Martin v Reda

[2004] QCA 268

SUPREME COURT OF QUEENSLAND

CITATION:

Martin v Reda & Anor [2004] QCA 268

PARTIES:

JEFFREY JASON MARTIN
(plaintiff/appellant)
v
TONY REDA
(first defendant/first respondent)
SUNCORP METWAY INSURANCE LIMITED ACN 075 695 966
(second defendant/second respondent)

FILE NO/S:

Appeal No 11944 of 2003
DC No 613 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Personal Injury

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

6 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2004

JUDGES:

Jerrard JA, Atkinson J and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

TORTS – NEGLIGENCE – GENERAL MATTERS – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – IN GENERAL – where appellant sustained injuries in a collision between the appellant’s bicycle and the first respondent’s car – where appellant struck whilst riding bicycle across a pedestrian crossing against a “Don’t Walk” signal – where first respondent driving car in an appropriate and reasonable manner – whether first respondent should have taken precautions to avoid collision – whether first respondent negligent

Cook v Hawes [2002] NSWCA 79, distinguished
Derrick v Cheung (2001) 181 ALR 301, considered
Government Insurance Office of New South Wales v Ergul (1993) Aust Torts Reports ¶81-252, distinguished
Knight v Maclean [2002] NSWCA 314, considered
Stocks v Baldwin (1996) 24 MVR 416, distinguished

COUNSEL:

S Di Carlo for the appellant
S C Williams QC for the respondents

SOLICITORS:

Baker Johnson Lawyers for the appellant
Jensen McConaghy Solicitors for the respondents

1. JERRARD JA:  The plaintiff Jeffrey Martin has appealed against a decision in the District Court holding that he failed to establish negligence in the first defendant Tony Reda in a collision between Mr Martin’s bicycle and Mr Reda’s motor car on 3 July 1998, and dismissing Mr Martin’s claim for damage for personal injury against Mr Reda as first defendant and Suncorp Metway Insurance as second.  The learned trial judge had held that to find Mr Reda guilty of negligence, on the view of the evidence formed by the judge, would involve a finding of strict liability.  Mr Martin’s counsel argued that the learned judge erred in various conclusions of fact and in law as well.

1. The evidence upon which the learned judge relied, and the judge’s findings of fact, are carefully described in paragraphs [1]-[12] of the reasons for judgment,[1] and I respectfully observe that since I could not improve upon those, I will simply repeat them. They read as follows:

   [1]At AR 696 - 701

“[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.

[2] 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 he was too late and his bicycle was struck by the front end of the vehicle and 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”.

[3] 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 passed 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.

[4] The following is recorded in the transcript at p 129, 11 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”.

[5] 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.

[6] 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 2) 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 11 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.

[7] 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.

[8] 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 describing 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.

[9] 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.

[10] 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.”

[11] He was also asked if he had seen cyclists riding across pedestrian crossings and answered “Once 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.

[12] 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 45-50 kph.  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, passed the front of the bus.”

Grounds of Appeal

Ground (a)

1. The appellant’s first ground was that the learned trial judge’s finding that the front wheel of the plaintiff’s bicycle collided with the front left hand panel of Mr Reda’s car was contrary to the weight of the evidence and to evidence which the judge accepted from the witness Nolan and the plaintiff.  On the hearing of the appeal the appellant’s counsel argued that the trial judge had wrongly found that “the bike hit the car”,[2] but that submission is unsupportable.  The learned judge did not expressly so find, but in any event would have been entitled to.

   [2]At transcript p 6

1. The learned judge described the fact of collision between the bicycle’s front wheel and the car’s front passenger side panel, the description supported by all three witnesses to the collision.  The plaintiff’s account[3] in evidence in chief was that Mr Reda had:

   [3]At AR 21

“come and hit me on the left hand side of the front of the car.”

He repeated that description in cross-examination.[4]   The plaintiff was asked:

“You’ve told us already the point of impact on the car ----? – Yes.
----With your bicycle was on the near side front corner?
Yes
Okay? This plan seems to show you riding in the side of the car? – Yes
You would disagree with that as to how the accident precisely occurred? – Yes, it was more up the front, front guard; yes.”

[4]At AR 125

1. That description accords with the judge’s finding in paragraph [12]. It also accords with the evidence of the witness Nolan and Mr Reda. Ms Nolan’s evidence in chief was as follows:

“Yes? --- He was hit from – on the front wheel with the car on the front left-hand panel and rolled up onto the bonnet into the windscreen.
So the car hit him? – yes
On the front wheel of the bike?” – yes.”[5]

[5]At AR 175

1. Although she agreed that the “car hit him”, the facts she described were as found by the judge.  She had been called by the plaintiff.  Mr Reda’s evidence in chief was that:

“the guy hit the car between the front guard and the front door, I had to be on the – actually on the pedestrian, that’s all I can tell you, because I don’t know, no.”[6]  (He had been asked whether the collision was on the pedestrian crossing).

[6]At AR 248

He was asked what damage his car suffered and he replied:

“Windscreen, front guard, right reverse mirror.” (And) “Yeah, and bit on front door, because that’s what it was, left front door.”[7]

Mr Reda was specific in cross-examination[8] regarding the impact, that:

“It was the side.  It wasn’t the front.  It was on the side near the front.  It wasn’t the front at all.”
“The left hand side near the reverse mirror.  That’s where the impact was.  Don’t distort my words.  That’s the mirror, reverse mirror, that’s the spot.  It’s not the front, it’s not the back.  It’s there.”

[7]At AR 248

[8]At AR 254

1. The evidence quoted from the plaintiff, the witness, and first defendant support the judge’s finding 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; any other finding would have been against the evidence.

Ground (b)

1. The appellant’s next ground of appeal complains that the learned judge erred in finding that Mr Reda was travelling at a reasonable speed in the circumstances and had had his vehicle so far under control as to take into account events which might occur in and around a pedestrian crossing and traffic lights.  The learned judge did not make a finding in precisely those terms, but did find that: [9]

   [9]At [21] of the reasons for judgment; AR 705

“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 learned judge also found:[10]

“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 driving 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,[11] involve a finding of strict liability.”

[10]At reasons [24]; AR 709

[11]When giving the principal judgment in Knight v Maclean [2002] NSWCA 314 at [66]

1. The finding as to speed was open to the learned judge.  Mr Reda’s evidence in chief was that his speed “wasn’t that fast, maybe 40, 45, would not be more than that”,[12]and he added in re-examination that his vehicle was travelling at the same speed as the vehicles ahead of his in the right turning lane.[13]  He also repeated in that re-examination his description that his vehicle was at most a “couple of cars’ length” behind the vehicle turning right in front of his, which evidence was consistent with his description in cross-examination that the last vehicle in front of his was a distance away of “a couple cars, no more than that, yeah, may be 10 metres, five metres, something like that, yeah”[14], and that this was “A couple cars but no more than that.”

   [12]At AR 247

   [13]At AR 265

   [14]At AR 257

1. The learned trial judge impliedly or necessarily accepted Mr Reda’s evidence 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, in paragraph [11] of the reasons for judgment.  The judge expressly found Mr Reda was travelling at a reasonable speed in circumstances in which there was nothing that ought to have put him on guard against the sudden emergence of Mr Martin on his bicycle from Mr Reda’s left.  Mr Martin had given the following evidence in cross-examination: [15]

“And the bus is a big, square object or rectangular object, so that no driver would have had a chance to see you until you emerged in front of that bus. Isn’t that right? –- Yes.
(And):
“All right.  And when cars are going through on the turning lane, they would pass with a gap of about a metre to the stationary bus.  If they were going through? – Yes, yes.
That’s about the distance a driver would drive away from where the bus was? – Yes, yes. 
So in going past the bus, there is only a metre from there to where the point of impact occurred? – Yes.”

[15]At AR 128

1. The evidence justified the described findings the learned judge did make.  What the appellant’s counsel focused on, in attacking the finding he attributed to the learned judge, was Mr Reda’s agreement in cross-exanimation that he had known there was a bus stoped at the intersection in the lane immediately to his left and ahead of his vehicle.  That bus was higher than his vehicle, and extended “probably two or three car lengths backwards.”[16]  The following cross-examination occurred:

“Now, it is fair to say then that you knew probably at least 100 metres before or more that when you were going up that right-hand lane you couldn’t possible see to your left? – Yep.
And when you approached that intersection from 100 metres or more back the only place you could see was right? – Right there. 
And it is fair to say at no time did you look to your left – Yeah, I looked to my left.
And what was there? – Cars, bus, but you still have to look right because I’m turning right.”

[16]At AR 255

1. The appellant’s argument was that the observed presence of the bus provided a warning to Mr Reda of the possibility of a pedestrian or cyclist emerging from his left and in front of that bus, as Mr Martin in fact did.  That submission derived such force as it had from Ms Nolan’s evidence in chief that there had been a break for “a couple of seconds”[17] between the car preceding Mr Reda’s and his, when no cars went through turning right at all.  It is a valid argument that the greater the distance between the preceding car and Mr Reda’s, the greater the possibility that a pedestrian or cyclist disobeying the red “Don’t Walk” sign facing that person, and who intended to cross Mr Reda’s right turning lane, might wrongly calculate that lane was now empty and that it was safe to cross; and that a prudent driver would slow as that appreciable risk emerged.  But as to that circumstance, the learned trial judge impliedly accepted Mr Reda’s evidence of the limited gap between his car and the preceding one, and in cross-examination Ms Nolan agreed that the presence of the bus to her immediate right could have obstructed her vision of “another vehicle or two” in front of Mr Reda’s.[18]  Accordingly, the important factual basis for a circumstance sufficient to alert Mr Reda of the possibility of an emerging pedestrian or cyclist, namely a gap greater than his described two car lengths or 10 metres, was not established by the independent evidence of Ms Nolan and was contrary to the sworn evidence of Mr Reda. 

   [17]At AR 174

   [18]At AR 185

1. The plaintiff’s evidence did not describe reliance by him on a gap between the preceding vehicle and Mr Reda’s, but instead described his reliance on what was in fact a wrong assumption that the right turning arrow facing Mr Reda was red.[19]  On the evidence the judge accepted, and which was undisputed on appeal, the right turning arrow facing Mr Reda was green until the moment when Mr Martin passed in front of the bus, when it changed to yellow.  There is a phase[20] in which the right turning arrow is yellow for five seconds; and then all lights facing westbound traffic (like Ms Nolan’s and Mr Reda’s cars and the bus), are red for two seconds, before all those lanes face a green circle and a green arrow. That phase happens in the change from phase D to phase D1, referred to in the reasons for judgment at [6]. It was common ground at the appeal that Mr Martin was crossing against a red “Don’t Walk” sign, and during the change in phases the trial judge described.

   [19]He was cross-examined on those matters at AR 129; it appeared he still considered the right turning arrow facing Mr Reda had been red

   [20]Described in uncontested evidence of the traffic signal operation, at AR 669-70

Ground (c)

1. The appellant’s third ground of appeal was that the learned judge had erred in finding that there was nothing in the circumstances that ought to have put the defendant on guard against the sudden emergence of the plaintiff.  That ground was based on the matters already considered in this judgment.  I consider it must fail, because Mr Martin did not establish that there had been any appreciable gap between Mr Reda’s car and the preceding one.

Ground (d)

1. The next ground of appeal was that the trial judge erred in law in saying that to find Mr Reda negligent would involve a finding of strict liability.  In considering that ground it is relevant to understand that the finding by the learned judge that Mr Reda had no chance at all of avoiding the collision, because Mr Martin emerged so quickly and so suddenly, was not challenged; and Mr Martin’s evidence was that when he saw Mr Reda’s car “I sort of hesitated, but it was a bit too late”[21], and he did not suggest he could have avoided the collision, riding at the speed he was.  Since the front wheel of his bicycle did collide with the front passenger portion of Mr Reda’s car the collision could only have been avoided if Mr Reda was going either very slowly or extremely fast.  He was acting reasonably in the circumstances in not slowing his vehicle – and it would need to be almost to a stop – to avoid what would have seemed the remote possibility that a pedestrian or cyclist would emerge suddenly into a continuous line of traffic which included Mr Reda’s vehicle, when that line of traffic was moving in conformity with a traffic signal, and where that pedestrian or cyclist would be proceeding against an illuminated “Don’t Walk” sign, and without keeping any lookout.  I respectfully consider the view taken was open to the learned judge.

   [21]At AR 21

Ground (e)

1. The next ground is that the learned judge was wrong in fact in describing the area as not having any shops, schools or business premises in the immediate vicinity, when the learned judge stated the he knew the area, and when the judge “appears to have ignored the appropriate inference to be drawn by the fact that two pedestrian crossings were located at the intersection and further by ignoring the fact that it was a busy intersection with road works being performed and people in the vicinity”.

1. Mr Reda’s evidence was that he was aware of road works going on, somewhere around the area, that there were “men working in that area”, and that it was one which had been under redevelopment for some considerable time.[22]  There was no evidence as such of any “shops, schools or business premises in the immediate vicinity”; such evidence as there was seems to have been that given by Mr Reda, and its relevance lay in its capacity to support the appellant’s argument that the first defendant ought therefore to have anticipated the possibility of pedestrians or cyclists at the intersection, who might act without care for their safety.  This ground of appeal is really a sub-set of the last two, and urges a finding that Mr Reda ought to have travelled more slowly to avoid injuring the “once in a blue moon” risk of a self endangering cyclist or pedestrian.  On this sub-ground too the important factual issue is really whether or not Mr Reda was simply part of a moving line of traffic, with no reason to perceive any greater risk that a pedestrian or cyclist would emerge in front of his car than in front of any of the preceding ones.  That issue was decided against Mr Martin, whose counsel candidly agreed on the appeal that his submission meant all the vehicles turning right in front of Mr Reda’s were negligently driven too.[23]

   [22]At AR 250

   [23]At transcript 33

Ground (f)

1. The next ground of appeal is expressed in these terms:

“The learned trial judge appeared to accept that it is reasonable for a person in charge of a motor vehicle, with a greater onus than a pedestrian or cyclist, to look straight ahead in the direction he was travelling, and to keep his eyes following his direction of travel at all times, despite the fact that there was a large bus obscuring the defendant’s view to the left.”

The judge’s findings of fact have been described as has Mr Reda’s evidence, which was that he did look to his left but was obliged to look where he was going.  This ground of appeal overstates both the findings of the judge and the evidence of Mr Reda.  Apart from that, it seems sensible for a driver to look ahead in the direction of travel of his or her vehicle. 

Asserted errors of law

1. The final ground of appeal is expressed as follows:

“The learned trial judge was wrong in fact and law in distinguishing GIO (NSW) v Ergul (1993) Aust Torts Reports 62, 633; Cook Hawes [2002] NSWCA 79 and Stocks & Anor v Baldwin (unreported, NSW CA, 40434/1996), which were put forward for the Plaintiff, and at the same time drawing upon the dissenting judgment of Heydon JA in Knight v MacLean [2002] NSWCA 314 and presumably adopting Derrick v Cheung (2001) HCA 48, when if any case was distinguishable then that was the case, and it should have and would have been easily distinguishable on the facts.”

1. The judgment under appeal actually provided a careful analysis both of the decisions in the cases referred to in that ground of appeal, and in others.  The judge considered what the judge described as the line of authority establishing that a driver of a motor vehicle approaching an intersection cannot safely ignore traffic entering the intersection from the driver’s left, referring to Sibley v Kais (1967) 118 CLR 424 at 427; Middleton v Freier [1958] Qd R 351, and South Australian Ambulance Transport Inc v Walheim (1948) 77 CLR 215 at 222 and 228. The learned judge also made a careful analysis of Government Insurance Office of New South Wales v Ergul (1993) Aust Torts Reports ¶81-252, which involved a plaintiff pedestrian who was one of a number of pedestrians crossing a major carriageway against a “Don’t Walk” sign. That pedestrian had looked to his right, seen nothing, looked to his left and seen only a truck approaching in the median lane and some 100 metres away when the pedestrian began crossing the road, and when the pedestrian was about one metre from the curb which was his target, he was struck, probably by a motorcycle, travelling in that far lane adjacent to the curb and presumably obscured from the pedestrian’s view by the truck. The New South Wales Court of Appeal upheld a decision of the trial judge finding the unidentified driver of the unidentified vehicle negligent, and apportioning blame as to one third against the plaintiff.

1. Mahoney AP inferred from the facts that the pedestrian would have been in view of the cyclist for at least part of the time during which the cyclist approached the pedestrian crossing;[24] and held it was that driver’s duty, in accordance with the standard of care described by Regulation 67(2) of the Motor Traffic Regulations 1935 (NSW), to drive at such a speed as to be able if necessary to stop before reaching the crossing and give way to persons already on it, and who would be crossing against the sign.[25]   That learned judge found it difficult to understand how, if others were also on the crossing, a cyclist approaching it who had kept a proper lookout would not have seen that there were people on it and taken precautions accordingly.  Meagher JA thought the learned trial judge correct in drawing an inference that on the balance of probabilities, the bike or vehicle which struck the pedestrian was either being driven too quickly or was not keeping a lookout, or both.[26]  Meagher JA assumed the driver or rider of the vehicle which hit the plaintiff must have had no vision of the plaintiff, who would have been obscured by the truck (at 62, 641).  He did not expressly reject or accept that that rider or driver had the plaintiff in view, as Mahoney AP had concluded.  The appellant relies on Meagher JA’s comments or observations (at 62, 641) that:

“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.”

[24]At 62, 636

[25]At 62, 637 and 62, 639

[26]At 62, 641

1. If it be assumed the driver or rider did not have the opportunity to see the plaintiff, and that nothing in the way the truck was driven gave notice of pedestrians, I would respectfully disagree that that person was negligent, and agree with what Clarke JA wrote in his judgment dissenting as to the contribution percentages.  His Honour thought those should be reversed, and that:

“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 40kph beside a truck, which obscures 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 or she 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 traffic to a stand still.”[27]

His Honour added in the next paragraph that:

“[C]ourts have, in substance, elevated the ‘reasonably prudent driver’ to the role of the perfectionist.”

[27]At 62, 640

1. The learned trial judge in this matter held that Ergul was clearly distinguishable on the facts.  An important point in that case was that the driver of the vehicle which hit the plaintiff was thought by at least Mahoney AP to have had the opportunity to see both the plaintiff and other pedestrians crossing that roadway.  I add that the appellant’s final ground of appeal, where the appellant inaccurately described the judgment of Heydon JA (as His Honour then was) in Knight v Maclean [2002] NSWCA 314 as a dissenting judgment, had presumably intended to refer to that partly dissenting judgment of Clarke JA in Ergul, from which the learned trial judge cited the same passage cited herein. 

1. The learned trial judge, while correctly observing that Clarke JA had adopted a different view of the obligations of modern motorists from that of the majority in Ergul, certainly gave appropriate consideration to the views of that majority, and  specifically quoted from the reasoning of Meagher JA.  The judge distinguished that case, Cook v Hawes [2002] NSWCA 79, and Stocks v Baldwin (1996) 24 MVR 416, as all being ones where a defendant found guilty of negligence had the opportunity to see the plaintiff at a distance at which a collision could have been avoided; unlike the instant case, on the facts the learned judge found. 

1. That was an accurate basis for distinguishing all three cases, on the assumption made by Mahoney AP in Ergul.  The learned judge described Cook v Hawes as a case where the New South Wales Court of Appeal had considered a collision between a motor vehicle and a pedestrian on 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 50kph.  The respondent, who was colour blind, entered that 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 of 50kph.  This was because the respondent had crossed nearly two traffic lanes in view of the appellant before being hit, and when the appellant had caught sight of the respondent while he was still about 30 metres away.  The appellant’s evidence had been that he did not brake immediately on seeing the respondent, but waited until he confirmed the respondent was crossing the road.  That description of the decision in Cook v Hawes given by the learned trial judge accords with the description in the leading judgment of Hodgson JA in the case; the court reduced the respondent plaintiff’s damages, holding that an appropriate apportionment would be 25% liability for the appellant and 75% the respondent.

1. The learned trial judge also distinguished Stocks v Baldwin. The trial judge’s description of that case was that it was one in which that plaintiff had alighted from a bus on the eastern side of Condamine Street, Manly Vale (Sydney) at about 4.30p.m. on 29 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 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 lane, and into the adjoining curb side lane where she was struck by the motor vehicle driven by the defendant.  The defendant was held to have been negligent in driving at an excessive speed, and a liability was apportioned 60/40 in the plaintiff’s favour. 

1. That description accords with the principal judgment on the facts, of Simos AJA.  That defendant was found to have been driving at 25-35 miles per hour, and Mahoney P held that the possibility of a pedestrian doing what the plaintiff did was such that a reasonable driver would have accepted that he or she should drive more slowly, at such a speed to be able to cope with such an emergency if it arose.  The plaintiff in that case had walked through two lines of stationary traffic before entering the lane in which the defendant was driving, and there was no evidence, referred to in the appellate judgments, of any obstructions to the defendant’s vision other than the lines of cars through which the plaintiff walked, albeit somewhat huddled over.  The learned trial judge in this matter was accordingly justified in distinguishing that case as well on the grounds that that defendant had an opportunity to see that plaintiff and avoid a collision.

1. Mahoney P made some more general remarks in Stocks v Baldwin, which are adverse to the appellant’s case here.  That learned judge noted that the duty of care a driver owes to potential pedestrians does not require that drivers drive in such a way that all danger is removed and no damage can occur (citing from the judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48); and observed that while it is foreseeable that a person may step suddenly from behind a parked car or other obstruction into the path of an oncoming vehicle (his judgment referred to Chin v Venning (1975) 49 ALJR 378), the law does not require that all travel be at a speed slow enough to be able to stop before hitting such a person (referring generally to Nolan v Marsh Motors Pty Ltd (1965) Qd R 490 and Daly v Liverpool Corporation (1939) 2 All ER 142). He stressed that the reasonable person would accept that it is not the duty of a driver to drive so that there is no foreseeable risk of injury to others, and that to think otherwise would be to ignore the realities of city life.

1. The learned trial judge did not cite those remarks, although they are relevant to this matter.  The learned judge, remarking that the collision occurred simultaneously with the plaintiff and first defendant becoming aware of each other’s presence on the roadway, wrote that those circumstances were similar to the ones considered by the High Court in Derrick v Cheung (2001) 181 ALR 301. The judge described that as the case in which 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. That description accords with that in the judgment of the court in Derrick v Cheung.  That plaintiff was aged about 21 months; a combination of parked cars on the left and a tree and some shrubs by the side of the footpath prevented that defendant driver from seeing the plaintiff, or having an opportunity to do so, until the child ran onto the roadway.  The judgment in the High Court describes there having been a fairly steady stream of traffic travelling along each side of the road at the time of the accident, and the defendant’s car was an “average distance” from the preceding one in that stream. 

1. On those facts the primary judge found entirely for the plaintiff child, holding that the driver’s speed although within the limit was excessive, because it was beyond the power of a motorist at that speed to stop in time if a child suddenly appeared. The New South Wales Court of Appeal dismissed an appeal with Davies AJA dissenting, and the majority in that court quoted a different passage from Mahoney P in Stocks v Baldwin from the remarks cited herein in [28].  The passage then cited from Mahoney P read:

“Pedestrians sometimes act carelessly.  I do not mean by this that they do so more often than not.  But, in my opinion, they do so with sufficient frequency that a prudent driver would take account of it.  The likelihood of that occurring is not a “far fetched or fanciful” risk which is to be put aside or discounted.  It is something which occurs often enough for the prudent driver to foresee it and take it into account.”

1. The High Court upheld the appeal, holding there was no basis upon which any finding of negligence on the part of the driver could be made.  It held that the observations last quoted from Mahoney P were made with particular reference to the facts under consideration in that case and if intended to lay down general rules, were not ones to be applied where it was unlikely that an unattended infant would dart in front of a relatively slow moving vehicle on a busy road in such a way that a collision was unavoidable.[28]

   [28]At [14]

1. The court in Derrick v Cheung quoted[29] from the dissenting judgment of Davies AJA below in the New South Wales Court of Appeal, who had written:

   [29]At [10]

“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 moderate speed, 45-50km per hour, 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.”

The joint judgment in the High Court held that Davies AJA correctly held reasonable care was being exercised by the driver, and went on:

“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 for 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.”[30]

[30]At [13]

1. The learned trial judge, whilst recording being conscious of the injunction against treating decisions on the facts of one decided case as laying down rules of general application, held that what was said by the High Court in Derrick v Cheung was particularly apposite to the factual circumstances of this case.[31]  As the trial judge also observed, the judge considered remarks by the New South Wales Court of Appeal in Knight v Maclean particularly apposite as well, that being a case in which the New South Wales Court had followed and applied Derrick v Cheung.

   [31]The judge expressed the findings in [24] of the reasons, cited in [8] herein, in terms similar to those in Derrick v Cheung

1. The learned trial judge cited from the judgment of Heydon JA (as His Honour then was) giving the judgment of the court in Knight v Maclean.  That plaintiff, who was shown to have had a blood alcohol concentration of 0.249 grams of alcohol per 100 millilitres of blood 45 minutes after the accident, had crossed Parramatta Road in a northerly direction and been hit by a vehicle travelling west in the lane nearest the median strip.  That plaintiff had been engaged in a noisy altercation with others on the one side of Parramatta Road and had hailed an east bound Taxi on the other.  The plaintiff was described by a witness as having suddenly bolted out from the curb between two parked cars straight out onto Parramatta Road diagonally, safely crossed two of the (at least three) westbound lanes and then walked into the path of the defendant driver’s vehicle.

1. Heydon JA wrote, at [64] that:

“The movement of pedestrians at some speed across the road was reasonably foreseeable, but the appearance of the plaintiff at a fast walk was not a particular risk or danger which was perceivable, observable or apparent.”

His Honour then wrote the passage cited by the learned trial judge in this case which reads, at [66]:

“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 distance 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.  A finding that the defendant was liable would be to create a form of strict liability, not to recognise a form of liability in negligence.”[32]

[32]The trial judge’s conclusions in [24] of the reasons also reflect Knight v Maclean

1. Contrary to the terms of the appellant’s final ground of  appeal, it was appropriate for the trial judge to “draw upon” the judgment of Heydon JA in Knight v Maclean, adopting and applying as it did the judgment in Derrick v Cheung, in turn approving the remarks of Davies AJA in that case at intermediate appellate level.  Davies AJA had also written, in the passage whose general reasoning was approved in the High Court in Derrick v Cheung, that:

“For the appellant to keep up with the general flow of the traffic, when the traffic was travelling at a moderate speed, well below 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 could have caused disruption.”

1. The learned trial judge was obliged to have regard to the analysis in Derrick v Cheung of circumstances in which a breach of care by a driver has not been established; I note that Heydon JA added in Knight v Maclean the following remarks:

“Indeed if the defendant was obliged to drive in anticipation of the emergence of pedestrians like the plaintiff at a fast walk, he would have also been obliged to drive in anticipation of pedestrians emerging at a run, which would call for slower speed still.  Speeds of such slowness are incompatible with the reasonable use by motorists of Parramatta Road which is a substantial highway between the centre of the city of Sydney and the city of Parramatta.
[68] It is not the law that a driver complying with the minimum requirements of the law of negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which would avoid any risk of a collision at all stages of any journey.  Yet in the circumstances of the present case the trial judge’s test would entail that duty.”

1. On the facts found by the learned judge in this matter Mr Reda was driving his car in an appropriate and reasonable manner.  The possibility of a pedestrian or cyclist emerging from in front of the bus was a remote one against which it would have been unreasonable to take precautions, provided Mr Reda’s car was part of a moving line of vehicles with no more than the distance he described between his and the one before his.  The evidence supported the finding of those facts, which finding I am satisfied was made; and accordingly the appeal must be dismissed with costs.

1. ATKINSON J:  I agree that the appeal should be dismissed with costs for the reasons given by Jerrard JA.

1. PHILIPPIDES J:  I agree with the reasons for judgment of Jerrard JA and with the order proposed.