Malliate v Rosier - [2013] WADC 152

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MALLIATE -v- ROSIER [2013] WADC 152

CORAM: DEANE DCJ

HEARD: 19-20 DECEMBER 2012 & 11 APRIL 2013

DELIVERED : 27 SEPTEMBER 2013

FILE NO/S: CIV 1684 of 2011

BETWEEN: JEAN-MARCEL MALLIATE
Plaintiff
AND
GARETH ANTHONY ROSIER
Defendant

Catchwords:

Liability only - Plaintiff crossing road at junction of Phillimore and Market Streets in Fremantle - Presence of pedestrian/traffic barrier running around corner - What path plaintiff intended to take - Plaintiff returned to Market Street to avoid being struck by a bus driven by the defendant - To what position did plaintiff return - Plaintiff on road side of barrier and climbs over barrier - Plaintiff's right leg sustains an injury when it comes into contact with left rear portion of bus as it turns corner into Market Street - Was defendant keeping a proper lookout and in proper control of bus - Was defendant's or plaintiff's behaviour sole cause of accident - If defendant negligent was there contributory negligence on part of plaintiff

Legislation:

Civil Liability Act 2002
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947

Result:

Liability of defendant established
Defendant 80% liable
Contributory negligence on part of plaintiff 20%

Representation:

Counsel:

Plaintiff: Mr J R Brooksby
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: Julian Johnson Lawyers
Defendant: Brian C Sierakowski

Case(s) referred to in judgment(s):

Bartholomaeus v Newcombe [2008] WASCA 136
Cook v Cook (1986) 162 CLR 376
Imbree v McNeilly (2008) 236 CLR 510
Knight v Maclean [2002] NSWCA 314
Manley v Alexander [2005] 80 ALJR 414
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492
Serafini v D'Rozario [2012] WADC 135
Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416
Wensick v Marshall [2010] WASCA 117
Wyong Shire Council v Shirt (1980) 146 CLR 40

DEANE DCJ: This trial concerns the issue of liability only and arises out of an accident that occurred at about 1.25 pm on Saturday, 13 September 2008 in Fremantle. The plaintiff, in company with his wife, Ms Holtring, was walking on the northern side of Market Street in a westerly direction towards Phillimore Street. According to the amended statement of claim the plaintiff was intending to cross Market Street at its junction with Phillimore Street. It is common ground that a barrier was erected at the south‑east corner of the junction at the point where the plaintiff intended to cross. That barrier in fact, when one views the numerous still photographs taken from video footage which in turn was taken from a number of cameras fixed to the bus driven by the defendant, commences in Phillimore Street and then continues unbroken around the corner into Market Street where the barrier ends in a loop fashion at the point where it meets a pedestrian ramp leading onto Market Street.
Again, it is common ground and confirmed by evidence at trial contained in a statement of Senior Constable Kevin Jones and the statement of Senior Police Officer Paul Williams which were tendered by consent, that the barrier in question is about 1 m high. It is manufactured from what appears to be 40 mm ‑ 50 mm galvanised steel tubing. The design which is evident from a number of photographs tendered at trial consists of two horizontal rails one above the other equidistant from the ground and supported at intervals by vertical poles. The distance from the vertical poles to the road edge is 40 cm at the southernmost pole and 55 cm at the second and third vertical poles. The width of the actual kerbing is 30 cm although when one adds that to an area of what was described at times during the trial as vestibular kerbing the space between the bottom of the upright poles of the barrier and the actual bitumen surface of the road varies between 30 and 50 cm, given that the kerbing is in a curved shape. The southernmost vertical pole is 20 cm from the pedestrian ramp. The next pole along is 2.1 m from the southernmost vertical pole. It was apparent from the evidence at trial that the barrier was in place for two purposes. The first was to prevent traffic travelling along Phillimore Street and turning left into Market Street either mounting or coming too close to the kerb and endangering the safety of pedestrians, and the second which the plaintiff conceded in his evidence was to prevent pedestrians crossing or entering the road at the corner or junction of Phillimore and Market Streets. The plaintiff agreed in his evidence that although the kerb and path area on the road side of the barrier was between 30 cm and 50 cm wide one would not normally walk there as part of the purpose of the barrier was to prevent pedestrians going onto the road at a point where the barrier blocks access to the road.
The details leading up to and concerning the accident whereby the plaintiff was struck to the right leg by a bus driven by the defendant will be canvassed in some detail later in this judgment. Essentially however, the plaintiff's case is that he wished to access to the Fremantle railway station which was on the far side of Phillimore Street. To this end, he and his wife commenced to cross Market Street stepping off the pedestrian ramp onto the road to access a pedestrian crossing in Market Street with a view to moving down to a zebra crossing further along Phillimore Street whereby he could then cross Phillimore Street and gain access to the railway station. Paragraph 6 of the amended statement of claim pleads that Market Street was clear when the plaintiff commenced to cross it. Paragraph 7 pleads that the plaintiff, having stepped onto the road, looked behind him and to his right along Phillimore Street and saw a bus driven by the defendant travelling at speed. The bus was indicating an intention to turn left from Phillimore Street into Market Street. On making these observations the plaintiff formed the view that it would not be safe to continue his crossing and he endeavoured to regain the safety of Phillimore Street. The plaintiff stood on the kerb against the barrier on the road side in order to allow the bus to pass. However, according to par 10 of the amended statement of claim, as the bus executed its turn into Market Street the plaintiff realised that the side of the bus would pass so close to the barrier where he was standing that he was likely to be crushed against or between the barrier and the side of the bus. In response the plaintiff endeavoured to clamber over the barrier to safety, but as he did so it is alleged that the bus drove too close to the barrier and caught the plaintiff's right leg, crushing it between the barrier and the left side of the bus.
The defendant does not take issue with the assertion that the plaintiff stepped onto the road in Market Street at the southern end of the barrier or that he looked behind him and to his right along Phillimore Street and saw the bus being driven by the defendant indicating an intention to turn left from Phillimore Street into Market Street. It is accepted on behalf of the defendant that on seeing the bus the plaintiff turned and retraced his steps in order to regain the safety of Phillimore Street. Relevant to the plaintiff's claim that he stood on the kerb against the barrier on the road side to allow the bus to pass, the defendant responds that the plaintiff, on the defendant's case, having regained the safety of the southern end of the barrier in Market Street stood at the end of the barrier before moving to a position on the road side of the barrier.
The defendant does not accept that the bus he was driving passed so close to the barrier that it was likely that the plaintiff would be crushed against the barrier or between the barrier and the side of the bus, but does accept that the plaintiff placed himself in a position where the plaintiff may have perceived that this was a risk. The position on behalf of the defendant is that whatever motivated the plaintiff to move away from the safety of the barrier, the accident which occurred was solely due to the consequence of the plaintiff's own actions.
The specific particulars of negligence pleaded in par 12 of the amended statement of claim are that the defendant:
(1)failed to keep any or proper lookout when turning the bus into market street;
(2)failed to stop, brake, steer or control the bus in such a way as to avoid the accident;
(3)drove at excessive speed in the circumstances (not that it is asserted the defendant was speeding as such, rather the emphasis is on an alleged excess of speed in the circumstances which prevailed at the time);
(4)when turning into Market Street cut the corner too close to the barrier and paid no regard to the presence or safety of the plaintiff whom he knew or ought to have known was trying to avoid being struck by the bus.
Each of those particulars of negligence are denied by the defendant.
Further or alternatively in the amended defence the defendant asserts that the accident was caused wholly or in part as a result of the plaintiff's negligence. The particulars of negligence on the part of the plaintiff are asserted to be that he:
(1)failed to keep any or a proper lookout or to observe or heed the presence or approach of the bus being driven by the defendant;
(2)attempted to cross Market Street from the north side to the south side when it was unsafe to do so and without regard for traffic;
(3)failed to have any or any sufficient regard to the fact that a pedestrian guardrail was situate at the corner of Phillimore and Market Streets on the north‑western corner prohibiting pedestrians from crossing Market Street in that area;
(4)failed to keep any or any proper lookout;
(5)failed to have any or any sufficient regard for his own safety;
(6)attempted to cross Market Street when he knew or ought to have known that it was unsafe and dangerous to do so and in an area which prohibited pedestrians from crossing;
(7)having regained the safety of Phillimore Street at the southern end of the barrier, moved to a position on the road side of the barrier which was unsafe and dangerous in all of the circumstances.
It is agreed by the defendant that the plaintiff sustained an injury to his right leg. For the purposes of this trial which concerns liability only it is unnecessary to describe or detail the nature of the injury or injuries sustained. They are particularized in combination with the particulars of medical treatment given in the amended statement of claim.

The issues

A number of issues arise for determination in this matter including where the plaintiff was standing immediately prior to returning back towards the footpath and climbing over the barrier and the extent to which, if any, that contributed to his injuries.
Counsel for the plaintiff asserts that it has always been the plaintiff's case that he never, on seeing the bus coming towards him, returned to the most southern end of the barrier in Market Street and the safety of the footpath but rather, the plaintiff returned to and was standing further north along the road side of the barrier on the kerb towards Phillimore Street, almost in line with a yellow upright pole on a sign which can be seen in photograph 14 of exhibit 2 which is vol 1 of a book of agreed photographs. Counsel for the defendant takes issue with this scenario asserting that when the plaintiff saw the bus coming towards him he, along with Ms Holtring, headed back towards the barrier with plenty of access to the pedestrian ramp from the position he was in and that he returned and was standing at a point at the southern end of the barrier with his hand on the southern end of the barrier and then for some inexplicable reason, which the defendant does not have to prove, the plaintiff moved from that position to the position further along the barrier on the road side of the barrier before climbing over it. Whilst the defendant bears no onus in this regard the suggestion is made on the case mounted by the defendant that perhaps the plaintiff intended to weave behind the back of the bus or the traffic and that is why he moved further north along the barrier on the road side of the barrier. There is also an issue as to where the plaintiff, in company with his wife, was going and which direction he intended to take when he first stepped onto Market Street. Although the defendant denies any negligence on his part, it is conceded that if the court were to find that the plaintiff did establish negligence on the part of the defendant, then an issue as to contributory negligence on the part of the plaintiff may well arise for consideration and determination.

CCTV footage/still photographs

It is important to note from the outset that throughout the course of the evidence and in particular the evidence of both the plaintiff and the defendant, extensive reference was made to portions of CCTV footage. The bus was equipped with five closed‑circuit televisions in various locations within and on the bus and it is to portions of this footage that reference was made in both examination‑in‑chief and cross‑examination of witnesses. In addition, numerous still photographs or images taken from that CCTV footage were also put to witnesses in evidence. These still images are largely contained in two books of agreed photographs in exhibit 2 and exhibit 3A(1). In addition, exhibit 3A(2) contains a selection of smaller still photographs which are copies of photographs contained in exhibit 3A(1). It must be said that although the CCTV footage and photographs contained in those various exhibits are of some assistance to the court in this matter, the help they provide is limited. Unfortunately, the quality of the CCTV footage and hence the still photographs, particularly the larger photographs is somewhat poor which is not surprising given the nature of such footage. In addition, there is a time delay between the frames on the CCTV footage so the vision is somewhat jerky as well as in large part lacking clarity and definition.
Further, the location of the cameras on the bus provides different perspectives than the views and perspectives which would have been available to various witnesses. The photographs are not three‑dimensional which again limits their usefulness. Unfortunately, the assistance that these exhibits ultimately provide does not determine a number of matters. It is extremely difficult with reference to portions of the CCTV footage and many of the still photographs to assess matters such as distance and the exact location of certain items and persons as well as angles and depth. Nonetheless insofar as counsel for the parties were able to do so, they endeavoured to assist both witnesses and the court by reference to these exhibits.
There was some CCTV footage of various buses, not the bus being driven by the defendant, taking the corner in question on a much later date. The CCTV footage was taken by Mr Martin Simms an expert witness who was commissioned to prepare a report dated 17 October 2012 in relation to the accident on behalf of the plaintiff. That particular CCTV footage was tendered as exhibit 1A by consent and its contents are very clear and relatively uncontroversial. Mr Simms' report in redacted form was tendered as exhibit 1B at trial.

The evidence

The plaintiff

The plaintiff resides in New South Wales and is a qualified family dispute resolution practitioner. With his wife Ms Holtring, who works in the same field, he is a co‑director of a company that runs their practice. In addition the plaintiff is a workplace behaviour advisor for the Department of Health in New South Wales. In the week prior to the accident the plaintiff and his wife were in Perth attending a mediation conference. On Saturday, 13 September 2008, they took a train to Fremantle in order to go sightseeing. At about 1.30 pm the couple were returning to the railway station to catch a train back to Perth. To this end the plaintiff told the court that he and his wife were walking up Market Street towards Phillimore Street. In cross‑examination the plaintiff conceded that there was a consideration, but not an intention on his part, to cross Phillimore Street by going past the pedestrian ramp leading onto Market Street along the barrier to the end of the kerb but he said as soon as he saw that there was a barrier and a nearby zebra crossing further down Phillimore Street his intention was to cross Market Street to access the zebra crossing and in that way to cross Phillimore Street to the railway station.
In examination‑in‑chief the plaintiff told the court that as he commenced to cross Market Street with his wife to his left and had taken a couple of steps across the road, he looked to his right and saw a bus coming rather quickly towards him and so he said to his wife 'We'd better get back' because he did not think it was safe to continue the crossing. He then said that earlier he had checked to see if it was clear, the implication being that it was and then he stepped onto the road and looked back to his right again, at which point he became concerned for his safety. He added that he did see the bus on the first occasion and later in his evidence suggested that at that point he did not appreciate that the bus, still being in Phillimore Street, intended to turn left into Market Street. His evidence was that when he first saw the bus it was not in the left feeder (or turning) lane into Market Street and he was still on the footpath. It was on the second occasion when he looked having stepped onto the road that he realized the bus was going to turn left.
The plaintiff turned around and said he went hurriedly back towards the footpath to get off the road and found himself between the two uprights of the last portion of the barrier on the road side of the southern end of the barrier. The plaintiff's wife returned to the footpath on the inside of the pedestrian barrier. The plaintiff marked on photograph 6 in exhibit 2 where he believed he was standing at this point. It appears to be half a metre north of the southernmost end of the barrier which ends in a loop proximate to the northern side of the pedestrian ramp on Market Street. In cross‑examination when the plaintiff was challenged as to how in the circumstances, it being his intention to return to the safety of the footpath in Market Street, that he found himself in this position, he said the only explanation he could give is because when he decided to return to the footpath he turned back towards the footpath in a clockwise direction, whereas his wife had turned back in an anti‑clockwise direction. As a result he explained that he ended up in a more northerly position than he envisaged. Further at the time he was in a hurry and fearful as the bus was bearing down upon him. The plaintiff denied two significant propositions advanced on behalf of the defence namely that he ended up in that position because it was his intention to cross Phillimore Street and not Market Street and also that he was standing at the southern end of the barrier when the bus passed him and that he had his hand on the southern end of the barrier. Rather he said that when the front of the bus passed him he was standing facing the barrier and not facing the defendant, who was sitting in the front of the bus driving it. Again the plaintiff marked his position at that point in photograph 14 in exhibit 2.
The plaintiff's evidence was that he did not remain standing in that position for very long as the bus was still coming towards him and he formed the view that he was in danger of being 'squashed between the rail'. The barrier was about waist height and so the plaintiff said that he tried to jump over it. He lifted his left foot and leg over the barrier first and was in the process of doing the same with his right leg when he said the bus collided with his right leg, which was up against the barrier in the sense that his right leg was almost horizontal to the top of the barrier but more over onto the road side of the barrier. When the bus passed him the plaintiff said that his right leg was trapped and he felt a stretching movement of the leg to the point where it felt like it was going to come off at the hip. He said the bus banged against his right leg and he could not remove that leg until the bus had gone past him. He then said he fell onto the footpath on his head and chipped a tooth and hurt his left elbow. His glasses were broken in the process and he could hear his wife crying out. He estimated that his right leg was pressed against the barrier on the left side of the bus for a period between some seconds to a minute. The plaintiff claimed he may have lost consciousness for a very brief time and then he felt someone giving him a kick although it was not hard or forceful and a male voice saying something like 'Get up, you're alright'.

Following this the plaintiff was conveyed to the emergency department of Fremantle Hospital where, as I understand it, he received some treatment but he was discharged later that day and in fact returned to the scene of the accident to take some photographs. He said he returned again with some friends to the scene the following day before he and his wife returned to New South Wales.
The plaintiff stressed in his evidence‑in‑chief that at no time after seeing the oncoming bus and deciding to return to the pavement did he return to or find himself at the southern end of the barrier.
The plaintiff said it was hard to say whether, if a bus was turning left into Market Street from the feeder lane in Phillimore Street and it mounted the kerb, this would cause a jolt because it was a chamfered edge. In any event the plaintiff said he did not think that the front wheel of the bus driven by the defendant mounted the kerb, rather, he said the bus actually cut the kerb corner. The view that the plaintiff had of Phillimore Street to his right as he commenced to cross Market Street is essentially reflected in the photograph being figure 2 on page 5 of Mr Simms' report, exhibit 1B.
The plaintiff maintained in cross‑examination that he did not step onto the pedestrian ramp in order to continue up to cross Phillimore Street, rather it was to cross Market Street. He was shown a series of video footage and stills taken from that footage of himself and his wife emerging from the corner and stepping onto Market Street. However it is difficult to say with any certainty that these items or exhibits are determinative of exactly which direction the plaintiff and his wife were moving or intending to go.
The plaintiff's evidence was that he did not expect that the bus driven by the defendant would cut the corner and come very close to the barrier as the plaintiff asserted it did. When the plaintiff did climb over the barrier for the reasons he explained, he denied that his right leg, which I accept was the second leg that he attempted to lift over the barrier, was sticking out when it made contact with the bus. Rather, he maintained that the right leg had not fully cleared the top of the barrier but was parallel to it, slightly more to the road side of the barrier and that is how it came in contact with the left side of the bus and was pinned in that position there until the bus passed. My understanding of the plaintiff's evidence in this regard is that he was straddling the barrier at the point of contact. Again the plaintiff denied in cross‑examination that when he saw the bus turning the corner he proceeded further north along road side of the barrier in order too weave around the back of the bus and proceed across Phillimore Street to the railway station. He maintained it was his intention cross Market Street to access the zebra crossing in order to reach the railway station on the other side of Phillimore Street. He rejected the proposition that he was trapped between the left side of the bus and the road side of the barrier because at the time he was of the opinion that the bus would make a wide arc around the corner and he could simply walk around it and proceed across Phillimore Street to the railway station.
The plaintiff agreed that he had read Mr Simms' report having instructed his solicitors to obtain it. He accepted that the account as to how the accident occurred as set out in the report was correct. When he was asked about the photograph being figure 1 on page 4 of Mr Simms' report reflecting an aerial view of the accident site, the plaintiff said in relation to the black arrow that Mr Simms had placed on the photograph indicating the point where the accident occurred, he would change the angle of the arrow a little and he did that by marking a red arrow below the black arrow on figure 1 in the report.
In relation to the instructions that the plaintiff gave to his solicitors with respect to obtaining a report from Mr Simms, he was referred to a letter of 19 July 2012 from his solicitors to Mr Simms, which became exhibit 4. That document sets out in part the alleged circumstances of the accident in point form. The plaintiff was asked about point 1 which states:
Mr Malliate was endeavouring to cross Market Street in Fremantle just South of the intersection with Phillimore Street.
The plaintiff agreed that this information was consistent with his evidence. Point 2 states:
As he started to cross he looked behind him to see a Mercedes‑Benz bus proceeding down Phillimore Street and about to turn into Market Street.
According to the plaintiff the summary in point 2 was inaccurate because it referred to the second occasion upon which he looked and saw the bus, not the first occasion where he looked and saw the bus further along, at which point the plaintiff said he did not know whether the bus was going to turn left as it was only on the second occasion when he looked at the bus that he appreciated that it was turning left.
He accepted that point 2 did not reflect his evidence that the plaintiff looked twice in the direction of the bus. In effect he did not accept that he did not look up in the direction of the bus until he was actually on the road in Market Street. The plaintiff maintained at that point in his cross‑examination that he looked to his right and saw the bus for the first time when he was still on the footpath. The second time he looked to his right and saw the bus he said he had taken about two steps onto the road and that is when he saw the bus almost rounding the corner into Market Street.
Photograph 3 in exhibit 3A(1) shows the plaintiff just beyond the corner of the building at the intersection of Phillimore Street and Market Streets at which time the plaintiff said he had already seen the bus driven by the defendant. Photographs 4, 5, 6, 7, 8 and 9 show the plaintiff, whose wife appears to be to his left and behind him, progressing further into view. In photograph 10 they both appear to be several steps onto Market Street beyond the barrier, although because of the angle of the photograph it is difficult to tell where the plaintiff and his wife are in relation to the southernmost end of the barrier. Due to the quality of the photographs which is somewhat grainy and unclear, in photograph 10 the plaintiff appears to be on an angle so it is not clear precisely what direction he is travelling in, although he does appear to be looking back towards Phillimore Street and presumably the bus. In photographs 11 and 12 of the exhibit the plaintiff appears to have turned back towards the barrier and to be making his way towards it, as reflected in photographs 13 and 14. By the time one reaches photograph 15 the plaintiff has disappeared from view. In photographs 15, 16, 17 and 18 in the far left hand bottom corner there is an upright dark line but it is difficult to tell whether that is part of the windscreen of the bus or some shadow.
In relation to some of those photographs in exhibit 3A(1) the plaintiff was referred to smaller and slightly clearer copies of them contained in exhibit 3A(2). When he was directed to photograph number 7 in that second series, the plaintiff denied that he and his wife appear to be facing and heading towards the railway station across Phillimore Street. For my own part it is difficult to say looking at the photograph and placement of the plaintiff's feet on the road, as well as the fact that he appears to be on something of an angle, whether he is doing that or, as he says, crossing Market Street to get to the other side via the break in the median strip in the middle of Market Street. In photograph 8 of that second series the plaintiff again appears to be on an angle between Phillimore Street and Market Street, though he is clearly standing in Market Street and his head appears to be turning right to look back at the bus. Photographs 12 and 13 of that second series show the plaintiff with his wife obscured behind him, turning back towards the barrier in Market Street, but again because of the angle and dimension of the photograph it is very difficult to say relevant to the southernmost end of that barrier in photographs 12 and 13 where the plaintiff is standing. In respect of photograph 13 in that second series, once more the plaintiff denied that at all times he was at the southern end of the barrier, being I assume a reference to the time that he returned to the barrier from Market Street.
Photographs 20 to 26 contained in exhibit 3A(1) are a series of still images taken from CCTV footage from a camera mounted inside the bus at the front of the bus, seemingly above the head of the driver looking back down to the end rear interior of the bus. On the left hand side of that series of photographs one can see the double glass doors at the front of the bus almost in line with the driver, and what appears to be parts of the barrier through the glass door and windows of the bus on the left hand side. Again the quality of the still images is grainy and rather poor. Photograph 27 in that series appears to depict some stonework of the building behind the barrier. The smaller still image of photograph 28 contained in exhibit 3A(2) which is slightly clearer than the larger image, is said to depict the southern end of the pedestrian barrier seen through the glass door at the front of the bus. Certainly by this point the bus seems to have moved well along the barrier and may even have started to execute a left hand turn into Market Street, but photograph 28 does not so far as I can see depict the looped end of the southernmost end of the barrier. Notwithstanding this I accept that it is a depiction of an area more towards the southern end of the barrier. I also accept that the photograph depicts an upright in the barrier, which is north of the southern end of the barrier, although again I am unable to say whether it is the first or second upright from the southernmost end of the barrier.
Photograph 20 in exhibit 3A(2) is a view through the front glass door of the bus which clearly depicts the looped end of the southernmost portion of the barrier and also the light pants and dark jacket worn by the plaintiff's wife are shown. She is clearly standing on the footpath behind the southernmost end of that barrier. Further along in the photograph there is a view through the first window on the left of the bus and although it is unclear, there appears to be the top of a figure in blue, which is said to be the plaintiff. It was suggested in cross‑examination at that point he was walking in a northerly direction up towards Phillimore Street and the railway station. The plaintiff denied this and said that the photograph depicts him grabbing the barrier and about to jump over it, so that one could see his side and his back apparently facing in the direction of the railway station. I am unable on the material available on this point, to reject the plaintiff's assertion as to the content of that image and what it depicts. He denied taking a number of steps from the southernmost end of the barrier to get to that position on the road side of the barrier because the plaintiff maintained that he at no time returned to the southernmost end of the barrier but rather found himself between the first two vertical upright posts of the barrier north of the southernmost end of it.
However, the plaintiff did agree that he moved in a northerly direction along the barrier in order to climb over it. Prior to this the plaintiff claimed that when he first returned to that part of the barrier before appreciating that the bus was going to cut the corner, he believed that he would be safe, notwithstanding he was on the road side of the barrier, because there was a 30 cm to 50 cm combined path and kerb area on which he was standing. Once more in reference to photograph 10 in exhibit 3A(1) the plaintiff marked where his feet were relevant to the barrier when he decided he had to climb over it. This exercise was an approximation on his part and he performed the same task with respect to photograph 8 in that same exhibit. Once again because of the quality, angle and flat aspect of those two photographs it is very difficult to get an exact or true sense of where the plaintiff was. The task is not assisted because both the kerbing and the railing curve quite substantially as they round from Phillimore Street into Market Street.
A series of photographs 38 ‑ 42 in exhibit 3A(1) reflect views through the front glass doors of the bus as it was travelling past the barrier whilst apparently still in Phillimore Street. Counsel for the defendant suggested that those photographs indicated, through the front glass doors of the bus, the distance between the front left side of the bus and the kerb. Although I accept that there does appear to be a space or distance depicted, it is not at all possible to say what the distance is or, in other words, from that series of photographs to estimate how close the front left hand side of the bus is to the barrier. Photograph 43 in that exhibit I accept shows the bus apparently turning left into Market Street and through the windscreen of the bus at the top of that photograph, the plaintiff's legs come into view with his right leg bent at the knee and apparently very close to the kerb area. His left leg is straight and further behind him standing on Market Street, although again it is difficult to gauge the distance between his right leg and foot and the kerb and barrier. Importantly that photograph does not depict with any clarity or certainty exactly where in relation to the southernmost end of the barrier the plaintiff is positioned. With reference to photograph 45 in exhibit 3A(1) in the first passenger window to the left of the front glass doors of the bus one can see the top of a dark figure, which I accept is the plaintiff and that figure appears to be some distance north of the southernmost end of the barrier. Photograph 63 in that same exhibit depicts the bus apparently turning the corner into Market Street. It should be noted that this image is taken from footage filmed further down in the bus because it depicts the second pair of glass doors down towards the middle of the bus. In the top right hand corner of that photograph one can see a figure very near the southernmost end of the barrier on the footpath which is the plaintiff's wife.
Through the right hand side glass door in the middle of the bus one can see a darkish figure with its back to the bus and this I accept is the plaintiff endeavouring to climb over the barrier. In relation to this evidence, counsel for the defendant suggested that the distance between the plaintiff and his wife was the distance between where Ms Holtring was standing near or on the pedestrian off‑ramp on the footpath to the second set of doors on the left hand side of the bus. There is a difficulty however, as counsel for the plaintiff pointed out because the lenses utilised in the CCTV camera on the bus are fish‑eye lenses so the images they produce can be deceptive and furthermore, one is looking at an area as one rounds the corner which is curved rather than being a straight line. Nonetheless counsel for the defendant maintained that it was the defendant's case that however one viewed it the plaintiff was definitely moving in a northerly direction along the barrier on the road side, essentially being the wrong side of the barrier whether in order to weave round the back of the bus or to continue on a path to the pedestrian crossing on the other side. I accept that there is no burden on the defendant to establish which of those two options or any option the plaintiff had in mind, if indeed he had any such option in mind.
The plaintiff agreed that when he reported the accident to police he advised them that the bus had hit the barrier, when in fact that was not his evidence. He accepted that in order for the left hand side of the bus to strike the barrier it would have had to have driven up onto the kerb or mounted the kerb and that was not the plaintiff's position. Rather he maintained that the rear wheels of the bus went over the kerb and he deduced this from the fact that he maintained that the bus cut the corner. The plaintiff also said that one of the photographs that he took and gave to his solicitor, showed some damage to a coupling on the barrier, but he conceded that the damage could have been done by another bus. In fact it was damaged by way of a tarnishing of the area and in the end if there was such damage I do not accept that the plaintiff can say what caused it. Further, from the evidence which includes the evidence of the photographs of the marks to the left hand side of the bus, there is nothing to suggest that the left hand side of the bus came into direct contact with as in for example scraping the barrier. There was no evidence of scratching or any form of indentation or paint markings consistent with the colour of paint or material on the barrier on the left hand side of the bus.
Counsel for the defendant submitted that there was some significance to be found in the plaintiff's conduct following the accident which suggested that the plaintiff had become particularly focussed on the event and did not have an objective view or recollection of the circumstances surrounding the accident.
It is accepted that within three days of the accident on his return to New South Wales the plaintiff was in email contact with the police inquiring as to why no action had been taken against the defendant for failing to control the bus. Even prior to his return to New South Wales the plaintiff had attended the Fremantle Police Station to ensure that the matter would be investigated and with a query as to why the defendant had not been charged in relation to the incident. During the year following the accident the plaintiff was in email contact with the police and when he was advised that no charges were going to be laid against the defendant the plaintiff challenged this decision. In an email of 14 January 2009 to police and other authorities, the plaintiff made it very clear that if the matter was not resolved, presumably to the plaintiff's satisfaction, he would make a formal complaint to various authorities including the Commissioner for Police. On 22 January 2009 the plaintiff sent an email to Constable Kevin Jones advising that the bus had hit the barrier as observed by a witness whose statement the plaintiff provided to police. In relation to that particular aspect of the matter I have already reached a finding that despite the contents of any such statement and assertion by the plaintiff, the bus did not hit or come into direct contact with the barrier. The plaintiff in that email inquired, 'If we are about to cross Market Street and then have to get back to the path, expecting to find refuge from the oncoming bus, how can it be our fault if one of us ends up in the wrong spot?' Counsel for the defendant in response to that email submits that it prompts the rhetorical question 'How can it be anyone else's fault?'
In another email the following day to numerous ministers of the West Australian government and the Commissioner for Police the plaintiff requested their assistance in what he termed was the 'incredible injustice' of the defendant not being charged. Following this in February 2009 the plaintiff made a freedom of information application to obtain the police investigation file relevant to the accident. Then on 31 March 2009 the plaintiff sent a further email essentially threatening to contact the Perth Law Society if he did not receive a satisfactory explanation as to how the matter had been handled. When challenged about these emails and their tone in cross‑examination the plaintiff agreed that they were somewhat emotional in part but explained this on the basis that at the time he was in pain and distressed. In my view the tone and content of the plaintiff's various emails might fairly be described as emotional and somewhat intemperate, particularly given that the plaintiff is a mediator by profession. However I do not find that it is to a point where the plaintiff can be said to be so lacking in objectivity and rationality that his evidence is tainted and should be rejected where it conflicts with the defendant's evidence.

Ms Holtring

The plaintiff's wife Ms Holtring, gave comparatively short evidence confirming her business relationship with the plaintiff.
She recalled about 1.30 pm on the day in question walking with the plaintiff on the northern side of Market Street in a westerly direction towards the railway station in Phillimore Street. This was before commencing to cross to the south side of Market Street where she said she and the plaintiff proposed to proceed west across Phillimore Street, I take this to be a reference to using the zebra crossing further down Phillimore Street, in order to reach the railway station on the other side of Phillimore Street. She said that she stepped onto Market Street and the plaintiff warned her that a bus was coming around the corner so she said she and the plaintiff turned to retreat to the safety of the footpath. Ms Holtring went to the easternmost side of the barrier onto the footpath. She said that the plaintiff had reached the barrier first and so she was most surprised to see the plaintiff beginning to climb over the barrier. It was at that point, bearing in mind of course this all happened very quickly, that she saw how close the bus was. Ms Holtring was well onto the kerb and noted the plaintiff lifting his left leg over the barrier and then attempting to get his right leg over the barrier. The next thing she noted was the bus come into contact with the plaintiff and in her words it 'crushed' the plaintiff's right leg from the thigh to the ankle between the barrier and the side of the bus. The plaintiff then fell over to the other or footpath side of the barrier landing on his head and elbow.
According to Ms Holtring the bus driver then approached them and although Ms Holtring was feeling very shocked she said that the driver actually shoved the plaintiff with his foot and said words to the effect of 'Get up, get up. You're not hurt'. Ms Holtring gave evidence that before she started to cross Market Street she had looked, one presumes this is a reference to any oncoming traffic, but saw no danger. She first noted the bus when the plaintiff warned her that it was coming towards them.

The defendant

The defendant was born in Wales and left school in 1984. Following this he worked as a carer in a number of facilities until 2000 when he emigrated to Australia and undertook the same type of work for a period of time. He commenced as a bus driver with Southern Transport in February 2007 and remained there until 11 November 2011. During that time he obtained certificates in transport and road logistics and he was also the nominated health and safety representative in that organisation for three years.
On the day of the accident he commenced his shift at 7.30 am and the incident involving the plaintiff occurred during the defendant's first trip after his lunch break. He was driving a Mercedes‑Benz 500 Series gas powered bus with which the defendant was familiar because he drove that type of vehicle every work day. The defendant's route which he had been driving for 19 months five days a week for 10 trips per day was the 531 service from Fremantle railway station to the Cockburn train station. It is common ground that the bus in question is 12 m long and weighs 12 tonne.
Shortly prior to the incident the defendant drove the bus from stand 5 in front of the railway station to a set of traffic lights where he turned right into Phillimore Street. The defendant estimated that from there to the intersection with Market Street is a distance of approximately 150 m. Constable Jones measured that distance as reflected in his statement and it is 123 m. The defendant drove the bus down Phillimore Street past Queen Street towards Market Street in what is a 40 km per hour zone. His evidence was that once he went past Market Street he put on his left hand indicator and proceeded into the left designated turning lane in order to turn left into Market Street. He slowed down to get the correct speed for a left turn and estimated at this point he was doing no more than between 30 and 35 km per hour. In any event according to the defendant this left turn into Market Street from Phillimore Street is not a difficult corner as it is a sweeping bend which the defendant considered provided plenty of room to turn the corner.
When the defendant was approximately a bus length away from turning left into Market Street he said he saw the plaintiff whom he said at that point was about 1 1/2 m onto the road but the defendant formed the impression that the plaintiff was walking away from him at the defendant's 1'o'clock towards the harbour or the museum so that if the plaintiff kept walking it was the defendant's impression he would have walked across Phillimore Street. Although the plaintiff on the defendant's evidence was walking away from him the defendant did not suggest the plaintiff had his back to him, rather he said he had a side-on view of the plaintiff at this point. The plaintiff then stopped and the defendant said he and the plaintiff made eye contact when they were approximately 10 to 12 m apart. At that point the defendant estimated that he was travelling at about 20 km per hour. The defendant's next observation was that the plaintiff turned around and walked back to the pavement at what the defendant said was a normal pace. The pavement area had a barrier around it that went from Phillimore Street around the corner to Market Street in an L‑shape and it was in the defendant's estimation about 20 m in length. On photograph 28 in exhibit 2, the defendant marked with a blue cross at the point he said he saw the plaintiff return to which is a point beyond or past the southernmost end of the barrier. The defendant's evidence was that on his observation the plaintiff's feet were on the pedestrian ramp where it meets the road again as depicted in the marking on the photograph. Further the defendant said the plaintiff was holding onto the top of the rail with his right hand looking at the defendant just as the bus started to turn into Market Street onto the cobblestone area as depicted in a number of the photographs.
At this stage according to the defendant the bus was still slowing down and the plaintiff was still standing on the pavement looking towards the front of the bus. The defendant followed the plaintiff around with his eyes all the way around to the front left hand door of the bus until the defendant said he lost sight of the plaintiff. During this time the defendant's evidence was that the plaintiff was still on that pavement area he marked in photograph 28 and as the defendant was satisfied that the plaintiff was going to remain in that position he carried on driving around the corner looking in front of him in order to enter Market Street. As I understand the defendant's evidence, by this stage he had lost sight of the plaintiff in the sense he was no longer looking at him.
A couple of seconds later the defendant said he heard a dull thud and a passenger on the bus yelled out something. This caused the defendant to look into his left hand side rear view mirror above the doors on the outer left hand side of the bus and that is when the defendant said he saw the plaintiff going over the barrier. Upon seeing this, the defendant stopped the bus and put on the handbrake so that he could go and render assistance to the plaintiff. When he reached the plaintiff he saw him lying on the ground on his back with one knee up in the air. The defendant instructed the plaintiff not to move and told him he was returning to the bus to call for an ambulance. The plaintiff did not mention to police that the defendant gave him a kick or shove with his foot, and did not identify the person as the defendant in his evidence. The defendant made no mention of lightly kicking or shoving the plaintiff with his foot or telling him to get up as he was alright. If this occurred I am not satisfied it was the defendant who did this as it was not his evidence, and further it appears to me to be somewhat inconsistent with the concern the defendant exhibited for the plaintiff's welfare.
The defendant rang the bus depot advising that he needed both police and an ambulance to attend the scene of an accident. Following this the defendant returned to the plaintiff and noticed that another bus driver had arrived and was with the plaintiff and his wife. On this occasion the defendant said the plaintiff's wife told him that he had mounted the kerb with his back wheels and hit the barrier and 'them'. The defendant denied doing so. Following this the defendant returned to his bus and contacted the depot again requesting a managerial staff member to come and assist him. He was instructed to move his bus off the road which the defendant did activating the hazard lights. When police arrived the defendant was breathalysed and produced a negative result. He also provided police with a brief statement of the incident.
The defendant noticed the blue and black scuff marks on the left hand side of the bus and he also removed the rubber seal around the inside of the left wheel arch which had come loose. Further the defendant said that the bus was dusty but one panel of the rear door looked as though it had been cleaned. He noted no other damage to the panel nor any grey marks on the left hand side of the bus which would suggest that it had come into direct contact with the barrier. In relation to the markings that the defendant noted on the left side of the bus he referred to photographs 1, 2 and 3 in exhibit 2.
It was the defendant's belief that part of the bus, being the second door or doors, must have come into contact with the plaintiff and struck him. Nonetheless the defendant's evidence was that the back wheels of the bus never touched the kerb at any time that he was aware of and he maintained that the barrier in question was about 500 mm or 50 cm from the kerb. He agreed it was likely that the left hand side of the bus was very close to the barrier and he did not dispute that the plaintiff's right leg was trapped or pinned between the left hand side of the bus and the barrier for a period of time.
When questioned about his manner of driving as depicted on CCTV footage from inside the bus the defendant maintained that it was safe to turn the steering wheel of the bus with one hand only because it has excellent and very responsive power steering. Furthermore the defendant maintained that it was more comfortable to turn the steering wheel with one hand and hold onto the coin tray with his left hand because the bus sometimes rocks when it is cornering. In the end however the defendant agreed that this was not a recommended method of turning the bus around a corner.
On photograph 20 in exhibit 2 the defendant marked with a square where the bus he was driving was located when he first noticed or saw the plaintiff. In photograph 22 in that same exhibit the defendant marked where he says the plaintiff was when the defendant first saw him. Again because of the dimension of the photograph and the fact that the kerb and the barrier are curved it is difficult to be precise but it appears that it is on the road in Market Street near the corner of Phillimore Street. However as the defendant pointed out, and I accept, photograph 22 suggests it was taken from the central median strip in Phillimore Street whereas the defendant marked photograph 22 on the basis that he was in the left hand feeder or turning lane into Market Street so on that basis the defendant suggested that photograph 20 as marked probably provides a better representation of his view of the plaintiff when he first saw him.
When one compares the marking made by the defendant on photograph 20 in exhibit 2 it is similar to the position as marked in photograph 8 in exhibit 3A(1) but photograph 8 is a still from the CCTV footage taken from the camera in the bus. The camera clearly has picked up vision of the plaintiff earlier in photograph 4 in exhibit 3A(1) but the defendant did not see the plaintiff at that point. It should also be noted that in photograph 20 in exhibit 2 there is a concrete or stone pillar on the corner of the building which could possibly prevent or impede anyone who was behind the pillar from being seen from Phillimore Street as that person was attempting to cross the road at the southern end of the barrier. On that basis as the defendant drove the bus around the corner there may well have been a very short passage of time perhaps a second or less when the plaintiff was out of the defendant's line of vision.
Photograph 28 in exhibit 2 as marked by the defendant refers to a point when the defendant observed the plaintiff after the defendant's bus had turned further around into Market Street. Photograph 43 in exhibit 3A(1), taking account of the previously mentioned difficulties and limitations of the photographs, would appear to depict the plaintiff's position before the defendant turned the bus into Market Street while he was still in Phillimore Street about to make the turn into Market Street. In relation to photographs 43 and 44 of that exhibit the defendant was of the view that at that point the plaintiff was at the end of the barrier but not yet on the pavement and the defendant was further of the view that particularly looking at photograph 44, the plaintiff was looking in the direction of the railway station. On this basis it was the defendant's belief that photograph 28 in exhibit 2, depicts the plaintiff's position up to three or four seconds later.
Relevant to photograph 45 in exhibit 3A(1) whilst the defendant believed that it depicts where the plaintiff was as the bus rounded the corner, he pointed out that the camera which took the footage from which the still photograph was extracted was at a different angle from the angle of the view that the defendant sitting behind the driver's wheel in the bus would have had. It is not entirely clear in looking at this evidence whether the defendant was suggesting that the plaintiff was in a position closer towards the southern end of the barrier than photograph 45 would suggest. When referred to photograph 46 in exhibit 3A(1), which appears to depict the plaintiff's wife standing at the southern end of the barrier as viewed through the front left hand doors of the bus, the defendant again pointed out given the different positions of the CCTV camera that took that footage from the bus and the defendant's position on the bus he would not have seen the figure in the bus door at that time because it would have disappeared out of his view earlier than it would have disappeared from the view of the CCTV camera on the bus.
The defendant completed a report of road traffic crash to police, accompanied by a diagram which he drew and this became exhibit 6 at trial. In that report the defendant stated that he was turning left into Market Street and became aware of two people who were on the left side of the bus on the wrong side of the barrier. He explained that he prepared that report after he had been shown the CCTV footage indicating the presence of two people. However at the time of the accident the defendant maintained that he only saw one person, being the plaintiff, although he accepted that it was a busy time of day in the area being lunchtime on a Saturday and as a result the driver of any vehicle in the vicinity has to be aware of the presence of pedestrians in the area. In relation to his assertion that prior to the accident he only saw one person the defendant pointed to the diagram he drew accompanying the report where he marked the presence of only one person. He was also referred to exhibit 7, being the defendant's statement to police dated 9 March 2009. In that statement the defendant refers to seeing only one male pedestrian, being a reference to the plaintiff, and he only refers to seeing a female person next to the plaintiff after the accident when the plaintiff had gone over the other side of the barrier and was lying on the pavement with one leg raised. The defendant said in par 13 of that statement that at this time the plaintiff was positioned a few feet south of the southern end of the railing or barrier. In considering this aspect of the evidence I take the view that the defendant's explanation for why he referred to seeing two people in his road traffic report to police to be plausible and understandable.
During the course of cross‑examination the defendant was shown some footage, taken by Mr Simms, of other buses rounding the corner in question. In relation to the footage NV10782, the defendant's evidence was that the bus concerned rounded the corner in a 'straddle' turn ie, from the forward facing lane in Phillimore Street not the slip lane for traffic turning left into Market Street. As a result the defendant said the bus was wide of the barrier before turning into the inside turning or slip lane which in the opinion of the defendant was dangerous. With respect to footage NV10804, the defendant pointed out in his opinion that the bus concerned was not fully in the slip or turning lane and in addition it was a model of bus which was 1 1/2 m shorter than the bus the defendant was driving at the time. He repeated that in his opinion there was no need for the defendant to swing wide when making the left hand turn into Market Street from Phillimore Street because to his knowledge the plaintiff was safely on the pavement area in Market Street. He added that it was also difficult to swing wider than he did at the time as there was a median strip in the middle of Market Street as one turns left into that street.
Having studied the footage of the various buses turning the corner which was taken by Mr Simms, it appears to me that the defendant was correct in his comment that a number of buses on that footage took the corner in what appeared to be different distances from the barrier on various occasions. However it is also the case on my observation of that footage that none of the multiple buses filmed turning that corner passed right up against though not coming into contact with the barrier, so none of those buses appear to have cut the corner in a significant manner.

The law

Division 2 and div 3 of the Civil Liability Act 2002 deal with general principles concerning duty of care, causation and onus of proof relevant to liability for harm caused by the fault of the person and it is not necessary to repeat them in these reasons. In Imbree v McNeilly (2008) 236 CLR 510 an unqualified and inexperienced driver was allowed by his supervising passenger to drive a vehicle and the driver subsequently lost control of the vehicle which overturned causing serious injury to the supervising passenger who sued the driver for damages. The plaintiff was successful but damages were reduced by 30% on the basis of the plaintiff's contributory negligence. The Court of Appeal held that actions which are fairly to be seen as the result of a learner driver's inexperience and lack of qualification rather than as having been caused by superimposed or independent carelessness did not of themselves constitute breach of the duty of care which the learner driver owed to a licensed driver who was supervising the learner. Following this the High Court allowed the appeal and held that the standard of care which the driver owed to the supervising passenger was the same as that owed to any other person driving a motor vehicle, to take reasonable care to avoid injury to others, and was not to be qualified by the driver's inexperience or unlicensed status thereby overruling Cook v Cook (1986) 162 CLR 376.
Serafini v D'Rozario [2012] WADC 135 concerned an accident which occurred late one evening in Northbridge in February 2009. The plaintiff was a pedestrian and the defendant was the driver of a motor vehicle. The accident occurred at the junction of Roe Street and Beaufort Street in Northbridge. At the junction with Beaufort Street there is a filter lane to the left for vehicles using Roe Street to enter Beaufort Street in order to travel north. The junction was controlled by give way signs and a dotted white line extending from the footpath at the junction of Roe Street and Beaufort Street across to a traffic island to the west side of the filter lane and to the north side of the continuing left hand traffic lane in Roe Street. It was in the area of the filter lane that the vehicle driven by the defendant struck the plaintiff when the plaintiff's right foot or ankle went under the left rear wheel of the vehicle driven by the defendant causing injury.

Put in very short form the plaintiff asserted that before attempting to cross the road he looked to his right and saw some vehicles coming but decided he could safely proceed across the road. He took a step into the road and had both his feet on the road when he saw a car coming. In response the plaintiff took one step back but he was not entirely clear of the oncoming vehicle as his other foot was run over by the vehicle. The particulars of negligence pleaded are not dissimilar in many ways to those alleged against the defendant in this case. The plaintiff asserted that he had noticed the oncoming vehicle and that the defendant did not stop at the give way sign but continued through it and went around the corner. The defendant on the other hand asserted that she had stopped at the give way sign and as the traffic cleared from the right she commenced to move forward at which point the plaintiff stepped into the road and his foot was run over by the rear wheel of her vehicle.
The defendant's case was that on the plaintiff's own evidence he walked into the side of the defendant's vehicle as she was moving from the give way line at the intersection but by then the plaintiff was behind the defendant's line of vision. Further the defendant asserted there was no evidence that the plaintiff showed any particular intention to cross the road in the sense of being on the edge of the footpath as the defendant's vehicle approached. On the other hand the plaintiff argued that if one accepted the defendant's assertion that she came to a complete stop then that would have meant the plaintiff walked into the side of a stationary vehicle when it was in front of him for a period of up to 30 seconds. It was more likely, the plaintiff argued, that the defendant was focused on entering Beaufort Street and ensuring that all was clear to her right and for that reason she failed to see the plaintiff step onto the roadway. After carefully analysing the evidence the learned trial judge dismissed the plaintiff's claim and entered judgment for the defendant.
In the course of his reasons the learned trial judge canvassed some well established legal principles relevant to determining whether there has been a breach of duty of care. Reference was made to Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 – 48 where it was noted the court must determine what a reasonable person would do in response to the relevant risk which in turn requires a consideration of the magnitude of the risk, degree of probability of its occurrence in combination with other conflicting responsibilities the defendant may have including difficulty and inconvenience attached to taking evasive or alleviating action. One is dealing with what a reasonable driver would do in responding to a foreseeable risk in the circumstances which exist at the time: Wensick v Marshall [2010] WASCA 117. In that case his Honour noted at [53] and [54] that the exercise of reasonable care on the part of a driver does not require that person to drive a vehicle in such a way as to always be in a position to anticipate anything that another motorist or a pedestrian might do, nor is the driver required to reduce the speed of the vehicle to an extent which would avoid any risk of collision. A similar sentiment was expressed by the court in Knight v Maclean [2002] NSWCA 314 [66] ‑ [67]. The benefit of hindsight is not the yardstick by which the standard of reasonable care should be judged.
Bartholomaeus v Newcombe [2008] WASCA 136 concerned a situation where the plaintiff parked his truck on the left side of the road whilst his employer parked his truck immediately behind. The employer removed a number of boxes from his truck and gave them to the plaintiff so they could be placed in the plaintiff's vehicle. In the course of doing this the plaintiff walked on the side of the two vehicles adjacent to the edge of the traffic lane. The defendant was driving a bus in the same direction and had stopped at a red light. The defendant saw the plaintiff and his employer and proceeded to pass through the intersection and the two men close to the edge of the lane of traffic. The plaintiff in that case did not check for oncoming traffic and so, unlike this case, he was not aware of the existence of the bus. In the court below a commissioner found the plaintiff probably stepped laterally into the side of the bus as it passed him and also found that the bus did not deviate from its lane. Nonetheless a finding was made that the defendant should have sounded his horn and moved to the right on passing the plaintiff. Whilst the defendant was held to be negligent the plaintiff's damages were reduced by two thirds on the basis of contributory negligence. The plaintiff's appeal against this finding was unsuccessful and the Court of Appeal held that the commissioner had been correct in the findings he made.
On the hearing of that appeal the court made reference to Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416. In that case a pedestrian was injured as she crossed a busy street through banked up vehicles. The pedestrian stepped out into the kerbside lane without checking at all or sufficiently to ensure that it was safe to do so. As a result she was struck by a vehicle which, although only travelling at 40 km per hour, was found to be travelling too fast in the circumstances. The particular point of that case was that whilst the driver of a vehicle in a busy city street was entitled to assume that in the ordinary course of events pedestrians would take appropriate and simple precautions for their own safety in the circumstances in which the pedestrian found herself, nonetheless drivers are required to have regard to the fact that pedestrians on occasion behave carelessly and so drivers must always be alert and alive to that eventuality and take reasonable precautions. As that was a case which involved a vehicle hitting a pedestrian the court referred to the gravity of any harm which may result when it said:
The damage which a driver may do to a pedestrian is great: the injuries suffered by the present plaintiff show this. This is an important matter when deciding what a driver must do. The inconvenience of driving slower is to be measured against, inter alia, what may be done to a pedestrian if the driver's estimate of the risk is wrong.
At [13] in the case of Bartholomaeus Murray AJA observed:
The culpability of a negligent driver will be greater, I think, if the risk of hitting a pedestrian is heightened in the particular circumstances of the case; perhaps because of some particular impediment to visibility or because there is a greater than ordinary risk that a pedestrian may behave unpredictably, eg, because there are children about or because there is some evidence that a particular pedestrian is in some way distracted from paying attention to their own safety.
The issue is not whether if certain things had occurred or not occurred that there was a possibility of a different result, but rather whether in the particular circumstances found to exist a plaintiff proves that a defendant who owed a duty of care to the plaintiff did not act with reasonable care in the circumstances. That reasonable care was described in this way in Manley v Alexander [2005] 80 ALJR 414 [12]:
But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.
In the event that the defendant was to be found negligent and that negligence caused the plaintiff's injuries counsel addressed the issue of contributory negligence. If in the circumstances the court were to find the plaintiff failed to exercise reasonable care then s 4(1) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 would apply and any damages recoverable by the plaintiff if the occurrence of the accident which caused his injuries had been solely due to the negligence of the defendant would be reduced to such extent as just in accordance with the degree of negligence attributable to the plaintiff. Section 5K of the Civil Liability Act 2002 makes it plain that the standard of care required of the person suffering the harm is that of a reasonable person in the position of that person (being the plaintiff); and the matters to be determined on the basis of what that person (being the plaintiff) knew or ought to have known at the time. Those principles which apply in determining whether a person is liable for harm caused by the fault of that person were also applicable in determining whether the person suffering the harm (being the plaintiff) has been contributorily negligent in failing to take precautions against the risk of that harm.
Counsel for the plaintiff submitted that if on all the evidence the court were to conclude that the plaintiff in the extremely short period of time available to him acted in the 'agony of the moment' and somehow found himself up against the barrier as the bus passed then the question of contributory negligence does not arise. If however one arrived at the point where the plaintiff was found to have been contributorily negligent then the extent of that negligence is to be assessed as set out in Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492, 494 where the members of the High Court observed:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison for the damage involves a comparison both of culpability, ie, of the degree of departure from the standard of care of the reasonable man (Pennington v Norris) (1956) CLR 10, 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663, 682; Smith v McIntyre (1958) TAS SR 36, 42 – 49 and Broadhurst v Millman [1976] VR 208, 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case: for example, the circumstances of some cases may be some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.
In considering the issue of contributory negligence, should it arise depending on the findings of the court in this case, counsel for the defendant referred to March v E & MH Stramare Pty Ltd(1991) 171 CLR 506 as setting out the appropriate approach which should be adopted when more than one causative factor could be regarded as a necessary condition of liability. In his judgment in that case Deane J made the point that in determining what caused an accident from the perspective of legal liability one must apply common sense to the facts of each particular case. Some factors or faults relating to the cause of the accident may be so remote as to be of no assistance. It may be that depending on the circumstances there will be a finding that one fact or cause only is relevant whilst in other circumstances there may be two or more causes.
The plaintiff accepts that if he had not been standing against the barrier in the position he was at the time he would not have been injured but asserts that this was not a cause of nor did it cause the accident in the legal sense. Further it is conceded that it may well be the plaintiff should not have been on the roadside or wrong side of the barrier standing in the kerb area but counsel for the plaintiff submitted that the area where the plaintiff was standing on the kerb immediately prior to deciding to climb over the barrier was about 50 cm or 500 mm in width and the argument is that in those circumstances the plaintiff would have had a reasonable expectation in the position where he was standing that he would not be struck by the passing bus. In addition it is accepted by the plaintiff that although there was a barrier extending around that corner or junction, nonetheless it is submitted that there was still sufficient room for the plaintiff to stand safely if the defendant had properly negotiated the corner which the plaintiff asserts he did not because by virtue of what occurred. The submission is that the defendant driving the bus must have at some point mounted the kerb because the damage or injury to the plaintiff could not have sustained in any other way. It is said that the plaintiff's assessment that he would still be safe in those circumstances when the bus driven by the defendant passed him is strengthened or bolstered by the defendant's evidence that he had seen the plaintiff prior to this.
In the event that the plaintiff's conduct reflects an error of judgment on his part it is said that this does not constitute contributory negligence. If the court were to find contributory negligence on the part of the plaintiff the submission is that it was minimal and in the circumstances, whatever they are found to be, the plaintiff had a proper expectation that the defendant who was driving a large and powerful vehicle would not drive it in such a manner and in all the circumstances so as to cause injury to the plaintiff.

Findings

A number of matters seem relatively clear on the evidence in this case. At the relevant time the plaintiff and his wife, Ms Holtring, were walking on the footpath along Market Street towards the train station situated on Phillimore Street. Ms Holtring was on the plaintiff's left hand side. It was their intention to catch a train to return to Perth.
The plaintiff was obviously aware of the barrier that ran in a curve at the junction of Phillimore Street and Market Street and it is clear that the barrier had two purposes which have previously been identified in these reasons. It is also clear on the evidence that the plaintiff was aware of a set of white railings running along the front of the railway station on the other side of Phillimore Street. I find on the evidence that the vision or view that the plaintiff would have had looking east up Phillimore Street from someone crossing or about to cross Market Street at about the position of the pedestrian ramp is as reflected in the photograph figure 2 on page 5 of exhibit 1B which is Mr Simms' report. Whilst it is a one dimensional photograph it does indicate some limitation of vision not only because one is essentially looking up and around a corner but also because there is a large corner pillar of the building on the corner in the middle of that view. That view however does demonstrate that there is a left feeder lane for traffic in Phillimore Street intending to turn left into Market Street at the corner.
There was a great deal of evidence particularly arising out of cross‑examination of the plaintiff and there were comparatively lengthy submissions from counsel as to what the plaintiff's intention was when he stepped off the pedestrian ramp at the end of the barrier and onto the road in Market Street. Although it was vigorously put to the plaintiff that he intended to walk up to Phillimore Street past the outside of the barrier, and cross Phillimore Street to access the railway station, without crossing Market Street, with a view to utilising the zebra crossing further down Phillimore Street the plaintiff rejected this and did not waiver in his evidence. He certainly conceded it was a consideration but explained that the option was not pursued because he saw the white barrier in front of the railway station and further, as I understood his evidence, he considered it to be a safer and more appropriate option to use the zebra crossing in order to access the road. It was pointed out to the plaintiff that in fact in front of the railing of the railway station there was quite a large open area and pedestrian access or a footpath but it has to be borne in mind the plaintiff was a visitor to Fremantle and was not familiar with the area. In addition, Phillimore Street is quite a busy street in terms of traffic flow and I accept what in essence seems to be the plaintiff's reasoning that it would be preferable and safer to cross Market Street and then access the zebra crossing in order to reach the railway station.
There is another dimension to this evidence in relation to which considerable time was spent during the trial and this concerns numerous photographs or stills from video footage showing two figures. There is no question that these depict the plaintiff and his wife in various positions as they are about to step onto the road in Market Street and where they went from there before apparently turning back and making their way to Market Street. The limitations of both the CCTV footage from the bus and the still photographs taken from it in this regard have been remarked upon previously and regrettably neither alone nor in combination does this material clearly resolve certain issues. Photographs 7, 8, photograph 3 in exhibit 3A(1) and 4 in that same series show the plaintiff coming into view with his wife behind him as he steps from what I accept was the pedestrian ramp at the end of the barrier in Market Street. In photograph 5 of that series they effectively disappear behind the pillar on the corner and then in photograph 6 one can see what appears to be one of the plaintiff's legs protruding beyond the pillar while still on Market Street. Photograph 7 though blurry does show the plaintiff and his wife on a diagonal still in Market Street but apparently heading on an angle towards the break in the median strip in Market Street. Photograph 8 of the series shows what appears to be the plaintiff looking back on an angle over his right shoulder towards Phillimore Street and he appears to be doing something similar in photograph 9 of that series. In photograph 10 the plaintiff again appears to be looking back down Phillimore Street and then in photographs 11, 12 and 13 he appears to be turning back towards Market Street with his wife behind him and to his right. In my view these photographs and the accompanying footage are more consistent with the plaintiff in company with his wife making his way a short distance onto Market Street, albeit it on an angle, towards the break in the median street in Market Street with a view to heading down to the zebra crossing on the other side of Market Street in Phillimore Street.
I accept the plaintiff's evidence that before stepping off the pedestrian ramp onto the road in Market Street he looked over his right shoulder up towards Phillimore Street and saw the bus driven by the defendant. It would appear to be the case that despite this observation the plaintiff considered it was safe to commence his crossing of Market Street without checking or ensuring whether the bus was going to turn left into Market Street. In my view there was an obvious possibility that this might occur because Phillimore Street from the photographs consists of two lanes for traffic travelling in the same direction towards the zebra crossing past Market Street and the lane closest to Market Street is a turning lane for traffic wishing to go into Market Street.
It is clear from the CCTV footage and photograph evidence that the plaintiff in company with his wife did take several steps into the road in Market Street when he looked back over to his right and saw the bus coming. Although the plaintiff described the bus as coming 'rather quickly' and believed it was going very fast the objective evidence is the bus was travelling within the designated speed limit and I accept the undisputed evidence of the various speeds it slowed down to as it approached and reached and turned the corner into Market Street prior to coming into collision with the plaintiff.

Again it is clear from the various relevant photographic and CCTV footage evidence that the plaintiff made a decision after a very brief comment to his wife Ms Holtring that they had better return to the footpath area.
Once this decision had been made, bearing in mind that events moved very quickly in real time from that point, there is an important issue as to exactly where the plaintiff was when he returned to Market Street. As previously noted it was never the plaintiff's case that he first returned to the southern end of the barrier which the defendant suggests the plaintiff did do prior to for some reason moving north along the barrier before climbing over it and coming into contact with the bus driven by the defendant. It is not possible in my view to answer this question totally relying on the CCTV footage and various stills of that footage. It is clear that Ms Holtring did return to the footpath in Market Street at the southern end of the barrier although the defendant said he never saw her there. The plaintiff marked on photograph 6 in exhibit 2 which is a close‑up of the barrier the point he said he found himself facing when he got back to the barrier although he was unable to explain precisely how it was that he found himself between those two uprights further north from the southern end of the barrier other than surmising that he approached it because he turned back in a clockwise fashion and was in a hurry. Photograph 14 in exhibit 2 again marked by the plaintiff shows that same point but from a position over the side of Market Street looking across the break in the median strip and although it is difficult given that it is a one‑dimensional photograph it certainly strongly suggests that the plaintiff was almost in line with the yellow pole of the stop sign on the median strip and I accept this was the case.
Counsel for the defendant contends that photograph 13 in exhibit 3A(1) and exhibit 3A(2) shows the plaintiff's right foot adjacent to the pedestrian ramp as he headed back towards the barrier with plenty of access to the ramp but on studying photograph 13, I do not accept this, particularly given that it is on an angle and taken from a fish‑eye lens. Counsel for the defendant also made the point that although the plaintiff did not accept initially that he was standing at the southern end of the barrier with his hand on it at the time the bus passed him, when photograph 5 in exhibit 2 was put to him together with photograph 13 in exhibit 3A(1) and exhibit 3A(2) the plaintiff conceded that the effect of the photographs' combination showed the pedestrian ramp was south to the southernmost end of the barrier and that if he was adjacent to, and a short step from, the pedestrian ramp he must have been south of and very close to the end of the southernmost end of the barrier. It is correct that the plaintiff made that concession to an extent at page 108 of the transcript in cross‑examination, but he did make the point qualifying his answer that at the time he was still on the road, suggesting that he had not actually returned to the barrier.
It is also the case in cross‑examination with respect to particular portions of CCTV footage and photographs that the plaintiff was in motion and heading in a more northerly direction along the barrier. I find that this is not inconsistent with his evidence because that is the direction that he appeared to go in once he turned around and began his retreat, having seen the oncoming bus. In my view, which is certainly not a criticism of Ms Holtring's evidence, what she observed immediately prior to the plaintiff climbing over the barrier and coming into connection with the bus does not assist greatly. No doubt Ms Holtring was concentrating on her situation and returning to the safety of the footpath as quickly as she could and there is certainly no suggestion that the plaintiff was with her when she returned to the southern end of the barrier.
The defendant was of the opinion that photographs 43 and 44 in exhibit 3A(1) showed the plaintiff at the southernmost end of the barrier but not on the footpath having retreated back there from the road. Having studied these photographs it is not possible in my view to say exactly where the plaintiff was at the time because I cannot see the rounded portion of the southernmost end of the barrier and on one view, which may be misleading, the plaintiff appears to be in line with one of the pillars at the edge of the building but it is difficult to say with precision what pillar it is.
The defendant did not see the plaintiff or Ms Holtring through the archway to the building on the corner of Phillimore Street and Market Street although the CCTV footage from the bus and the relevant stills of that footage plainly show the figures in that position. In fairness it must be said that the pillar on the corner of the building does obstruct the vision of a driver approaching the building, particularly if that driver was intending to turn left into Market Street, but I accept the observation by counsel for the plaintiff that this obscuring of a driver's vision in turn calls for a degree of vigilance on the part of a driver, particularly one who like the defendant was very familiar with this particular scene. The defendant was about a bus length away from turning left into Market Street when he first saw the plaintiff on the road and when they made eye contact. Although the defendant formed the impression that the plaintiff commenced to turn back towards the footpath area of Market Street in a normal fashion this is at odds with the plaintiff's evidence which was that he returned in something of a hurry. Whilst I accept this incident and the lead‑up to it happened very quickly and the defendant was driving a bus and had a number of things which he had to observe, I nonetheless accept the plaintiff's evidence on this point because I find that he was concerned for his safety and further, he made the remark to Ms Holtring that they had better return because a bus was coming. The very reason for the plaintiff's retreat was because he was concerned for his safety and in those circumstances it is unlikely in my view that someone would walk or move at a normal pace. Unfortunately, the quality of the CCTV footage means that it is of little or no real assistance in determining this particular question with absolute certainty.
Although the defendant marked photograph 28 in exhibit 2 as depicting the plaintiff's position where he returned to and placed his feet on the pedestrian ramp I cannot see that this marries up with his position three or four seconds afterwards in photographs 43 and 44 in exhibit 3A(1) and 3A(2). Further, when he was asked at page 193 of the transcript in cross‑examination with reference to those two photographs whether his impression was that the plaintiff had attained the safety of the pavement the defendant replied 'Well, he was walking towards it'. The defendant then said 'He – he – he looks like he's holding onto it' which I can only assume was a reference to the plaintiff looking as though he was holding onto the top of the barrier. When the defendant was asked about photograph 45 in exhibit 3A(1) he said it appeared to him that the plaintiff was at the end of the barrier but one couldn't see him because he was obscured in the photograph behind the rubber in the centre of the double glass doors through which the defendant was looking at the time and he pointed out that he had a slightly different view because he was on a different angle than the CCTV camera.
In the very next frame which is photograph 46 of that exhibit, one can see a figure which is clearly that of Ms Holtring but the defendant said he did not see her until after the accident, which certainly suggests he wasn't looking at that position almost immediately after photograph 45. If that is the case, it is difficult to see how the defendant as he asserted on page 195 of the transcript relevant to photograph 45 continued to watch the plaintiff even after photograph 45. The defendant maintained that because of the position of the CCTV camera in the bus and looking at his position in the bus he would not have seen the figure, being Ms Holtring in photograph 46. In relation to that particular photograph at page 195 of the transcript in cross‑examination, the defendant said that he estimated as his bus came around the corner the front left hand side of the bus would have been 3 or 4 m away from the plaintiff. The back end of the bus however according to his evidence would have been in the gutter given it was a heavy vehicle and 12 m in length. The defendant gave evidence that on his observations he was satisfied the plaintiff was going to stay where the defendant had him placed and would therefore be safe, so he proceeded around the corner. It was also his evidence that having followed the plaintiff around with his eyes observing him through the front side door window of the bus he then lost sight of him, so it is apparent that the defendant made something of an assumption that the plaintiff at least on the defendant's version of events, would remain where the defendant said he saw the plaintiff.
It is difficult to understand how it could be that the defendant did not see Ms Holtring at any time prior to the accident. He was 10 to 12 m away according to his evidence when he first saw the plaintiff on the road and they made eye contact and it is clear from the CCTV footage and the relevant still photographs that Ms Holtring was very close to the plaintiff and yet as previously noted the defendant did not see her.
It would appear from the evidence and in particular on the defendant's evidence that as he approached the turn he did not appreciate that there were two pedestrians on the roadway even though the CCTV footage and relevant photographs clearly show that there were two pedestrians being the plaintiff and Ms Holtring and they were very close together on the roadway. It seems to me that although the defendant said he made eye contact with the plaintiff and followed his progress the person that the defendant actually saw, given that this incident occurred extremely quickly as the bus was moving, in the position marked just past the southernmost end of the barrier was a figure being Ms Holtring and not the plaintiff. As he had previously only seen one person or figure it seems to me that the defendant assumed that this was the person with whom he'd made eye contact a very short time earlier and concluded that person had indeed returned to the southernmost end of the barrier and the safety of the pavement. I accept the submission made on behalf of the plaintiff that the only explanation for why the defendant failed to see or did not see the plaintiff at this point and thereafter until the accident had occurred, must be that the defendant was not keeping a proper lookout. I am unable to accept that photograph 43 in exhibit 3A(1) shows the plaintiff in a safe position at the southernmost end of the railing, nor is this supported by photograph 44 of the same exhibit. Photograph 45 does depict the southernmost end of the railing but the defendant was standing about a metre further north from this point. The plaintiff marked on photograph 14 in exhibit 2 where he found himself standing when he returned to the barrier area and, when one compares this with photograph 43 in exhibit 3A(1) it suggests that the plaintiff was indeed in line with not only the yellow upright stand of the stop sign on the median strip, but also the pillar on the very corner of the building, which is some distance north of the southernmost end of the pedestrian barrier.

Negligence of defendant

As previously noted when considering whether there has been a breach of duty of care on the part of the defendant one has to consider what a reasonable person would do in response to the relevant risk which in turn requires an assessment of the magnitude of the risk, the degree of probability of it occurring and the difficulty or inconvenience in taking evasive action or action to alleviate the situation. In addition, again as previously noted, a driver of a vehicle is not required to drive it so as to always be in a position to anticipate what a pedestrian might do or reduce the speed of the vehicle to avoid the risk of any collision whatsoever. On the other hand, a driver of a vehicle must always be alert to the fact that pedestrians do at times behave carelessly or in an unpredictable manner and it is the case that a vehicle driven on a road clearly has the potential to cause significant injury to a pedestrian if there is contact between the vehicle and the pedestrian.
The plaintiff alleges that the defendant was negligent because he failed to keep a proper lookout when turning the bus into Market Street. The evidence in relation to the circumstances of this has been canvassed in some detail in the course of these reasons. It is the case that the defendant said when he was approximately a bus length away from turning into Market Street he saw the plaintiff who in his estimate was about 1.5 m onto the road in Market Street. The plaintiff estimated that he had taken a couple of steps into Market Street but in the end the exact distance he had proceeded into Market Street is not of great moment because it is common ground that he was on the road in Market Street. At that point there was between 10 and 12 m between the defendant driving the bus and they made eye contact and so the defendant clearly saw the plaintiff. I have previously observed that despite the defendant forming the impression that the plaintiff walked at a normal pace back to the footpath after this I do not consider in the circumstances this would have been the case, rather I find that the plaintiff would have retreated in something of a hurry. I do not accept as previously noted that the plaintiff reached the southernmost end of the barrier and stood on the footpath. It is quite clear that the defendant, even on his own evidence, lost sight of the plaintiff so he was not in his line of vision at all times. The defendant assumed incorrectly that the plaintiff had obtained the safety of the footpath and in the circumstances this clearly was not the case. There is also a question as to whether the defendant really was keeping a proper lookout because on his evidence he failed to see Ms Holtring who was at all times after she and the plaintiff commenced the walk across Market Street close to the plaintiff as numerous still photographs in evidence demonstrate.
I have found on the evidence that the plaintiff did not return to the southernmost end of the barrier and footpath area but rather that he turned and retreated to the footpath but for some reason found himself between the first and second vertical uprights some distance north of the southernmost end of the barrier on the road side of the barrier. Given that the defendant did not have the plaintiff in his line of vision at all times and he had seen him turn to go back towards the footpath area, in my view because the defendant was in charge of driving a bus it was incumbent upon him to ensure that it was safe to proceed not to simply anticipate that the plaintiff would behave in a particular way namely that he would have regained the safety of the footpath on the footpath side of the barrier.
It is correct that there is a central median strip on Market Street but, as the footage of other buses taking the particular corner demonstrates, it is still possible for the driver of a bus to swing wide enough so that there is a considerable distance between the barrier and kerbing surrounding it which clearly did not happen in this case because there is no other way which explains how the rear of the bus came in such close proximity to the barrier that it came in contact with the plaintiff's right leg which was stretched out horizontally on the top of the barrier. The defendant himself admitted that the rear of the bus was in the gutter which clearly suggests it was not on the road at all times and from this it is apparent that the defendant, in turning the bus, cut the corner causing the rear of the bus to come in very close proximity to the barrier. For that reason the defendant failed to control the bus in such a way as to avoid the accident. Although it cannot be said that turning the bus with one hand only on the steering wheel contributed to the accident the defendant admitted in evidence that this was not the proper method or most desirable method of turning a vehicle despite the responsive nature of the steering system of the bus. Taking into account the evidence of Senior Constable Jones and Mr Levy and the lack of cross‑examination of the defendant regarding the speed of his bus at the relevant time I do not find that the defendant drove the bus at an unsafe speed or an excessive speed in the circumstances.
It is not necessary there be evidence as to precisely how the plaintiff's right leg was injured by the bus as it passed him, however I do not accept that it's a matter of common sense that the plaintiff's injuries would have been far more severe if the bus came into contact with the barrier. It clearly had to pass in very close proximity to the barrier in order for the rear of the bus to brush up against the plaintiff's right leg as evidenced by the markings of the plaintiff's blue jeans and black shoe on the rear panels of the bus. The lack of a very severe crushing injury may well be explained by the fact that the plaintiff's leg was, fortunately for the plaintiff, horizontal to and resting along the top of the barrier, although slightly more towards the road rather than angling down against the barrier where it would have been more vulnerable to a severe crushing injury. For these reasons I consider that the defendant did not act in accordance with reasonable care and that the particular allegations of negligence referred to against the defendant in these reasons are established. It was that negligence which caused the injury to the plaintiff.
Having reached that determination in the circumstances of this case it is necessary to consider whether the cause of the accident was solely due to the negligence of the defendant or whether there was contributory negligence on the part of the plaintiff as required by the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 s 4(1). This raises the consideration of whether the plaintiff failed to exercise reasonable care and if there is a finding of contributory negligence on the part of the plaintiff that in turn would result in a reduction of the damages which would be recoverable by him. In addition, s 5K of the Civil Liability Act 2002 contemplates the standard of care required of a person in the position of the plaintiff is that demanded of a reasonable person in the position of the plaintiff and it is to be determined on the basis of what that person knew or ought to have known at the time.
On behalf of the defendant it is contended that whatever the plaintiff intended to do in the sense of whether he was crossing the road in Market Street to use the pedestrian crossing on Phillimore Street to access the railway station which is the plaintiff's evidence, or whether he was walking straight across Phillimore Street, nonetheless the plaintiff did so without keeping a proper lookout and taking precautions against the risk of harm by being in the path of the bus and further, by attempting to cross Market Street when it was not safe to do so without proper regard to the traffic. The plaintiff's evidence was in part that when he first saw the bus it was not in the left feeder or turning lane into Market Street. At this point the plaintiff was still on the footpath. He therefore commenced his crossing of Market Street without ensuring or determining whether the bus was going to turn or not. In my view as a pedestrian, albeit one that was not familiar with the area in question, it was incumbent upon the plaintiff before commencing his crossing to determine whether or not any traffic, including the bus driven by the defendant, was in fact going to turn left into Market Street which the plaintiff proposed to cross. It was only on the second occasion when he had commenced his crossing that the plaintiff looked again and at that point realised that the bus was turning and coming towards him.

There is no dispute that the barrier in question was to protect people from being struck by passing traffic at the corner of Phillimore Street and Market Street and correspondingly to ensure that traffic did not intrude onto or come too close to the footpath area. It is obvious that although there was kerbing or a space on the road side of the kerb which extended between 30 cm and 50 cm it was not intended for use as a footpath or for an area in which pedestrians could stand confident in the expectation that they would be safe from passing traffic. For this reason I reject the submission on behalf of the plaintiff that on any analysis he had a reasonable expectation that in the position in which he was standing when he retreated from the path of the oncoming bus that he would not have been struck by the vehicle. For that reason I reject the submission on behalf of the plaintiff that in the circumstances there was still room for the plaintiff to stand safely if the bus had properly negotiated the corner. Part of the very reason for the existence of the barrier in my view is to make it plain to any pedestrian using the footpath that for the sake of safety they should remain on the footpath side of the barrier.
Taking into account all of the evidence and the submissions made on behalf of both the plaintiff and the defendant I find that the defendant breached his duty of care in the manner set out in these reasons and must as a result must bear 80% of responsibility for the cause of the accident. Further that for the reasons expressed the accident was caused in part as a result of the plaintiff's negligence in the sense that I find 20% contributory negligence on the part of the plaintiff.