] NSWCA 81

CITATION:	GRZELAK v. PASSAFARO & ANOR [1999] NSWCA 81
FILE NUMBER(S):	CA 40745/97
HEARING DATE(S):	29 March 1999
JUDGMENT DATE:	29 March 1999
PARTIES :	Parthena Grzelak (Appellant) Gregorio Passafaro (First Respondent) Joseph Cosentino (Second Respondent)
JUDGMENT OF:	Priestley JA at 18, 22; Powell JA at 1; Stein JA at 21

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 3218/95
LOWER COURT JUDICIAL OFFICER:	Keating A-DCJ

COUNSEL:	P.L.G. Brereton SC/S.C. Finnane (Appellant) D.R. Russell (Respondents)
SOLICITORS:	Russell C. Byrnes (Appellant) B. Ramrakha, Solicitor for GIO (Respondents)
CATCHWORDS:	NEGLIGENCE - Duty of care - Motor vehicle accident - Car runs down pedestrian crossing street - Failure by driver to keep proper look-out - Whether pedestrian guilty of contributory negligence
DECISION:	Appeal allowed

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40745/97
DC 3218/95

PRIESTLEY JA
POWELL JA
STEIN JA

29 MARCH 1999

GRZELAK v. PASSAFARO & ANOR.

JUDGMENT

1 POWELL JA: This is an appeal by leave from a judgment delivered and verdict found by Keating A-DCJ in the District Court on 10 October 1997 in proceedings which had been brought by the Appellant to recover damages in respect of injuries which she had sustained in an accident on 23 September 1994 when she was run down by a car, owned by the Second Respondent, but driven by the First Respondent, when crossing Alt Street, near its intersection with Ramsay Street, Haberfield.
2 Although his Honour found (AB 22-23) that the First Respondent had been negligent in that he failed to keep a proper look out for persons such as the Appellant, he also found that the Appellant, in a manner to which I will refer later, failed to take care for her own safety, and that, in the circumstances, the degree of responsibility for the accident and for the Appellant's injuries should be apportioned as to twenty per cent to the Appellant and as to eighty per cent to the Respondents.
3 The Appellant's damages having earlier been agreed between the parties in the sum of $400,000 in the event that there were no finding of contributory negligence, his Honour accordingly found a verdict for the Appellant in the sum of $320,000 and directed the entry of judgment accordingly.
4 A number of grounds of appeal were taken on behalf of the Appellant in the Notice of Appeal, which was filed on her behalf, but on the hearing of this appeal Mr PLG Brereton SC who appeared with Mr SC Finnane for the Appellant advanced only one ground of appeal, namely, that his Honour erred in finding that, in the circumstances, the Appellant had failed to take reasonable care for her own safety.
5 The facts which gave rise to the proceedings in the District Court fall within a very small compass.
6 As I have indicated, the accident in which the Appellant was involved occurred in Alt Street, near its intersection with Ramsay Street, Haberfield. Ramsay Street, which seems as if it carries a reasonable amount of traffic, runs in a direction from North-West at its Five Dock end to South-East at its Haberfield end. About halfway along its length is Alt Street, which intersects Ramsay Street and runs in a direction roughly from South-West to North-East and then across the other side of Ramsay Street in a direction roughly North North-East.
7 At the relevant time the Appellant, who was then aged seventy years, lived with her son and daughter-in-law in a cottage in Walker Street Haberfield, which is a street one block beyond Alt Street in a northerly direction and which runs in a parallel direction to that taken by Alt Street on its South-Western side.
8 On the day in question, the Appellant had gone to Haberfield to do her shopping. Having done so, she then caught a bus in Ramsay Street and travelled to the bus stop which is a short distance to the South of the intersection of Alt Street and Ramsay Street. She then walked to the intersection of Alt Street and Ramsay Street.
9 At that time the First Respondent, who was driving a Holden Commodore motor car, was travelling from North-West to South-West in Ramsay Street with a view to making a right hand turn into Alt Street and proceeding down it to Parramatta Road where he intended to pick up some automotive spare parts from Muirs Motors which apparently is on Parramatta Road. As he approached the intersection with Alt Street, the First Respondent stopped first at a pedestrian crossing which appears as if it may be about six or eight metres back from the Northern building alignment in Alt Street. He appears then to have crossed the pedestrian crossing and to have moved to a point in line with the Northern kerb alignment in Alt Street.
10 It would appear that, by this time, the Appellant had reached the kerb of Alt Street. When she did so, so the Appellant said - and his Honour accepted - she looked both to left and right and, having done so, then proceeded to step onto the carriageway. The Appellant has no recollection of what then occurred.
11 However, what happened was witnessed in part by a Mr Fantacuzzi, who was in Alt Street on the North-Eastern side of Ramsay Street waiting to proceed into Ramsay Street and himself do a right hand turn so that he might proceed North in Ramsay Street. Although Mr Fantacuzzi gave some evidence as to what he observed the Appellant do, his Honour regarded his evidence, in that respect at least, as unsatisfactory. However, he accepted Mr Fantacuzzi's evidence - which evidence was supported by the nature and extent of the Appellant's injuries - that the First Respondent turned right into Alt Street at a speed in excess of twenty kilometres and probably thirty kilometres an hour.
12 This evidence contradicted the evidence which was given by the First Respondent, which was to the effect that when he started his turn, and during the course of his making his turn, he was proceeding at a speed of only four to five kilometres an hour and that although he had not seen the Appellant on the carriageway she walked into the side of his vehicle. That evidence was rejected by his Honour, in part because of the nature and extent of the Appellant's injuries which were quite significant, and in part by reason of his Honour's acceptance of the evidence of Mr Fantacuzzi's estimate of the First Respondent’s speed.
13 This was the basis on which issue was joined before his Honour. His Honour made the following primary findings of fact:
1. At the time the First Respondent was at the intersection of Alt Street and Ramsay Street. his car was stationary and, when in that position, he would have had a clear and unobstructed view of the Appellant.
2. The First Respondent turned the corner at a speed in excess of twenty kilometres an hour and, when he did, it was too late to avoid a collision.
3. There was no reason why the First Respondent could not have seen the Appellant and kept her in view as he proceeded to make the right turn.
4. The Appellant, after stepping onto the road, stopped and paused.
5. There was nothing which would have prevented the Appellant seeing the First Respondent’s motor car standing at the intersection waiting to turn.
6. The point of impact was approximately one car width from the Southern kerb in Alt Street and approximately one car length to the West of the Western kerb alignment of Ramsay Road, those findings indicating that the Appellant had proceeded about two or three metres into the carriageway from South to North and that she was probably about three to four metres to the West in Alt Street from the Western kerb alignment of Ramsay Street.
14 Having made those basic findings of fact, his Honour then proceeded to deal with the question of liability, (AB 22-23).
"To resolve these matters largely calls for the Court to infer from the available evidence what occurred and to determine liability accordingly. I think it is significant that the defendant made his brief statement to the police in the terms quoted. That is that he turned the corner and then he saw the plaintiff for the first time. He braked but the front left side of the car hit her, not as he would have the Court believe that she hit the vehicle.
The plaintiff on the other hand does not recall seeing the defendant's car. Yet it is clear that after stepping onto the roadway she stopped and paused. Possibly this is because she anticipated the accident. It would be inconsistent in my view that the injuries sustained by the plaintiff would have been so significant had the impact occurred at the walking speed suggested by the defendant. I find that the defendant did turn the corner without seeing the plaintiff at all until the moment of impact at a speed probably in excess of twenty kilometres per hour. When he did so it was too late to avoid the collision. This occurred in circumstances where it is conceded by the police officer and the independent witness that there was nothing to have obscured the defendant from having seen the plaintiff and having kept her in view as he proceeded through the intersection. I find therefore that the defendant is breach of his duty of care to the plaintiff by failing to keep a proper look out.
The plaintiff, on the other hand, should have seen the defendant waiting to make a right hand turn into Alt Street. She has a duty to ensure her own safety to the extent that she can. If she had seen the defendant she ought not to have proceeded to have crossed Alt Street until the intersection was clear."
15 The last sentence in the passage from his Honour's judgment to which I have just referred is, if I may so, singularly obscure, since it is not clear whether his Honour is saying that the Appellant ought not to have left the kerb, or alternatively, that having left the kerb, she ought not to have continued to walk across the street. Whichever is the correct interpretation of what his Honour intended to convey, it seems to me, with the greatest respect, that his Honour misdirected himself because, without more, it seems to suggest that, even though the First Respondent's car was stationary at that point of time when the Appellant stepped from the kerb, she ought not to have stepped from the kerb, or, alternatively, having stepped from the kerb, she should then have stopped.
16 Given what seems to me to be a misdirection by his Honour, it seems to me that we must assess the matter for ourselves. If I might say so, it seems to me that, given the fact that the Respondents bore the onus of proof at the trial, and given the state of the evidence, it was not open to his Honour to make any finding that the Appellant failed to take reasonable care for her own safety. Neither the Appellant - because of her lack of memory - nor the First Respondent - who said he did not see the Appellant at all until the point of impact - was in a position to give any relevant evidence as to the Appellant’s actions. This is far too flimsy a foundation, in my view, for a finding of a failure on the part of the Appellant to take reasonable care for her own safety in all the circumstances of the case.
17 In these circumstance, I would propose the following orders:
1. Appeal upheld.
2. Order that the verdict in favour of the Appellant found in the District Court be set aside and that, in lieu thereof, there be found a verdict in favour of the Appellant in the sum of $400,000, Judgment to be entered accordingly.
3. Order that the Respondents pay the Appellant's costs of the appeal.

18 PRIESTLEY JA: I agree. The evidence in this case about how the Appellant came to be on the roadway where she was struck by the First Respondent's vehicle was very scanty. The principal features of this evidence were as follows.
19 The Appellant had no recollection of what happened after she stepped off the kerb. The First Respondent did not see the Appellant before his vehicle struck her. A witness, Mr Fantacuzzi, gave evidence about which the trial judge was very doubtful, except as to the speed of the First Respondent's vehicle as it turned into Alt Street.
20 The other materials relating to the accident did not add anything of significance to the foregoing matters, at least so far as the issue of contributory negligence was concerned. On the available materials I do not think it was open to the trial judge to find that the Respondents had discharged the onus of showing that the Appellant had been injured partly as the result of her own fault. I agree with the orders proposed by Powell JA.

21 STEIN JA: I agree with Powell JA and with the additional remarks of the presiding judge.

22 PRIESTLEY JA: The orders therefore are as proposed by Mr Justice Powell.

COUNSEL ADDRESSED ON COSTS

24 PRIESTLEY JA: Following the announcement of the orders proposed by the Court, application was made by counsel for the Appellant that the costs order which the Court had proposed should be on an indemnity basis from 6 November 1997. In support of that application documents were put before the Court. Although counsel for the Respondents was not in a position to agree that one of the documents had come to the attention of his instructing solicitors he made it plain that the other document had come to his instructing solicitor's attention and that the absence, if it be the absence of the document I have earlier referred to which was an offer of compromise, did not really affect the application made for the Appellant. No other submission in opposition to the application was made. The application appears to be a proper one in view of the letter of 20 October 1997, which is the document about which there is no possible dispute.
25 The Court thinks, therefore, the matter is an appropriate one for the making of an order for indemnity costs. The orders of the Court therefore are as were earlier proposed by Powell JA, with the addition that the costs order is one which should carry costs on an indemnity basis from 6 November 1997.

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