Murphy v Furka &

[2000] NSWCA 109

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Murphy v Furka & anor [2000]  NSWCA 109 revised - 8/05/2000

FILE NUMBER(S):
40883/98

HEARING DATE(S):           26 April 2000

JUDGMENT DATE:            26/04/2000

PARTIES:
Appellant: Christopher Murphy by his tutor The Protective Commissioner for New South Wales
1st Respondent: Jan Furka
2nd Respondent: Jan Hesek

JUDGMENT OF:      Meagher JA Beazley JA Giles JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        DC 8250/97

LOWER COURT JUDICIAL OFFICER:     Sinclair DCJ

COUNSEL:
Appellant: D Milne QC / J Davidson
Respondent: D Rofe QC / B Hull

SOLICITORS:
Appellant: McClellands
Respondent: Malcolm Johns & Co

CATCHWORDS:
Motor vehicle accident
Failure to keep a proper lookout
Negligence
What constitutes reasonable care
Extent of duty of care

LEGISLATION CITED:

DECISION:
Dismissed with costs.

JUDGMENT:

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40883/98

MAEGHER JA
  BEAZLEY JA
  GILES JA

26 APRIL 2000

CHRISTOPHER MURPHY by his tutor THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES v JAN FURKA & ANOR

JUDGMENT

1. MEAGHER JA:  This is an appeal from a verdict for the defendant given by Sinclair ADCJ in favour of Mr Furka who was the driver of a taxi and Mr Hesek who was the owner.  The plaintiff in that case, the present appellant, is Mr Christopher Murphy who suffered the most deplorable injuries in that accident.

2. The date of the accident was 25 November 1994.  The accident took place in Flinders Street, Darlinghurst.  The first respondent was travelling north in Flinders Street.  There is a median strip in Flinders Street with three lanes of traffic on either side.  He was travelling north in the lane closest to the kerb which was on the passenger side.  That is usually referred to as lane Number One.  When I said he was travelling, the taxi was travelling north in Flinders Street.  The taxi was travelling at a speed which is difficult to calculate precisely.  There was evidence that it was somewhere between thirty and forty kilometres per hour, and other evidence that it was even slower.  His Honour found that the speed of the taxi was thirty-five kilometres per hour, and I can see no reason why one should disturb his Honour's finding in that regard.  The lane in which the taxi was travelling, as I have said, was lane one.  For various reasons the traffic was heavier in lanes two and three than it was in lane one, and also more slow-moving than it was in lane one. 

3. The lanes two and three had traffic which was stationary at the time of the accident.  The vision of the taxi driver to his right was, to a large extent, obliterated by large vehicles such as trucks.  This was to the extent that, as Mr Milne said, his vision virtually did not exist save for the gaps between stationary vehicles. 

4. The plaintiff, who because of his severe injuries was not in a position to give evidence, probably was moving from east to west across Flinders Street.  He must have got as far as the median strip and then passed between lanes three and two.  It is difficult, if not impossible, to make any rational inference as to the mode of his progress when he was crossing the street.  But in view of the fairly substantial impact he made on the taxi, I think it may perhaps be inferred that he was moving quickly rather than slowly.  In any event, he emerged from a gap in front of the stationary delivery van to the immediate right of the taxi.  At first the taxi driver, one of the respondents, did not see him. 

5. We know that there were two points of impact.  One was on the driver's side in the front of the taxi, at what has been referred to as the pillar.  The second one, that was a point of impact which the taxi driver did not actually see, but he heard and recorded it as a thump.  The next point of impact was when the unfortunate plaintiff's head appeared in front of the windscreen. 

6. Mr Milne, learned Senior Counsel for the plaintiff, in the course of a very able argument showed us photographs of the side of the vehicle and of the windscreen.  The side of the vehicle, as I have said, had a fairly substantial dent in it and the windscreen had a very visible area of shattered glass.  Mr Milne drew attention to evidence from other witnesses showing that Mr Murphy was thrown upside down so his feet were in the air and submitted that he landed on the front pillar and the windscreen of the taxi.  This seems to postulate a third and impossible point of collision.  I say impossible, in the sense that it is impossible on the facts of this case. 

7. There were, as far as the evidence goes before his Honour, two occasions of impact and two only.  One on the front of the bonnet of the taxi and the other on the windscreen.  Now in what way can it be said that the respondents were negligent?  The taxi driver's duty was a duty not to behave negligently, not to drive at an excessive speed, to drive at a reasonable speed and at all events to keep a proper lookout.  His Honour found, and I do not think this was really challenged or if so certainly not with any vigour, that the speed as I have said was thirty-five kilometres an hour.   I would find it difficult to see how such a finding could be challenged because if it were challenged, it would result in a situation where as a matter of law someone in the taxi driver's position would hardly be able to move at any speed at all without being held accountable for negligence.  That being so, the question arises was there evidence that the taxi driver did not keep a proper look out.

8. Mr Milne's argument seems to be that since the plaintiff appeared suddenly in front of the taxi, and since the taxi driver, on his own admission, did not see him that there must have been negligence.  If the taxi driver had been looking out properly he would have seen him.  That was the end of the question.  I do not think that this theory can be sustained.  To begin with, it disregards the fairly important fact that the plaintiff did not emerge in front of the taxi, when there was some chance of him being seen, but into the side of the taxi when there was less chance of being seen. 

9. The other fact it seems to disregard is that it would seem to pre-suppose that a driver who was fulfilling his primary duty of looking straight ahead of him would always be guilty of negligence if anything ran into the side of his vehicle.  Again, this is difficult to see how such a theory could operate unless the present law of negligence were turned on its head.

10. It is clear enough that, on the authorities which were quoted both by his Honour and by the respondents' counsel, the law is simple enough.  A driver must take reasonable care with his driving and that proposition entails a further proposition, that he must beware of the fact that pedestrians in crossing the road often behave irrationally.  But it is also clear that pedestrians can, in given circumstances, behave with such suicidal folly that no reasonable driver could ever anticipate their behaviour, and on the facts of this case I am afraid the plaintiff's behaviour falls within that latter category.  For those reasons I am of the view that the appeal should be dismissed with costs.

11. BEAZLEY JA:  I agree.

12. GILES JA:  I also agree.

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LAST UPDATED:    10/05/2000