Martin v Reda

[2003] QDC 434

DISTRICT COURT OF QUEENSLAND

CITATION:

Martin v Reda & Anor [2003] QDC 434

PARTIES:

JEFFREY JASON MARTIN

Plaintiff

and

TONY REDA

First Defendant

and

SUNCORP METWAY INSURANCE LIMITED ACN 075 695 966

Second Defendant

FILE NO/S:

D613/2001

DIVISION:

District Court

PROCEEDING:

Trial

ORIGINATING COURT:

Southport

DELIVERED ON:

December 1, 2003

DELIVERED AT:

Southport

HEARING DATE:

September 30 and October 1, 2, 2003

JUDGE:

R D Hall DCJ

ORDER:

I find the plaintiff has failed to establish negligence in the first defendant and his action must be dismissed

CATCHWORDS:

Cases cited:

Cook v Hawes [2002] NSWCA 79
Derrick v Cheung (2001) HCA 48

GIO (NSW) v Ergul (1993) Aust Torts Reports 62633

Knight v Maclean [2002] NSWCA 314

Middleton v Freier [1958] Qd R 351
Sibley v Kais (1967) 117 CLR 424 at 427
South Australian Ambulance Transport Inc v Wahlheim (1948) 77 CLR 215

Stocks and McDonald Hamilton Co. Pty Ltd v Baldwin (unreported, NSWCA No. 40434 of 1996)

Teubner v Humble (1963) 108 CLR 491

Trompp v Liddle (1941) 41 SR (NSW) 108 at 109

COUNSEL:

Mr Sam Di Carlo for the plaintiff

Mr Williams, QC for the defendant

SOLICITORS:

Baker Johnson for the plaintiff

Jensen McConaghy for the defendant

1. The plaintiff sustained personal injuries on 3^rd July 1998 in a collision between his bicycle and a motor vehicle driven by the first defendant.    That collision occurred at the intersection of Hooker Boulevard and Bermuda Street, both major arterial roadways at the Gold Coast, at 4 pm on a clear fine day.  The traffic was of its normal heavy density and the intersection was controlled by traffic lights.  The road was level in all directions and each road had two traffic lanes for the through traffic and left and right turning lanes.  The relevant speed limit was 70kph.  Hooker Boulevard, which is also known as Nerang/Broadbeach Road, runs east-west and Bermuda Street north-south.  There were road works in progress on the southern side of the intersection.  The intersection is located in an area which has no shops, schools or business premises in the immediate vicinity and, it seems, had two pedestrian crossings, that which the plaintiff used to cross Hooker Boulevard and one crossing Bermuda Street on the north side of the intersection.

1. The plaintiff had been engaged for about two hours that day cleaning car windows, or windscreens, operating from the median strip in Bermuda Street on the north side of the intersection.  Shortly before the collision he had ridden his bicycle southerly across the intersection and along Bermuda Street to buy some food.  After travelling about 500m he remembered his wallet which he had left beneath a brick on the median strip.  He reversed his direction of travel without crossing the road and came to the intersection at its south-eastern corner.  There was a pedestrian crossing there and he stopped for a while to view the traffic.  To his right there were two lanes of traffic in Hooker Boulevard waiting to proceed through the intersection and a third lane for traffic turning right to travel along Bermuda Street.  In the second lane, i.e. the lane immediately before the right turn lane, there was a large bus first in line.  The lights facing those lines of traffic were red and the plaintiff proceeded across the pedestrian crossing riding his bicycle at a walking pace.  Just as he passed beyond the bus he saw the first defendant’s vehicle “going very fast” in the right turn lane.  He hesitated but it was too late and his bicycle was struck by the front end of the vehicle and he went up onto the bonnet and through the windscreen of the first defendant’s vehicle.  He said that immediately prior to the impact he saw the driver of the vehicle who looked “shocked”.

1. In cross-examination he said that he could see the turn arrow light and denied that it was green.  He thought it was red because he “knew” the lights and “it was red or I wouldn’t have went in front of the car”.  He agreed that a driver in the right turn lane would not have seen him until he had emerged past the front of the bus and that there was possibly a metre between the right-hand side of the bus and any traffic there was in the turning lane.  He also agreed that there were vehicles turning right from the third lane but they had stopped doing so when he “hit” the intersection.

1. The following is recorded in the transcript at p 129, ll 40-46:

“What I am suggesting is that you rode across the intersection at about 10 kilometres per hour, a little better than a fast walking pace, and that you rode straight in front of the bus and into the turning lane on the pedestrian crossing part – Yes, when I knew the lights were right and I was going on my way, yes.”

He said further that the right turn arrow was red and, asked how long it had been red he replied “Not that long, because as I said, that traffic stops first then a couple of seconds after the arrow gives a red, so it wasn’t very long at all..”

To another question he said the light had been red for “Probably a couple of seconds”.

1. To further questions he claimed that the arrow changed to red just as he came “Near the bus”.  He again claimed that he knew the turn arrow was red, “Or I wouldn’t have put myself in the position I did.”  Mr Williams argued in his address that that assertion by the plaintiff is seriously at odds with his counsel’s opening in which I was informed that the plaintiff “Will candidly admit that he cannot be sure that he could actually see the right indicator arrow.”  However, on reading the transcript of Mr Di Carlo’s opening that comment appears to relate to his vision of the intersection before he commenced to cross the road and is not inconsistent with his claim that he saw the right turn arrow was red as he was about the position of the bus.

1. However, it is clear that the plaintiff’s belief as to the traffic light sequence was incorrect.  The report relating to the traffic signal operation (Exhibit 21) indicates that at the relevant date, for traffic heading west on Hooker Boulevard phase D consists of a red circle and a green right arrow followed by phase D1 which showed a green circle and a green right arrow.  It follows that the sequence of lights suggested by Mr Williams, to the plaintiff (see transcript p 134 ll 20-32) was accurate, i.e. the green arrow for traffic turning right into Bermuda Street was accompanied by a red light for straight through traffic, then a red light alone, followed by a green light and green right arrow.  It also indicates that the “Don’t Walk” sign would have been illuminated during those phases.

1. The collision was witnessed by Kelly-Anne Maree Nolan who was seated in her motor vehicle at the intersection facing west along Hooker Boulevard.  She was in the far left-hand lane of that road beside the bus referred to earlier.  She observed the plaintiff waiting for a short time at the side of Hooker Boulevard and then proceeding across the pedestrian crossing, riding his bike at what she described as a brisk walking pace.  As he passed her vehicle she saw that there was a green arrow showing and a red light facing her.  The green arrow changed to orange when the plaintiff was passing the front of the bus.  Before that occurred she had seen about 10 vehicles turning right from Hooker Boulevard and in her rear-view mirror she observed another vehicle travelling along the right turn lane towards the intersection.

1. She said that “Pretty much basically straight away as soon as the light was orange I heard the sound of the hit, the collision.”  She described the impact as occurring between the front wheel of the bicycle and the car’s front left-hand panel and described the plaintiff rolling up onto the bonnet of the car and into the windscreen.  The light facing her turned green and she crossed the intersection and stopped so as to render assistance to the plaintiff.  She recalled that the driver of the vehicle called the plaintiff a “Bloody idiot.”  She said that the vehicle which struck the plaintiff was moving “Pretty quick” and estimated its speed at 45-50kph.  Her evidence also confirmed the light phases set out in Exhibit 21.

1. The first defendant said that he was driving his vehicle westerly in Hooker Boulevard intending to turn right into Bermuda Street.  Traffic was heavy and he was unable to turn during two right-turn phases but on the third green arrow he was able to move into the turning lane.  His speed was 45-50kph and the green arrow was lit.  As he came to the intersection his attention was on his intended direction of travel.  As he reached the pedestrian crossing he heard a noise to his left, brought his vehicle to a stop and on alighting, found the plaintiff on the roadway beside his vehicle.  He had not braked at all before the impact occurred.

1. In cross-examination he agreed that he had previously seen people cross a road against “Don’t Walk” signs.  When asked how often he’d experienced that he replied “Not very often but yeah, once in a while you could see people, they do the wrong thing.” 

1. He was also asked if he had seen cyclists riding across pedestrian crossings and answered “Once in a blue moon, yeah.”  Further, Mr Di Carlo asked if he had covered his brake pedal as he came up to the intersection at the pedestrian crossing and he replied in part, “The last minute near the end I wouldn’t because it wasn’t a great speed and everybody was moving.  I was moving too, I was following the traffic.”  He agreed however, that there was a gap of no more than two car lengths between his vehicle and the one ahead of him as he came to the intersection.  When he last looked at the lights he had a green arrow in his favour and thereafter his attention was towards his right where he was intending to travel.

1. I am satisfied that all the witnesses described above endeavoured to give honest evidence.  On my assessment of the events as a whole I rely particularly on the account given by Ms Nolan.  She was stationary at all relevant times and had what could be described as a “grandstand view”.  I find that the plaintiff rode his bicycle across the pedestrian crossing in Hooker Boulevard from south to north at a brisk walking pace when the “Don’t Walk” sign was lit.  The first defendant was in the process of making a right-hand turn from the turning lane in Hooker Boulevard and was travelling at 45-50kph.  Until moments before the collision the right turn arrow was green but that light changed to amber at the time of or very shortly before the collision.  I find that the front wheel of the plaintiff’s bicycle collided with the front left-hand panel of the first defendant’s vehicle, probably forward of the wheel arch.  I am satisfied that the first defendant was looking ahead and to his right as he neared the pedestrian crossing and he had only a glimpse of the plaintiff before the collision occurred.  This is demonstrated by the plaintiff’s description that the first defendant looked “shocked” immediately prior to the impact.  I find that in the circumstances outlined above the first defendant had no chance at all of avoiding the collision, as the plaintiff emerged, suddenly and quickly, past the front of the bus.

1. Counsel for the plaintiff argued that the first defendant had had a duty to keep a lookout for pedestrians as he approached the pedestrian crossing in Hooker Boulevard and breached that duty by travelling at an excessive speed so that he was unable to stop to avoid a collision.  There is no question of there being any other manoeuvre he might have made to do so.  Mr Di Carlo in particular suggested that the first defendant ought to have been “covering” his brake pedal ready to apply his brakes should a pedestrian appear suddenly from in front of the bus on his left.  He sought to extract a duty so to act from decisions such as GIO (NSW) v Ergul (1993) Aust Torts Reports 62633, Stocks and McDonald Hamilton Co. Pty Ltd v Baldwin (unreported, NSWCA No. 40434 of 1996), Cook v Hawes [2002] NSWCA 79 and the line of authority establishing that a driver of a motor vehicle approaching an intersection cannot safely ignore traffic entering the intersection from his left (such as, for example, Sibley v Kais (1967) 117 CLR 424 at 427; Trompp v Liddle (1941) 41 SR (NSW) 108 at 109; Middleton v Freier [1958] Qd R 351 and South Australian Ambulance Transport Inc v Wahlheim (1948) 77 CLR 215).

1. In Ergul’s case (supra) the plaintiff walked across a major street on a marked pedestrian crossing contrary to a “Don’t Walk” sign.  To the left he could see only a large truck in the median lane about 100 metres away.  When more than half way across the road he looked again to his left and saw the truck in the middle lane which was still some 50 or 60m from the pedestrian crossing.  He saw that it was not moving quickly because it seemed as though it was loaded, and continued across the road.  When about a metre from the kerb he was struck by a motor cycle, the presence of which must have been concealed by the aforesaid truck.  The Court of Appeal (New South Wales) upheld the decision of the trial Judge finding the driver negligent and apportioning blame as to 25% against the pedestrian plaintiff.

1. Clark JA dissented from the majority reasoning as to the apportionment and while not dissenting from the finding of negligence, he certainly adopted a different view of the obligations of modern motorists.  At p 2 of the unreported judgement he said:

“Contrary to what appears in the other judgments I do not accept that where a driver is driving his or her vehicle in a busy street at peak hour at 40 kph beside a truck, which obscured his or her vision to the right, he or she is obliged to slow down when approaching a pedestrian crossing controlled by lights, when the lights are in his or her favour to such an extent so that he is able to stop instantaneously if some foolish pedestrian has embarked on a foolhardy crossing.  If drivers throughout the metropolitan area all drove in that way they would bring the traffic to a standstill.  For instance, there are about 66 sets of traffic control lights on Parramatta Road between Central Station and Parramatta and if every driver approached the lights, when in his or her favour, in the way suggested by the majority, they would create havoc during peak hour traffic.”

1. In my view Ergul’s case is clearly distinguishable on the facts.  There was no evidence relating to the movement of the vehicle which struck the plaintiff.  Indeed, it was not known whether that vehicle was a motor cycle or a motor car or other vehicle.  Undoubtedly this led the third member of the Court of Appeal, Meagher JA, to say:

“Moreover, if the plaintiff’s vision of the bike or vehicle was obscured, the driver of that bike or vehicle would have had no vision of the plaintiff.  Although the facts are a trifle slight, I think his Honour was correct in drawing an inference that, on the balance of probabilities, the bike or vehicle was either being driven too quickly or was not keeping a proper lookout or both.  Otherwise it is not easy to see how the accident could happen.  It is common knowledge that pedestrians cross roads at pedestrian crossings both with the lights and against the lights.  It is therefore a breach of duty for a driver in the inside lane with his vision obscured to drive so fast that he cannot stop immediately if a pedestrian emerges.”

1. In Cook v Hawes (supra) the Court of Appeal considered a collision between a motor vehicle and a pedestrian in or near a pedestrian crossing controlled by lights.  The defendant had driven a van north along George Street, Sydney in the lane nearest the centre at approximately 50 kph.  The respondent entered a pedestrian crossing against a red “Don’t Walk” signal, moving “much faster than a pedestrian would normally move”.  The Court of Appeal upheld the trial Judge’s decision that the appellant was negligent in that he had driven at an excessive speed at 50 kph.  This was so because the respondent had crossed nearly two traffic lanes in view of the appellant before he was struck and when first seen by the appellant was still 30 metres away.  The decision and the basis of that decision are clearly distinguishable.

1. As to the trial Judge’s apportionment of liability equally in the parties, the following appears in paragraph 16 of the judgment:

“However, in my opinion the apportionment was so unreasonable as to disclose error.  It is true that a high standard is required of a person in control of a lethal object in a city street; but negligence was found against the appellant only because of what might be regarded as a small and momentary lapse from that high standard.  On the other hand, the respondent moved quickly across the road, against the traffic lights, without looking for traffic, in circumstances where there were no other pedestrians on the crossing but were other pedestrians waiting at the kerb. …  The respondent’s responsibility for the accident was substantially greater than the appellant’s.”

1. Stocks and Anor v Baldwin (supra) also concerned a collision between a motor vehicle driven by the defendant and a pedestrian.  The plaintiff had alighted from a bus on the eastern side of Condamine Street, Manly Vale at about 4.30pm on the 29^th of March 1990.  At that time it was raining or had been raining and the surface of the road was wet and might have been greasy.  The conditions were described as murky and overcast with some component of reduced visibility.  The plaintiff left the eastern side of Condamine Street stooped over or huddled over as she walked to the median strip where she paused briefly and then walked purposefully without pausing, and apparently without looking, across the lane of stationary traffic adjacent to the median strip on the western side of Condamine Street, across the adjoining middle land and into the kerbside lane where she was struck by the motor vehicle driven by the defendant.  The speed of the defendant’s vehicle was estimated at 25-35mph.  The defendant was held to have been negligent in driving at an excessive speed and liability was apportioned 60:40 in favour of the plaintiff. 

1. At p 10 of the unreported judgment Simos AJA, with whom Sheller JA agreed, said:

“Notwithstanding that it is, in my opinion, generally correct that the appellant was entitled to assume that a person in the position of the plaintiff would take reasonable care for his or her own safety by pausing and looking to the left before stepping into the kerbside on the western side of Condamine Street, it would still, in my opinion, have been reasonably foreseeable that a person in the position of the plaintiff, more especially in the prevailing conditions at the time, might not take reasonable care for his or her own safety and act as did the plaintiff in the present case.  In such circumstances a reasonable person in the position of the appellant is in accordance with Shirt’s case, required to assess both the magnitude of the risk and the degree of probability of its occurrence along with the difficulty and inconvenience of taking alleviating action.  In my opinion, in the present case the magnitude of the risk of a pedestrian acting in the manner in which the plaintiff acted was great, although the degree of probability of its occurrence was slight.  Nevertheless there would, in my opinion, have been no difficulty or inconvenience for the appellant to take alleviating action in the circumstances of the present case by slowing down to a speed less than 25-35mph which might well have enabled the accident to be avoided, and, in my opinion it was open to the learned trial Judge to take that view.  …

“In my opinion, if, in the circumstances of the present case, the appellant had been travelling at a speed of less than 25mph he may well have been able to stop his vehicle after the time when, in the particular circumstances of the present case, he should have first seen the plaintiff and before colliding with the plaintiff.”

1. Thus it is clear that in Stocks v Baldwin, as in the other cases relied upon by Mr Di Carlo, the defendant found guilty of negligence had the opportunity to see the plaintiff at such a distance ahead that the collision could have been avoided.  That is not the factual situation in this matter.  The first defendant had no warning or any reason to suspect that a pedestrian might emerge from in front of the large bus on his left.  Much less was there any reason to expect that the plaintiff would suddenly appear on his bicycle, possibly travelling at a speed greater than one would normally expect in a pedestrian.  It seems beyond question that the collision occurred simultaneously with the plaintiff and the first defendant becoming aware of each other’s presence on the roadway.  The High Court had occasion to consider a collision which occurred in similar circumstances in Derrick v Cheung (2001) HCA 48. There the infant plaintiff emerged suddenly from between two parked vehicles into the path of the defendant’s vehicle which was travelling at a speed estimated at about 40-50kph where the standard urban speed limit of 60kph applied. In the Court of Appeal passages from the judgment of the President of the Court in Stocks v Baldwin (supra) were considered relevant.  After quoting some of those extracts, the majority in the Court of Appeal went on to say:

“It is questionable whether the driving standards required by the statements in Stocks v Baldwin are compatible with current driving practice in Sydney and its environs, or indeed always practical in the traffic conditions which exist.  However that might be, they often do not correspond with the driving habits of many Sydney drivers.

It does not necessarily follow that they are a counsel of excessive caution or otherwise require an unreasonable standard of care.   The circumstances that the exigencies of movement in and around the city cause many to drive too fast for the prevailing conditions might make such speed “reasonable” in one sense but does not mean it is not a breach of duty to other road users.

Accidents such as the present (involve) special difficulties.  Theoretically a pedestrian might run out into the traffic at any point at any time.  A driver might have no opportunity to avoid a collision.  However, the slower the vehicle, the greater the opportunity that exists.  Nevertheless, travelling within the designated speed limit and in conformity with the traffic flow is ordinarily reasonable.  Indeed, to do otherwise would often create risks.”

1. The Court of Appeal, by majority, determined not to intervene.  However Davies AJA in dissent said:

“The facts of the present case were different from those in Stocks v Baldwin for there was no particular perceivable risk which the appellant should have taken into account but did not.  She drove with other cars at a modest speed 45-50kph keeping an appropriate distance between her vehicle and the vehicle in front and keeping a proper lookout.  The appellant’s driving was appropriate in the circumstances.  For the appellant to keep up with the general flow of the traffic, when the traffic was travelling at a modest speed, well under the speed limit, and when there was no particular danger observable, was both a reasonable and a proper response to the traffic conditions on the day.  For the appellant to have dawdled along Victoria Avenue when no particular danger was apparent would not have been appropriate for it would have caused disruption.”

The High Court agreed; in paragraph 13 of the judgment the following appears:

“The appeal to this Court must be upheld.  There is no basis upon which any finding of negligence on the part of the appellant could be made.  That the facts of the case are tragic and the collision a parent’s worst nightmare, as the trial Judge accurately described them, did not relieve his Honour of his obligation to determine the issues according to law:  in this case, by not finding an absence of care in the circumstances in which reasonable care was as Davies AJA correctly held in fact being exercised.  Even if the inference which the trial Judge drew, that if the appellant’s speed had been slower by a few kilometres per hour she would have been able to avoid the collision, was more than mere speculation, it is still not an inference upon which a finding of negligence could be based.  Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable.  Different conduct on the part of those involved in them almost always would have produced a different result.  But the possibility of a different result is not the issue and does not represent the proper test of negligence.  That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care. …

Stocks v Baldwin to which the Court of Appeal referred depended on its own facts.  The observations of Mahoney P were made with particular reference to the facts under consideration in that case.  In any event, even if his Honour’s remarks were intended to lay down general rules, they were not ones to be applied here.  What was unlikely in this case was that an unattended infant of such tender years would dart in front of a relatively slow-moving vehicle on a busy road in such a way that the collision was to all intents and purposes unavoidable.”

1. Derrick v Cheung (supra)  has been followed and applied in the New South Wales Court of Appeal.  In Knight v Maclean [2002] NSWCA 314 at para 66 Heydon JA said:

“So here, the defendant’s driving was intrinsically careful.  He was not exceeding the speed limit; he was moving with the traffic flow; there is no suggestion he was not keeping a proper lookout from the car in front; if he did not see the start of the plaintiff’s journey through a failure to look to the left, or a failure to appreciate the extent to which his view might be blocked, he was in no worse a position than the defendant in Derrick v Cheung.  And indeed in a better position because of the existence of lane two to his left.  He was entitled to drive with his eyes ahead of him until he noticed something to the left which called for greater concentration on the left.  There was nothing on the left calling for greater concentration until the sudden emergence of the plaintiff, and that was too late to give the defendant any opportunity to avoid the collision.  Finding that the defendant was liable would be to create a form of strict liability, not to recognise a form of liability in negligence.”

His Honour’s view of the liability of the defendant differed significantly from that of the trial Judge who had said, in para 11:

“Balancing all the known facts, the accounts of the eye-witnesses and the different accounts of Mr Knight, the defendant, I am driven firmly to the conclusion that in the seconds prior to the subject accident occurring Mr Knight was driving his motor vehicle without showing the degree of vigilance and lookout that is demanded of a motorist using the public highway because in law the motorist does not enjoy a right of way in respect of a pedestrian crossing the road any more than the pedestrian enjoys a right of way against a motorist proceeding down the road.  The available cone of vision to a motorist travelling in lane three is a superior one to that of a motorist travelling in lane two as far as observations of pedestrians seeking to cross the road are concerned.  Palace Street was an intersection in the immediate vicinity of the subject accident.  The long experience of mankind that intersections are places where one is more likely to encounter pedestrian and vehicle traffic is surely reflected in the somewhat out-of-date but nevertheless still current regulations under the Metropolitan Traffic Act which required the driver of a vehicle to reduce his speed to a walking pace at intersections and certain other instances.  The reasonable motorist on a highway such as the Parramatta Road is not entitled to expect that pedestrians will allow him or her right of way.  He must drive in anticipation of a pedestrian crossing the road in such a fashion as to require him to adjust his speed downwards if he and the pedestrian were to continue.”

1. I am conscious of the injunction against treating decisions on the facts of one decided case as laying down rules of general application given by Windeyer J in Teubner v Humble (1963) 108 CLR 491 at p 503. However, it seems to me that dicta of the High Court and the New South Wales Court of Appeal referred to above in Derrick v Cheung (supra) and Knight v Maclean (supra) are particularly apposite to the fact circumstances of this case.  I am satisfied that the defendant was travelling at a reasonable speed, well within the speed limit which applied, that he was keeping a proper lookout forward and principally to his right, and that there was nothing in the circumstances that prevailed which ought to have put him on guard against the sudden emergence of the plaintiff on his left.  The plaintiff himself said that he had no chance to avoid a collision with the first defendant’s vehicle and therefore it could not be said that if the defendant had driven at a slower speed the collision may not have occurred unless it was driven at a speed that was unrealistic in the circumstances.  In my opinion, to find the first defendant guilty of negligence, on the view of the evidence that I have formed, would in the words of Heydon JA, involve a finding of strict liability.

1. I find, therefore, that the plaintiff has failed to establish negligence in the first defendant and his action must be dismissed.

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